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Supreme Court of Canada Issues Landmark Decision on Constitutional Authority over Radiocommunication and Telecommunications Infrastructure

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Communications and Litigation & Dispute Resolution Bulletin

On June 16, 2016, the Supreme Court of Canada issued its decision in Rogers Communications Inc. v. Châteauguay (City), reversing a decision of the Quebec Court of Appeal, and affirming that the federal government has exclusive jurisdiction over radiocommunication in Canada, including the authority to determine the location of radiocommunication infrastructure.

The case concerns the construction of a new radio antenna in Châteauguay, Quebec, to address a gap in Rogers’ wireless network coverage in the City. Rogers identified a site and initiated consultations with Châteauguay regarding installation of an antenna at the site in March 2008, in accordance with the consultation process established by the federal Minister of Industry and Industry Canada (now Innovation, Science and Economic Development Canada). Although Châteauguay objected to the installation of an antenna at the site based on aesthetic and health and safety concerns, it issued a building permit for construction of the antenna following completion of the consultation process in February 2009. Following receipt of a petition opposing the construction, Châteauguay requested further consultations. This second consultation process terminated in September 2009, without identification of an alternative site. In December 2009, Châteauguay announced that it intended to acquire an alternative location. Rogers agreed to consider the alternative site, on condition it was acquired by the City no later than February 15, 2010. After this deadline expired, Châteauguay issued a notice of expropriation in respect of an alternative site. The owner of the site contested the notice. In July 2010, the Minister of Industry approved installation of the antenna at the original site identified by Rogers and Rogers informed the City that it intended to proceed with construction. However, just as Rogers was about to commence construction, Châteauguay served Rogers with a notice of reserve, prohibiting Rogers from proceeding.

Rogers brought a motion contesting the expropriation proceedings and notice of reserve on constitutional and administrative law grounds. The motions judge concluded that the City had acted to further municipal interests in issuing the reserve and expropriation notices, but had exercised its discretion to issue the notice of reserve in bad faith and annulled the notice of reserve on this basis. In the circumstances, the motions judge declined to address the constitutional arguments. The Quebec Court of Appeal overturned the finding of bad faith and rejected arguments that the notices issued by the City trespassed on exclusive federal authority over radiocommunication and telecommunications.

The Supreme Court of Canada reversed the decision of the Court of Appeal on constitutional grounds. A majority of the Court held that the “pith and substance”, or real purpose and effect, of the notice of reserve was the location of radiocommunication equipment, which is a matter that falls within exclusive federal constitutional jurisdiction. The majority concluded that “when the purpose of a municipal measure is to prevent or block the spectrum holder from, or to delay it in, constructing its antenna system at the location approved by the Minister pursuant to federal legislation, the municipality is, for the purposes of the pith and substance analysis, exercising the federal power to choose the location of the antenna system”. While not necessary to resolve the appeal, the majority also held that the reserve notice was inapplicable to Rogers under the constitutional doctrine of interjurisdictional immunity. Under this doctrine and in limited circumstances, valid provincial legislation is inoperative insofar as it impairs a core area of federal jurisdiction. The Supreme Court of Canada decision confirms that the doctrine applies to federal authority over radiocommunication and telecommunications. Justice Gascon, in dissent, would have upheld the notice of reserve as a valid exercise of provincial authority over property development and health and safety, but agreed that the notice of reserve was inapplicable to Rogers under the doctrine of interjurisdictional immunity.

The decision is an important affirmation of federal authority over radiocommunication and telecommunications and the fact that the orderly and efficient deployment of the infrastructure required to provide these services is a core element of that authority.

Rogers was represented by Torys and Fasken Martineau (litigation - Pierre Lefebvre and Vincent Cérat Lagana; communications - Leslie Milton). Fasken Martineau is ranked Band 1 for Telecom, Media and Broadcasting by Chambers Global 2016 and has expertise in all aspects of Canadian communications law and regulation.

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