Day 2 of mailbox case: City grilled on Canada Post bylaw

A judge grilled the attorney representing the city of Hamilton in court Wednesday, asking why, if it wanted some input on the placement of mailboxes, it didn't just give that input to Canada Post when the postal service asked for it last fall. 

Outside the bylaw, there's nothing to stop the city from consulting with Canada Post, correct?- Justice Alan Whitten

Justice Alan Whitten asked if the city's bylaw was about the city wanting to assert some control over the federal corporation, and if the move had been motivated by the council's expressed dislike for the new mailboxes as a mode of postal service anyway.

"Do you need this layer of bureaucracy?" Whitten said. "You're creating a level that seems unnecessary." 

There is "intense" competition for the uses of public roadways," said Justyna Hidalgo, an attorney for the city of Hamilton.The city just wants to have a central, formal process for facilitating "convenience, safety and accessibility" for city residents," she said.

"This is not a case of control, nor is this a political exercise."

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The city argued Tuesday it owns the roads and is responsible for the oversight of equipment installed on them. The city can use its existing bylaws to review each location to help ensure that mailboxes aren't installed too close to fire hydrants or blocking driveways, Hidalgo said.

"It's not some subjective decision," she said.

But could the city have achieved its goal of having "meaningful input" without inserting the bylaw, like the city of Oakville? If so, it's unclear if it's too late to give that input to the postal service, which has begun installing the mailboxes on the Mountain.

"Outside the bylaw, there's nothing to stop the city from consulting with Canada Post, correct?" Whitten asked.

"No," Hidalgo said, "but Canada Post indicated yesterday that ship has pretty much sailed."

1,145 proposed super mailbox locations

The city's fight has been closely watched and supported by other municipalities in Ontario and around the country that want more say about how the postal service installs community mailboxes as it phases out door-to-door delivery. The city of Aurora passed a bylaw Tuesday night that will require Canada Post to apply for a permit in that city.

But the city's refusal to engage in the Canada Post process last fall has been part of the postal service's argument:

We're been trying to get your input on where mailboxes would go, and you're not engaging. 

In September, the postal service sent the city 1,145 proposed locations for super mailboxes. The city saw that as a monumental task to review, and city council directed its staff to set up a formal process, which would ultimately include a $200 fee to cover staff time, to review. That process was codified in the city's bylaw, which Canada Post is requesting be struck down by the judge. 

When Canada Post went forward without filing the permits and paying the fees mandated by the city bylaw, the city didn't review those 1,145 locations. And so, Hidalgo said, the city doesn't know whether those proposed locations meet the standards its bylaws would mandate.

The city acknowledges that Canada Post has the right to mail delivery, and that the city doesn't have a right to prohibit its actions. But, Hidalgo said, the city maintains the roads and therefore has a right to regulate them.

Why a separate process?

The judge asked Hidalgo, if other cities have been successful in suggesting changes and tweaks to mailbox locations, and Canada Post has a "track record" of making changes, why did the city of Hamilton need to formalize its way of communicating with the postal service?

Canada Post has argued the bylaw grants vague and significant discretion to city staff. 

Hidalgo admitted that the consultation process Canada Post tried to initiate in the fall meant that some city input "could occur" without the bylaw.

But, she said, the city wanted to formalize its process to make sure it would occur. The bylaw process would help the city spot more problems on the front end that filing the city's permits could help address, she said.

Why do you need your own process? the judge asked again.

"Your honour, I can't answer that," Hidalgo answered. "It was in council's opinion that this was the best way to address this process." 

"Is it fair to say that council just don't like" the end of door-to-door delivery? Whitten asked. "Do you think that was the starting premise?" 

"It certainly wasn't the premise for the bylaw," Hidalgo said. 

The city has more arguments to make in the next court hearing, which will be next Thursday at 10 a.m. Whitten said he will take a minimum of two weeks to make a decision.