2012 FCA 36, 2012 FCA 36

A-441-10 2012 FCA 36 TurnAround Couriers Inc. ( Applicant ) and Canada Post Corporation ( Intervener supporting the Applicant ) v. Canadian Union of Postal Workers ( Respondent ) Indexed as: TurnAround Couriers Inc. v. Canadian Union of Postal Workers Federal Court of Appeal, Blais C.J., Evans and Sharlow JJ.A.—Toronto, January 12; Ottawa, February 2, 2012.

Postal Services –– Judicial review to set aside Canada Industrial Relations Board decision holding that applicant providing postal service within meaning of Constitution Act, 1867 s. 91(5) , that operations thereof thus falling within competence of Parliament — Board holding having jurisdiction under Canada Labour Code to certify respondent as sole bargaining agent for applicant’s employees — Applicant, for-profit corporation, operating within central core of Toronto — Generally providing same-day delivery service — Applicant arguing that word “Postal Service” in Constitution Act, 1867 meaning Canada’s national postal service, currently provided by Canada Post Corporation; that as local undertaking, not regulated by Code — Whether applicant’s business falling within federal jurisdiction over “Postal Service” by virtue of Constitution Act, 1867, s. 91(5) — Applicant’s habitual activities, daily operations so local, limited in nature as to suggest that applicant not federal undertaking, could not be considered within federal jurisdiction — Board committing three errors in interpreting Constitution Act, 1867, s. 91(5) — As for words “Postal Service” in s. 91(5), choice of singular form of noun supporting applicant’s position that only one postal service existing in Canada — Applicant having none of essential characteristics of postal service examined herein — Considerations examined herein indicating that “Postal Service” in s. 91(5) referring to national delivery system — Therefore, applicant’s operations not constituting “Postal Service” for purpose of Constitution Act, 1867, s. 91(5) but rather local undertaking within meaning of s. 92(10) — Application allowed.

Constitutional Law — Distribution of Powers — Meaning of “Postal Service” in Constitution Act, 1867, s. 91(5) —

Interpretation of Constitution Act, 1867, s. 91(5) determinative of issue in dispute herein — Whether applicant’s locally operated business falling within federal jurisdiction over “Postal Service” by virtue of s. 91(5) — Text, context, purpose of provision in dispute considered in present case — Considerations examined herein indicating that “Postal Service” in s. 91(5) referring to national delivery system — Achievement of predictability, certainty being important goals in constitutional

interpretation, courts should avoid

interpretations requiring decision- makers to splice, dice discrete differences among companies — Applicant’s operations not constituting “Postal Service” for purpose of Constitution Act, 1867, s. 91(5) but rather local undertaking within meaning of s. 92(10) . This was an application for judicial review by the applicant, an employer, to set aside a decision of the Canada Industrial Relations Board holding that the applicant was providing a postal service within the meaning of subsection 91(5) of the Constitution Act, 1867 and that its operations therefore fell within the competence of Parliament.

As a result, the Board held that it had jurisdiction under the Canada Labour Code (Code) to certify the respondent as the sole bargaining agent for the applicant’s employees. The applicant is a for-profit corporation with a social mission to help “at-risk” youth. At the material time, it employed six bicycle couriers and two walkers. Most of their pick-ups and deliveries were within the central core of Toronto. The applicant generally delivered material on the same day that it was picked up, a service that the Canada Post Corporation (CPC) did not provide and was not within the terms of its statutory monopoly.

It has no connection of any kind with the CPC or any other inter-provincial delivery service. The Board certified CUPW as the bargaining agent for a unit comprising the couriers employed by the applicant. On reviewing the certification order, the Board held that, based on the record before it, the applicant was engaged in providing a postal service and that the provisions of the Canada Labour Code applied to the applicant’s operations.

The applicant argued that “Postal Service” means Canada’s national postal service, currently provided by CPC, a federal crown corporation and, previously by the Post Office, a department of the federal government. Since the applicant operates entirely within the province of Ontario, they are a local undertaking and, as such, its labour relations are not regulated by the Code .

The respondent argued that the applicant is providing a postal service within the meaning of subsection 91(5) of the Constitution Act, 1867 since it is doing something that Parliament could authorize the CPC to do as part of its monopoly over postal service, which is to offer a same-day local delivery service for letters and small packages. The issue was whether the applicant’s business of delivering time-sensitive material falls within federal jurisdiction over “Postal Service” by virtue of subsection 91(5) of the Constitution Act, 1867 . Held , the application should be allowed.

The applicant’s “habitual activities and daily operations” are so local and limited in nature as to suggest that the applicant is not a federal undertaking. The

interpretation of subsection 91(5) of the Constitution Act, 1867 was determinative of the issue in dispute. The applicant did not deliver letters and packages in Toronto pursuant to a contractual or any other kind of relationship with the CPC. Therefore, it could not be said that the applicant’s operations were within federal jurisdiction. The fact that the applicant was providing a service that was neither provided by the CPC nor within the scope of its statutory monopoly was not sufficient to make its operations integral to those of the CPC. The Board committed three errors in its approach to the

interpretation of subsection 91(5) of the Constitution Act, 1867 , which led it astray. First, it relied too heavily on paragraph 5(1)(

a) of the CPC Act which provides that the CPC is to operate “ a postal service” not

“the postal service” to support its conclusion that “Postal Service” in subsection 91(5) was not necessarily limited to the servicesprovided by the CPC. The provisions of legislation enacted under the head of power in question provide no more than context that mayshed some light on what the drafters of the Constitution intended. The terms of The Post Office Act 1867 enacted soon afterConfederation, were more relevant to determining the meaning of subsection 91(5) than the CPC Act.

Furthermore, the most importanttext for present purposes, subsection 91(5) itself, places no article, definite or indefinite, before the relevant head of federal power,“Postal Service.” Second, the Board stated that the term “Postal Service” should be interpreted broadly so as to include the postalservices provided by the applicant because of comments made in Reference re Minimum Wage Act of Saskatchewan.

While the breadthof the federal head of power under subsection 91(5) was emphasized in that case, there was no suggestion that the words “Postal Service”include services provided by private companies independently of the entity responsible for the national postal service. Third, the Boardwas apparently of the view that because paragraph 15(1)(

e) of the CPC Act exempts the delivery of urgent mail from the CPC’smonopoly, it must be a postal service. It is inconceivable that any of the activities exempted by subsection 15(1), if conducted whollywithin a province, fall under federal legislative competence. Regarding the

interpretation of the Constitution, the text, context and purpose of the provision in dispute were considered. Although notmuch could be inferred from the words “Postal Service” that had a bearing on the present debate, the choice of the singular form of thenoun provided some support for the applicant’s position that there is only one postal service in Canada. As for context, the meaning ofprovisions of the Constitution is not frozen in time; their text is to be interpreted in light of events after 1867. However, the historicalcontext from which the Constitution Act, 1867 emerged could assist in its

interpretation. Based on the essential characteristics of thepostal service throughout its history in Canada that were examined in this case, including that the service is universal and available to all,the applicant has none of the characteristics of a postal service. With respect to the purposes served by subsection 91(5) in conferringexclusive legislative competence on Canada regarding “Postal Service”, they were largely to be found in the essential characteristicsreferred to above.

The considerations examined herein indicated that “Postal Service” in subsection 91(5) refers to the national delivery system, which iscurrently either operated directly by the CPC or managed by it through contracts with other entities. Moreover, the

interpretation is easyto apply and does not require a case-by-case analysis to determine how much of a courier’s business is devoted to the collection anddelivery of mailable material and how much to other items. The achievement of predictability and certainty being important goals inconstitutional

interpretation, whenever possible, courts should avoid

interpretations that require decision makers “to splice and dicediscrete differences among companies”. Therefore, the applicant’s operations did not constitute “Postal Service” for the purpose of subsection 91(5) of the Constitution Act,1867. Rather, they are a local undertaking within the meaning of subsection 92(10) and are thus within provincial legislativecompetence. STATUTES AND REGULATIONS CITED Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2 “federal work, undertaking or business” (as am. by S.C. 1990, c. 44, s. 17; 1996, c. 31,s. 89; 1999, c. 28, s. 169), 18. Canada Post Corporation Act, R.S.C., 1985, c.

C-10, ss. 5(1)(a), 14, 15 (as am. by S.C. 2010, c. 12, s. 1885). Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91(5), 92(10). Post Office Act 1867, S.C. 1867, c. 10, ss. 7, 32. TREATIES AND OTHER INSTRUMENTS CITED Treaty concerning the formation of a General Postal Union, signed at Berne, October 9, 1874. CASES CITED applied: NIL/TU,O Child and Family Services Society v. B.C.

Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696,326 D.L.R. (4th) 21, [2010] 12 W.W.R. 402. considered: Reference re Minimum Wage Act of Saskatchewan, (SCC), [1948] S.C.R. 248, [1948] 3 D.L.R. 801, (1948), 91 C.C.C.566; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, 469 A.R. 50, 313 D.L.R.(4th) 285; Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers el al., (SCC), [1975] 1 S.C.R. 178,(1973), 40 D.L.R. (3d) 105, [1974] 1 W.W.R. 452; Canada Post Corp. v. Canada Union of Postal Workers, [1988] F.C.J.

No. 37 (C.A.)(QL); Critical Path Couriers Ltd., 2011 CIRB 604. referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1; T.O. Turtle Express Inc., 2010 CIRB LD 2365; L.D.J.V. Courrier Plus Inc. (2007), Order No. 9261-U; Intelcom Courier Canada Inc. (2003), Order No. 8561-U; Wilson v. Globex PlusMessenger Service, (O.L.R.B.); Kenjak (c.o.b. Aries Courier Services) (Re), [2005] M.L.B.D. No. 8 (QL); King(Re), [2005] B.C.E.S.T.D. No. 37 (QL). AUTHORS CITED

Campbell, Robert M. The Politics of the Post: Canada’s Postal System from Public Service to Privatization . Peterborough, Ont.: Broadview Press, 1994. Hogg. Peter W. Constitutional Law of Canada , 5th ed. supplemented. Toronto: Thomson/Carswell, 2007. APPLICATION for judicial review to set aside a Canada Industrial Relations Board decision ( 2010 CIRB 544 ) holding that the applicant was providing a postal service within the meaning of subsection 91(5) of the Constitution Act, 1867 and that its operations therefore fell within the competence of Parliament. Application allowed. APPEARANCES Roy C.

Filion, Q.C. and Deborah J. Hudson for applicant. John D. R. Craig and Trevor Guy for intervener. Zachary Green and Hart Schwartz for Attorney General of Ontario. Paul J. J. Cavalluzzo and Adrienne Telford for respondent. SOLICITORS OF RECORD Filion Wakely Thorup Angeletti LLP , Toronto, for applicant. Heenan Blaikie LLP , Toronto, for intervener. Attorney General of Ontario , Toronto, for Attorney General of Ontario. Cavalluzzo Hayes Shilton McIntyre and Cornish LLP , Toronto, for respondent.

The following are the reasons for judgment rendered in English by Evans J.A.: Introduction [ 1 ] The question to be decided in this case is whether a bicycle and pedestrian courier company is providing “Postal Service” within the meaning of subsection 91(5) of the Constitution Act, 1867 , 30 & 31 Victoria, c. 3 (U.K.) [(as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5]] by delivering time-sensitive letters and packages exclusively within Toronto. If it is, the company’s operations are subject to the laws enacted by Parliament and, as a federal undertaking or business within the meaning of

section 2 [as am. by S.C. 1990, c. 44, s. 17; 1996, c. 31, s. 89; 1999, c. 28, s. 169] of the Canada Labour Code , R.S.C., 1985, c. L-2 (Code), the Code applies to its labour relations.

However, if the company is not providing “Postal Service”, it is a local undertaking under subsection 92(10) of the Constitution Act, 1867 , and the laws of Ontario regulate its labour relations. [ 2 ] This question arises from an application for judicial review by an employer, TurnAround Couriers Inc. (TurnAround), to set aside a decision of the Canada Industrial Relations Board (Board), dated October 18, 2010 ( 2010 CIRB 544 ). [ 3 ] In that decision, the Board held that TurnAround was providing a postal service within the meaning of subsection 91(5) and that its operations therefore fell within the competence of Parliament.

As a result, the Board had jurisdiction under the Code to certify the Canadian Union of Postal Workers (CUPW) as the sole bargaining agent for TurnAround’s employees. [ 4 ] Canada Post Corporation (CPC) and the Attorney General of Ontario intervened in support of TurnAround’s application, which CUPW, the respondent, opposes. [ 5 ] There is almost no judicial authority, or academic commentary, on the meaning and application of subsection 91(5) , which provides as follows: Legislative Authority of Parliament of Canada 91.

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, — … 5.

Postal Service. … And any Matter coming within any of the Classes of Subjects enumerated in this

Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. [ 6 ] For the reasons that follow, I do not agree that TurnAround’s operations constitute “Postal Service” for the purpose of subsection

91(5), the only head of federal power that could apply to the present facts. Rather, they are a local undertaking within the meaning ofsubsection 92(10) of the Constitution Act, 1867, and are thus within provincial legislative competence. [7] Accordingly, I would grant the application for judicial review and set aside the Board’s decision, on the ground that the Boardhad no constitutional jurisdiction to certify CUPW as the bargaining agent for TurnAround’s employees. I have included as an Appendixto these reasons the statutory provisions to which I refer.

Factual Background [8] The relevant facts are not in dispute and can be stated briefly. TurnAround is a for-profit corporation with a social mission: toprovide “at-risk” youth with an opportunity to turn around their lives by offering them employment as couriers and in its office. Thecompany also provides interest-free loans to its employees to purchase bikes, helmets, locks, and maps, together with other forms ofassistance, including scholarships to those wishing to return to school.

Its aim is to help young people experiencing difficulties in life togain self-confidence and enter the mainstream economy. [9] At the material time, TurnAround employed six bicycle couriers and two walkers. Most of their pick-ups and deliveries werewithin the central core of Toronto. In addition, employees sometimes travelled by subway to collect or deliver mail and packages forcustomers further out in the Greater Toronto Area (GTA). TurnAround operated exclusively within Ontario. [10] TurnAround generally delivered material on the same day that it was picked up.

This is a service that the CPC did not provideand was not within the terms of its statutory monopoly. TurnAround had no contracts or any other connections with either the CPC or aninterprovincial carrier. [11] On June 8, 2010, the Board certified CUPW as the bargaining agent for a unit comprising the couriers employed by TurnAround:certification order No. 9879-U. TurnAround was self-represented at the Board hearing by its president.

No one questioned whether theBoard had the constitutional jurisdiction to deal with CUPW’s application for certification. [12] After the Board certified CUPW, TurnAround retained counsel who requested the Board to exercise its jurisdiction under section18 of the Code to review and rescind its order, on the ground that TurnAround’s operations were not subject to federal law and thecertification order was therefore beyond the constitutional limits of the Board’s jurisdiction. Decision of the Board [13] Despite objections by CUPW, the Board exercised its discretion under

section 18 of the Code to review the certification order.CUPW has not challenged this decision. [14] On the basis of written submissions from the parties on the constitutional law issue, the Board held that subsection 91(5) was theonly possible source of federal legislative competence over TurnAround’s operations. This was because, unlike national and internationalcourier companies such as FedEx and Purolator, TurnAround operated exclusively within a province and its activities were not integral toany interprovincial work or undertaking.

The sole question for the Board to decide, therefore, was whether TurnAround was providing apostal service within the meaning of subsection 91(5). [15] The Board noted at the outset of its analysis (at paragraph 27) that in Reference re Minimum Wage Act of Saskatchewan, (SCC), [1948] S.C.R. 248 (Minimum Wage Act Reference), at page 270, Justice Estey had stated that “Postal Service” insubsection 91(5) was “a phrase of the widest import”. [16] Turning to the Canada Post Corporation Act, R.S.C., 1985, c. C-10 (CPC Act), the Board observed that

section 15 [as am. byS.C. 2010, c. 12, s. 1885] limits CPC’s exclusive privilege under

section 14 of collecting, transmitting, and delivering letters withinCanada. In particular, paragraph 15(1)(

e) provides as follows: Exception15.

(1) The exclusive privilege referred to in subsection 14(1) does not apply to … (

e) letters of an urgent nature that are transmitted by a messenger for a fee at least equal to an amount that is three times theregular rate of postage payable for delivery in Canada of similarly addressed letters weighing fifty grams; [17] The Board based its decision largely on this provision, and the fact that a statutory object of the CPC is to establish and operate “apostal service”, not the postal service (CPC Act, paragraph 5(1)(a)) [emphasis added].

It reasoned (at paragraph 29) that Parliamentintended that the CPC would not necessarily be the sole provider of postal services: … and contemplated that other enterprises could and would be involved in the provision of postal services within the meaning of section91(5) of the Constitution Act. [18] The Board then examined the activities of TurnAround from a functional and practical perspective, and concluded (at paragraph33) that: … the pith and substance of TurnAround’s operations is the collection, transportation and delivery, for a fee, of small items capable ofbeing carried by someone on foot or on a bicycle.

The items that TurnAround deals with, generally letters and small packages, are clearly“mailable matter” within the meaning of the CPC Act. … But for their time sensitive nature, these are items that could be carried by CPCin the normal course of its operations. [19] On the basis of the record before it, and distinguishing the few decisions (mainly by labour boards) cited to it, the Board held (atparagraph 37) that:

… TurnAround is engaged in providing a postal service and thus its operations fall within the legislative competence of the Parliament ofCanada pursuant to section 91(5) of the Constitution Act. The provisions of the Code therefore apply to TurnAround’s operations and theBoard had the requisite jurisdiction to issue certification order No. 9879-U.

Issue [20] The issue to be decided in this case is whether TurnAround’s business of delivering time-sensitive material falls within federaljurisdiction over “Postal Service” by virtue of subsection 91(5) of the Constitution Act, 1867. [21] In a nutshell, TurnAround and the interveners argue that “Postal Service” means Canada’s national postal service, currentlyprovided by CPC, a federal crown corporation, and previously by the Post Office, a department of the federal government.

Since itoperates entirely within the province of Ontario, they submit that TurnAround is a local undertaking and, as such, its labour relations arenot regulated by the Code. CUPW, on the other hand, says that TurnAround is providing a postal service within the meaning ofsubsection 91(5) because it is doing something that Parliament could authorize the CPC to do as part of its monopoly over postal service:offer a same-day local delivery service for letters and small packages. Analysis (

i) Preliminary matters [22] First, correctness is the applicable standard of review because the principal question before the Board involved the

interpretationof subsection 91(5) of the Constitution Act, 1867: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 58.However, the findings of fact on which the Board based its decision are entitled to deference, despite their constitutional significance:Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 (Fastfrate), at paragraph 26.

Inthe present case, the accuracy of the Board’s findings of fact is not in dispute. [23] Second, there is a constitutional presumption that labour relations are within provincial legislative competence and the situationsfalling within federal jurisdiction are exceptional and limited in scope: Fastfrate, at paragraphs 27–28; NIL/TU,O Child and FamilyServices Society v. B.C.

Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696 (NIL/TU,O), at paragraph 11. (ii) The functional test [24] NIL/TU,O reminds us (at paragraph 3) that an analysis of whether the regulation of the labour relations of an employer fallswithin federal or provincial jurisdiction starts with: … an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federalundertaking.

This inquiry is known as the “functional test”. [25] TurnAround’s business involves the collection, transportation and delivery, for a fee, of time-sensitive letters and small packagesexclusively within the GTA. An item is generally delivered on the same day that it is collected. TurnAround has no connection of anykind with the CPC or any other interprovincial delivery service.

Its “habitual activities and daily operations” are so local and limited innature as to suggest that TurnAround is not a federal undertaking. [26] Only if these activities constitute the provision of “Postal Service” within the meaning of subsection 91(5) will TurnAround’slabour relations be subject to federal law. The parties agree that the

interpretation of subsection 91(5) will be determinative of the issuein dispute.

Thus, if “Postal Service” in subsection 91(5) means, as TurnAround argues, the national postal service, it is clear that theBoard had no constitutional jurisdiction to grant CUPW’s certification request. [27] In the particular circumstances of this case, it is not relevant to undertake the next step in the analytical framework established bythe majority in NIL/TU,O (at paragraph 3): a determination of whether the provincial regulation of TurnAround’s labour relations wouldimpair the “core” of the federal power with respect to postal service.

However, were such an inquiry necessary, the “core” of Canada’sexclusive power over postal service would not, in my view, be impaired if TurnAround’s labour relations were regulated by provinciallaw. (iii) Subsection 91(5) (

a) Jurisprudence [28] As I have already indicated, the question raised in this case appears to be one of first impression. True, both provincial labourrelations boards and the Board have assumed jurisdiction over same-day courier companies. See, for example, decisions of the Boardcertifying CUPW as the bargaining agent: T.O. Turtle Express Inc., 2010 CIRB LD 2365; L.D. J.V. Courrier Plus Inc. (2007), Order No.9261-U; Intelcom Courier Canada Inc. (2003), Order No. 8561-U. And for examples of orders by provincial boards applying provincialemployment standards legislation to employees, see Wilson v.

Globex Plus Messenger Service, (O.L.R.B.); Kenjak(c.o.b. Aries Courier Services) (Re), [2005] M.L.B.D. No. 8 (QL); King (Re), [2005] B.C.E.S.T.D. No. 37 (QL). However, it appearsthat in no previous case has the constitutional issue been considered. [29] However, the constitutional issue has been raised in connection with businesses providing a delivery service under a contract withthe CPC. For example, in Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers el al., (SCC), [1975]1 S.C.R. 178, an employer had contracted with the Post Office to deliver and collect mail.

The Court held that the labour relations of thetruck drivers employed by the employer were governed by the Canada Labour Code and that the Labour Relations Board ofSaskatchewan had exceeded its constitutional jurisdiction when it certified the respondent union as their bargaining agent. [30] Similarly, in Canada Post Corp. v. Canada Union of Postal Workers, [1988] F.C.J. No. 37 (C.A.) (QL), this Court dismissed theargument that the Canada Labour Relations Board had exceeded the constitutional limits of its jurisdiction by finding that there had been

a sale of a business when a post office operated by the CPC in a shopping mall closed, and a new post office operated by a drug store in the same mall opened. [ 31 ] The basis of the decisions in these cases, and others like them, is that the activities of the employers were integral to the work of either the Post Office, or its successor the CPC, because they provided services pursuant to contracts.

Accordingly, the activities of the employers fell within subsection 91(5) . [ 32 ] In the present case, TurnAround did not deliver letters and packages in Toronto pursuant to a contractual or any other kind of relationship with the CPC. Therefore, on the basis of the above decisions it cannot be said that TurnAround’s operations were within federal jurisdiction. The fact that TurnAround was providing a service that was neither provided by the CPC nor within the scope of its statutory monopoly is not sufficient to make its operations integral to those of the CPC. (

b) Interpretation of subsection 91(5) 1. Errors of the Board [ 33 ] In my respectful view, the Board committed three errors in its approach to the

interpretation of subsection 91(5) which led it astray. First, it relied too heavily on paragraph 5(1)(

a) of the CPC Act which provides that the CPC is to operate “ a postal service”[emphasis added] not “ the postal service”, to support its conclusion that “Postal Service” in subsection 91(5) was not necessarily limited to the services provided by the CPC. [ 34 ] The provisions of legislation enacted under the head of power in question provide no more than context that may shed some light on what the drafters of the Constitution intended. The terms of The Post Office Act 1867, S.C. 1867, c. 10, enacted soon after Confederation, are more relevant to determining the meaning of subsection 91(5) than the CPC Act , enacted more than a hundred years later.

Section 7 of The Post Office Act 1867 established a Post Office Department for the “superintendence and management of the Postal Service of Canada” [emphasis added], while

section 32 conferred on it, subject to some limited exceptions, a broad “exclusive privilege” to collect, convey and deliver letters within Canada. Furthermore, the most important text for present purposes, subsection 91(5) itself, places no article, definite or indefinite, before the relevant head of federal power, “Postal Service”. [ 35 ] Second, the Board stated that the term “Postal Service” should be interpreted broadly so as to include the postal services provided by TurnAround, because Estey J. said in the Minimum Wage Act Reference case (at page 270) that they are words of “the widest import”.

Hence, they should be interpreted to include postal services provided by entities other than the CPC. [ 36 ] I do not agree. When Estey J.’s observation is read in context, it does not have the meaning attributed to it by the Board.

He said (at page 270): The phrase “Postal Service” does not appear to have been generally used prior to Confederation, but the business of the Post Office as then conducted, the use of the phrase “Postal business and arrangements” in the Post Office Act (Can.22 Vict., c. 31, s. 14(16)), indicate that the Imperial Parliament in adopting the phrase “Postal Service”, — a phrase of the widest import—in the B.N.A.

Act , section 91(5), intended that it should be construed as sufficiently comprehensive to include all the accommodations and facilities provided by the Post Office. [ 37 ] The issue in the Minimum Wage Act Reference was whether Saskatchewan’s minimum wage legislation applied to an employee in the post office in Maple Creek, Saskatchewan. It was argued that the legislation applied because no analogous federal legislation had been enacted with respect to employees of the Post Office.

The Court rejected this argument, on the ground that provincial legislation that encroached upon the federal head of power over Postal Service was invalid, whether or not Parliament had exercised its legislative power to the fullest extent and dealt with the subject-matter of the provincial statute in the federal sphere. [ 38 ] In the passage quoted above, Estey J. was emphasizing the breadth of the federal head of power under subsection 91(5), stating that it covers all the services and accommodations provided by the Post Office, including, as relevant to that case, the operation of local post offices.

There is no suggestion here that the words “Postal Service” include services provided by private companies independently of the entity responsible for the national postal service. If anything, the quotation supports TurnAround because Estey J. stated that “Postal Service” in subsection 91(5) should be construed as referring to all the services provided by the Post Office . [ 39 ] Third, the Board seems to have thought that because paragraph 15(1)(

e) of the CPC Act exempts the delivery of urgent mail from the CPC’s monopoly, it must be a postal service. On this reasoning, entities engaged in any of the other activities exempted by subsection 15(1) would also be providing postal service within the meaning of subsection 91(5), including the delivery of inter-office mail (paragraph 15(1)( g )) and the service of process or a writ (paragraph 15(1)( b )). In my view, it is inconceivable that these activities, if conducted wholly within a province, fall under federal legislative competence. 2. Interpretative principles [ 40 ] The

interpretation of the Constitution, like that of legislation, is based on the text, context and purpose of the provision in dispute, as well as on principles associated particularly with constitutional

interpretation, such as the “living tree” doctrine: see generally Peter W.

Hogg, Constitutional Law of Canada , 5th ed. supplemented (Toronto: Thomson/Carswell, 2007) (Hogg), at paragraphs 15.9, 60.1. [ 41 ] Text : Not much can be inferred from the words “Postal Service” that bears on the present debate, although the choice of the singular form of the noun provides some support for TurnAround’s position that there is only one postal service in Canada, not as many as there are individuals providing some of the services that the CPC could provide. [ 42 ] It might be suggested that if the drafters had intended subsection 91(5) to connote a single postal service, they could have conferred legislative authority on Parliament with respect to the Post Office.

In 1851, Britain relinquished responsibility for the postal system in Canada and it was placed in the hands of the provinces, which operated four postal systems until 1867. As Robert M. Campbell observes in The Politics of the Post : Canada’s Postal System from Public Service to Privatization (Peterborough: Broadview Press, 1994)

( The Politics of the Post ), at page 27: As a national concern – like currency and customs – postal authority was assigned exclusively to the federal government at Confederation. [ 43 ] However, this is not a particularly strong point for CUPW, because the federal head of power is with respect to postal service, not the entity that delivers it. [ 44 ] Context: The meaning of provisions of the Constitution is not frozen in time; their text is to be interpreted in light of events after 1867, including major societal, economic, and technological developments: Hogg, 15.9(f), 60.1(e), (f).

However, as noted above, the historical context from which the Constitution Act, 1867 emerged may assist in its

interpretation. [ 45 ] It may be inferred that the drafters of the Constitution Act, 1867 intended “Postal Service” in subsection 91(5) to be the national postal system, which, in the same year, Parliament created the Dominion Post Office to administer. Replacing the four postal systems previously operated by the provinces with a single national system would facilitate the delivery of mail beyond provincial boundaries. [ 46 ] A helpful

summary of the history of the postal service in Canada, as well as the organization of a world postal service, is provided in the affidavit of Dr. Robert Campbell, a political scientist and public policy analyst specializing in postal economics and policy: see CPC’s application record, at pages 7–28; and The Politics of the Post , chapters 1 and 2. What follows is taken largely from that affidavit and is not controversial. Dr. Campbell’s affidavit describes the essential characteristics of the postal service throughout its history in Canada, as well as in other countries: CPC’s application record, at pages 21–22.

They include the following. [ 47 ] First, the service is universal and available to all. In other words, the CPC must collect mail from anywhere in Canada and deliver it to any address in Canada, and must accept any items up to a certain weight that customers want to have delivered. [ 48 ] Second, the service is affordable by all. In particular, the cost of the service does not depend on the remoteness of the location to which mail is to be delivered.

In practice, this means that postal service in high-density areas subsidises the service provided in areas that are less populated and further removed from the major conurbations. [ 49 ] Third, the service requires a national operational network in order to discharge the obligations of universal service, availability, and affordability.

The network includes post offices and sorting plants, a national system of addresses and postal codes, and a payment system (generally a system of prepayment through the sender’s purchase of the necessary stamps). [ 50 ] Fourth, the postal service must be operated or regulated by a national, governmental entity in order to ensure that the necessary requirements of a national service are in place and the network supporting it is working properly. Currently, the CPC, a Crown corporation, performs this role.

Even if Parliament decided to turn the operational functions of the CPC over to one or more commercial corporations, a public authority would still be required to regulate the service in order to ensure that it retained the defining attributes of a national postal service, thereby discharging Canada’s international obligations. [ 51 ] Fifth, in order to facilitate the international transmission and delivery of mail, the Treaty of Berne of 1874 [Treaty concerning the formation of a General Postal Union, signed at Berne, October 9, 1874] established the General Postal Union, subsequently called the Universal Postal Union (UPU) (Campbell affidavit, CPC’s application record, at page 17): The UPU’s formation integrated a series of national postal services into one coherent and remarkably efficient and effective international postal service.

The UPU is now an agency of the United Nations. Only a national service can discharge Canada’s international obligation to meet the postal service standards established by the UPU. [ 52 ] It hardly needs saying that TurnAround has none of these characteristics of a postal service. [ 53 ] Purposes: The purposes served by subsection 91(5) in conferring exclusive legislative competence on Canada with respect to “Postal Service” are to be found largely in the characteristics described above.

A national postal service was a necessity for the economic development of Canada, and performed an important nation-building role: see CPC’s application record, at pages 44–49; The Politics of the Post , at pages 27–32. These purposes could only be achieved by vesting the necessary legislative authority in the federal Parliament. 3.

Application to this case [ 54 ] The considerations examined above in my opinion indicate that “Postal Service” in subsection 91(5) refers to the national delivery system, which is currently either operated directly by the CPC or managed by it through contracts with other entities. [ 55 ] In addition, this

interpretation is easy to apply and, unlike the position advanced by CUPW, does not require a case-by-case analysis to determine how much of a courier’s business is devoted to the collection and delivery of mailable material, and how much to other items. Thus, for example, in Critical Path Couriers Ltd ., 2011 CIRB 604 , at paragraph 20 , the Board distinguished its decision in the present case on the ground that, unlike TurnAround, Critical Path specialized in the delivery of material that, because of it size or nature, was not mailable. [ 56 ] The achievement of predictability and certainty are important goals in constitutional

interpretation. Hence, whenever possible, courts should avoid

interpretations that require decision makers “to splice and dice discrete differences among companies”: Fastfrate , at paragraph 46. Conclusions [ 57 ] For these reasons, I would grant the application for judicial review with costs to TurnAround, set aside the Board’s decision, and

quash certification order No. 9879-U on the ground that it was beyond the constitutional jurisdiction of the Board. Blais C.J.: I agree. Sharlow J.A.: I agree. APPENDIX A The Post Office Act 1867, S.C. 1867, c. 10 Post Office Department 7. There shall be at the Seat of Government of Canada a Post Office Department for the superintendence and management of the Postal Service of Canada, under the direction of a Postmaster General. … Except in certain cases no one but the Postmaster General, to collect, convey and deliver letters in Canada on pain of a fine of $29. 32.

Subject always to the provisions and regulations aforesaid, and the exceptions hereinafter made, the Postmaster General shall have the sole and exclusive privilege of conveying, receiving, collecting, sending and delivering letters within Canada ;—And (except in the cases hereinafter excepted) any person who collects, send, conveys or delivers or undertakes to convey or deliver any letter within Canada, or who receives or has in his possession any letter for the purpose of conveying or delivering it, otherwise than in conformity with this Act , shall, for each and every letter so unlawfully conveyed or undertaken to be conveyed, received, delivered or found in his possession, incur a penalty not exceeding twenty dollars : The exceptions But such exclusive privilege, prohibition and penalty shall not apply to— Letters sent by a private friend in his way, journey or travel, provided such letters be delivered by such friend to the party to whom they are addressed ; Letters sent by a messenger on purpose, concerning the private affairs of the sender or receiver ; Commissions or returns thereof, and affidavits or writs, process or proceedings or returns thereof, issuing out of a Court of Justice ; Letters addressed to a place out of Canada and sent by sea and by a private vessel ; Letters lawfully brought into Canada, and immediately posted at the nearest Post Office ; Letters of merchants, owners of vessels of merchandize, or of the carge or loading therein, sent by such vessel of merchandize, or by any person employed by such owners for the carriage of such letters according to their respective addresses,—and delivered to the persons to whom they are respectively addressed, without pay, hire, reward, advantage or profit for so doing ; Letters concerning goods or merchandize sent by common known carriers to be delivered with the goods to which such letters relate, without hire or reward, profit or advantage for receiving or delivering them; But nothing herein contained shall authorize any person to collect any such excepted letters for the purpose of sending or conveying them as aforesaid,—or shall oblige any person to send any Newspaper, Pamphlet or Printed Book by Post.

Canada Post Corporation Act , R.S.C., 1985, c. C-10 Objects 5.

(1) The objects of the Corporation are (

a) to establish and operate a postal service for the collection, transmission and delivery of messages, information, funds and goods both within Canada and between Canada and places outside Canada; … Exclusive privilege 14.

(1) Subject to

section 15, the Corporation has the sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada. …

Exception 15.

(1) The exclusive privilege referred to in subsection 14(1) does not apply to … (

b) commissions, affidavits, writs, processes or proceedings issued by a court of justice; … (

e) letters of an urgent nature that are transmitted by a messenger for a fee at least equal to an amount that is three times the regular rate of postage payable for delivery in Canada of similarly addressed letters weighing fifty grams; … (

g) letters concerning the affairs of an organization that are transmitted between offices of that organization by an employee thereof; Canada Labour Code , R.S.C., 1985, c. L-2

Definitions 2. In this Act , “federal work, undertaking or business” « entreprises fédérales » “federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament … … Review or amendment of orders 18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.