Is Door-to-Door Mail Going the Way of the Dodo?

The issue of community mailboxes (CMB’s) recently came up at one of our annual general meetings. As you may already know, Canada Post is looking for ways to keep its services financially self-sufficient. As part of this plan, it is phasing in CMB’s in place of door-to-door mail delivery.

Seeing CMB’s pop up across the country, your condominium community may be asking the following questions:

1. Will our condominium community be affected? And when?

The implementation of CMB’s should have no impact on high-rise condominiums, or condominiums that already have CMB’s installed on their property. This really only impacts those condominiums that are currently receiving door-to-door service.

According to Canada Post’s Five Point Action Plan: Ready for the Future (2013), it plans to convert 5 million Canadian households that currently receive door-to-door delivery to the community mailbox system by 2018. Areas affected so far include Oakville, Calgary, Fort McMurray, Winnipeg, Kanata (west of Ottawa), Lower Sackville and Bedford (Nova Scotia). According to Canada Post, dense urban neighbourhoods are more difficult to implement as compared to suburban areas, and will be among the last areas to be converted. To our knowledge, there is unfortunately no detailed long-term plan available to the public outlining when different areas will be converted.

As a practical matter, Canada Post has been working with municipalities to install CMB’s in new developments for over 30 years. In most cases, this relationship seems to have been a fruitful one. It appears Canada Post continues work to with municipalities on a case-by-case basis to implement this change. It remains to be seen whether this cooperation will carry forward when Canada Post seeks to convert door-to-door service to CMB’s.

2. Can we ask Canada Post to put the CMB where we want it?

Canada Post maintains that it is not just dialoguing with municipalities, but also with the affected owners. Canada Post’s website states that it is seeking input from affected owners, especially those owners adjacent to where the CMB’s will be installed. We have heard from some of our condominium clients, who are dialoguing with Canada Post, that they optimistically believe their input is heard, and may very well be implemented at the end of the day.

Canada Post has many considerations to weigh along with public input in determining the sight of CMB’s, including minimum distance from intersections (to avoid traffic blockage), adequate lighting, and accessibility (for residents who may have mobility impairments).

3. Our condominium property is private property, so where does Canada Post get the right to install CMB’s?

If there is no agreement with the affected owners, Canada Post relies on section 3 of the Mail Receptacles Regulations to install CMB’s on municipally-owned property and on municipal easements (specifically, the roadside right-of-way for public utilities). Section 3 states:

[Canada Post] may install, erect or relocate or cause to be installed, erected or relocated in any public place, including a public roadway, any receptacle or device to be used for the collection, delivery or storage of mail.[1]

An interesting legal question arises when the municipality opposes Canada Post initiative to convert homes to CMB delivery. For example, the City of Hamilton is currently preparing a report on how to prevent Canada Post from installing CMB’s in its municipality. This report is expected to be released later this year– so stay tuned! Without the support of the municipality, Canada Post may need to rely on the federal government’s expropriation powers [2] in order to access private property and install CMB’s.

If your municipality is on board with CMB’s, but your condominium is not, you may be wondering if the municipality is allowed to grant the use of its public utility easement to Canada Post. The definition of public utility under the Municipal Act, 2001 includes “a transportation system” [3] which arguably includes a system to transport mail and parcels. Municipalities have granted the use of easements to other utility providers (i.e., energy, water and sewage), but it is still unclear how its power to grant use of its easements would apply to CMB’s in contested situations.

Moreover, the terms of your easement may limit its use. For example, hydroelectric easements may run underground or overhead only, and through backyards rather than along the roadside. The terms of these easements are negotiated with the owners on a case-by-case basis, so that each easement may be a little different. Canada Post would have difficulty making use of such an easement to allow the installation of CMB’s.

So in short, it is important to take a careful look at the terms of the easement that Canada Post is purporting to rely on to install the CMB. If the terms of the easement are unclear, court proceedings may be required to clarify whether they specifically allow for the installation of the CMB.

4.  What if Canada Post has already started to install CMB’s on our property without permission?

Here is a brief checklist to follow if this happens to you:

1. Check your condominium plans (the Corporation’s registered “Description” which are part of the Corporation’s records), and confirm whether the CMB is on condominium property.
2. Tell Canada Post to stop the installation so that you have an opportunity to consult legal counsel.
3. Give Canada Post the contact information of your lawyer.
4. Contact your lawyer and provide them with all the related information you have on hand to determine next steps.

5. So what’s next for our condominium corporation?

Some may wish to hop on the bandwagon early and provide as much input as possible during the planning process.

Other communities may wish to contest the installation of CMB’s. If Canada Post is currently looking for “low hanging fruit,” then objecting loud and hard may help your community fall off the radar in the short term. In doing so, consider the following:

• Where are the municipal road-side utility easements located on your condominium property?
• Would your community prefer a different location for a CMB at the end of the day?

In particular, if the issue of expropriation comes up in your discussions with Canada Post, it is important to involve legal counsel early in the process to determine the best way to proceed. Expropriation matters frequently settle; so in our experience it is best to maintain and foster dialogue between the parties, rather than polarizing the relationship and achieve an optimal result.

Ultimately, it will be for each condominium community to decide its preferred approach, considering the foregoing in determining the best course of action for your community.

[1] SOR/83-743 , enacted under the Canada Post Corporation Act .

[2] Expropriation Act , RSC 1985, c E-21.

[3] Municipal Act, 2001 , SO 2001, c 25, s 91.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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