Canada: The Quebec Court Of Appeal Recognizes Certain Powers Of Municipalities With Respect To The Location Of Radiocommunications Towers

On May 30, 2014, the Quebec Court of Appeal rendered judgment regarding several appeals from a decision made by the Superior Court on 2 July 2013. In doing so, the Court of Appeal found that the municipality of Châteauguay was acting within its powers when it issued a notice of land reserve that in effect prevented Rogers from installing a radiocommunications tower at a particular address for which Industry Canada had granted authorization, where that authorization also permitted construction at an alternative site.


Rogers Communications Inc. ("Rogers") is a Canadian corporation that controls and manages a wireless communications network. In Autumn of 2007, Rogers undertook a survey of the Châteauguay area with an view to finding propitious locations for the installation of a new wireless communications tower, in order to fill existing gaps in its network coverage. In December 2007, Rogers negotiated a lease with the owner of 411 St-Francis for the installation of a tower.

In March 2008, Rogers advised Châteauguay of its intention to install a new tower at 411 St-Francis, a process that requires a 120-day public consultation as specified in the Industry Canada circular. Rogers also published a notice in a local newspaper and sent a letter to each resident and property owner within a designated area surrounding the proposed tower.

On April 28 2008, Châteauguay informed Rogers that it opposed the project, giving as reason the lack of conformity to applicable zoning regulations, the unappealing aesthetic of such installations, and fears for the safety and health of nearby residents. Châteauguay proposed that Rogers add a new tower at an existing installation or augment one of its existing towers with a stronger signal, or build its new tower at another location, 50 Industriel. Rogers responded on 28 August 2008, arguing that the existing sites were inadequate and that 50 Industriel was unavailable. Rogers assured Châteauguay that the tower would comply with Health Canada's edict on exposure limits to radiofrequency electromagnetic energy, Safety Code 6.1 Châteauguay, despite reiterating its disagreement with Rogers, delivered a permit for construction at 411 St-Francis in February 2009.

Following a petition by Châteauguay's citizens, further consultation and various discussions took place in September of 2009, following which Industry Canada advised Châteauguay and Rogers that the public consultation had been completed to its satisfaction and that the project would have no negative impact on the environment. Industry Canada also advised, however, that it would prefer Châteauguay and Rogers to agree on a site, and would not render a final decision on the dossier until Châteauguay had had an opportunity to find an alternative site.

Rogers and Châteauguay attempted to find an alternative site and eventually settled on 50 Industriel. The owners of that property were negotiating its sale when Rogers and Châteauguay approached them and they expressed little interest in dealing with Rogers, leaving 411 St-Francis as the only effective alternative. It should be noted that both the 50 Industriel and the 411 St-Francis sites were located within the research area designated by Rogers for the purpose of erecting its new tower.

Rogers agreed to consider the alternative site at 50 Industriel if Châteauguay could complete an acquisition (by expropriation or private agreement) within 60 days from December 15, 2009. Châteauguay adopted a resolution to expropriate the site on January 18, 2010, but in the meantime, Ms. Christine White had acquired the property from the previous owners. Châteauguay moved ahead with the expropriation, publishing the notice in the land register on February17, 2010 -- outside the 60-day period required by Rogers.

On March 8, 2010, Ms. White deposited a motion challenging Châteauguay's notice of expropriation.

After several months and considerable discussion among Industry Canada, Châteauguay, and Rogers, Industry Canada granted Rogers permission to proceed with the installation of a new tower at 411 St-Francis; Rogers advised Châteauguay of its intent to proceed.

Châteauguay continued to request that Rogers install its new tower at 50 Industriel, if its expropriation turned out to be successful. Châteauguay promised not to contest Rogers' moving forward with the installation at 411 St-Francis if the municipality lost to Mme White's challenge. Rogers rejected Châteauguay's offer, and on October 12, 2010, Châteauguay served a notice of land reserve in respect of 411 St-Francis. On October 27, 2010, Rogers filed a motion to contest the notice. The notice was renewed October 2, 2012.

First Instance Decision

Relying on Spraytech,2 the trial judge concluded that Châteauguay had exercised its power of expropriation at 50 Industriel with a view to protecting the well-being of its citizens, and had not done so abusively or to favour a private enterprise. The judge also concluded that the expropriation had purpose, since Rogers' refusal of the offer to build at 50 Industriel was not definitive.

Châteauguay's actions did not trench on federal powers either, since there was no obligation upon Rogers to use 50 Industriel.

However, while recognizing Châteauguay's right under the Cities and Towns Act3 to take possession of buildings for purposes of creating a land reserve, the judge concluded that in the case of 411 St-Francis, Châteauguay acted in bad faith: its only goal was to prevent Rogers from constructing a tower. He concluded, in consequence, that the reserve taken by Châteauguay on 411 St-Francis was null.

All three parties appealed.

The Appeal

Rogers contended that the notices of expropriation and reserve were unconstitutional and that the trial judge erred in allowing the expert evidence on the safety of electromagnetic fields. On the opposite, Châteauguay argued that the judge erred in finding that Châteauguay had acted in bad faith and abused its power. Lastly, Ms. White asked the Court to assess whether the expropriation order at 50 Industriel was made without object, given that Rogers no longer wished to install its tower at that location.

In a nutshell, the Court had to determine whether the municipality had the right to take steps, in the particular circumstances of this case, to influence the location of the tower within the designated area determined by Rogers.

The Constitutional Questions

(a) True Nature (Pith and Substance)

The Court noted that the constitutional issue amounted to whether the true nature of Châteauguay's notices of expropriation and reserve, taken together, were ultra vires, trenching on the federal radiocommunications power. To that end, the issue was whether Châteauguay acted in service of legitimate municipal purposes.

The Court of Appeal invoked the application of constitutional doctrines raised by the Supreme Court of Canada in Canadian Western Bank,4 noting the Court's favouring of the doctrines of pith and substance, double aspect, and federal paramountcy over the notion of interjurisdictional immunity. The Court of Appeal also called on the notion of cooperative federalism endorsed in PHS Community Services,5 stating that the modern tendency is to find a just balance between the two orders of government.

The Court noted that Châteauguay's expropriation of 50 Industriel, a site for Rogers' installation that would have the least impact, was motivated by the goals of protecting the well-being of citizens and the harmonious organization of the municipal territory. The Court also noted that these were both legitimate municipal goals, sharing the view of the trial judge that the power of expropriation may be exercised by a municipality in service of the well-being of citizens. In this case, the municipality was unable to find conclusive evidence showing the harmlessness of electromagnetic fields of the type generated by Rogers' equipment. In order to address the concerns of citizens regarding their health, whether the concerns were well-founded or not, Châteauguay was within its rights to put an end to a controversy that was creating uneasiness by expropriating 50 Industriel.

The Court disagreed with the trial judge, however, as to the finding of bad faith on the part of Châteauguay with respect to the notice of reserve. The Court noted that the trial judge had recognized that Châteauguay's goal in making the notice of reserve was in service of the well-being of the citizens, which is a legitimate municipal purpose. Without putting such a notice in place, all of Châteauguay's efforts in creating an alternative for Rogers at 50 Industriel would have been in vain.

In consequence, the Court concluded that Châteauguay acted in the interests of its citizens and for legitimate municipal goals, and that the true nature of the notices taken together did not trench on federal competence.

(b) Interjurisdictional Immunity

The Court also held that, contrary to Rogers' pleadings, there was no precedent for applying the doctrine of interjurisdictional immunity to the specific placement of radiocommunications antennae within an area already found suitable. The Court noted that the Privy Council determined in Bell6 that municipal councils had a voice in determining the placement of telephone poles, concluding that the placement of radiocommunications towers was not an indivisible core element of the federal radiocommunications power suitable for the application of interjurisdictional immunity.

(c) Federal Paramountcy

The Court of Appeal also concluded that there was no reason to apply the doctrine of federal paramountcy in the instant case. In its reasons, the Court spelled out the two forms of conflict that can lead to the application of paramountcy: a conflict of application between federal and provincial law, or a conflict arising where a provincial law frustrates the purpose of a federal law.

The Court found no conflict of application, stating that Industry Canada's authorization allowing Rogers to build a new tower permitted construction at either of 411 St-Francis or 50 Industriel. It was possible, therefore, for Rogers to comply both with the federal authorization and the requirements of Châteauguay regarding the placement of the tower within the relevant area.

The Court also found no conflict arising from frustration of federal purpose. The Court described the purpose of the Radiocommunication Act7 as permitting the deployment of radiocommunication networks while respecting the needs of local populations. In addition, the Court remarked that Châteauguay's purpose in respect of the expropriation and reserve notices was to protect the well-being of its citizens and the harmonious development of its territory, both objectives that can be attained without frustrating a federal purpose. Here, Châteauguay did not prevent the installation of Rogers' tower altogether, but merely designated an alternative location.


The Court of Appeal has confirmed certain powers conferred on municipalities to self-determine the development of their territories and to protect the well-being of their citizens, despite the federal nature of radiocommunications towers and the issuance of authorizations by the federal government. The threshold for the demonstration of bad faith and abuse of power in expropriation and issuance of land reserve notices is a high one and the onus is on the expropriated. Consequently, according to the Court of Appeal's reasoning, it is difficult for one to successfully argue that a municipality's decision to relocate a proposed tower is null by reason of abuse of right or bad faith, especially in the presence of a legitimate municipal purpose.

Unlike aerodromes,8 in certain circumstances, the location of a radiocommunications tower does not constitute an essential and indivisible core of a federal power. Therefore, a municipality does not necessarily infringe on federal jurisdiction by merely requiring a tower to be erected at a different location on its territory, where such additional location is located within the research area of the telecommunications company.


1 See "Safety Code 6: Health Canada's Radiofrequency Exposure Guidelines", online: .

114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40 ["Spraytech"].

Cities and Towns Act, CQLR c C-19.

Canadian Western Bank v. Alberta, 2007 SCC 22["Canadian Western Bank"].

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 ["PHS Community Services"].

Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (C.P.) ["Bell"].

Radiocommunication Act, R.S.C. 1985, c R-2.

Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Pierre-Christian Collins Hoffman
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions