Judgments

Decision Information

Decision Content

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.