Canada Post Corporation v. Key Mail Canada Inc.

Canada Post Corporation v. Key Mail Canada Inc. et al.; G3 Worldwide (Canada) Inc. c.o.b. Spring and Spring Canada et al., Intervenors [Indexed as: Canada Post Corp. v. Key Mail Canada Inc.]

77 O.R. (3d) 294

[2005] O.J. No. 3653

Docket: C42369

Court of Appeal for Ontario,

Sharpe, Blair and MacFarland JJ.A.

September 2, 2005

• Application for leave to appeal to the Supreme Court of Canada filed September 26, 2005, and submitted to court December 5, 2005.

Statutes -- Interpretation -- Principles of interpretation -- Section 14 of Canada Post Corporation Act giving Corporation "sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada" (in English version) and "privilège exclusif du relevage et de la transmission des lettres et de leur distribution aux destinataires" (in French version) -- Motion judge rejecting "single process" interpretation of s. 14 and interpreting this provision to mean that any one or more of activities of "collecting, transmitting and delivering" letters is exclusive privilege of Canada Post, including those activities in relation to letters addressed to foreign destinations -- Relevant principles of statutory interpretation supporting meaning attributed to s. 14 by motion judge -- Canada Post Corporation Act, R.S.C. 1985, c. C-10, s. 14.

Section 14(1) of the Canada Post Corporation Act (the "Act") grants to the Corporation "the sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada". The French version of s. 14 states that "la Société a, au Canada, le privilège exclusif du relevage et de la transmission des lettres et de leur distribution aux destinataires". The appellants were in the business of providing outbound international mail services to businesses, individuals and government agencies. This service involved the gathering and receipt of mail in Canada and arranging for the delivery of that material to points outside the borders of Canada. The appellants submitted that Canada Post's exclusive privilege did not prohibit the appellants from collecting and/or transmitting letters within Canada for purposes of delivery to destinations outside Canada. On a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge rejected the submission that the collection, transmission and delivery of letters, as contemplated by s. 14(1), is a "single process". Examining both the English and the French versions of s. 14, the motion judge interpreted the provision to mean that any one or more of the activities of "collecting, transmitting and delivering" letters is the exclusive privilege of Canada Post in Canada, including those activities in relation to letters addressed to foreign destinations. The appellants appealed.

Held, the appeal should be dismissed.

The meaning attributed to s. 14 by the motion judge was supported by the relevant principles of statutory interpretation. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. The motion judge properly characterized the purpose of the Act as the provision to Canadians of a universal postal service at reasonable cost. There is nothing in the scheme or object of the Act, or the intention of Parliament, that is inconsistent with the ordinary and grammatical sense of the words in s. 14 as interpreted by the motion judge.

The intervenors relied on the principle of implied exclusions -- expressio unius est exclusio alterius -- based on the provisions of s. 5(1) of the Act, which [page295] states that the "objects of the Corporation are (a) to establish and operate a postal service for the collection, transmission and delivery of messages, information, funds and goods both within Canada and between Canada and places outside Canada". The maxim "to express one thing is to exclude another" applies in statutory interpretation terms whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. The force of the implication depends on the strength and legitimacy of the expectation of express reference. Given the clear language of s. 14 -- particularly the French version -- the strength and legitimacy of the expectation asserted by the intervenors was not high.

Moreover, the language of s. 5(1)(a) is incompatible with the appellants' and the intervenors' "single process" approach to the exclusive privilege set out in s. 14. The phrase "collection, transmission and delivery" of mail in s. 5(1)(a) clearly applies both to the collection, transmission and delivery of mail "within Canada" and "between Canada and places outside Canada". Canada Post is authorized to engage in such activities as part of its corporate objects. However, there cannot be a single process pertaining to the "collection, transmission and delivery" of international mail in that regard because Canada Post does not "deliver" outbound international mail to the addresses of that mail and it does not "collect" inbound international mail.

An interpretation of s. 14 that would create such an internal inconsistency with the language of s. 5(1)(a) is to be avoided. The "single process" interpretation of s. 14 would lead to similar inconsistencies with other provisions of the Act as well, particularly s. 56 of the Act, which states that "Every person who, in violation of the exclusive privilege of the Corporation under s. 14, collects, transmits or delivers to the addressee thereof, or undertakes to collect, transmit or deliver to the addressee thereof, any letter within Canada, or receives or has in his possession within Canada any letter for the purpose of so transmitting or delivering it, commits an offence in respect of such letter". There is no question that this provision creates an offence with respect to any one of the activities of collecting, transmitting or delivering letter mail. To interpret the phrase "collecting, transmitting and delivering letters" in s. 14 as comprising a single "agglomerated" process would conflict with this clear disposition.

The principles of statutory interpretation that call for the strict construction of penal statutes, monopoly powers and legislation limiting property rights did not assist the appellants and the intervenors. The fact that a statute may contain a penal sanction is not sufficient to constitute the statute itself a penal statute. Section 14 is not a penal provision. In any event, the strict construction approach is a matter of last resort and is not allowed to trump other indicators of legislative meaning. Here, the other indicators of legislative meaning pointed to the interpretation accorded to s. 14 by the motion judge. Secondly, if the principle that statutes which create monopoly rights should be strictly construed against the monopolist in favour of the public exists in Canada, it would not prevail over the clear language of the statute taken in its context and read harmoniously with the scheme and object of the Act and the intention of Parliament.

There is no conflict between the provisions of s. 14 of the Act, as interpreted by the motion judge, and the Competition Act, R.S.C. 1985, c. C-34.

The interpretation given to s. 14 by the motion judge does not place Canada in a position where it is inappropriately interfering with a system that [page296] operates under international law. Article 24 of the Universal Postal Union's ("UPU") constitution stipulates that "The provisions of the Acts of the Union shall not derogate from the legislation of any member country in respect of anything which is not expressly provided for by those Acts." Nothing in the constitution, Acts or protocols of the UPU expressly gives private couriers the right to deal directly with national postal administrations. Thus, the clear language of s. 14 prevails.

APPEAL from the order of Carnwath J., [2004] O.J. No. 3446, [2004] O.T.C. 745 (S.C.J.), interpreting s. 14 of the Canada Post Corporation Act, R.S.C. 1985, c. C-10.

C.U.P.W. v. Canada Post Corp., [1996] F.C.J. No. 544, 135 D.L.R. (4th) 80, 197 N.R. 40 (C.A.), distd Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. 210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour), apld Other cases referred to Canada Post Corp. v. Association of Rural Route Mail Couriers, [1987] F.C.J. No. 1142, [1989] 1 F.C. 176, 46 D.L.R. (4th) 716, 82 N.R. 249 (C.A.); Harel and Qué (Dep. Min. of Revenue), [1978] 1 S.C.R. 851, 80 D.L.R. (3d) 556, 18 N.R. 91, [1977] C.T.C. 441, 77 D.T.C. 5438; R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, 235 D.L.R. (4th) 216, 316 N.R. 203, 180 C.C.C. (3d) 449, 2004 SCC 6, 18 C.R. (6th) 57; Société canadienne des postes v. Postpar Inc., [1988] Q.J. No. 1726, [1988] R.J.Q. 2740, J.E. 88-1287, 20 C.I.P.R. 180 (S.C. (Civ. Div.)) Statutes referred to Canada Post Corporation Act, R.S.C. 1985, c. C-10, ss. 5, 14, 16 [as am.], 42 [as am.], 56 Competition Act, R.S.C. 1985, c. C-34 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 [as am.] Authorities referred to Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Singer, N.J., Sutherland Statutory Construction, 6th ed. (Massachussetts: West Group, 2001) Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002)

Howard Winkler and Eric Wredenhagen, for Canada Post. Brian Jenkins and Martin Masse, for Key Mail Canada Inc. and Key Mail International Inc. Brendan Van Niejenhuis and Aaron Dantowitz, for intervenor, G3 Worldwide (Canada) Inc. c.o.b. Spring and Spring Canada. R. David House, for intervenor Citicourier International Ltd. [page297]

The judgment of the court was delivered by

BLAIR J.A.: --

Overview

[1] This appeal deals with Canada Post's exclusive statutory privilege under s. 14(1) of the Canada Post Corporation Act [See Note 1 at the end of the document] with respect to the collection, transmission and delivery of mail in Canada. The issue is whether Canada Post's exclusive privilege in that regard prohibits others from collecting and/ or transmitting letters within Canada for purposes of delivery to destinations outside of Canada.

[2] The appellants and the intervenors are in the business of providing outbound international mail services to businesses, individuals and government agencies. This service involves the gathering and receipt of mail and other printed matter in Canada and arranging for the delivery of that material to points outside the borders of this country.

[3] Section 14(1) grants to the Corporation "the sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada". Carnwath J. interpreted this provision to mean that any one or more of the activities of "collecting, transmitting and delivering" letters is the exclusive privilege of Canada Post in Canada, including those activities in relation to letters addressed to foreign destinations. Key Mail Canada and Key Mail International, supported by the intervenors, Spring Canada and Citicourier International, appeal that decision.

[4] For the reasons that follow, I would dismiss the appeal.

Arguments

[5] The appellant and the intervenors submit that the collection, transmission and delivery of letters, as contemplated in s. 14(1), is a "single process", or, in the words of the intervenor, Spring, that "the monopoly power is over the agglomerated process of operating a postal service through collecting, transmitting and delivering letters within Canada -- and not each independent element of the three standing alone" [See Note 2 at the end of the document]. In support of this contention they rely upon the decision of the Federal Court of Appeal in C.U.P.W. v. Canada Post Corp., [1996] F.C.J. No. 544, 135 D.L.R. (4th) 80 (C.A.), [page298] and upon what they say is the clear and unambiguous language of s. 14(1) -- both in its English and French versions -- leading to the conclusion that s. 14(1) excludes outbound international mail from the exclusive privilege accorded to Canada Post by its terms. In addition, the intervenors assert that the motions judge incorrectly applied the "shared meaning" rule of bilingual interpretation and, further, that he erred by failing to consider a number of other relevant principles of statutory interpretation, including the principles of:

(a) internal harmony of the whole Act;

(b) expressio unius est exclusio alterius and the presumption against redundancy or tautology;

(c) strict construction of penal statutes;

(d) strict construction of monopoly-creating statutes; and

(e) harmony among enactments of the same legislature.

[6] For its part, Canada Post submits, too, that the language of s. 14(1) is clear and unambiguous, but that it is clear and unambiguous in providing the Corporation with an exclusive privilege within Canada for any one or more of the activities of "collecting, transmitting and delivering letters". The trial judge was accordingly correct in holding that Canada Post's exclusive privilege applies to all letter mail collected and transmitted in Canada, whether delivered in Canada or abroad. Canada Post places particular reliance on the French-language version of s. 14(1) in this regard. In addition, Canada Post asserts that it is the interpretation of the appellant and the intervenors that leads to internal and external disharmony within the Act as a whole, and that the expression unius and strict construction principles put forward by the appellant and intervenors are of little assistance in the resolution of the problem.

[7] Two other arguments were raised by the intervenors. They say that the motion judge was led into error by the fact that the nature of the Universal Postal Union ("UPU") -- of which Canada is a member -- and the role of its constitution, Acts, and protocols, were not brought to his attention. Lastly, they submit that if the court is left in doubt about the meaning of s. 14, the matter should be remitted for trial upon a full factual record that would provide the necessary factual context for the interpretation of the Act. [page299]

Analysis

The language of s. 14

[8] The English-language and French-language versions of s. 14(1) of the Canada Post Corporation Act state:

14(1) Subject to section 15, the Corporation has the sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada.

14(1) Sous réserve de l'article 15, la Société a, au Canada, le privilège exclusif du relevage et de la transmission des lettres et de leur distribution aux destinataires.

[9] With respect to these provisions, Carnwath J. stated (reasons, paras. 1 and 6):

... I find that a proper interpretation of s. 14 of the Canada Post Corporation Act, in the English and French versions, is that any one or more of the activities of "collecting, transmitting and delivering" letters is the exclusive privilege of Canada Post in Canada, including letters addressed to foreign destinations.

I find the placement of the conjunction "et" ("and") between the words "relevage" "transmission" and "distribution" makes clear the intention of Parliament to grant an exclusive privilege to Canada Post within Canada ("au Canada") for each of the activities.

[10] I agree with this interpretation.

[11] In my view, while the English version of the section is ambiguous, and capable of bearing the meaning sought to be ascribed to it by the appellant and the intervenors, the French version is clear and unambiguous. It gives Canada Post, within Canada ("au Canada"), the exclusive privilege of collecting letters and ("et") the exclusive privilege of transmitting letters and ("et") the exclusive privilege of delivering letters to their addressees. Contrary to the submissions of the appellant and the intervenors, this interpretation does not involve reading any additional language into the provision. It is clear, particularly from the French version, that the exclusive privilege applies to each and all of "collecting", "transmitting" and "delivering".

[12] As the trial judge noted, where the meaning of a statutory provision is ambiguous in one language, but clear and unambiguous in the other, the court should find the clear and unambiguous meaning as the one common to both languages. Provided that shared meaning is not inconsistent with the meaning derived from an application of the other relevant principles of statutory interpretation, it is the meaning that should be ascribed to the provision in question. [page300] See R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, 235 D.L.R. (4th) 216, at p. 232 S.C.R., p. 230 D.LR.; R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at pp. 80-84, 87-90.

[13] I see nothing in the application of the other relevant principles of statutory interpretation that detracts from the meaning attributed to s. 14(1) by the motions judge. Indeed, they support that meaning.

The reliance on C.U.P.W. v. Canada Post Corp.

[14] The appellant and the intervenors argue that the wording of s. 14 clearly excludes letters delivered outside of Canada from the scope of the exclusive privilege granted to Canada Post -- even where the letters are first collected and transmitted within Canada -- because the phrase "within Canada" in the English version must be read as modifying the entire process of collecting, transmitting and delivering letters to the addressees of those letters. They submit that "collecting, transmitting and delivering letters" is a "single process", and they rely upon the decision of the Federal Court of Appeal in C.U.P.W. v. Canada Post Corp., [1996] F.C.J. No. 544, 135 D.L.R. (4th) 80 (C.A.), in support of that proposition. In that case, MacGuigan J.A. remarked that he saw "no reason for distinguishing among the three functions of Canada Post referred to in s. 14(1)" (at p. 86 D.L.R.).

[15] Respectfully, I do not think that C.U.P.W. v. Canada Post Corp. can be read as standing for the proposition that "collecting, transmitting and delivering letters" in s. 14 of the Act constitutes an indivisible single process for purposes of determining the scope of Canada Post's exclusive privilege as set out in that section. C.U.P.W. involved quite a different issue, namely, whether Canada Post could privatize portions of its operations by franchising private retail outlets to collect and deliver letters. The court held that it could do so because of its powers as a natural person under s. 16(1). MacGuigan J.A.'s remark that there was "no reason to distinguish" among the three activities of collection, transmission and delivery was made in the context of his consideration of an earlier decision of the Federal Court in another Canada Post case -- Canada Post Corp. v. Association of Rural Route Mail Couriers, [1987] F.C.J. No. 1142, 46 D.L.R. (4th) 716 (C.A.) -- in which it was held that Canada Post had the authority to contract with rural route couriers for the transmission (including the collection and delivery) of mail, including letters. In C.U.P.W. what was at issue was Canada Post's ability to franchise the collection and delivery functions. In that context, the court concluded, there was no reason to distinguish between the three activities. That situation is quite distinguishable from the present case. [page301]

Statutory interpretation

[16] The fundamental principle of statutory interpretation is that adopted by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, at para. 21. There, Iacobucci J. affirmed that the following passage from Driedger on Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) "best encapsulates" the proper approach:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The Act

[17] The Canada Post Corporation Act creates Canada Post Corporation as a Crown corporation. It provides for the Corporation's objects and powers and for its corporate governance and structure, and gives it the powers to make regulations for the efficient operations of its business. It grants the exclusive privilege outlined above in s. 14, subject to the exceptions set out in s. 15. The Act also contains a series of measures dealing with the delivery of mail in general, including matters relating to the emergency transmission of mail, inspections, dealing with requests from customs officials and the right to make certain prohibitory orders. Finally, the Act provides for offences and punishments respecting mail-related matters, including the offence in s. 56 of violating the Corporation's exclusive s. 14 privilege.

[18] In providing for the corporate objects of Canada Post, s. 5 states, inter alia:

5(1) The objects of the Corporation are

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

(2) While maintaining basic customary postal service, the Corporation, in carrying out its objects, shall have regard to

(b) the need to conduct its operations on a self- sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada and that is similar with respect to communities of the same size ... [page302]

[19] The Act was enacted in 1981 as the successor to a series of statutes governing the Canadian postal services since Confederation. The Act removed postal operations from a department of Government, under the Postmaster General, to Canada Post, a Crown corporation. While there may have been a variety of factors underlying this transfer of responsibilities [See Note 3 at the end of the document], it seems clear, from the content of the statute and from the debates in committee preceding its enactment, that Canada Post was expected to continue to carry on the traditional role of providing postal services across the country. It also seems clear that Canada Post would face the same challenge as the Postmaster General had over the previous years of this country's history: the requirement that it provides postal services to all communities in a lightly populated but geographically vast country, and that it does so at a reasonable cost but in a financially viable way. Many Canadian communities cannot be served economically. Hence Canada Post's needs to engage in the lucrative letter mail business and the granting of its exclusive privilege respecting the collection, transmission and delivery of letters.

[20] A more detailed and helpful review of this background was undertaken by Halperin J. in Société canadienne des postes v. Postpar Inc., [1988] Q.J. No. 1726, 20 C.P.I.R. (S.C. (Civ. Div.)). He concluded (at para. 45):

... the dominant and controlling aim of the Postal Act is what the text itself discloses, namely to provide through a Crown corporation a universal postal service throughout Canada with the object of providing a standard of service that will meet the needs of the people of Canada at rates that are fair and reasonable, and yet so far as possible sufficient to defray the cost of operations.

[21] Here, the motion judge adopted a similar view of the statutory purpose of the Act -- "the provision to Canadians of a universal postal service at reasonable cost". I agree with this characterization. I see nothing in the scheme or object of the Act, or the intention of Parliament, that is inconsistent with the ordinary and grammatical sense of the words in s. 14 as interpreted by the motion judge and adopted in these reasons. Indeed, the language of the statutory exclusive privilege, together with its context and the other factors mentioned, all point to the meaning attributed to the section by the motion judge, in my view. [page303]

Other statutory interpretation issues raised

[22] The intervenors' reliance on the principle of implied exclusions -- expressio unius est exclusio alterius -- is based on the provisions of s. 5(1) (a) of the Act cited above. The argument is that, in articulating the objects of the Corporation, Parliament expressly identified two activities in relation to the collection, transmission and delivery of mail -- one "within Canada" and one "between Canada and places outside Canada" -- but when defining the Corporation's exclusive privilege in s. 14, no reference is made to international activities. The maxim "to express one thing is to exclude another" applies in statutory interpretation terms "whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly": R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at p. 186. As Professor Sullivan points out, at p.

187, however, "[t]he force of the implication depends on the strength and legitimacy of the expectation of express reference". Here, given the clear language of s. 14 -- particularly, the French version -- the strength and legitimacy of the expectation asserted by the intervenors is not high, in my opinion.

[23] Moreover, the language of s. 5(1)(a) is incompatible with the appellant's and the intervenors' "single process" approach to the exclusive privilege set out in s. 14 of the Act. The phrase "collection, transmission and delivery" of mail in s. 5(1)(a) clearly applies both to the collection, transmission and delivery of mail "within Canada" and "between Canada and places outside Canada". Canada Post is authorized to engage in such activities as part of its corporate objects. However, as Canada Post argues, there cannot be a single process pertaining to the "collection, transmission and delivery" of international mail in that regard because Canada Post does not "deliver" outbound international mail to the addressees of that mail and it does not "collect" inbound international mail. An interpretation of s. 14 that would create such an internal inconsistency with the language of s. 5(1)(a) should be avoided.

[24] The "single process" interpretation of s. 14 would lead to similar inconsistencies with other provisions in the Act as well. For example, s. 42 deals with situations involving customs or money laundering offences. Under subsection 42(1.1), on the request of a customs officer, "all mail leaving Canada for a place outside Canada" that contains matter not to be exported "shall be submitted by the Corporation" to the customs officer. Under subsection 42(2.1) where mail is seized or detained for customs or [page304] money laundering reasons, notice of the seizure and detention is to be given to the Corporation. These provisions are inconsistent with an interpretation of the Act that would permit private couriers to engage in the delivery of outbound international letters.

[25] More significantly, perhaps, the very provision on which the appellant and the intervenors rely for their "penal sanction" argument -- s. 56 of the Act -- belies their "single process" interpretation. Section 56 states:

56. Every person who, in violation of the exclusive privilege of the Corporation under section 14, collects, transmits or delivers to the addressee thereof, or undertakes to collect, transmit or deliver to the addressee thereof, any letter within Canada, or receives or has in his possession within Canada any letter for the purpose of so transmitting or delivering it, commits an offence in respect of each such letter.

(Emphasis added)

[26] There is no question this provision creates an offence with respect to any one of the activities of collecting, transmitting or delivering letter mail. To interpret the phrase "collecting, transmitting and delivering letters" in s. 14 as comprising a single "agglomerated" process would conflict with this clear disposition.

[27] The intervenors also invoke principles of statutory interpretation that call for the strict construction of penal statutes, monopoly powers, and legislation limiting property rights. In my opinion, these arguments do not assist them in the circumstances of this case.

[28] First, the fact that a statute may contain a penal sanction is not alone sufficient to constitute the statute itself a penal statute. Section 14 -- the object of the interpretative exercise here -- is not a penal provision. In any event, as Sullivan and Driedger note, at p. 390, the strict construction approach is a matter of last resort and "is not allowed to trump other indicators of legislative meaning". It is only one factor among many. Here, the other indicators of legislative meaning point to the interpretation accorded to s. 14 by the motion judge.

[29] Secondly, the issue of whether statutes that create monopoly rights should be strictly construed against the monopolist in favour of the public, as appears to be the case in the United States [See Note 4 at the end of the document], has not been dealt with directly in Canada. Technically, Canada Post does not have a monopoly by virtue of s. 14 of the Act. It has a sole and exclusive statutory privilege. In any event, however, the existence of such a principle in Canada would not [page305] alter the result here, for the same reason the principle regarding strict construction of penal statutes does not assist; it would not prevail over the clear language of the statute taken in its context and read harmoniously with the scheme and object of the Act and the intention of Parliament.

Harmony with the Competition Act

[30] The intervenors' final submission with respect to the interpretation of s. 14 is that the meaning subscribed to its language by the motion judge is not harmonious with the purpose and provisions of the Competition Act, R.S.C. 1985, c. C-34. However, there is no conflict between the provisions of s. 14 of the Canada Post Corporation Act, as interpreted by the motion judge, and the Competition Act. The issue does not arise because Canada Post is unfairly competing with the appellant and the intervenors in the collection, transmission and delivery of letters to international destinations. The issue arises because Parliament has chosen -- as it is entitled to do -- to grant Canada Post an exclusive privilege in relation to the collection, transmission and delivery of letters, and the question is the scope of that exclusive privilege. In substance, this argument is a re-stated version of the argument advocating a strict construction of monopoly legislation, which has been rejected for the reasons outlined above.

The Universal Postal Union and Conventions

[31] Letters that are collected and transmitted within Canada for outbound international delivery are further transmitted outside of Canada, and then collected by the relevant destination's postal authority, for delivery to the addressees of the letters at their international destination. The intervenors argue that this brings into play the obligations of Canada pursuant to its commitments under the Universal Postal Union (the "UPU") and the UPU's various protocols and conventions. They submit that there is nothing in the UPU or its protocols that restricts foreign postal services from accepting letters presented for delivery by entities other than national postal services and that Canada Post, by its interpretation of s. 14, is attempting to prevent private Canadian couriers from doing so, thus seeking to encompass in domestic legislation a system that operates under international law. The intervenors contend that the Act must be interpreted in a fashion that is consistent with international law.

[32] I would not give effect to this argument.

[33] Canada Post submits that the various regulations, Acts and protocols relating to the UPU make it clear that they contemplate [page306] an exchange of mail exclusively between national postal administrations. It characterizes the intervenors' contention that they should be, and would be, but for the exclusive privilege, free to deal directly with other national postal administrations as "put bluntly, a fiction".

[34] It is not necessary to resolve this dispute, however, because I am not persuaded that the interpretation given to s. 14 by the motion judge, and by me, places Canada in a position where it is inappropriately interfering with a system that operates under international law. Article 24 of the UPU's constitution stipulates that:

The provisions of the Acts of the Union shall not derogate from the legislation of any member country in respect of anything which is not expressly provided for by those Acts.

[35] We were not directed to anything in the constitution, Acts or protocols of the UPU that expressly gives private couriers the right to deal directly with national postal administrations. Thus, the clear language of s. 14 of the Canada Post Corporation Act prevails.

Procedural matters

[36] The appellant argues that the motion judge erred in proceeding with the Rule 21 motion [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] because the determination of the issue concerning the interpretation of s. 14 would not materially shorten the trial and, further, that the motion judge should have exercised his discretion not to make the order sought. It also raises issues concerning delay. The motion judge rejected these arguments in the exercise of his discretion, however, and I can see no basis for interfering with his decisions in that regard.

[37] Both the appellant and the intervenors ask this court not to determine the meaning of the language of s. 14 if we disagree with their view that the language is clear and unambiguous as they interpret it. They say that in such an event a trial is necessary in order to establish the necessary factual "context" for the interpretive exercise. Apparently, the appellant and intervenors' interpretation of the legislation can be determined on the basis of the statutory language itself, and in a "factual vacuum", but Canada Post's cannot. In any event, I would not give effect to this submission.

[38] The principal "historical and factual context" which the intervenors contend "illuminates the intention of Parliament and adds weight to [their] position on this appeal", has to do with a body of evidence which they submit demonstrates Canada Post [page307] itself has never considered its exclusive privilege to encompass international mailings outside of Canada until recently [See Note 5 at the end of the document]. Coupled with Canada Post's power under the Act to pass regulations governing its business operations -- for example the right to define what constitutes "a letter" -- this alleged pattern of conduct is significant, it is said, because Canada Post's role as a regulator lends force to its "administrative interpretation" of the statute, which is consistent with the interpretation put forward by the appellant and the intervenors.

[39] There is a principle of interpretation which holds that the interpretation of its home legislation by an administrative body, or of legislation that it is charged with enforcing, while not binding on the courts, is of some assistance in determining the meaning or effect of that legislation: see Harel v. Qué (Dep. Min. of Revenue), [1978] 1 S.C.R. 851, 80 D.L.R. (3d) 556, at pp. 857-59 S.C.R., pp. 560-61 D.L.R.; Sullivan and Driedger, supra, at pp. 502-08. Whether Canada Post is in this respect an administrative regulator of the type entitled to interpretive deference is open to question, in my opinion, but it is not necessary to decide that point on this appeal. Whatever may be the implications of the conduct attributed to Canada Post in terms of laches or delay or estoppel by way of a defence to a charge of violating the exclusive privilege, that is not the issue to be determined here. Whether Canada Post did or did not choose to assert an exclusive privilege right with respect to the delivery of letters to international destinations in the past cannot bear on the meaning to be attributed to the statutory language giving rise to that exclusive privilege. The historical and factual context as to why legislation was enacted is often useful in ascertaining the intention of Parliament and the object and scheme of the legislation. But evidence as to how Canada Post chose to carry on its operations at a given point in time, and whether it chose to exploit a certain avenue of business or not to do so, is of little relevance in determining the statutory meaning of the provision in question.

Disposition

[40] I would dismiss the appeal for the foregoing reasons.

[41] Canada Post is entitled to its costs of the appeal against both the appellant and the intervenors, jointly and severally, on a partial indemnity basis. While the intervenors would not have been entitled to seek costs, had the appeal been allowed, because of the terms of the order granting them leave to intervene, it was [page308] their arguments that occupied the bulk of the time on the appeal and, undoubtedly, in terms of preparation for the appeal. The intervenors are commercial entities with an intense interest in the outcome of the appeal, since it affects their business interests as much as the appellant's. I see no reason why they should not share in bearing the costs of the appeal.

[42] If counsel cannot agree on the quantum of the costs, brief written submissions may be filed in that regard within 30 days of the release of these reasons.

[43] We thank counsel for their assistance in this difficult matter.

Appeal dismissed.

Notes

Note 1: The Canada Post Corporation Act, R.S.C. 1985, c. C-10 (as amended).

Note 2: Factum of intervenor, G3 Worldwide (Canada) Inc. c.o.b. Spring and Spring Canada, para. 25.

Note 3: Including concerns regarding labour relations: see Canada Post Corp. v. Association of Rural Route Mail Couriers, [1987] F.C.J. No. 1142, [1989] 1 F.C. 176 (C.A.) at para. 12.

Note 4: See N.J. Singer, Sutherland Statutory Construction, 6th ed. (Massachusetts: West Group, 2001) at para. 63:6.

Note 5: Spring Canada factum, para. 66.