T-2228-78
Bartholomew Green 1751 Association Incorpo
rated carrying on business as The Canadian Peri
odical Publishers' Association, and The Survival
Foundation, carrying on business as The Canadian
Forum (Plaintiffs)
v.
Attorney General of Canada (Defendant)
Trial Division, Cattanach J.—Toronto, June 28,
July 6 and 7; Ottawa, August 2, 1978.
Crown — Post Office — Postal rates increased by Regula
tions SOR/72-297 and SOR/72-298 made pursuant to Order
in Council P.C. 1978-883 by virtue of s. 13(6) of Financial
Administration Act — Increases previously established by
amendments to Post Office Act — Whether Order in Council
P.C. 1978-883 delegating authority to Postmaster General to
make regulations increasing rates is ultra vires the Governor in
Council — Whether regulations are invalid, not being author
ized by Post Office Act — Post Office Act, R.S.C. 1970, c.
P-14, ss. 6(d), 10, 11 — Financial Administration Act, R.S.C.
1970, c. F-10, s. 13 — Order in Council P.C. 1978-883
(SI/78-60) — Domestic First Class Mail Regulations, SOR/
78-297 Second Class Mail Regulations, SOR/78-298
Evidence — Reports of Standing Committee ruled inadmiss
ible because of subsequent statements of opinion or belief.
Leave was granted for a special case to be heard in lieu of
trial in accordance with Federal Court Rule 475. This was an
action brought by plaintiffs against defendant for (a) a declara
tion that the amendments to Domestic First Class Mail Regu
lations, SOR/78-297 and amendments to Second Class Mail
Regulations, SOR/78-298 are invalid because they are not
authorized by the Post Office Act and (b) a declaration that
the Postmaster General Authority to Prescribe Fees Order,
SI/78-60 promulgated pursuant to paragraph 13(b) of the
Financial Administration Act is ultra vires the Governor in
Council. The plaintiffs argued that (1) section 13 of the
Financial Administration Act has no application to postal rates
because the service provided by the Post Office is not a
"service" within the meaning of that word as used in section 13
of that Act in that it is not made available to identifiable
persons who request that service; (2) section 13 is restricted to
a service "provided by Her Majesty" and that term does not
embrace "Postmaster General" and (3) the rates specifically
prescribed by sections 10 and 11 of the Post Office Act prevail
over the general provisions of section 13 of the Financial
Administration Act and the regulations subsequently made by
the Postmaster General under that section. The plaintiffs
sought to introduce as evidence certain Parliamentary Reports
of Standing Committees in support of their action.
Held, the questions are answered in the negative and the
plaintiffs' action is dismissed. (1) According to dictionary
definition and a review of legislative history "service" means
the "supply of needs of persons" and the exercise of postal
activities is encompassed within the word "service" as used in
its ordinary sense of supplying the needs of persons in Canada
who wish to have letters and other mailable material delivered
to addresses on that material. (2) A review of legislative history
and case law makes the second contention of the plaintiffs
untenable. Since the Postmaster General is a Minister of the
Crown and a servant of the Crown, postal service falls within
the initial words of section 13 as a service or facility provided
by Her Majesty through her servants. (3) The familiar doctrine
is that general provisions do not repeal specific ones unless
there is a clear intention to do so. What Parliament has done in
effect is to provide two means of effecting an increase in the
rates of postage. Section 6(d) of the Post Office Act as
amended has limited application. It provides that the Postmas
ter General may establish rates of postage on any class of
mailable matter, including letter mail, not otherwise established
in the Post Office Act. Section 11 exhausts that au
thority with respect to Canadian newspapers and periodicals
and section 10 exhausts that authority except with respect to
letters over 16 ounces. The two means available to increase
postage rates are (a) Parliament could amend sections 10 and
11 of the Post Office Act and (b) Parliament has provided by
section 13 of the Financial Administration Act that the Gover
nor in Council may by order in council authorize the Postmas
ter General to do likewise. Both are available means, the second
countenanced by Parliament to accomplish the same end. The
second method was adopted with the blessing of Parliament
because it was made available by Parliament. The Reports of
the Standing Committee may well have decried the policy of
political expediency by abandoning the tradition of establishing
postal rates by Parliament and delegating that author
ity. The proper remedy lies with Parliament and the Court's
function is to determine only the validity of the delegated
legislation. The Reports would be admissible if they were
antecedent to the enactment of the statute and are for the
purpose of determining the legislative intent for the purpose of
the construction of the statute. Here the Reports are subse
quent to the enactment and contain statements of opinion and
belief. They are inadmissible in evidence.
Reference as to the Applicability of the Minimum Wage
Act (Sask.) to an Employee of a Revenue Post Office
[1948] S.C.R. 248, followed. Fraser v. Balfour [1918]
L.J.K.B. 1116, applied. Lane v. Cotton [1701] 91 E.R.
1332, followed. Whitfield v. Lord le Despencer [1778] 98
E.R. 1344, followed. Bainbridge v. Postmaster General
[1906] 1 K.B. 178, followed. Postmaster General v. Rob-
ertson (1878) 41 U.C.Q.B. 375, followed. Treifus & Co.,
Ltd. v. Post Office [1957] 2 All E.R. 387, referred to.
ACTION.
COUNSEL:
Andrew Kerekes for plaintiffs.
G. W. Ainslie, Q.C., and Deen C. Olsen for
defendant.
SOLICITORS:
Kerekes & Collins, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By notice of motion dated May
31, 1978 the defendant, with consent of the plain
tiffs, applied for leave to set down for hearing a
special case in the terms as attached to the notice
of motion in lieu of trial in accordance with Rule
475 of the Federal Court Rules.
By order dated June 5, 1978 the Associate Chief
Justice granted leave to set down for hearing the
special case as appended to the notice of motion.
The special case so set down for hearing reads as
follows:
SPECIAL CASE
Special Case formulated for the opinion of the Court pursu
ant to Rule 475.
This is an action brought by the Plaintiffs against the
Attorney General of Canada for
a) a declaration that the amendments to the Domestic First
Class Mail Regulations, SOR/78-297, and the amendments
to the Second Class Mail Regulations, SOR/78-298, are
invalid because they are not authorized by the Post Office
Act, R.S.C. 1970, c. P-14, as amended.
b) a declaration that the Postmaster General Author
ity to Prescribe Fees Order, SI/78-60 promulgated pursuant
to paragraph 13(b) of the Financial Administration Act, is
ultra vires the Governor General in Council.
STATEMENT OF FACTS
1. Attached hereto as Exhibit "A" is a true copy of an Order in
Council made by the Governor in Council on the 23rd day of
March 1978 (PC 1978-883, registered on the 12th day of April
1978 as SI/78-60 and published in Canada Gazette Part II,
Vol. 112 at p. 1411).
2. Attached hereto as Exhibit "B" is a copy of the regulation
made by the Postmaster General on the 29th day of March
1978 (and registered on the 29th day of March 1978 as
SOR/78-297 and published in Canada Gazette Part II, Vol.
112 at p. 1337).
3. Attached hereto as Exhibit "C" is a copy of the regulation
made by the Postmaster General on the 29th day of March
1978 (and registered on the 29th day of March 1978 as
SOR/78-298 and published in the Canada Gazette Part II,
Vol. 112 at p. 1340).
4. The Plaintiff reserves the right to refer to Hansard whilst
the Defendant reserves the right to object thereto.
QUESTIONS FOR OPINION OF COURT
The questions for the opinion of the Court are whether
i) the amendments made to the Domestic First Class Mail
Regulations by SOR/78-297 and the amendments made to
the Second Class Mail Regulations by SOR/78-298 are
invalid because they had not been authorized by the Post
Office Act, R.S.C. 1970 c. P-14; and
ii) the Order in Council, P.C. 1978-883, enacted by the
Governor in Council on the 23rd day of March 1978 and
registered as SI/78-60 is ultra vires the Governor in Council.
If the Court shall be of opinion in the positive to either
question, then a declaration is to be given along the lines of the
question or questions answered in the affirmative with costs to
the Plaintiff.
If the Court shall be of opinion in the negative to either or
both the questions, then in respect of the questions answered in
the negative, the action is to be dismissed with costs.
Anticipatory of what must follow it is expedient
at this time to reproduce sections 6, 10 and 11 of
the Post Office Act as presently effective as enact
ed by c. 23, R.S.C. 1970 (2nd Supp.), section 13 of
the Financial Administration Act, R.S.C. 1970, c.
F-10, Order in Council P.C. 1978-883 dated
March 23, 1978 pursuant to section 13(b) of the
Financial Administration Act and the amend
ments made by the Postmaster General to the
Domestic First Class Mail Regulations, SOR/78-
297 on March 29, 1978 and to the Second Class
Mail Regulations, SOR/78-298, also on March
29, 1978 both amendments being made pursuant
to Order in Council P.C. 1978-883.
It will also be expedient to trace the legislative
history of the pertinent sections of the Post Office
Act and the Financial Administration Act cul
minating in the sections thereof as presently in
effect.
I. Section 6 of the Post Office Act, R.S.C. 1970, c.
P-14, reads in part as follows:
6. The Postmaster General may make regulations for the
efficient operation of the Canada Post Office and for carry
ing the purposes and provisions of this Act into effect, and,
without restricting the generality of the foregoing, may
make regulations
(d) establishing rates of postage on any class of mailable
matter for which a rate is not established by this Act;
By section 2(1) R.S.C. 1970 (2nd Supp.), chap
ter 23, section 6(d) was repealed and the following
substituted therefor:
(d) establishing rates of postage on any class of mailable
matter, including letter mail, for which a rate is not
established by this Act;
The effect was an amendment to section 6(d) as
it formerly read by inserting the words "including
letter mail" immediately following the words
"mailable matter".
II. The history of section 10 of the Post Office Act
dealing with the rate of postage on first class mail
since R.S.C. 1952 is as follows:
(a) section 10, chapter 212, R.S.C. 1952 estab
lished the rate for first class mail at 3¢ for the
first ounce;
(b) by section 1, chapter 20, S.C. 1953-1954
being An Act to Amend the Post Office Act,
section 10 was repealed and re-enacted and
there was established a new rate of 5¢ on the
first ounce;
(c) by section 3, chapter 5, S.C. 1968-1969,
being An Act to Amend the Post Office Act,
section 10 was further repealed and a new rate
of 6¢ for the first ounce was established and
then read:
10. The rate of postage on each letter posted in Canada
for delivery in Canada is six cents for the first ounce or
fraction of an ounce, and four cents for each additional
ounce or fraction of an ounce.
This Act received Royal Assent on October 31,
1968.
I make note of this circumstance particularly
because a significant portion of the argument
advanced by counsel for the plaintiff is based
thereon.
(d) by section 3 of An Act to Amend the Post
Office Act, chapter 53, S.C. 1970-71-72, section
10 of the Post Office Act was repealed and
re-enacted to read as follows:
10. (1) The rate of postage on each letter posted in
Canada during the period commencing on the 1st day of
July, 1971 and ending on the 31st day of December, 1971
for delivery in Canada is
(a) seven cents for any letter weighing one ounce or less;
(b) twelve cents for any letter weighing more than one
ounce but not more than two ounces;
(c) eighteen cents for any letter weighing more than two
ounces but not more than four ounces;
(d) twenty-eight cents for any letter weighing more than
four ounces but not more than eight ounces;
(e) thirty-eight cents for any letter weighing more than
eight ounces but not more than twelve ounces; and
(f) forty-six cents for any letter weighing more than
twelve ounces but not more than sixteen ounces.
(2) The rate of postage on each letter posted in Canada
on or after the 1st day of January, 1972 for delivery in
Canada is
(a) eight cents for any letter weighing one ounce or less;
(b) fourteen cents for any letter weighing more than one
ounce but not more than two ounces;
(c) twenty cents for any letter weighing more than two
ounces but not more than four ounces;
(d) thirty-two cents for any letter weighing more than
four ounces but not more than eight ounces;
(e) forty-four cents for any letter weighing more than
eight ounces but not more than twelve ounces; and
(f) fifty-four cents for any letter weighing more than
twelve ounces but not more than sixteen ounces.
In effect a rate of 7¢ was established for the
first ounce of first class mail from July 1, 1971 to
December 31, 1971 and 8¢ for the first ounce from
January 1, 1972.
This Act received Royal Assent on June 30,
1971.
However section 8 of this Act provides as
follows:
REVISED STATUTES OF CANADA, 1970
8. (1) In this section,
(a) "old law" means the statutes in force prior to the
coming into force of the Revised Statutes of Canada, 1970
that are repealed and replaced by the Revised Statutes of
Canada, 1970; and
(b) "new law" means the Revised Statutes of Canada,
1970.
(2) The amendments made by this Act to or in terms of
the old law shall be deemed to have been made correspond
ingly to or in terms of the new law, effective on the day the
new law comes into force or the day this Act comes into
force, whichever is the later day; and, without limiting the
powers of the Statute Revision Commission under An Act
respecting the Revised Statutes of Canada, the Statute
Revision Commission shall, in selecting Acts for inclusion in
the supplement to the consolidation referred to in section 3
of that Act, include therein the amendments so made by this
Act in the form in which those amendments are deemed by
this section to have been made.
(e) with respect to section 10 of the Post Office
Act the "old law" as defined in section 8, chap
ter 53, S.C. 1970-71-72 is section 10 as set out
in chapter 5, S.C. 1968-69 and as reproduced in
paragraph (c) above.
(f) section 10 as enacted by chapter 5, S.C.
1968-69 was included in identical language in
chapter P-14 of the Revised Statutes of Canada
1970.
(g) by Proclamation dated June 24, 1971 it was
declared that the Revised Statutes of Canada
1970 shall come into force and have effect as
law on July 15, 1971. The Revised Statutes of
Canada included the Post Office Act, chapter
P-14.
(h) by Proclamation dated June 14, 1972 the
Second Supplement of the Revised Statutes of
Canada 1970 declared that the Second Supple
ment shall come into force and have effect of
law as of August 1, 1972.
(i) by section 3 of chapter 23 of the Second
Supplement of the Revised Statutes of Canada
1970, section 10 of the Post Office Act, R.S.C.
1970, chapter P-14 was repealed and re-enacted
whereby the rate for the first ounce of first class
mail was established at 7¢ until December 31,
and after January 1, 1972 at 8¢.
This is in accordance with and a perpetuation of
the amendment to section 10 of the Post Office
Act as effected by section 3, chapter 53, S.C.
1970-71-72 referred to in paragraph (d) above.
III. The legislative history of section 11 of the
Post Office Act dealing with the rate of postage
payable on newspapers since the Revised Statutes
of 1952 is as follows:
(a) by section 11, chapter 212, R.S.C. 1952 a
rate of postage for newspapers was established;
(b) by section 1, chapter 39, S.C. 1953-54 the
definition of "newspaper" was changed but
there was no change in the rate of postage;
(c) by section 4, chapter 5, S.C. 1968-69, sec
tion 11 of the Post Office Act was repealed and
re-enacted establishing new and increased rates.
This is the same amending statute referred to in
paragraph (c) of the legislative history with
respect to section 10 of the Post Office Act.
This Act received Royal Assent on October 31,
1968.
There were no subsequent amendments by stat
ute to the rate of postage for newspapers.
(d) by the Proclamation dated June 24, 1971
(this is the same Proclamation referred to in
paragraph (g) in the legislative history relating
to section 10 of the Post Office Act above) the
Revised Statutes of Canada, 1970 came into
force on July 15, 1971.
For the purposes hereof I consider it expedient
to reproduce subsection (2) of section 11 of R.S.C.
1970, chapter P-14, since that subsection pre
scribes the rate of postage payable for Canadian
newspapers and Canadian periodicals, since sub
section (1) describes classes of newspapers and
periodicals, subsection (3) prescribes a minimum
rate and a free zone and subsection (4) defines
"Canadian newspaper" and "Canadian periodi
cal".
Section 11(2) reads:
11. ...
(2) The rates of postage on Canadian newspapers and
Canadian periodicals that may be transmitted by mail in
Canada at the rates of postage specified in this section are as
follows:
(a) on a daily Canadian newspaper,
(i) for the portion thereof not devoted to advertising,
four and one-half cents a pound during the period
commencing October 1, 1969 and ending March 31,
1970, and five cents a pound thereafter, and
(ii) for the portion thereof devoted to advertising,
twelve cents a pound during the period commencing
October 1, 1969 and ending March 31, 1970, and
fifteen cents a pound thereafter;
(b) on a weekly Canadian newspaper, four and one-half
cents a pound during the period commencing October 1,
1969 and ending March 31, 1970, and five cents a pound
thereafter; and
(c) on all other Canadian newspapers and Canadian peri
odicals, four and one-half cents a pound during the period
commencing October 1, 1969 and ending March 31, 1970,
and five cents a pound thereafter.
By section 6(d) of the Post Office Act repro
duced above, the Postmaster General may make
regulations establishing rates of postage for any
class of "mailable matter, including letter mail,"
for which a rate is not established by the Post
Office Act.
Accordingly the Postmaster General may make
regulations under section 6(d) for letter mail in
excess of 16 ounces because section 10 of the Post
Office Act provides a rate of postage for letters up
to that maximum weight.
Similarly provision is made in section 12 of the
Post Office Act enabling the Postmaster General
to establish by regulation the rates of postage at
which newspapers and periodicals for which rates
of postage are not specified in section 11, may be
transmitted.
These, therefore, are the circumstances in which
the Postmaster General may prescribe the rates of
postage by regulation as contemplated by the
provisions of the Post Office Act mentioned above.
IV. Section 13 of the Financial Administration
Act.
(a) section 18, chapter 116, R.S.C. 1952 reads
as follows:
18. Where a service is provided by Her Majesty to any
person and the Governor in Council is of opinion that the
whole or part of the cost of the service should be borne by
the person to whom it is provided, the Governor in Council
may, subject to the provisions of any Act relating to that
service, by regulation prescribe the fee that may be charged
for the service.
(b) By section 6, chapter 27, S.C. 1968-69,
section 18 was repealed and the following sub
stituted therefor:
18. Where a service or the use of a facility is provided by
Her Majesty to any person and the Governor in Council is of
opinion that the whole or part of the cost of providing the
service or the use of the facility should be borne by the
person to whom it is provided, the Governor in Council, on
the recommendation of the Treasury Board, may
(a) subject to the provisions of any Act relating to that
service or the use of that facility, by regulation prescribe
the fee or charge to be paid by the person to whom the
service or the use of the facility is provided, or
(b) notwithstanding the provisions of any Act relating to
that service or the use of that facility but subject to and in
accordance with such terms and conditions as may be
specified by the Governor in Council, authorize the appro
priate Minister to prescribe the fee or charge to be paid by
the person to whom the service or the use of the facility is
provided.
(c) by Proclamation dated June 24, 1971 the
Revised Statutes of Canada were declared to be
in force on July 15, 1971.
(d) The Financial Administration Act is includ
ed in the Revised Statutes of Canada, 1970 as
chapter F-10.
(e) section 18 of the Financial Administration
Act as enacted in section 6, chapter 27, S.C.
1968-69 and as quoted in paragraph (b) above,
is included in R.S.C. 1970, chapter F-10 as
section 13 in precisely the same language as
former section 18.
Thus when reference is made herein to section
13 of the Financial Administration Act, R.S.C.
1970, chapter F-10, it is to the language in former
section 18 reproduced in paragraph (b) hereof and
which need not be further reproduced as
section 13.
V. Order in Council P.C. 1978-883 dated March
23, 1978 reads as follows:
Registration
SI/78-60 12 April, 1978
FINANCIAL ADMINISTRATION ACT
Postmaster General Authority to Prescribe Fees Order
P.C. 1978-883 23 March, 1978
His Excellency the Governor General in Council, on the
recommendation of the Postmaster General and the Trea
sury Board, pursuant to paragraph 13(b) of the Financial
Administration Act, is pleased hereby to authorize the Post
master General to:
(a) notwithstanding section 10 of the Post Office Act,
prescribe by regulation the rate of postage to be paid on
each letter that is posted in Canada for delivery in Canada
weighing 16 ounces or less on or after the first day of
April, 1978; and
(b) notwithstanding section 11 of the Post Office Act,
prescribe by regulation the rate of postage to be paid on
Canadian newspapers and Canadian periodicals that may
be transmitted by mail in Canada for delivery in Canada
on or after the first day of April, 1978.
The Order in Council specifically states that it
was made pursuant to section 13(b) of the Finan
cial Administration Act. If it had purported to
have been made pursuant to section 13(a) of that
Act I would have held the Order in Council to be
ultra vires without hesitation for reasons that are
obvious.
VI. The amendments dated March 29, 1978 made
by the Postmaster General pursuant to Order in
Council P.C. 1978-883 (quoted in head V above)
to Domestic First Class Mail Regulations read as
follows:
Registration
SOR/78-297 29 March, 1978
POST OFFICE ACT
Domestic First Class Mail Regulations, amendment
The Postmaster General, pursuant to Order in Council
P.C. 1978-883 of 23rd March, 1978 and section 6 of the
Post Office Act, is pleased hereby to amend the Domestic
First Class Mail Regulations made on August 27, 1976, by
SOR/76-552, as amended, in accordance with the schedule
hereto, effective 1st April, 1978.
Dated at Ottawa, this 29th day of March, 1978
J. GILLES LAMONTAGNE
Postmaster General
SCHEDULE
1. Section 6 of the Domestic First Class Mail Regula
tions is revoked and the following substituted therefor:
"6. Notwithstanding section 10 of the Post Office Act,
the rate of postage on each letter posted in Canada for
delivery in Canada is
(a) fourteen cents for any letter weighing one ounce or
less;
(b) twenty-two cents for any letter weighing more than
one ounce but not more than two ounces;
(c) thirty-four cents for any letter weighing more than
two ounces but not more than four ounces;
(d) fifty cents for any letter weighing more than four
ounces but not more than six ounces;
(e) sixty-six cents for any letter weighing more than six
ounces but not more than eight ounces;
(J) eighty-two cents for any letter weighing more than
eight ounces but not more than ten ounces;
(g) ninety-eight cents for any letter weighing more
than ten ounces but not more than twelve ounces;
(h) one dollar and fourteen cents for any letter weigh
ing more than twelve ounces but not more than fourteen
ounces; and
(i) one dollar and thirty cents for any letter weighing
more than fourteen ounces but not more than sixteen
ounces."
I have not reproduced Schedule II substituted
for Schedule II which has been revoked. It is a
substantial increase in the rates of postage for first
class mail for letters over 16 ounces than formerly
prevailed.
The rates in Schedule II could have been pre
scribed by the Postmaster General by virtue of
section 6 of the Post Office Act quoted in head I
above because section 10 of the Act (quoted in
paragraph (d) of head II above) does not provide
for a rate of postage on letters in excess of 16
ounces, and this could have been done without
resort to Order in Council P.C. 1978-883 (quoted
in head V above) which was in turn enacted
pursuant to the authority in section 13(b) of the
Financial Administration Act.
I have previously indicated that had the Order
in Council been made pursuant to the enabling au
thority of section 13(a) of the Financial Adminis
tration Act I should not have hesitated to find the
Order in Council to be ultra vires because of the
initial words of section 13(a) which read "subject
to the provisions of any Act relating to that ser
vice". The Post Office Act in section 10 thereof
provides a fee for that service. However far differ
ent considerations must apply to section 13(b) of
the Financial Administration Act, the initial words
of which read "notwithstanding the provisions of
any Act relating to that service".
VIT. The amendments also dated March 29, 1978
to the Second Class Mail Regulations read:
Registration
SOR/78-298 29 March, 1978
POST OFFICE ACT
Second Class Mail Regulations, amendment
The Postmaster General, pursuant to Order in Council P.C.
1978-883 of 23rd March, 1978 and section 6 of the Post Office
Act, is pleased hereby to amend the Second Class Mail Regula
tions made on November 26, 1968, by SOR/68-550, as amend
ed, in accordance with the schedule hereto, effective 1st April,
1978.
Dated at Ottawa, this 29th day of March, 1978
J. GILLES LAMONTAGNE
Postmaster General
SCHEDULE
1. Schedule A to the Second Class Mail Regulations is
revoked and the following substituted therefor:
"SCHEDULE A
Rates of Postage—Newspapers and Periodicals
1. Notwithstanding section 11 of the Post
Office Act, the rates of postage on Canadi-
an newspapers and periodicals transmitted
by mail in Canada are as follows:
(a) on a daily Canadian newspaper,
(i) for the portion thereof not devoted
to advertising 7.5¢ per lb.
and
(ii) for the portion thereof devoted to
advertising.. 22.5¢ per lb.
(b) on a weekly Canadian newspaper 7.5¢ per lb.
and
(c) on all other Canadian newspapers and
periodicals 7.5¢ per lb.
2. Notwithstanding section 1,
(a) the minimum postage for a piece of
mail consisting of one or more Canadian
newspapers or periodicals described in
paragraph (a), (b) or (c) of section 1 is 3¢
and
(b) where a weekly Canadian newspaper
is published and mailed in Canada in a
city, town or village having a population
of not more than ten thousand persons, a
total of twenty-five hundred copies of
each issue of the newspaper may be trans
mitted by mail free of postage to post
offices with no letter carrier services that
are within a distance of forty miles from
the known place of publication of the
issue in such city, town or village.
3. (1) The rate of postage on a Canadian
newspaper or periodical, except a Canadian
periodical that is mailed to individuals on a
mass distribution basis where such individu
als have not requested that it be mailed to
them,
(a) that is mailed in Canada to an
individual at his request, and
(b) that could be transmitted by mail in
Canada at a rate of postage specified in
section 1 or 2 except that
(i) it is not addressed to a bona fide
subscriber or to a known newsdealer in
Canada,
(ii) the specified subscription price is
ordinarily less than fifty cents per year,
or
(iii) the paid circulation is ordinarily
less than fifty per cent of its total
circulation
is as follows:
(c) first 2 oz. 4.4¢
(d) each additional 2 oz. or fraction
thereof 3¢
(2) For the purposes of subsection (1),
"mass distribution" means the delivery of a
periodical to specific addresses in a manner
that affords complete or major coverage or
a specific postal delivery area that includes
a letter carrier walk, rural route, suburban
service, general delivery or post office lock
boxes at a postal installation.
4. The rate of postage on a newspaper or
periodical that could be transmitted by mail
in Canada at a rate of postage specified in
these Regulations, except that it is not a
Canadian newspaper or Canadian periodi-
cal because it fails to meet the requirements
of paragraphs 11(4)(a), (c), (d), (e) and (I)
of the definition of "Canadian newspaper"
or "Canadian periodical" in the Act, is as
follows:
(a) per lb. 7.5¢
or
(b) each individually addressed item 3¢
whichever is greater.
5. The rate of postage on a newspaper or
periodical that could be transmitted by mail
in Canada at a rate of postage specified in
section 1 or 2, except that
(a) it is not a Canadian newspaper or
Canadian periodical because it does not
meet the requirements of paragraphs
11(4) (a), (c), (d), (e) and (f) of the defi
nition of "Canadian newspaper" or
"Canadian periodical" in the Act, and
(b) it does not meet the requirement of
paragraph 11(1)(f) of the Act
is as follows:
(c) first 2 oz. 4.4¢
(d) each additional 2 oz. or fraction
thereof 3¢
6. The rate of postage on a newspaper or
periodical that could be transmitted by mail
in Canada at a rate of postage specified in
sections 1 and 2, except that it is not a
Canadian newspaper or a Canadian peri
odical as defined in subsection 11(4) of the
Act, is as follows:
(a) 2 lb. or less 4.4¢ for the
first 2 oz. plus
3¢ for each
additional 2
oz. or fraction
thereof
(b) more than 2 lb. but not more than 4
lb. 72¢
(c) more than 4 lb. the rate set
out in para
graph (b)
plus, for each
additional 2
lb. or fraction
thereof, 36¢"
Traditionally Parliament has reserved exclusive
ly unto itself and guarded its prerogative to estab
lish the rates of postage and has exercised that
right from 1655 forward. The postal service has
been a monopoly of the Crown at least from 1660
in the reign of Charles II.
It was not until the advent of the amendments to
the Domestic First Class Mail Regulations, SOR/
78 - 297, and to the Second Class Mail Regula-
tions, SOR/78-298, dated March 29, 1978 that
there has been a departure from that tradition.
That statement is not quite accurate because by
section 10 of the Post Office Act the rate of
postage on a letter weighing less than one ounce
posted in Canada for delivery in Canada was 8¢ on
and after January 1, 1972. Section 10 of the Act
has not been amended since that date and yet
there have been successive increases in the postage
rate for such a letter to 10¢ and 12¢ with an
increase to 14¢ by SOR/78-297 dated March 29,
1978. Therefore there have been two increases
over the rate of 8¢ established under section 10 of
the Post Office Act with effect from January 1,
1972.
It is therefore logical to assume that there were
intervening increases prior to the increase to 14¢
which must have been accomplished by amend
ments to regulations made on the initiative of the
Postmaster General by virtue of authority to
orders in council similar to Order in Council P.C.
1978-883 dated March 23, 1978.
Those intervening orders in council and amend
ments made to the Regulations by the Postmaster
General are not in issue in the stated case.
Certainly the validity of Order in Council P.C.
1978-883 is put in issue in the second question
posed for the opinion of the Court as is the validity
of the amendments to the postal regulations ini
tiated by the Postmaster General in the first ques
tion posed for answer in the stated case.
I entertain reservations to the propriety of the
manner in which the questions posed for answer
are framed.
In question (i) the issue raised is whether the
amendments to the postal regulations SOR/78-
297 and SOR/78-298 are invalid "because they
have not been authorized by the Post Office Act,
R.S.C. 1970, c. P-14".
The amendments to the postal regulations were
made through the chain offered by section 13(b) of
the Financial Administration Act first by the dele
gation of legislative authority therein to the Gover
nor in Council and secondly by the sub-delegation
of legislative authority by the Order in Council to
the Postmaster General.
In my view there is no question whatsoever that
the Post Office Act and the Financial Administra
tion Act are within the legislative author
ity of the Parliament of Canada and are each intra
vires of Parliament. Neither do I entertain any
doubt that section 13 of the Financial Administra
tion Act is intra vires.
As I view the problem the ultimate answers
must turn on whether there . is conflict between
sections 10 and 11 of the Post Office Act as
enacted by chapter 23, R.S.C. 1970 (2nd Supp.),
and section 13 of the Financial Administration
Act, R.S.C. 1970, chapter F-10 and Order in
Council P.C. 1978-60 and if no conflict should be
found then if there is conflict between sections 10
and 11 of the Post Office Act and the amendments
to the postal regulations SOR/78-297 and SOR/
78-298 stemming as they do from section 13 of the
Financial Administration Act and Order in Coun
cil and if so, as there admittedly is apparent on the
faces thereof, which is to supersede.
Which of the two is to supersede must, in my
opinion, be determined upon the meaning, signifi
cance and effectiveness of the initial words to
section 13(b) of the Financial Administration Act
reading "notwithstanding the provisions of any
Act relating to that service or the use of that
facility".
This, in my opinion, is the very narrow issue
upon which the matter may fall to be ultimately
determined.
Accordingly I am prepared to overlook what
may be inaccuracies in the framing of the ques
tions in the stated case because the end sought to
be achieved thereby is as I have outlined it to be
and that end should not be defeated by any such
inaccuracies mentioned.
The approach to the solution of the problem as
outlined above is the approach which I shall adopt
but before embarking thereon there are other mat
ters to be first considered.
Counsel for the plaintiffs sought to introduce as
evidence certain Parliamentary proceedings being:
(1) The Fourth Report of the Standing Joint Committee on
Regulations and Other Statutory Instruments;
(2) The House of Commons unanimous concurrence in the
Fourth Report mentioned;
(3) The Third Report of the Joint Standing Committee on
Regulations and Other Statutory Instruments; and
(4) An answer by the then Postmaster General to a question by
a member of Parliament on March 13, 1974 as reported in
Hansard.
It was agreed between counsel if this material
should be found admissible, consent would be
forthcoming to its reception in evidence in the
form prepared without proof thereof but reserving
the right of counsel for the defendant to object to
the admissibility of the material.
That is what happened. Counsel for the plain
tiffs sought to introduce the material as evidence.
Counsel for the defendant objected to its admissi
bility. The question was argued.
I declined forthwith to admit the answer by the
then Postmaster General to a question asked in the
House on March 13, 1974. I did so on twofold
grounds:
(1) the well established principle that nothing said in Parlia
ment can be referred to in a court of law as to the meaning of
an Act, and
(2) the response by the Minister to the question was an expres
sion of his opinion on the very question which I am obliged to
decide.
Neither did I admit the remaining evidence
sought to be introduced as evidence but with more
hesitation.
I do not understand what right a court of justice
has to entertain an opinion of a positive law upon
any ground of political expediency. The legislature
is to decide on political expediency. It may well
have been politically expedient to abandon the
tradition of establishing postal rates by Parliament
and to delegate that responsibility. It is my under
standing that the Reports of the Standing Com
mittee decry this practice. If that be so the proper
remedy lies with Parliament. This cannot be the
decision of a court and the court's function is to
determine the validity of the delegated legislation,
nothing more.
What must be decided in this matter is the
validity of the delegated legislation and that is to
be determined by a consideration of the legislation
alleged to be in conflict as a whole. In this respect
antecedent debates and subsequent statements of
opinion or belief are not admissible.
It was represented to me that for reasons
outlined in the Reports, the Committee reached
the tentative view that section 13(b) of the Finan
cial Administration Act does not permit of the end
here achieved.
It has been held that assistance cannot be
obtained in the construction of a statute by know
ing what took place before a committee until the
committee reaches its conclusion. That would pre
suppose that while the argument by opposing par
ties antecedent to the final conclusion of the com
mittee is inadmissible for the purpose of the
construction of a statute, the final conclusion is.
There have been instances where it has been
held that the intention of the legislature can only
be inferred from a consideration of the language of
the statute itself and not from any other evidence
but there have been instances when inferences
were drawn from the language of a report of
commissioners as compared with the language
employed by the legislature and where a marked
distinction is observable between the two the dif
ference could not have been by accident but was
intentional.
The discernible trend in recent decisions is to
the effect that reports of commissioners may be
referred to but for carefully delineated purposes.
In the present instance such authorities are of
slight assistance in resolving the admissibility of
the Reports of the Standing Committee.
The reports which may be admissible are those
antecedent to the enactment of a statute and are
for the purpose of the construction of the statute, a
determination of the legislative intent and like
purposes.
In the present instance the Reports of the Com
mittee are not antecedent to the enactment of the
statutes here in question and the delegated legisla
tion under one such statute. On the contrary the
Reports are well subsequent thereto and on the
basis of information presented to me in argument
by counsel the content thereof are subsequent
statements of opinion or belief albeit supported by
reasons therefor. It was also represented to me
that at their highest the conclusions reached were
tentative and dubitante to the effect that the dele
gated and sub-delegated legislation might be ultra
vires.
On that basis I concluded that the Reports are
subsequent statements of opinion or belief which,
as I have previously stated are not admissible.
Added to this the Reports appear to be state
ments of tentative opinions on the very question
which I am obliged to decide which was one of the
reasons which led to my conclusion that the
answer of the Postmaster General to a question in
the House was inadmissible.
The same reasoning applies with equal force to
the Reports of the Standing Committee which led
me to conclude that the Reports were also inad
missible as evidence.
However I did suggest to counsel for the plain
tiffs that there was no impediment to him adopting
the reasoning of the Committee, with which he
was familiar, as his own and advancing those
reasons in support of his contention that the legis
lation here in question was invalid.
That is precisely what counsel for the plaintiffs
did.
He contended that section 13 of the Financial
Administration Act has no application to postal
rates primarily because the service provided by the
Post Office is not a "service" within the meaning
of that word as used in section 13 nor is it a service
"provided by Her Majesty to any person" as is
required in the initial words in section 13.
If counsel is right in this contention it follows
that the impugned delegated legislation and sub-
delegated legislation must fall.
He contended that the postal service is not a
"service" in that it is not made available to iden
tifiable persons who request or are provided with
the service. Rather, he contended, the postal ser
vice is a primary and inalienable function of gov
ernment made available to anonymous members of
the general public, and in the case of letter mail, it
is also a monopoly by force of section 8 of the Post
Office Act.
From these premises, that is that the word "ser-
vice" in section 13 of the Financial Administration
Act is limited to specific services provided to iden
tifiable individuals he accordingly concludes that
section 13 cannot be applicable to the postal
service.
I cannot resist the suspicion that this is a repeti
tion of the reasoning in the Report of the Standing
Joint Committee.
The word "service" is not used in the Post
Office Act nor is it used in section 13 of the
Financial Administration Act as relating to any
art or science or in a technical sense and thus it is
to be understood in the same way as it is under
stood in the common language.
That being so it is a well known rule of courts of
law that resort may be had to dictionaries to
ascertain the meaning of a word as used in its
ordinary sense.
In The Shorter Oxford English Dictionary, 3rd
ed., the meaning of "service" as used in the con
text of the Post Office Act is the "... supply of
needs of persons". It is the supply of assistance,
professional or otherwise, as contrasted with the
supply of physical goods, wares or merchandise.
By section 91, subsection (5) of the British
North America Act, 1867, the exclusive legislative
jurisdiction with reference to "Postal Service" is
conferred on Parliament.
Estey J. in Reference as to the Applicability of
the Minimum Wage Act of Saskatchewan to an
Employee of a Revenue Post Office ([ 1948]
S.C.R. 248) 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.
Thus it is clear that Estey J. construed the
words "Postal Service" as conveying the evident
import and in my view they are sufficiently broad
as to bring within their ambit "the sole and exclu-
sive privilege of collecting, conveying and deliver
ing letters within Canada" (section 8(1) of the
Post Office Act). The exercise of these activities is
encompassed within the word "service" as used in
its ordinary sense of supplying the needs of persons
in Canada who wish to have letters and other
mailable material delivered to the addresses on
that material. That, in my opinion, is a service and
a facility provided by the Canada Post Office
under the direction and control of the Postmaster
General.
I am confirmed in my conclusion that the provi
sion of the postal service is in fact a service and a
facility by a review of the Post Office Act and a
review of the history of the legislation respecting
the establishment and operations of the Post
Office.
In interpreting a statute, and particularly a stat
ute such as the Post Office Act which has evolved
to its present form over a period in excess of 325
years, regard must be had to the history of the
enactment, as well as to the intention to be gleaned
from the statute itself, and the reasons which led
to its passage. Regard is to be had to the mischief
to be cured and the cure provided.
With respect to the Post Office Act presently as
in force section 3 thereof provides for the estab
lishment of "a department of the Government of
Canada called the Post Office Department over
which the Postmaster General shall preside".
The Postmaster General "has the management
and the direction of the Post Office Department".
I had occasion to say in another matter that the
words "management and control" confer all neces
sary authority for the efficient operation of the
department under the Minister's control.
Section 5 provides that "the Postmaster General
shall administer, superintend and manage the
Canada Post Office, and without restricting the
generality of the foregoing" carry out a variety of
functions listed through the alphabet from the
letter "a" to the letter "t".
The collective activities conducted under his
control are designated as "the Canada Post
Office" (see section 2).
Under section 6(h) the Postmaster General is
authorized to enact regulations for the efficient
operation of the Canada Post Office and without
restricting the generality to make regulations for
the operation of post offices, postal agencies and
post routes.
By section 2, a post office is defined as a build
ing, room, vehicle, letter box or other receptacle or
place authorized by the Postmaster General:
... for the deposit, receipt, sortation, handling or dispatch of
mail.
As previously mentioned, by section 8 the Post
master General is granted:
... the sole and exclusive privilege of collecting, conveying and
delivering letters within Canada.
By section 2 "postage" means the charge pay
able for the handling and conveyance of mail and
any charge for any service rendered by the Canada
Post Office.
Obviously this means a charge payable by the
person who resorts to the Post Office to handle,
convey and ultimately deliver mail or for any other
service provided by the Post Office.
I have considered above that the activities of the
Post Office are a service and facility provided by
the Post Office to supply the needs of persons in
Canada who wish to have mailable matter deliv
ered to addresses and that conclusion is confirmed
by the provisions of the Post Office Act to which
reference has been made.
The service, as described in the statute, is pro
vided as well as the facilities to fulfil that service.
In the light of those provisions I fail to follow
how that service must be restricted to identifiable
persons who request or are provided with the
service.
Those services are available to all persons
present in Canada who wish to make use of the
service provided and who are willing to pay the
fee. For some services provided by the Post Office
their very nature requires that the persons making
use of them must identify themselves such as
holding of mail during absences, arrival receipt
cards for registered mail and the like, but certainly
not for a person who properly addresses a letter,
affixes sufficient postage and deposits the letter in
a mail box.
Originally in the United Kingdom the Crown
provided messengers to carry mail from London to
a few principal towns.
The predecessor of the original Post Office was
first established by Oliver Cromwell as Lord Pro
tector by an ordinance in 1654 when John Manley
was granted:
The sole care and charge of the postage and carriage of all
letters and packets both foreign and inland to and from all
persons
for a two-year term.
For this privilege Manley paid the Common
wealth 10,000 pounds annually (see Acts and
Ordinances of the Interregnum).
Manley was obviously an independent contrac
tor. The monopoly must have been profitable and
no doubt the annual fee added to the revenue of
Cromwell for the support of the Army which he
had used to disband the parliament which had not
acceded to his wishes. Despite the fact that Crom-
well had been a member of parliament and
opposed the theory of Charles II that he ruled by
divine right, Cromwell did not adhere to the doc
trine of the supremacy of parliament when it did
not suit his purposes. In an Act for the Constitu
tion of the Commonwealth Cromwell was offered
the title of King with the right to name his succes
sor. He declined the title of King but settled for
that of Lord Protector. Despite the fact that he
had joined in signing the warrant to lop the head
from Charles I, Cromwell was not adverse to
assuming the address of His Highness, deleting the
word Royal, and is so described in this ordinance.
On his death his third son, Richard, whom he had
trained for that purpose, succeeded him as Lord
Protector but Richard did not last too long because
he could not control a recalcitrant parliament as
his father had and he resigned.
On the restoration the monopoly of the Postmas
ter General was re-established.
The preamble to 12 Car. II, c. 35 recited that
many inconveniences had occurred by private post.
That was the mischief to be cured and the cure
was provided by this statute.
By section 1 there was erected in London a
General letter office:
... from whence all Letters and Pacquets whatsoever may be
with speede and expedition sent unto any part of the King-
domes of England Scotland and Ireland, or any other of His
Majestyes Dominions or unto any Kingdome or Country
beyond the Seas, at which said Office all Returnes and
Answers may be likewise received, and that one Master of the
said Generali Letter Office shall be from time to time appoint
ed by the Kings Majestie His Heires and Successors to be made
or constituted by Letters Patents under the Great Seale of
England by the name and Stile of His Majestyes Post Master
Generall.....
Also in section 1, one of the Masters of the
General Letter Office was to be appointed by
letter patent as "His Majestyes Post Master Gene-
rall" and by section 7 "noe ... persons whatsoever
. other then such the Post Master Generall .. .
his Deputy and Deputyes or Assignes shall pre
sume to ... recarry and deliver Letters for
Hire." .. .
There again is the monopoly but this time in the
appointee of the Crown.
By section 15 the Post Master Generall in carry
ing out his duties was required to observe the rules
and directions made by the King.
The office of the Post Master Generall was a
hereditament and the Crown was empowered to
grant the office and the profits therefrom under
such rents as the Crown thought fit for the "best
advantage and benefit of the Kingdome".
The Act of 12 Car. II, c. 35 was repealed by 9
Anne, c. 10 and for the first time the monopoly
was extended to all British colonies.
By section 5 the Post Master General was
authorized to keep one chief letter office in New
York and "other Chief Offices at some convenient
Place or Places in each of Her Majefties Provinces
or Colonies in America" and to appoint sufficient
deputies for the "better managing ordering collect
ing and improving the Revenue".
By this statute of Anne, rates for carrying mail
were established, payment of which was upon the
party receiving the letter and that party could be
sued for non-payment of postage. In those days
correspondence was of some significance and the
receivers were not flooded by junk mail as is the
case today.
The Postmaster General was required to pay to
the Exchequer the sum of 700 pounds weekly, and
to keep proper account. One-third of the supplies
over a designated sum was reserved to the use of
Parliament for the use of the public.
The Postmaster General was required by this
statute to obey all orders, rules, directions and
instructions concerning the post which he received
from the Crown.
In 1839, by 2 & 3 Vict., c. 52, the Parliament of
the United Kingdom authorized that the postal
rates could be fixed by the Lords of the Treasury
until October, 1840.
This is the first time that postal rates could be
fixed by a person or entity other than Parliament.
In 1840 legislation was enacted establishing new
rates for postage payable on mail in the U.K. This
marks a reversion to the rates for postage being
fixed by Parliament but at the same time provision
was made that the Postmaster General could exact
a charge for postage for letters within a colony as
the Commissioners of Her Majesty's Treasury by
warrant shall direct.
In 1844 by an Act for the Better Regulation of
Colonial Posts, 7-8 Vict., c. 49, the au
thority of the Commissioners of the Treasury to fix
postage rates within a colony was confirmed with
authority to the Commissioners to alter those
rates.
By 12-13 Victoria, c. 66, passed in 1849, coloni
al legislatures were empowered to enact legislation
for the establishment of a postal service within the
colony on the assumption of the control of an
existing postal service.
Thus the colonies could run their own postal
services.
This the Province of Canada promptly did by
legislation enacted in 1850 [13-14 Vict., c. 17]
which provided:
... That the Inland Posts and Post Communications in this
Province shall, so far as may be consistent with the Acts of the
Parliament of the United Kingdom in force in this Province, be
exclusively under Provincial management and control; ...
By this Act of 1850 the provincial postage on
letters could not exceed three pence and on news
papers the rate was to remain as it was until
altered by regulation under the Act. Under the
regulation the postage could be diminished but not
increased.
Provision was made in this Act for home deliv
ery for which service the Governor in Council was
authorized to make orders and regulations for the
rates to be paid by parties who prefer to have their
letters and packets so delivered rather than apply
for them at the Post Office.
This, in my view, was a service provided by the
Post Office to identifiable persons for which a
charge was exacted.
Section 9 of this Act provided that the Provin
cial Post Master General "shall have the sole and
exclusive privilege of conveying, receiving, collect
ing, sending and delivering letters within this
Province".
This section is a perpetuation of the prior provi
sions to this effect in almost identical language but
with such variation as was dictated by the circum
stances and the language of this section has been
perpetuated in all subsequent federal legislation
with only those variations required by circum
stances.
The effect and intent is consistent throughout.
On Confederation the Parliament of Canada
passed an Act in 1867 entitled: "An Act for the
Regulation of the Postal Service".
This Act was amended and consolidated in 1875
by an Act entitled: "An Act to Amend and Con
solidate the Statute Law for the Regulation of the
Postal Service".
In the Revised Statutes of 1886 the long title
was changed to: "An Act respecting the Postal
Service".
This title was used in R.S.C. 1952 and 1970.
In section 2, S.C. 1951 c. 57; section 2, R.S.C.
1952 c. 212 and section 2, R.S.C. 1970 c. P-14;
"Canada Post Office" was defined to mean "the
activities conducted under the direction and con
trol of the Postmaster General". Previous refer
ence has been made to section 2(1) R.S.C. 1970, c.
P-14.
The Post Office Act, 1867 established a Post
Office Department for "the superintendence and
management of the Postal Service of Canada,
under the direction of a Postmaster General".
This was perpetuated in the consolidations of
1875, 1886, 1906 and 1927.
In the Post Office Act, 1951 a slight change was
made. The Postmaster General was authorized to
administer, superintend and manage the Canada
Post Office.
The legislative scheme is the same in sections 3
and 4 of the Post Office Act, R.S.C. 1952, c. 212
and sections 3 and 4 of the Post Office Act, R.S.C.
1970, c. P-14.
The statutory monopoly to the Postmaster Gen
eral was provided for in section 32 of the Act of
1867.
This monopoly persevered throughout all subse
quent legislation culminating in section 8(1)
R.S.C. 1970, c. P-14, which has been previously
quoted.
In my view what the Postmaster General is
empowered to do under this statutory monopoly is
the service provided to the public in Canada and
any member of that public may use that service. It
is a description of the service.
In section 28 of the Act of 1867 provision was
made that the postage on any letter was to be
payable to the Postmaster General by the addres
see if not prepaid by the sender.
Under the statute of 1875 and in the 1886
consolidation, c. 7, s. 19 the rate of 3¢ for letters
under half ounce weight was established with the
provision for prepayment by postage stamps and if
prepayment was insufficient the difference was to
be collected from the addressee at double the rate.
In the consolidation of 1875 provision was made
in section 33(2) establishing a fee for persons
electing home delivery, of 2¢ per letter and 10 for
each newspaper or pamphlet.
This was continued in the consolidations of the
statutes in 1886 and 1906.
However, under 4 Ed. VII, c. 30, S.C. 1904, the
Postmaster General was authorized to establish a
system of free delivery by letter carriers. When the
system was established, no charge was to be made
for the delivery of letters. Apparently it took more
than two years to arrange for a home delivery
system because the consolidation of 1906 still pro
vided for a charge for this service.
Since the Post Office Act, 1867, the federal
, legislation in respect of the collection and manage
ment of the public revenue and the auditing of
public accounts has been applicable to the Post
Office and persons employed in its management.
This review of the legislative history of the Post
Office confirms the conclusion I have previously
reached that the Post Office provides a service
within the meaning of that word as used in
section 13 of the Financial Administration Act
and has always been considered as a service since
1645.
It was contended by counsel for the plaintiffs
that section 13 of the Financial Administration
Act is restricted to a service or facility "provided
by Her Majesty". That is so. But he continues his
contention to say that the term "Her Majesty" as
used in a Canadian statute, does not embrace the
term "Postmaster General".
In my view, based upon the review of the history
of the legislation respecting the Post Office and a
consideration of the provisions of the Post Office
Act now in force that contention is untenable.
The postal service has been provided by the
Crown since 1645. I liken Oliver Cromwell as
Lord Protector to the Crown. He assumed the title
of His Highness but in this instance he did act
through the parliament. The contract to carry the
mails granted to John Manley by the Ordinance of
the Interregnum may have been a contract for
service rather than a contract of service because I
can discern no conclusive element of control in the
ordinance although it is stated that the office of
Postmaster Inland and Foreign ought to be in the
sole power of the Parliament and the Council of
State did by special contract demise and set to
farm the said offices to John Manley.
Any possible doubt is resolved by 12 Car. II,
c. 35.
One of the Masters of the General Letter Office
was appointed by letter patent as "Her Majestyes
Post Master Generali" and in carrying out his
duties he was required to comply with the rules
and directions made by the King from time to
time. Accordingly he was clearly a servant of the
Crown and it follows that the service was provided
by the Crown through its servants.
In my opinion there has been no change since
that time and the same prevails today.
It was the essence of the contention of counsel
for the plaintiffs that it is the Postmaster General
who provides the postal service, not Her Majesty.
In section 3 of the Post Office Act previously
quoted, it is provided that there shall be a depart
ment of the Government of Canada called the Post
Office Department over which the Postmaster
General shall preside. The Minister of Communi
cations is the Postmaster General and has the
management and direction of the Post Office
Department.
Section 5(1) specifically provides and entrusts to
the Postmaster General the administration and
superintendence of the Canada Post Office. The
Canada Post Office is defined to mean the activi
ties conducted under the direction and control of
the Postmaster General.
The Minister of Communications (who is also
the Postmaster General) is a Minister of the
Crown appointed by letters patent under the Great
Seal.
In Jones & Maheux v. Gamache ([19691 S.C.R.
119) Pigeon J., speaking for the Court, has held
that the Minister of Transport was an "officer" of
the Crown within the meaning of section 29(c) of
the Exchequer Court Act. This decision, in my
view, reversed previous decisions of the Exchequer
Court to the contrary. It is a short but logical step
to conclude that if a Minister of the Crown is an
officer of the Crown he is also a servant of the
Crown. There are a series of cases to that effect.
In Fraser v. Balfour ([1918] L.J.K.B. 1116) the
Lord Chancellor (Lord Finlay) in the House of
Lords rejected an action against The First Lord of
the Admiralty.
He said, at page 1118:
As regards the paragraph in the statement of claim relating
to the alleged false imprisonment, it is quite clear and settled
law that no action lies against the head of a Government
Department for any wrong committed by a subordinate officer.
The relation of master and servant does not exist between them.
Both are in the service of the Crown.
Prior to the introduction of the Crown Liability
Act, R.S.C. 1970, c. C-38, the maxim that "The
King can do no wrong" prevented a subject from
suing the Crown where he had suffered damage
from the negligence of a servant of the Crown.
To circumvent this maxim, a series of cases
arose where the Postmaster General was sued on
the theory that the employees of the Post Office
were employees of the Postmaster General so that
the negligence of an employee of the Post Office
could be imputed to the Postmaster General in his
official capacity. The ratio decidendi of these deci
sions is that an employee of the Post Office is a
servant of the Crown and not a servant of the
Postmaster General who is himself a servant of the
Crown but that both are servants of the Crown.
In Lane v. Cotton ([1701] 91 E.R. 1332) it was
held that a Postmaster General was not liable to a
subject for a loss occasioned by the fault of a
servant. Lord Chief Justice Holt differed from the
other judges.
Whitfield v. Lord le Despencer ([1778] 98 E.R.
1344) is the leading case on this subject and
contains an authoritative review of all legislation
respecting the Post Office from the Ordinance of
Cromwell, 12 Car. II, c. 35, to the Statutes of
Anne (all of which have been referred to above).
It was held that a case does not lie against the
Postmaster General for a bank note stolen by one
of the sorters out of a letter delivered into the Post
Office.
Lord Mansfield considered the question in two
lights: (1) as it stood in 1699 before the determina
tion of Lane v. Cotton (supra) and (2) as it stood
since that determination and what was done in
consequence of that decision.
He related [at page 1349] that: "the post-office
was first erected during the usurpation, by an
Ordinance of Cromwell, and afterwards more fully
regulated by the stat. 12 Car. 2, c. 35." There was
never any action brought on the Ordinance or the
statute until Lane v. Cotton. That action was not a
demand on the "fund" as argued in Whitfield v.
Lord le Despencer. (By demand on the "fund" I
take to mean a demand on the "revenue".) Rather,
Lord Mansfield said, it was a demand upon the
postmaster personally, on the ground of a neglect
in him by his own act, or constructively so, by the
fault of his servant. If the fund were in the nature
of a policy of insurance, to insure every man who
uses the post from loss by robbery or neglect, such
contingency would be a deduction out of the fund
and in an action brought against the proper offi
cers they would be liable, but here the Act of
Parliament has appropriated the whole revenue.
Therefore if a loss is paid, there must be an item of
it; and that item must come under the appropria
tion.
In commenting on the dissenting decision of
Lord Chief Justice Holt, Lord Mansfield said after
first saying that the ground of the action was that
the postmaster in consequence of the hire he
receives, is liable for all the damage that may
happen, whether owing to the negligence or dis
honesty of persons employed by him to conduct the
business of the office, continued to say [at page
1349]:
But the argument of Lord Chief Justice Holt, who differed
from the other Judges in the case of Lane versus Cotton, does
not extend so far as that; for he takes a difference between the
case of a letter lost in the office by a servant employed under
the post-master, and that of a loss upon the road, or by the mail
being robbed after the letter has been sent safe out of the office.
The ground of Lord Chief Justice Dolt's opinion in that case, is
founded upon comparing the situation of the post-master to
that of a common carrier, or the master of a ship taking goods
on board for freight. Now, with all deference to so great an
opinion, the comparison between a post-master and a carrier, or
the master of a ship, seems to me to hold in no particular
whatsoever. The post-master has no hire, enters into no con
tract, carries on no merchandize or commerce. But the post-
office is a branch of revenue, and a branch of police, created by
an Act of Parliament. As a branch of revenue, there are great
receipts; but there is likewise a great surplus of benefit and
advantage to the public, arising from the fund.—As a branch of
police, it puts the whole correspondence of the kingdom (for the
exceptions are very trifling) under Government, and entrusts
the management and direction of it to the Crown, and officers
appointed by the Crown. There is no analogy therefore between
the case of the post-master and a common carrier.—The
branch of revenue and the branch of police are to be- governed
by different officers. The superior has the appointment of the
inferior officers; but they give security to the Crown.
In commenting on this passage my brother
Mahoney, in Canadian Federation of Independent
Business v. The Queen ([1974] 2 F.C. 443 at p.
450) by way of footnote said:
It is apparent that the word "police" is used in one of its
archaic meanings embracing the entire concept of organized
government or civil administration.
Still later Lord Mansfield said [at page 1350]:
As to an action on the case lying against the party really
offending (in that instance the sorter) there can be no doubt of
it; .... So is the post-master for any fault of his own. Here, no
personal neglect is imputed to the defendants, nor is the action
brought on that ground; but for a constructive negligence only,
by the act of their servants. In order to succeed therefore it
must be shewn, that it is a loss to be supported by the
post-master, which it certainly is not. As to the argument that
has been drawn from the salary which the defendants enjoy; in
a matter of revenue and police under the authority of an Act of
Parliament, the salary annexed to the office, is for no other
consideration than the trouble of executing it. The case of the
post-master, therefore, is in no circumstance whatever, similar
to that of a common-carrier; but he is like all other public
officers, such as the Lords Commissioners of the Treasury, the
Commissioners of the Customs and Excise, the Auditors of the
Exchequer, &c. who were never thought liable for any negli
gence or misconduct of the inferior officers in their several
departments.
There is no doubt whatsoever that under the
present Post Office Act the revenue derived from
the operation of the Post Office is Crown revenue.
The provision in the Post Office Act, 1867, as to
accountability and carried forward consistently in
all succeeding Acts up to and including the
Revised Statutes of Canada 1970 make that abun
dantly clear.
Following on the comments of Lord Mansfield
concerning the possible liability of the fund as
argued before him and that a servant in the Post
Office is personally liable for his negligence
(including the Postmaster General) it is interesting
to note that, no doubt inspired by those consider
ations, the Postmaster General is empowered by
section 5 of the Post Office Act under paragraphs
(1) and (s) to:
5. ...
(1) establish and maintain a fund derived from moneys
received from postal employees and pay out of the fund losses
sustained by reason of the default or neglect of any postal
employee or mail contractor in carrying out his duties in any
matter relating to the Canada Post Office;
(s) pay out of postal revenue losses resulting from fire, theft
or forgery;...
Paragraph (1) contemplates an insurance fund
set up by contributions from postal employees to
insure an employee harmless from a successful suit
against him for this fault.
Since the revenue of the Post Office is Crown
revenue and has been so appropriated, paragraph
(s) is an item exempted from that appropriation.
In my opinion the decision in Whitfield v. Lord
le Despencer is clear authority for the proposition
that the Postmaster General is a servant of the
Crown and that the employees of the Post Office
Department are likewise servants of the Crown
and not of the Postmaster General and this propo
sition has been consistently followed in subsequent
decisions.
In Bainbridge v. Postmaster General ([1906] 1
K.B. 178) in dealing with the Postmaster General
in that capacity Collins M.R. summarized the
judgments of the majority in Lane v. Cotton at
page 187 as follows:
Gould J., who is the first of the judges to give judgment, says,
at p. 648 of the report: "If anything can support this action, it
must be a contract expressed or implied; but here is neither the
one nor the other, The security of the dispatches depends upon
the credit of the office, as founded upon the Act, Breese," that
is, the delinquent receiver, "is as much an officer as the
defendants, but they are more general officers. But Breese is
the King's officer, and if there is any contract, it is between the
plaintiff and Breese; which appears by the Act, which appoints
several acts for all, and puts confidence in all. And therefore
they resemble a community of officers acting in several trusts;
and everyone shall answer for himself, not one for the act of
another, as in case of a dean and chapter, 1 Edward V. 5a. If
the defendants had died, yet Breese would have continued
officer; and therefore Breese has a charge and trust of himself,
and is not a deputy to the defendants." Then Powys J. says, at
p. 650 of the report: "The defendants have not the power of the
management of the office according to their discretion, but are
subject to the control of the King and of the Treasury. And
because the inferior officers are servants of the King, and not of
the defendants, their wages being paid to them out of the
revenue of the Post Office, and the security taken of them in
the name of the King; and therefore it is unreasonable, that the
defendants should be answerable for the acts of the inferior
officers." Then Turton J. gave judgment to the same effect, and
the result is that, on the ground that there is no relation of
master and servant, or principal and agent, between a subordi
nate officer of the Crown and his superior officer, it was held
that the superior officer was not liable for the particular act in
that case of his subordinate officer; and the same principle
applies whether the claim be one in tort or in contract. Being all
equally servants of the Crown, they are not servants of each
other.
The concluding words are particularly signifi
cant, that is: "Being equally servants of the
Crown, they are not servants of each other."
In Postmaster General v. Robertson ((1878) 41
U.C.Q.B. 375) Morrison J. in his reasons for
judgment (concurred in by Harrison C.J. and
Wilson J.) said at page 377:
I see no ground or reason for holding as contended by the
defendants, that the Postmaster General in his official capacity
may not take an assignment of a chose in action for the benefit
of the Crown whom he represents in the exercise of his duties
and functions of his office. [Emphasis added.]
In Treifus & Co., Ltd. v. Post Office ([ 1957] 2
All E.R. 387) Parker L.J. said at page 394:
Clearly the Postmaster General is in a quite different position
from a private individual. He is responsible to the Crown for
running a public service and, incidentally, a monopoly. The
money that is paid by the public is revenue.
In the Reference as to the Applicability of the
Minimum Wage Act of Saskatchewan to an
Employee of a Revenue Post Office ([1948]
S.C.R. 248) the question in issue was whether the
provisions of the Saskatchewan Minimum Wage
Act were applicable to a person, Leo Fleming, who
had been temporarily employed by Mrs. Graham,
the Postmistress at Maple Creek, Saskatchewan,
and so appointed by the Civil Service Commission,
to assist her in handling the Christmas rush of
mail. If Leo Fleming was a person "employed in
the business of the Post Office of Canada" then
the Saskatchewan minimum wage legislation was
not applicable to him.
Taschereau J. said at page 257:
It is common ground that Fleming was appointed assistant
and was paid by Mrs. Graham, but I do not think that this can
affect the issue. Although paid in such a way, it remains that
Fleming was in the "Postal Service". He was a part of the
organization created by Parliament to handle mail, and he was
also, as section 2, para. (c) of the Act says "a person employed
in any business". ... The fact that he was paid by Mrs.
Graham does not change the nature of the functions that he
was called upon to perform. ... The mode of payment adopted
in the present case is a matter of internal administration, and
the contractual relationship of Fleming's employment does not
mean that he was not an "employee in the Canada Post
Office."
Rand J. (speaking for himself and Locke J.)
said at page 262:
If the postmistress were not in the Civil Service, but had
entered into a contract by which the postal work at Maple
Creek could be said to have been farmed out to her as an
independent contractor, it might be that any person taken on
was engaged in her service. But here she is acting as a
government employee; and as she has not undertaken to carry
out personally all the postal work at Maple Creek, it cannot be
said that the assistant is helping her to do her own work. Once
the assistant is engaged, the limited contractual relation of the
postmistress to him is supplemented by that of her au
thority in the post office; he becomes an employee of the Crown
for all purposes except remuneration and breach of the engage
ment. [Emphasis added.]
Later at page 263 Rand J. also said:
In the case before us, the postmistress has neither business nor
service of her own into which the employee is or can be
introduced;
Kellock J. said at page 266:
In my opinion it is clear that under these statutory provi
sions, a person engaged as was Fleming, became a servant of
the Crown. The fact that he was paid directly by the postmis
tress, although indirectly by the Crown, did not affect his status
as an immediate servant of the Crown and subject to its
control.
Lane v. Cotton was decided in 1701. Whitfield
v. Lord le Despencer was decided in 1778. They
have stood since that time and have been consist-
ently followed to this date. They are to the effect
that an employee of the Post Office is a servant of
the Crown and not of the Postmaster General who
is himself a servant of the Crown, and accordingly
there is no nexus between the servant and the
Postmaster General but to the Crown itself, both
being servants of the Crown.
Where there has been an unbroken line of
authorities dating back some 278 years and in
accordance with well recognized principles that
chain cannot be broken, least of all by me upon
whom they are binding.
Thus I conclude on the basis of the consider
ation and analysis, as outlined above of:
(1) the provisions of the Post Office Act, R.S.C. 1970, c.
P-14;
(2) the legislative history dealing with the establishment and
operations of the Post Office; and
(3) the decided cases to which reference has been made;
that the postal service has always been a service
and a service provided by the Crown since the time
of Charles II.
That being so it follows that the postal service
falls within the initial words of section 13 of the
Financial Administration Act as a service or facili
ty provided by Her Majesty to any person in
Canada and the contention to the contrary cannot
avail the plaintiffs.
This does not end the matter.
Counsel for the plaintiffs contended that the
Post Office Act, particularly sections 10 and 11
thereof whereby rates of postage applicable to
letters and newspapers and periodicals are specifi
cally prescribed, must prevail over section 13 of
the Financial Administration Act and Order in
Council P.C. 1978-883 enacted by the Governor in
Council on March 23, 1978 pursuant to section
13(b) of the Financial Administration Act and the
amendments SOR/78-297 and SOR/78-298 to
the Domestic First Class Mail Regulations and
Second Class Mail Regulations made by the Post
master General on March 29, 1978 pursuant to
Order in Council P.C. 1978-883.
In so contending, counsel for the plaintiffs refers
to and relies upon well known principles applicable
to the validity of statutes and the interpretation
thereof.
I accept those principles unequivocally.
However the problem I face is the applicability
of those principles to the matters before me.
The first such principle stated by counsel for the
plaintiffs is that the Parliament of Canada, within
the fields of its legislative competence, is supreme.
Parliament possesses the right to change, modify
and abrogate the existing laws. Subject to the
limitations in the B.N.A. Act there is no law which
Parliament cannot make or unmake.
Flowing from that, an earlier Parliament cannot
bind a later Parliament. Thus any subsequent Par
liament can repeal the Canadian Bill of Rights,
which is but a statute, the Official Languages Act,
the abolition of capital punishment and such like
statutes as well as any other statute. Should a
statute provide, for example, that it shall not be
lawful to repeal that statute or not to repeal the
statute for a number of years, the provision would
be wholly ineffective and void.
Flowing further from this incontrovertible prem
ise is the basic rule that later laws repeal earlier
laws inconsistent or in conflict therewith. The
Courts have endeavoured to construe the language
of Parliament in such a way as to avoid inconsist
ency so as to avoid an implied repeal of the former
legislation with which the later legislation is in
conflict.
Counsel for the plaintiffs pointed out that sec
tion 13 of the Financial Administration Act, in its
present form, was enacted by section 6, S.C. 1968-
69, c. 27, which received Royal Assent on March
28, 1969. Therefore, March 28, 1969 is the effec
tive date of section 13 coming into force.
Section 10 of the Post Office Act, R.S.C. 1952
was repealed and re-enacted by section 3, S.C.
1970-71-72, c. 53. This Act received Royal Assent
on June 30, 1971.
Section 11, as it read in R.S.C. 1952 was
repealed and re-enacted by section 4, S.C. 1968-
69, c. 5, which received Royal Assent on October
31, 1968.
Therefore, counsel for the plaintiffs contended
that since section 13 of the Financial Administra
tion Act was effective from March 28, 1969 and
section 10 of the Post Office Act was effective
from June 30, 1971 that section 10 of the Post
Office Act being later must prevail over the earlier
section of the Financial Administration Act on the
basis of the maxim, leges posteriores priores con-
trarias abrogant, which freely translated simply
means that later laws abrogate prior contrary laws.
He makes no similar contention with respect to
section 11 of the Post Office Act because section
11 was effective from October 31, 1968 whereas
section 13 of the Financial Administration Act
was effective from March 28, 1969. Thus on the
basis of counsel's contention as to the applicability
of the maxim on which he relies the contrary
would be the case with respect to section 11 of the
Post Office Act and section 13 of the Financial
Administration Act should prevail, it being the
later.
But the contention with respect to section 10 of
the Post Office Act, and the like applicability of
the maxim to section 11 of that Act which was not
contended, must be based upon the premise that
when section 10 of the Post Office Act was the
earlier law and conversely when section 13 of the
Financial Administration Act was the later law to
section 11 of the Post Office Act, section 10 of the
Post Office Act was contrary to section 13 of the
Financial Administration Act and section 13 of
that Act was also contrary to section 11 of the
Post Office Act.
Counsel for the plaintiffs offered a solution and
contended that the solution so offered should,pre-
vail. That solution was based on the efforts of the
Courts to interpret the language of statutes to
avoid inconsistency, so as to avoid implied repeal
of the former statute by the subsequent statute.
His solution was that the words of section 13(b) of
the Financial Administration Act reading: "Not-
withstanding the provisions of any Act" should be
read as "Notwithstanding the provisions of any
Act existing at the time of the enactment of sec
tion 13(b)", that is to say by the insertion of the
words "existing at the time of the enactment of
section 13(b)".
Repeal by implication is never to be favoured
and when the repeal is not express the burden is on
those that assert there is an implied repeal to show
that the two statutes cannot stand together.
Lord Wensleydale's Golden Rule is that the
grammatical and ordinary sense cannot be modi
fied unless to avoid absurdity, repugnance or
inconsistency but the great cardinal rule is to
adhere as closely as possible to the literal meaning
of words.
Obvious omissions may be supplied by construc
tion but in no other cases can the Courts supply
the deficiencies of the legislature. A casus omissus
should not be supplied by a court of law, for that
would be to make laws. A casus omissus should
not be created by interpretation save in the case of
strong necessity.
For my part I see the necessity of not importing
into statutes words which were not found there. In
this instance I see no strong necessity to do so and
accordingly I decline the solution proffered by
counsel for the plaintiffs and accept section 13(b)
of the statute as it reads.
In commenting on the manner in which the first
question in the stated case was framed, I indicated
that there was no doubt whatsoever that both the
Post Office Act and the Financial Administration
Act are within the legislative competence of Par
liament. There is no conflict between them. Nei
ther is there conflict between the Post Office Act
and Order in Council, P.C. 1978-883. Section 10
of the Post Office Act establishes a rate for first
class mail while section 13 of the Financial
Administration Act authorizes the Governor in
Council to authorize a Minister to establish a
charge for service provided by the Crown. Section
11 of the Post Office Act establishes a rate of
postage for Canadian newspapers and periodicals.
Section 13(b) of the Financial Administration
Act authorizes the Governor in Council to estab
lish a charge for services provided by the Crown
"notwithstanding the provisions of any Act relat
ing to that service".
This, in my view, is the enabling legislation upon
which Order in Council, P.C. 1978-883 is based. I
do not overlook the contention on behalf of the
plaintiffs that the Order in Council is ultra vires
but I propose to consider that submission in a later
context.
As I see it the conflict arises between sections 10
and 11 of the Post Office Act and the amendments
to the postal regulations made by the Postmaster
General pursuant to the Order in Council increas
ing the rates of postage for first class mail and
second class mail.
In amending the rates for first class mail it is
specifically mentioned in the amending order that
the Postmaster General does so pursuant to the
Order in Council and for letters over 16 ounces
pursuant to section 6 of the Post Office Act.
Similarly the amendment to the rate of postage for
second class mail is also purported to be done
pursuant to the Order in Council and section 6 of
the Post Office Act.
The amendments to the regulations state:
6. Notwithstanding section 10 of the Post Office Act the rate
of postage... in Canada for delivery in Canada ...
followed by the increases in rates, and
1. Notwithstanding section 11 of the Post Office Act, the rates
of postage on Canadian newspapers and periodicals transmitted
by mail in Canada ...
followed by the rates.
It will be recalled that in the legislative history
of the Post Office Act and the Financial Adminis
tration Act that section 13 of the Financial
Administration Act was enacted by chapter F-10
of R.S.C. 1970 and that the Revised Statutes of
Canada came into force and effect as law on July
15, 1971 by virtue of the proclamation dated June
24, 1971.
Section 10 of the Post Office Act was amended
by chapter 53 of the Statutes of Canada, 1970-71-
72. This was carried forward into section 3 of the
Post Office Amendment Act, chapter 23 of the 2nd
Supp. to R.S.C. 1970 and which by virtue of a
proclamation dated June 14, 1972 came into force
and effect as law on August 1, 1972 but by virtue
of the specific provision of section 8(2) of chapter
53, Statutes of Canada, 1970-71-72 became effec
tive on the day that the Revised Statutes of
Canada came into force, that is July 15, 1971.
Therefore sections 10 and 11 of the Post Office
Act and section 13 of the Financial Administra
tion Act all came into force on the same day, that
is, July 15, 1971.
The effect of the Revised Statutes is that they
are not held to operate as new laws but are to be
construed and have effect as a consolidation and as
declaratory of the law in the Acts repealed (see
section 9 S.C. 1964-65, c. 48, Appendix to R.S.C.
1970, p. ix).
Thus Parliament has declared the law in respect
of the Post Office Act and the Financial Adminis
tration Act as of the same day.
Therefore, the maxim leges posteriores priores
contrarias abrogant is not applicable with respect
to sections 10 and 11 of the Post Office Act and
section 13 of the Financial Administration Act
and does not avail the plaintiffs. On the contrary
that maxim would appear to avail the defendant
because both the Order in Council and the amend
ments made by the Postmaster General were later
than sections 10 and 11 of the Post Office Act.
Counsel for the plaintiffs also contended that
sections 10 and 11 of the Post Office Act are
special sections dealing with very special subject
matter contained in a particular Act whereas sec
tion 13 of the Financial Administration Act is a
general section. He invoked the maxim, "Gener-
alia specialibus non derogant" which I translate to
mean that general things do not derogate from
special things.
It is a fundamental rule in the construction of
statutes that a subsequent statute in general terms
is not to be construed to repeal a previous particu
lar statute, unless there is some express reference
to the previous legislation on the subject or unless
there is a necessary inconsistency in the two Acts
standing together. The same applies to a particular
section and a general section in the same enact-
ment and, in my opinion, the maxim is also appli
cable to contemporaneous statutes.
The key to the applicability of the rule is that
there must be a necessary inconsistency in the two
Acts standing together. In the circumstances of
this stated case it is my opinion that the rule must
be extended to include the delegated and sub-dele
gated legislation following on section 13 of the
Financial Administration Act because it is in the
amended regulations made by the Postmaster Gen
eral that the inconsistency lies with sections 10 and
11 of the Post Office Act.
That being the case the maxim, generalia
specialibus non derogant does not apply because
both the amended postal regulations and sections
10 and 11 of the Post Office Act have identical
degrees of specificity. Both are directed to the
identical subject matter and both establish a rate
of postage for first class and second class mail.
Certainly those provisions cannot stand to
gether. They are mutually inconsistent and one or
other must fall and one or other must prevail.
The problem is which must prevail and, as I
have said at the outset in considering the approach
to be adopted in resolving this problem, it is a
question of statutory interpretation and particular
ly of the plain meaning to be ascribed to the words
used in section 13 of the Financial Administration
Act. In so doing the two maxims relied upon by
counsel for the plaintiffs are of no assistance for
the reasons expressed.
It was also contended by counsel for the plain
tiffs that section 13 of the Financial Administra
tion Act is not applicable because it provides that
where a service is provided and where the Gover
nor in Council is of the opinion that the whole or
part of the cost should be borne by the person to
whom the service is rendered and that by virtue of
the Post Office Act the whole or part of that cost is
being recovered. It was his contention that section
13 would only be applicable where the service had
been free of charge or in the absence of some
charge otherwise imposed. In view of the fact that
a fee is already levied by sections 10 and 11 of the
Post Office Act it cannot be said that the Post
Office is not recovering a part of the cost or even
perhaps the whole of the cost. The fallacy in that
the word "or" between the words "whole" and
"part of the cost" is used in its disjunctive sense.
That means that when the Governor in Council
reaches its opinion then either the "whole" or
"part of the cost" may be recovered. Added to this
it is also a rule of construction that the greater
includes the lesser. Therefore, the Governor in
Council may conclude that a still greater part of
the cost should be recovered up to the whole of the
cost. There is no evidence adduced as to the cost of
the service supplied. It may well be that the whole
of the cost may have been recovered under the
former lower rate but that those costs have escalat
ed in the interval. That would be contemplated and
permissible under the language of section 13 and
the same is applicable to a part of the cost. A
statute always speaks in the present and is accord
ingly applicable to facts as they are at the present
time.
Neither do 1 think from the plain meaning of
the words of section 13 that the section must be
restricted to those circumstances where no provi
sion is made for a fee in the statute under which
that service is provided.
For these reasons I do not accept this
contention.
As was said before in another context the key to
resolving a conflict between two statutes or provi
sions of these statutes, one of which is special and
the other is general, the familiar doctrine is that
the general does not repeal the former unless there
is a clear intention to do so.
That is the rule expressed by Selborne L.C. in
Seward v. "Vera Cruz" ([ 1884] 10 A.C. 59)
referred to by counsel for both parties.
The general rules which are applicable to par
ticular and general enactments are very clear, the
only difficulty is in their application.
In many instances, where there is repugnancy
between statutory provisions which must be recon-
ciled if possible, devices frequently resorted to are
modifying the grammatical and ordinary sense, by
reducing the scope or ambit of general words, by
choosing between alternative meanings by ignoring
words and/or by introducing words.
An example of this last mentioned device is that
put forward by counsel for the plaintiffs when he
submitted that section 13(b) of the Financial
Administration Act could be reconciled by the
introduction of the words to indicate that the
words "notwithstanding the provisions of any Act"
should be applicable only to Acts existing at the
time of the enactment of section 13(b). I declined
to do so for the reasons already expressed and
more particularly section 10 of the Interpretation
Act, R.S.C. 1970, c. I-23, provides that the law is
always speaking and that when a matter is
expressed in the present tense it shall apply to
matters as they arise.
Hence, in the present stated case, section 13(b)
of the Financial Administration Act is in the
present tense and accordingly is applicable at the
time the Governor in Council authorizes the Post
master General to prescribe postal rates by regula
tion and at the time the Postmaster General in fact
prescribes the rate of postage.
Reverting to the reconciliation of repugnancy
between statutory provisions the introduction of
the words "subject to the provisions of any Act
relating to that service" at the beginning of section
13(a) of the Financial Administration Act and the
words "notwithstanding the provisions of any Act
relating to that service" in section 13(b) of that
Act is a clear indication that Parliament intended
the power so conferred could be so exercised so as
to supersede and render inoperative the specific
words of another statute, in this instance sections
10 and 11 of the Post Office Act.
That is the plain meaning of those words. It is
only when words used in a statute are ambiguous
that resort is to be had to the cardinal rules of
legal interpretation. They are but aids to interpre
tation and arise only in the case of ambiguity.
By the use of the words, "notwithstanding the
provisions of any other Act" in section 13(b) of the
Financial Administration Act, Parliament
removed any conflict because by the plain and
unambiguous meaning of these words of recon
ciliation, section 13(b) of the Financial Adminis
tration Act must supersede sections 10 and 11 of
the Post Office Act.
What Parliament has done in effect is to provide
two means of effecting an increase in the rates of
postage. Section 6(d) of the Post Office Act as
amended has limited application. It provides that
the Postmaster General may establish rates of
postage on any class of mailable matter, including
letter mail, not otherwise established in the Post
Office Act. Section 11 exhausts that author
ity with respect to Canadian newspapers and peri
odicals and section 10 exhausts that author
ity except with respect to letters over 16 ounces.
The two means available to increase the rates of
postage are: (1) Parliament could amend sections
10 and 11 of the Post Office Act to establish
higher rates, and (2) Parliament has provided by
section 13 of the Financial Administration Act
that the Governor in Council may by Order in
Council authorize the Postmaster General to do
likewise.
Both are available means, the second coun
tenanced by Parliament to accomplish the same
end. The second method was the means adopted
and it was adopted with the blessing of Parliament
because it was made available by Parliament.
Counsel for the plaintiffs contended that a con
struction of section 13 of the Financial Adminis
tration Act which would lead to it being construed
as statutory authority to establish postal rates is
unreasonable, absurd or illogical.
There is abundant judicial authority for the
proposition that where the language of a statute is
clear and unambiguous it must be interpreted in
its ordinary sense, even though to do so may lead
to manifest absurdity, repugnance, mischief or
injustice.
In Blackstone's Commentaries it is said at page
91, "If the Parliament will positively enact a thing
to be done which is unreasonable, I know of no
power in the ordinary forms of the constitution
that is vested with authority to control it."
Certainly it is not for the judicial branch of
Government.
Blackstone continued to say at page 91:
. where the main object of a statute is unreasonable, the
judges are [not] at liberty to reject it; for that were to set the
judicial power above that of the legislature, which would be
subversive of all government.
The argument advanced for that construction
being unreasonable and illogical is that if in con
formity with any Act a fee is to be set then the
Governor in Council must set his mind and hand
to the tasks under section 13(a) of the Financial
Administration Act, but if a fee is to be set in
abrogation of a statutory scale, the task can, under
section 13(b) be given to and performed by a
single Minister.
Contrary to reason or logic or not, that is pre
cisely what Parliament has authorized to be done
in section 13 of the Financial Administration Act
in clear and unequivocal language.
It was also suggested that the sub-delegation of
legislative authority from the Governor in Council
to the Postmaster General under section 13(b) of
the Financial Administration Act providing that,
"... but subject to and in accordance with such
terms and conditions as may be specified by the
Governor in Council" is bad because no terms and
conditions were specified.
The complete answer to that objection lies in the
use of the permissive word "may". Its use imports
a discretion. The Governor in Council could, if it
had deemed it expedient to do so impose terms and
conditions which it did not do. Rather, in the
exercise of the discretion vested in him by the
section, no terms or conditions were imposed and
the Governor in Council sub-delegated, as he was
authorized to do, an unfettered discretion to the
Postmaster General.
These latter arguments advanced are, in my
view, a repetition of those made against the
inroads of subordinate legislation upon the
supremacy of Parliament and the erosion of that
supremacy by bureaucratic encroachments, the
manifestations of "The New Despotism" decried
by the late Lord Hewart, Lord Chief Justice of
England, in his essay under that title published in
1929.
Lord Hewart did say that the system of Parlia
ment delegating its powers of legislation was
necessary within certain limits, at least as regards
matters of detail, because it is impossible, if only
for the want of time, for Parliament to deal ade
quately and in detail with all matters calling, or
supposed to call, for legislation.
While Lord Hewart had no objection to regula
tions which are to have no effect until approved by
Parliament he did emphatically deplore and vehe
mently object to the authority to make regulations
which have the effect of statutes behind the back
of Parliament which come into force without the
assent or even the knowledge of Parliament and
vesting that authority in a single Minister.
In essence, this is what I construe, this basic
objection to the presently impugned amendments
made by the Postmaster General to the postal
regulations increasing the rates of postage to be. It
has been done in the past by amendments to the
appropriate sections of the Post Office Act estab
lishing rates of postage which amendments were
introduced in Parliament and enacted by Parlia
ment and the argument is, in reality, that it should
continue to be so done.
It is beyond the function of Her Majesty's
judges to proffer advice or criticize the actions of
Parliament but it may be permissible to say that if
Parliament in its wisdom should consider that
legislation affecting the rates of postage should be
the exclusive purview of Parliament itself and not
the subject matter of delegated legislation then the
remedy lies in Parliament through its instrumen-
talities such as caucus, standing committees, the
question period and the like.
For convenience I repeat the two questions
posed in the stated case for opinion. They are
whether:
(1) the amendments made to the Domestic First Class Mail
Regulations by SOR/78-297 and the amendments made to
the Second Class Mail Regulations by SOR/78-298 are
invalid because they have not been authorized by the Post
Office Act, R.S.C. 1970 c. P-14; and
(2) the Order in Council, P.C. 1978-883, enacted by the
Governor in Council on the 23rd day of March 1978 and
registered as SI/78-60 is ultra vires the Governor in Council.
For the reasons expressed both questions are
answered in the negative from which it follows
that the plaintiffs' action is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.