and not Literal, Interpretation of a Statute in Canada:
Canada Post Corporation v. Key Mail Canada Inc.
The Canada Post Corporation ("Canada Post")
moves the mail in Canada. It is vested, by statute, with an "exclusive
privilege" as concerns the collection, transmission and delivery
of mail in Canada. An interesting question recently surfaced as
to whether this exclusive privilege prohibits other enterprises
from collecting and/or transmitting letters within Canada for the
purposes of delivering those letters to destinations outside of
A dispute arose on this issue between Canada Post
and Key Mail Canada Inc. ("Key Mail"). Key Mail is in
the business of providing outbound international mail services to
Canadian businesses, individuals and government agencies. This service
involved the gathering of mail and other printed matter from points
in Canada and making arrangements for the delivery of that material
to points outside of Canada.
The "Exclusive Privilege" Vested with
The Canada Post Corporation Act1 provides, in part as follows:
s.14(1) . . . The (Canada Post) Corporation has
the sole and exclusive privilege of collecting, transmitting and
delivering letters to the addressee thereof within Canada.
It was an important point of the analysis of the issue
that this provision - emanating from a federal statute - has an
official French equivalent:
s.14(1) . . . la Société a, au Canada,
le privilège exclusif du relevage et de la transmission
des lettres et de leur distribution aux destinataires.
In August of 2004, Canada Post brought a motion before
the Superior Court of Ontario2 for a determination on
how the above vesting provision was to be interpreted: Can Canada
Post alone collect and/or transmit letters within Canada for the
purposes of delivering to places outside Canada?
Key Mail took the position that the "collection, transmission and delivery of letters" for the purposes of the above
statute is a single process, that is, reasonably construed, a monopoly
power in operating a postal service through collecting, transmitting
and delivering letters within Canada but not in respect of each
independent element of the three standing alone. That is, there
was not a monopoly power for each separate phase in the collection
of letters, as distinct from the transmission of letters, and in
turn the delivery of letters either within Canada or for that matter,
from points in Canada to points outside of Canada. Key Mail considered
its operations to fit within one or more of these separate phases,
as considered in isolation.
The motions court judge ruled that on a proper interpretation
of both the English and French versions of Section 14 that
there existed an exclusive privilege in favour of Canada Post in
respect of any one or more of the activities of "collecting,
transmitting and delivering" letters within Canada, including
letters addressed to foreign destinations. The "single process"
interpretation was rejected, largely on the basis of the interpretation
of the French wording, discussed below.3
Key Mail appealed the outcome to the Ontario Court
of Appeal.4 Certain intervenors, also in the business
of providing outbound international mail services, were granted
status to make representations on the appeal in support of Key Mail.
The Reasons of the Court of Appeal delved into important principles
of statutory interpretation.
Key Mail argued that the legislation is clear and
unambiguous that outbound international mail is excluded from the
exclusive privilege. Canada Post in turn argued that the same provision
is clear and unambiguous in its favour, in providing it the exclusive
privilege for any one or more of the activities of "collecting,
transmitting and delivering letters" - whether in Canada or
The Court of Appeal ruled that the exclusive privilege
did in fact extend to each of the constituent activities listed
in the statutory provision and that the so-called "single process"
interpretation was inconsistent with other provisions of the enabling
statute as well as other rules of interpretation. An analysis of
the Reasons provides a helpful listing of key aids to statutory
interpretation in Canada.
In ruling in favour of Canada Post, the Court of Appeal
made the following observations:
- The conjunction in the French version "et" between the words "relevage" ("collecting"),
"transmission" ("transmitting") and
distribution ("delivery") makes it clear that
the intention of Parliament was to grant an exclusive privilege
to Canada Post within Canada for each of those activities.5
- While the English version of the statute is ambiguous
(taking into account the "single process" argument)
the French version is clear and unambiguous in giving Canada Post
the exclusive privilege for each of the three component activities
(noting the use of the word "et" throughout).
- In Canada, where the meaning of a statutory provision
is ambiguous in one official language, but clear and unambiguous
in the other, the Court should apply the clear and unambiguous
meaning as the one common to both languages - as long as the "shared
meaning" does not conflict with the results of applying other
relevant principles of statutory interpretation.6 As
such, in this case the French language interpretation should guide
the interpretation of the English provision, absent conflict with
other rules of interpretation.
- The fundamental principle of statutory interpretation
is that 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.7 The legislation lists, amongst the
objects of Canada Post, "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". Further, while maintaining "basic customary postal service", the Corporation,
in carrying out its objects, shall have regard to "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 ...". The Court found it
clear from the stated objects that Canada Post is expected to
continue on the traditional role of providing postal services
across Canada. It was noted that Canada Post has the requirement
to provide postal services to all communities in a lightly populated
but geographically vast country, at a reasonable cost and in a
financially viable way. Inasmuch as many Canadian communities
cannot be served economically, Canada Post therefore has a legitimate
need to engage in the lucrative letter mail business which given
its stated mandate suggests a policy foundation for an exclusive
privilege respecting the collection, transmission and delivery
of letters. In short, the object of a "universal postal service
at reasonable cost" would then support a finding of an exclusive
privilege for any one or more of the constituent activities listed.
- Key Mail argued that there was a glaring omission
in the English statutory provision - restricted literally to activities
"within Canada", as compared to other excerpts of the
statute where in the articulated objects of Canada Post the phrase
"between Canada and places outside Canada" is
used. The maxim "to express one thing is to exclude another"
was invoked, it being argued that the legislature must have then
meant to exclude that which it did not provide expressly (ie.
the handling of mail from places in Canada to places outside Canada).8 However, the effect of such an implication, or manner of interpretation
necessarily depends on the strength of the expectation that there
be an express reference. The Court ruled that given the clear
language of the French version that any expectation that there
be such an express reference in the English language was not high
so as to apply a different meaning based on this principle of
- The Court found that the objects of Canada Post
stated above in the legislation were incompatible with the "single
process" argument advanced.
- The Court also accepted the argument by Canada
Post that there cannot be a single process pertaining to the "collection,
transmission and delivery" of international mail, because
Canada Post does not "deliver" outbound international
mail to addresses of that mail and it does not "collect"
inbound international mail.
- Finally, the Court found that the "single
process" interpretation led to conflict with other provisions
in the Act which provides for situations involving customs or
money laundering offences. For example, one provision provides
that at the request of a customs officer, all mail leaving Canada
for a place outside Canada containing matter that is not to be
exported must be submitted by Canada Post to the customs officer.
Further, another provision provides that where mail is seized
or detained for customs or money laundering reasons, notice of
the seizure and detention is to be given to Canada Post. These
provisions are inconsistent with any interpretation of the Act
that would allow private couriers (such as Key Mail) to engage
in the delivery of outbound international letters.
- The Court also considered the penal provision in
the legislation concerning unauthorized mail activities. Section
56 provides as follows:
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 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...
The Court interpreted this sanction as working against
any "single process" interpretation. An offence is created
relating to any one of the activities of collecting, transmitting
or delivering letter mail.
Finally, Key Mail also attempted to argue that Canada
Post was engaged in unfair competition however this argument was
dismissed on the basis that the legislation - being within the legislative
jurisdiction of Parliament - granted Canada Post an exclusive privilege
with the only issue being the scope of the privilege, rather than
the existence of same. The vesting of this privilege did not amount
to an unfair monopoly.
Key Mail has recently filed an application for leave
to appeal to the Supreme Court of Canada.
© Gordon Hearn, 2006
- R.S.C. 1985 c. C-10 (as
-  O.J. No. 3446.
- It is significant that
Canada is an officially bilingual country in both the English
and French languages. As will be seen, the need to find harmony
in the inevitable case of differing nuances between the wordings
in both languages serves as an aid to statutory interpretation
which dynamic will not exist in other countries that are not officially
- Docket number C42369 which
upheld the result in first instance in Reasons published in September
- My elementary school
French has it that the French word "et" is directly
translated to the English word "and". While this
represents the limit to which I can safely travel in the French
language, the Court of Appeal confirms my understanding as correct.
- R. v. Daoust and Bois (2004) 235 D.L.R. (4th) 216 at 230 (S.C.C.)
and see R. Sullivan, Driedger On The Construction of Statutes,
4th Edition (Markham: Butterworths, 2002) at 80 - 84, 87 - 90.
- Rizzo and Rizzo Shoes
Ltd. (Re) (1998) 154 D.L.R. (4th) 193 (S.C.C.) at paragraph
- Driedger, supra at page 186.
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