[1995] 3 F.C. 131
T-2075-93
The Canadian Daily Newspaper Association, Metroland Printing, Publishing& Distribution Ltd., Netmar Inc., and Les Messageries Publi-Maison Ltée (Applicants)
v.
Canada Post Corporation (Respondent)
Indexed as: Canadian Daily Newspaper Assn. v. Canada Post Corp. (T.D.)
Trial Division, Cullen J.—Toronto, May 16; Ottawa, June 19, 1995.
Postal services — Distribution of unaddressed advertising materials to locked apartment mailboxes by Canada Post not ultra vires Act and Regulations — Within Canada Post’s mandate as no statutory requirement mail item bear specific address — Exclusive access to mailboxes not access for letters only — Parliament did not intend to prohibit Canada Post from delivering items other than letters.
Competition — Canada Post, members of Daily Newspaper Association both in business of delivering junk mail to apartment buildings — Canada Post enjoying advantage in having statutory control over apartment mailbox keys — Whether unlawful monopoly — Canada Post having statutory monopoly over delivery of “letters” — What are “letters” — No evidence Canada Post having unlawfully extended monopoly — No evidence refusal to turn over keys to competitors motivated by anti-competitive purposes.
Federal Court jurisdiction — Trial Division — Although quasi-commercial in character, Canada Post within Court’s jurisdiction as part of Government decision-making machinery subject to review — Jurisdiction in Court to review as decision to provide access to locked apartment mailboxes exercise of authority deriving from regulation, not merely exercise of general powers of management.
Canada Post Corporation and delivers unsolicited, unaddressed advertising and promotional materials to locked apartment mailboxes. It has custody of keys allowing access to these apartment mailboxes. The applicants also distribute unaddressed flyers either as inserts in newspapers or through various forms of extended market coverage, notably door-to-door distribution. The applicants argue that they are at a disadvantage when it comes to distribution in apartment buildings: they must have the landlord’s permission to enter the building and to leave flyers in the lobby; rarely are the applicants permitted access to the hallways; they are never permitted access to apartment building mailboxes.
The main issue was whether Canada Post has acted ultra vires the Canada Post Corporation Act and the Regulations adopted thereunder, by using its statutory control over apartment mailbox keys to allow personnel to distribute unaddressed flyers to these mailboxes. This Court’s jurisdiction to review the actions of Canada Post was raised as a preliminary matter.
Held, the application should be dismissed.
Canada Post is part of the Government decision-making machinery and comes within the purview of sections 2 and 18 of the Federal Court Act. The decision to provide access to locked apartment mailboxes was an exercise of authority deriving from regulation and not merely an exercise of the general powers of management of any corporation.
Canada Post was not exceeding the jurisdiction conferred upon it by the Act. The Mail Receptacles Regulations give Canada Post control over access to locked mailbox assemblies with respect to the delivery of mail. The applicant’s argument, that unaddressed flyers are not “mail” within the meaning of the Regulations, could not be accepted. The Regulations do not require a specific address on the face of an item. Otherwise, even messages from Members of Parliament or from Government Departments which do not bear an address would not be “mail” and could not be delivered by Canada Post to apartment mailboxes. Therefore, Canada Post has not exceeded its jurisdiction by granting its employees access to apartment mailboxes to deliver unaddressed flyers.
There was no unlawful monopoly over delivery to apartment mailboxes. Section 14 of the Act grants Canada Post a statutory monopoly over the collection, transmission and delivery of “letters”. Letters are not only messages enclosed in an addressed envelope, but also items of mailable matter which are specifically addressed like subscription magazines or credit cards sent by post. However, even if Canada Post has a monopoly which extends to letters and letter-like items, there was no evidence that it was somehow prohibited from delivering items other than letters or that it had unlawfully extended its monopoly. The applicants’ argument made illogical connections between access to mailboxes and the delivery of flyers. It is true that only Canada Post can deliver letters and only Canada Post can have access to apartment building mailboxes, but the two privileges are not related; exclusive access to mailboxes cannot be taken to mean exclusive access for letters only. There never has been an intention to prohibit Canada Post from delivering items other than letters.
There was no unlawful exercise of Canada Post’s statutory powers for an improper purpose—the elimination of competition from its private sector rivals in the distribution of unaddressed flyers. There was no evidence that Canada Post’s refusal to turn over keys to apartment building mailboxes to competitors in the distribution business was motivated by anti-competitive purposes. The mere fact that there was a correlation between a legitimate undertaking and monopoly did not establish that the monopoly was used for an improper purpose. There were three valid reasons why Canada Post refused to release the keys to apartment mailboxes: (1) it would be contrary to the expectation of customers, (2) it would compromise security, and (3) Canada Post has no authority to grant access to private property.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Post Corporation Act, R.S.C., 1985, c. C-10, ss. 2 “mail”, “mailable matter”, 5, 14, 22, 23.
Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5).
Letter Definition Regulations, SOR/83-481, s. 2 “letter”.
Mail Receptacles Regulations, SOR/83-743, ss. 10, 11, 12, 13, Sch. III.
CASES JUDICIALLY CONSIDERED
APPLIED:
Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation, [1985] 1 F.C. 127 (1985), 16 D.L.R. (4th) 686; 56 N.R. 289; (C.A.); Rural Dignity of Canada v. Canada Post Corp. (1991), 78 D.L.R. (4th) 211; 7 Admin. L.R. (2d) 242; 40 F.T.R. 255 (F.C.T.D.); affd (1992), 88 D.L.R. (4th) 191; 7 Admin. L.R. (2d) 242; 139 N.R. 203 (F.C.A.).
DISTINGUISHED:
R v Lewisham London BC, ex p Shell UK Ltd, [1988] 1 All E.R. 938 (Q.B.); Bailey v. Conole (1931), 34 W.A.L.R. 18 (S.C.); Yates (Arthur) & Co. Pty. Ltd. v. Vegetable Seeds Committee (1945), 72 C.L.R. 37 (H.C.).
APPLICATION to review certain acts of Canada Post with respect to the delivery of junk mail to locked apartment building mailboxes. Application dismissed.
COUNSEL:
Neil Finkelstein and Mark C. Katz for applicants.
Robert P. Armstrong and Michael A. Penny for respondent.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for applicants.
Tory Tory Deslauriers & Binnington, Toronto, for respondent.
The following are the reasons for order rendered in English by
Cullen J.: This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended [as enacted by S.C. 1990, c. 8, s. 5]. The applicants are seeking review of certain acts of the respondent, Canada Post Corporation (Canada Post), with respect to the distribution and delivery of unsolicited, unaddressed advertising and promotional materials to locked apartment mailboxes.
THE FACTS
The Canadian Daily Newspaper Association (CDNA) is a member service organization representing 82 of the 108 daily newspapers in Canada. CDNA members distribute unaddressed flyers as inserts in newspapers to newspaper subscribers. They also distribute the same flyers to non-subscribers as stand-alone items through various forms of extended market coverage (EMC). The other applicants carry on various businesses which deliver unaddressed advertising flyers. Canada Post is a federal Crown corporation established by the Act in 1981 [Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54] to operate a postal service that meets the needs of the people of Canada.
Competition for unaddressed flyer distribution in Canada currently takes place among three principal categories of distribution alternatives: newspapers (daily and community), independent distribution companies, and Canada Post’s unaddressed ADMAIL service.
Unaddressed ADMAIL is one of the three types of ADMAIL service offered by Canada Post, the other two being “addressed ADMAIL” and “ADMAIL Plus”. Unaddressed ADMAIL—the only type of ADMAIL relevant to this application—is further subdivided into two delivery options: economy service and premium service. Premium unaddressed ADMAIL is delivered by uniformed letter carriers during their daily routes, subject to union contract regulation. Economy unaddressed ADMAIL is distributed by an alternative, part-time carrier force called “ADMAIL workers” or by independent contractors.
Canada Post’s ADMAIL workers receive training prior to beginning their job and are supervised by crew chiefs. Canada Post’s ADMAIL workers, as well as the independent contractors hired by Canada Post, are given the keys necessary to access apartment building mailboxes.
The distribution systems used by newspapers and independent distributors are similar to each other and do not differ greatly from the Canada Post distribution system. The only significant difference is in respect of access to apartment buildings. Canada Post’s ADMAIL workers use the keys which are in the custody of Canada Post to distribute flyers directly into apartment building mailboxes. In contrast, the applicants must have the permission of the landlord to enter the building and to leave flyers either in the lobby (a lobby drop), in stands in the lobby, or in bags available for pick-up in the lobby. Rarely are the applicant companies permitted access to the hallways of the apartment buildings; they are never permitted access to apartment building mailboxes.
The applicants have alleged that their distribution system in apartment buildings is far from satisfactory. Landlords are reluctant to permit the distribution of flyers either in the lobby or on apartment door knobs because of concerns about littering, potential fire hazards, and security issues. Moreover, even where entry to lobbies can be arranged, experience proves that no more that 50 per cent of residents will pick up the flyers left in the lobby. While no distributor can guarantee that every flyer it distributes will be read, only Canada Post can guarantee that the flyers it distributes will reach all apartment residents through their mailboxes.
The applicants claim that for many advertisers, apartment coverage is critical. Indeed, in some large cities, a majority of residents reside in apartment buildings. Canada Post’s advertising materials emphasize its ability to reach apartment dwellers. This permits it to charge a higher price than its competitors for its “total market coverage”.
ISSUES
The applicants submitted that there were two issues for the Court’s consideration. The main issue is whether Canada Post has acted ultra vires the Canada Post Corporation Act, R.S.C., 1985, c. C-10, as amended (the Act), and the regulations made thereunder, by using its statutory control over apartment mailbox keys to allow its personnel to distribute unaddressed flyers to these mailboxes. However, as a preliminary matter, the applicants also addressed the issue of this Court’s jurisdiction to review the actions of Canada Post.
JURISDICTION
Pursuant to section 18.1 of the Federal Court Act, the Trial Division has exclusive original jurisdiction to determine any application for judicial review with respect to a federal board, commission, or other tribunal. Section 2 [as am. by S.C. 1990, c. 8, s. 1] of the Federal Court Act defines “federal board, commission or other tribunal” broadly to mean:
2. …
… any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament … other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.
The applicants made two submissions as to this Court’s jurisdiction to determine the matters in issue.
First, the applicants submitted that Canada Post is not an ordinary commercial operation. It is part of the Government decision-making machinery and, as such, has a significant public character. Although a separate government entity, Canada Post is an agent of Her Majesty in right of Canada, pursuant to section 23 of the Act, and remains subject to ministerial control pursuant to section 22. Indeed, in paragraph 5(2)(e) of the Act, Canada Post is described as “an institution of the Government of Canada”.
In the decision of Aeric, Inc. v. Chairman of the Board of Directors, Canada Post Corporation, [1985] 1 F.C. 127(C.A.), at page 137, Ryan J.A. acknowledged that although Canada Post has a “quasi-commercial” character, it is still closely connected with the Government of Canada. The determination that Canada Post is a part of the Government decision-making machinery that comes within the purview of sections 2 and 18 [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act was, in fact, conceded in Rural Dignity of Canada v. Canada Post Corp. (1991), 78 D.L.R. (4th) 211 (F.C.T.D.), at page 221; affd (1992), 88 D.L.R. (4th) 191 (F.C.A.).
Second, the applicants submitted that Canada Post’s actions with respect to locked apartment mailboxes in this case represent an exercise of statutory authority pursuant to power conferred upon Canada Post by the Mail Receptacles Regulations, SOR/83-743, as amended. They are not merely incidents of the private powers that Canada Post may exercise in the same fashion as any other corporation. The respondent, not surprisingly, argued that Canada Post does not distribute unaddressed ADMAIL pursuant to any statutory authority or regulation. However, the respondent’s submission ignores the fact that absent the Mail Receptacles Regulations, Canada Post would have no right to the keys to locked apartment mailboxes or to regulate entry to them.
In Aeric, supra, Ryan J.A. distinguished decisions which concerned the exercise of statutory authority and decisions which were made in the context of commercial operations. At page 138, His Lordship stated:
The decision of the Chairman of the Board which is under review was not made in the exercise of a general power of management conferred on the Canada Post Corporation. His decision was made in the exercise of authority conferred on him by a regulation approved by the Governor in Council pursuant to the Canada Post Corporation Act …. I am satisfied that the Chairman, in entertaining and disposing of the appeal in this case, is a “person” within the meaning of that word as it is used in the definition of “federal board, commission or other tribunal” in the Federal Court Act.
Although the Act confers on Canada Post a broad authority to carry on business, the decision to provide access to locked apartment mailboxes is, in my mind, an exercise of authority deriving from regulation and not merely an exercise of the general powers of management. As such, I am satisfied that this Court has jurisdiction to review the matters in issue.
EXCESS OF JURISDICTION
The applicants submitted that Canada Post has exceeded the jurisdiction conferred upon it by the Act in three ways. First, the Mail Receptacles Regulations made under the Act give Canada Post control over access to locked mailbox assemblies with respect to the delivery of mail. Unaddressed flyers are not mail, as that term is defined under the Act. Therefore, Canada Post has exceeded its jurisdiction by using its access to apartment mailboxes to deliver a non-mail product. Second, Canada Post’s statutory monopoly is restricted to the delivery of “letters”. Parliament has not given Canada Post a monopoly with respect to the distribution of unaddressed flyers. Therefore, Canada Post has exceeded its jurisdiction by exploiting its control over access to apartment mailbox assemblies to achieve an unauthorized monopoly over the distribution of unaddressed flyers to these mailboxes. Third, the system created by the Mail Receptacles Regulations, including Canada Post’s control over access to apartment mailbox assemblies, is designed to serve the public purposes of ensuring convenient delivery of the mail to apartment mailboxes and of security of the mail. By exploiting its control over this access to exclude competition from private sector distributors, Canada Post is unlawfully exercising its statutory powers for a collateral, non-public purpose which is neither authorized nor contemplated by the Mail Receptacles Regulations.
Counsel for Canada Post ably responded to each argument and I will address each submission in turn.
1. Access to Apartment Mailboxes to Deliver a Non-Mail Product
The applicants submitted that the Act draws a distinction between “mail” and “mailable matter”. In section 2 of the Act, “mail” is defined as:
2. …
… mailable matter from the time it is posted to the time it is delivered to the addressee thereof.
In contrast, “mailable matter” is defined as:
2. …
… any message, information, funds or goods that may be transmitted by post.
Thus, to constitute “mail”, an item of “mailable matter” must also be addressed and intended for a specific person or organization. Otherwise it cannot be said to be “delivered to an addressee” as required by the definition. Given that unaddressed flyers are, by definition, not addressed to an addressee, they are not “mail” within the meaning of the Act.
Relying on their definition of “mail”, the applicants submit that access by virtue of the Mail Receptacles Regulations should not be utilized with respect to unaddressed ADMAIL. Canada Post’s control over apartment mailbox keys derives from Part III of the Mail Receptacles Regulations which govern mail delivery service to apartment dwellings. Section 10 of the Regulations provides that mail delivery service will not be inaugurated or extended to an apartment building unless there is compliance with the requirements set out the Regulations. Sections 11 to 13 of the Mail Receptacles Regulations emphasize that Canada Post will not deliver mail to an addressee residing in an apartment building if that building’s mailbox assembly does not meet Canada Post’s requirements as set out in Schedule III to the Regulations. A requirement in Schedule III is that the mailbox assembly must be fitted with a lock obtained from Canada Post. The installation of the lock must be supervised by the local postmaster who retains custody over the key.
The applicants submitted that the consistent and pervasive use of the term “mail” in the Regulations indicates that the scheme of the Regulations with respect to apartments is limited to the delivery of “mail”—that is, mailable matter addressed to the addressee. It follows, therefore, that Canada Post’s authority over the keys to apartment mailboxes must be limited to use in connection with the delivery of mail and cannot be exercised in connection with a non-mail product such as unaddressed flyers. Consequently, it is submitted that Canada Post has exceeded its jurisdiction by granting its employees access to apartment mailbox assemblies to deliver unaddressed flyers. In effect, Canada Post is leveraging the use of a privilege given to it for the delivery of addressed materials, in delivering unaddressed flyers, a non-monopoly segment of its business.
Canada Post, however, contended that applicants’ submission was fundamentally flawed with respect to the definition of “mail”. The respondent, while agreeing that the definition of “mail” requires that there be an addressee, disputed that there was a statutory or regulatory requirement that the address be stipulated on the face of the item or that an addressee must be a particular person. By virtue of having an intended destination—be it a house or an apartment, within a particular postal carrier walk or a postal area code—each item of ADMAIL is “addressed”.
Counsel for the respondent urged this Court to adopt broader definitions of “address/addressee” than those advocated by the applicants. Relying on dictionary definitions, the respondent pointed out that “address/addressee” could also mean: to direct to the attention of, the location at which a particular organization or person may be found, the place where a person lives or an organization is situated, to direct or send, the action of sending, to send a written message that it may be read by someone, to dispatch or consign, and to write directions for delivery.
Having considered the wording of the statutory provisions, I find that the applicants are advocating too narrow a definition of “mail”. In the simplest terms, “mailable matter” is the stuff which can be placed into the Canada Post delivery system; “mail”, in my understanding, refers to “mailable matter” which is in the Canada Post system from the time it is put in a mailbox until the time it is delivered to its intended location or person. The Regulations do not require a specific address on the face of the item and I am not prepared to read such a requirement into the statute. Indeed, if I adopted the applicants’ definition of “mail”, messages from Members of Parliament or other significant government circulars which do not bear an address would not be “mail” and could not be delivered by Canada Post to apartment mailboxes.
Since I do not accept the applicants’ restrictive definition of “mail” which would have excluded unaddressed flyers, I also do not accept the proposition that the applicants contend flows from it, namely that Canada Post has exceeded its jurisdiction by granting its employees access to apartment mailbox assemblies to deliver non-mail items. The Mail Receptacles Regulations concern mailbox specifications, not use. As counsel for the respondent stated, one can read the Regulations “until the cows come home” but one will not find a prohibition against the delivery of flyers to mailboxes.
My finding that unaddressed ADMAIL constitutes “mail”, combined with the fact that there is no express statutory prohibition against delivery of ADMAIL, leads me to the conclusion that Canada Post has not exceeded its jurisdiction.
2. Unlawful Monopoly over Delivery to Apartment Mailboxes
Both the applicants and the respondent agreed that section 14 of the Act grants Canada Post a statutory monopoly over the collection, transmission and delivery of “letters”:
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.
Section 15 does not apply to the case at bar.
For the purposes of the Act, “letter” is defined in section 2 of the Letter Definition Regulations, SOR/83-481, to mean “one or more messages or information in any form … that is intended for collection or for transmission or delivery to any addressee as one item”. Specifically excluded from the definition of “letter”, under subsection 2(c), is an item having “no further address than ‘householder’, ‘boxholder’, ‘occupant’, ‘resident’ or other similar expression”.
The applicants submitted that since unaddressed flyers have no address at all, they do not fall within the definition of “letter” for the purpose of Canada Post’s exclusive privilege. Notwithstanding that Canada Post has no statutory monopoly over the delivery of unaddressed flyers, Canada Post has exploited its control over access to locked apartment mailboxes to grant its personnel the sole and exclusive right to deliver unaddressed flyers to these boxes. The extension of Canada Post’s statutory monopoly to include delivery of unaddressed flyers to locked apartment mailboxes is ultra vires and an excess of jurisdiction since it is not sanctioned by statute or regulation.
As already mentioned, it is agreed that Canada Post has a monopoly with respect to the delivery of “letters”. I give the broadest possible meaning to that term, denoting not only items which are messages enclosed in an addressed envelope, but also items of mailable matter which are specifically addressed like subscription magazines or credit cards sent by post. However, even if Canada Post has a monopoly which extends to letters and letter-like items, there is no evidence that it is somehow prohibited from delivering items other than letters or that it has unlawfully extended its monopoly. The applicants’ argument is flawed because it makes illogical connections between access to mailboxes and the delivery of flyers.
As the Mail Receptacles Regulations and the affidavit evidence filed make clear, Canada Post does not provide, own, or install apartment mailboxes. Neither the Act nor the Regulations require that apartment buildings install mailboxes. However, I agree with the deposition of Mr. Fish, a manager of apartment buildings who provided evidence for the applicants, that residents of apartments or condominiums expect the delivery of mail and would equate mail delivery to other essential services like hydro, heat, or water. The affiant also emphasized that as for receiving the “consent” of the landlord to deliver mail, the consent is illusory since the alternative is that residents would not receive mail. Nonetheless, the statutory scheme is clear: Canada Post’s access to apartment building mailboxes is through the consent of the landlord and no apartment is mandated to have mailboxes. However, even though the installation of mailboxes is voluntary, once they are installed, only Canada Post has access.
As I understand the legislation, only Canada Post can deliver letters and only Canada Post can have access to apartment building mailboxes. However, I do not find that the two privileges are related; exclusive access to mailboxes cannot be taken to mean exclusive access for letters only. It is on this point that the logic of the applicants’ arguments falls apart. The applicants cannot point to any provisions in the Act or the Regulations which restrict Canada Post’s access to apartment mailboxes solely for the purpose of delivering letters. Canada Post, and its predecessor organization, have delivered mail, including advertising flyers, to apartment mailboxes for as long as Canadians have lived in apartment buildings. In particular, I note that the post office introduced third-class mail in 1887 and began the delivery of third-class unaddressed advertisements in 1903.
Furthermore, there is no indication that Canada Post has attempted to extend this exclusive privilege to deliver letters to other items, such as flyers. Canada Post has not sought to prevent others from distributing unaddressed materials, as the success of the applicants’ flyer delivery businesses attests.
After a careful consideration of the legislation, the affidavits submitted, and the arguments of counsel, I conclude that there has never been an intention to prohibit Canada Post from delivering items other than letters. One is left with the impression that if Parliament wanted to restrict delivery, as advanced by the applicants, it had an opportunity to put such a clause in the Act. It did not. Furthermore, by granting the respondent the powers of a natural person, it gave further indication that Canada Post has implicit authority to embark on new approaches to conducting its business. Putting flyers into mailboxes, even if they are not letters per se, is an undertaking which is clearly incidental to Canada Post’s mandate and not an act in excess of its jurisdiction.
3. Unlawful Exercising its Statutory Powers for an Improper Purpose
The applicants and the respondent agreed that the Mail Receptacles Regulations were enacted to fulfil the public purposes of facilitating delivery of mail to apartment residents and to better provide for the security of the mail. This is consistent with Canada Post’s objects, as set out in section 5 of the Act, to provide for basic customary postal service and security of the mail.
The applicants submitted that with respect to the delivery of unaddressed ADMAIL, however, Canada Post was exploiting its custody over apartment mailbox keys for a purpose that is entirely foreign to the public purpose underlying the Mail Receptacles Regulations: the elimination of competition from its private sector rivals in the distribution of unaddressed flyers. The evidence presented in the applicants’ affidavits suggests that apartment penetration is important to many advertisers. Furthermore, as indicated in Canada Post’s marketing strategy, it is well aware that its access to locked apartment building mailboxes gives it a competitive advantage.
The applicants further claim that security concerns alone cannot explain Canada Post’s action. ADMAIL workers are an unskilled, casual work force with minimal training and a high turnover. These persons do not differ in any essential respect from persons who can and do deliver for the applicants. In some cases, they may even be the same individuals.
One would be naïve to think that Canada Post was not aware of the advantage that access to apartment mailboxes provides in the flyer delivery business. I note, however, that the applicants—despite this action before the Court—actively down-play Canada Post’s advantages. The Ottawa Citizen, for example, claims in its promotional material that flyers distributed by it are read more often and have penetration which approaches that of Canada Post.
Even if Canada Post derived a benefit through its control over apartment mailbox keys, advantage alone is insufficient to establish an improper purpose. Loosely defined, one must use a monopoly for one purpose and it cannot be used for another.
It was the respondent’s position that its business activities with respect to ADMAIL are entirely consistent with the purposes of the statutory scheme and the history of Canada Post’s services. As already mentioned, Canada Post has been in the business of delivering flyers since the beginning of this century. Furthermore, the delivery of ADMAIL is entirely consistent with, and indeed advances, the generally beneficial result of expanding postal services to meet the needs of Canadian businesses and advertisers, of becoming financially self-sustaining, and of ensuring for the security of the mail.
The respondent strongly disagreed with the applicants’ characterization of ADMAIL as purposely anti-competitive. There was no evidence before this Court that Canada Post’s refusal to turn over keys to apartment mailboxes to competitors in the distribution business was motivated by anti-competitive purposes. Merely because the effect of ensuring security of the mail, expanding Canada Post’s production lines, or seeking to achieve financial self-sufficiency may be disadvantageous to the applicants, does not mean that Canada Post has acted in a manner which is impermissible or for an improper purpose. Delivering flyers is a legitimate service of Canada Post and, admittedly, dovetails nicely with its monopoly to deliver letters. However, the mere fact that there is a correlation between a legitimate undertaking and monopoly does not establish that the monopoly is used for an improper purpose. I am not persuaded by the cases of R v Lewisham London BC, ex p Shell UK Ltd, [1988] 1 All E.R. 938 (Q.B.); Bailey v. Conole (1931), 34 W.A.L.R. 18 (S.C.); and Yates (Arthur) & Co. Pty. Ltd. v. Vegetable Seeds Committee (1945), 72 C.L.R. 37 (H.C.), which the applicants’ brought to the Court’s attention. I can find no evidence that Canada Post was motivated by a desire to shut out the competition by using its exclusive control over apartment mailbox keys.
Why does Canada Post refuse to release the keys to apartment mailboxes? According to the respondent, there are three reasons: (1) it would be contrary to the expectations of customers, (2) it would compromise security, and (3) Canada Post has no authority or power to grant access to private property. I have no doubt apartment dwellers would not feel comfortable with many people having access to mailboxes, especially given the number of cheques and credit cards which are sent by post. I also agree that Canada Post has no authority to grant access to private property. Although I think that Canada Post somewhat over-played the security concerns, I am not willing to accept the applicants’ arguments that security is merely a disguise for quelling competition. Canada Post remains ultimately responsible for the misconduct of its employees or contractors. There was also evidence before the Court that Canada Post insists that it be satisfied with the security arrangements and training programmes provided to the employees of its contractors. It is clear to me that Canada Post takes its duty to provide security of the mail seriously.
I do not find that Canada Post has used its custody over apartment mailbox keys or its monopoly over the delivery of letters for an improper purpose.
ORDERS REQUESTED AND CONCLUSION
As is clear from the foregoing reasons, there is no question in my mind that Canada Post acted within its parliamentary mandate when delivering flyers to apartment building mailboxes and that this application should be dismissed. Absent a clearly worded prohibition in the Act, Canada Post is entitled to conduct this activity which is a logical extension of its primary duty to deliver letters. However, I think that it is appropriate to briefly comment on the orders requested by the applicants.
The applicants requested three alternative orders from this Court. First, the applicants requested that this Court grant an order declaring that Canada Post acted without jurisdiction or beyond its jurisdiction and, accordingly, an order prohibiting Canada Post from continuing to use its control over access to locked apartment mailboxes to deliver unaddressed flyers to those boxes. If I had found in the applicants’ favour, this is the only order which this Court would have had jurisdiction to grant.
In the alternative, the applicants requested an order requiring Canada Post to grant members of the CDNA and the other applicants equal access to these mailboxes on the same basis as Canada Post’s unaddressed ADMAIL service. As a further alternative, the applicants requested that this Court order Canada Post to guarantee the members of the CDNA and the other applicants the right to use Canada Post’s “economy" unaddressed ADMAIL service to deliver unaddressed flyers to apartments only at Canada Post’s variable costs.
These alternative remedies sought by the applicants are outside of the mandate of this Court. There is nothing in the Act or the Regulations which would permit the Court to make changes to the legislative scheme. I have no doubt that the applicants find it disadvantageous to be denied access to apartment building mailboxes or to pay a premium price for delivery by Canada Post. Indeed, it appears that the motivation for bringing this action arose from Canada Post’s policy—discontinued in February 1994—to provide apartment-only ADMAIL delivery only at a premium price. This now-discontinued policy had a significant negative impact on the applicants. Nonetheless, the price of ADMAIL delivery is not for this Court to decide. It is Canada Post’s prerogative to set the terms for apartment-only ADMAIL service and, unfortunately for the applicants, it is not be the task of this Court to review Canada Post’s pricing policies. Establishing the parameters for the delivery of flyers by Canada Post and pricing is a task for Parliament. It is not for this Court to make legislation.
This application is dismissed.