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Statement by FCM President Clark Somerville on Ontario Court of Appeal decision on rights-of-way management (19/10/2016)

This morning, the Court of Appeal for Ontario issued a decision in the dispute between the City of Hamilton and Canada Post Corporation (Canada Post Corporation v. City of Hamilton, 2016 ONCA 767). 

Although this case stemmed from the installation of community mailboxes, it did not deal with the elimination of door-to-door delivery. At its heart was a municipality's constitutional authority to manage streets and public rights-of-way for the benefit of all users and local taxpayers. At street level, above and below grade, any number of utilities, vehicles, pedestrians, cyclists, businesses and public services rely on access to these vital corridors. Balancing these interests is a fundamental aspect of municipal infrastructure management.

The City of Hamilton's position was that municipalities have the constitutional authority to reasonably regulate their road allowance to ensure public safety and the smooth operation of these economically crucial spaces. The City argued that, in doing so, it could apply minimum standards to community mailboxes without undermining Canada Post's authority to determine how mail is delivered. The City had requested and received formal support from FCM in defence of these long-standing principles for municipal rights-of-way management and cost recovery. FCM's intervention was funded through the FCM Rights-of-Way Legal Defence Fund

The Court denied Hamilton's appeal and FCM is disappointed with this outcome. However, with one exception, the Court agreed with all positions put forward by the City. Recognizing the importance of managing these congested spaces, the Court concluded that Hamilton's bylaw was entirely within its constitutional authority. In other words, Hamilton had every right to legislate the use of the right-of-way as it did-a significant finding for municipalities across Canada.

The only point where the Court had difficulty relates to federal postal regulations. The Court read these regulations as giving Canada Post final word on locations of individual mailboxes. In the Court's view, this created a direct conflict with Hamilton's bylaw and-under the principle of federal paramountcy, the federal authority renders the local bylaw inoperative. As this area of the law evolves in light of recent constitutional jurisprudence, it remains to be seen whether this characterization of a "conflict" in this specific case might prove problematic in other contexts.

FCM will continue to defend the constitutional rights of local governments through legal interventions on issues of broad national interest to Canada's municipalities. FCM now awaits the decision of Hamilton City Council on a possible appeal to the Supreme Court of Canada. 

FCM has long maintained that meaningful consultation must take place between local governments and Canada Post. The need to weigh local considerations when assessing locations has not disappeared. Municipalities are the only level of government with direct knowledge of the competing interests at any given location, and cooperation must continue to avoid generating conflicts and unacceptable risks for the public and other rights-of-way users.

 

FCM is the national voice of municipal government. In leading the municipal movement, FCM works to align federal and local priorities, recognizing that strong hometowns make for a strong Canada.

Page Updated: 24/10/2016