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
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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