36027   Rogers Communications Inc. v. City of Châteauguay et al.

(QC)

Constitutional law – Division of powers – Radiocommunication – Interjurisdictional immunity

On appeal from the Court of Appeal of Quebec (2014 QCCA 1121) setting aside in part a decision of Perrault J., (2013 QCCS 3138).

Rogers Communications Inc. (“Rogers”), a Canadian corporation, offers various communication services everywhere in Canada. It holds a spectrum licence, which authorizes it to provide services in specified frequency ranges. This licence requires it to meet a number of obligations, one of which is to ensure an adequate network coverage in the geographic regions attributed to it. In the fall of 2007, Rogers decided to construct a new radiocommunication antenna system on the territory of the City of Châteauguay (“Châteauguay”) in order to fill gaps in its wireless telephone network. Pursuant to his powers under the Radiocommunication Act, the federal Minister of Industry authorized Rogers to install an antenna system on property located at 411 Boulevard Saint Francis in Châteauguay. Châteauguay, arguing that the health and well being of people living near such an installation would be at risk, adopted a municipal resolution authorizing the service of a notice of establishment of a reserve that prohibited all construction on the property in question for two years. A few days before the notice was due to lapse, it was renewed for two additional years. Rogers filed a motion to contest the notice of a reserve, arguing that the notice was unconstitutional because it constituted an exercise of the federal power over radiocommunication. Rogers also expressed the view that the notice was either inapplicable to it by reason of the doctrine of interjurisdictional immunity or inoperative by reason of the doctrine of federal paramountcy.

The Superior Court, applying administrative law principles, found that Châteauguay had acted in bad faith, and annulled the notice of a reserve and its renewal, as well as the resolutions on which they were based. The Court of Appeal set aside the Superior Court’s judgment and also rejected Rogers’ constitutional arguments.

Held (9-0): The appeal should be allowed. The notice of a reserve is unconstitutional.

Per McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ.: The notice of a reserve is ultra vires, because it constitutes an exercise of the federal power over radiocommunication, which is an exclusive federal power. In analyzing the pith and substance of the notice of a reserve, a court must consider both its purpose and its effects. An analysis of the evidence in this regard leads to but one conclusion: the purpose of the notice of a reserve was to prevent Rogers from installing its radiocommunication antenna system on the property at 411 Boulevard Saint Francis by limiting the possible choices for the system’s location. The same conclusion applies with regard to the legal and practical effects of the notice of a reserve. Even if this measure addressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power over radiocommunication. The principle of co operative federalism is of no assistance in this case, as it can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority. Nor can it support a finding that an otherwise unconstitutional measure is valid.

The notice of a reserve does not have a double aspect. Because the pith and substance of the notice of a reserve is the choice of the location of radiocommunication infrastructure, there is no equivalence between the federal aspect, that is, the power over radiocommunication, and the provincial aspects, namely the protection of the health and well being of residents living nearby and the harmonious development of the municipality’s territory. A finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304, to the effect that the federal jurisdiction over the siting of such infrastructure is exclusive.

Although the application of the pith and substance doctrine suffices to dispose of the appeal, the application of the doctrine of interjurisdictional immunity is also discussed in order to clarify the law. The application of this doctrine is generally reserved for situations that are already covered by precedent. There is a precedent that supports the application of interjurisdictional immunity in this situation, namely the Privy Council’s decision in Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52, which suggests that the siting of telecommunications infrastructure is at the core of the federal power. Moreover, the evidence in the record favours such a finding as regards the siting of radiocommunication antenna systems, given that it is the appropriate and specific siting of antenna systems that ensures the orderly development and efficient operation of radiocommunication in Canada. The siting of antenna systems is part of the core of the federal power over radiocommunication; any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it.

Thus, the notice of a reserve seriously and significantly impaired the core of the federal power over radiocommunication. The facts show that Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. The notice prevented Rogers from constructing its antenna system on the property at 411 Boulevard Saint Francis for two successive two year periods, and there was no alternative solution to which it could have turned on short notice. The notice of a reserve served on Rogers is therefore inapplicable by reason of the doctrine of interjurisdictional immunity.

Per Gascon J.: Contrary to the opinion expressed by the majority, the notice of a reserve is intra vires Châteauguay, and the appeal should be resolved on the basis not of the pith and substance doctrine, but of the doctrine of interjurisdictional immunity.

The determination of a legislative measure’s pith and substance is a delicate exercise of judgment that requires a court to consider and assess the impugned measure as a whole, weighing all its aspects. Although an overly general approach that would make the pith and substance analysis superficial is not recommended, the identification of the matter to which the measure relates requires the adoption of a flexible approach tailored to the modern conception of federalism, which allows for some overlapping and favours a spirit of co operation. It is therefore necessary to consider the context of the adoption of the resolution authorizing the notice of a reserve and the purpose of issuing the notice while bearing in mind the presumption of validity of a provincial or municipal measure. The factual context supports the existence of another normative perspective that relates to provincial jurisdiction. The history and the preamble to the municipal resolution show that Châteauguay opposed the construction of a tower on the property at 411 Boulevard St Francis not simply to control the siting of a radiocommunication system, but to respond to its residents’ concerns about their health and well-being. These matters correspond to a valid municipal purpose and fall within the provincial heads of power provided for in s. 92(13) and (16) of the Constitution Act, 1867.

As regards the effects of the notice of a reserve, its legal effect must be distinguished from its practical effect. Although in practice, the effect of the notice is to prohibit Rogers from constructing its radiocommunication tower on the property at 411 Boulevard St Francis, the notice’s legal effect opens the way for Châteauguay to exercise its powers of expropriation, which falls within its jurisdiction to regulate the development of its territory in accordance with its needs and priorities. This more nuanced understanding of the effects of the notice is in line with a more flexible conception of the pith and substance doctrine that is more consistent with the guiding principles already set out and that favours a more accurate understanding of the matter to which the notice actually applies.

The effects of a municipal measure must be considered in conjunction with its purpose. The fact that such a measure affects a federal head of power does not on its own explain why the action was taken. However, the evidence in the record does clearly show what motivated it, which, moreover, appears to outweigh its effects. Thus, if the resolution’s purposes and effects are considered as a whole in a comprehensive analysis of the pith and substance, the purposes that were pursued and achieved in establishing the land reserve were to ensure the harmonious development of the territory of Châteauguay, to allay its residents’ concerns and to protect their health and well being, despite the fact that there was clearly an effect on the siting of Rogers’ radiocommunication tower. This approach tends to support a finding that the actions of the governments at both levels are valid and to favour the key principles underlying the division of powers, including subsidiarity and co operative federalism.

On the basis of the doctrine of interjurisdictional immunity, the notice of a reserve nevertheless impairs the core of the federal power over radiocommunication. The choice of location or the siting of antenna systems is at the core of that power. By blocking the location decided on in accordance with the procedure provided for in the Radiocommunication Act and circular CPC 2 0 03 — Radiocommunication and Broadcasting Antenna Systems, the notice intrudes significantly on a vital and essential aspect of the power.

Joint Reasons for Judgment: Wagner and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Brown JJ. concurring)

Partially Concurring Reasons: Gascon J.

Neutral Citation: 2016 SCC 23

Docket Number: 36027

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16016/index.do