Canada: "Impairing The Core": Supreme Court Rules That Municipalities Cannot Interfere With Federal Authority Over Cell-Tower Locations

On June 16 the Supreme Court of Canada handed down its decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23. After reviewing and applying the doctrine of interjurisdictional immunity, the Court reaffirmed the Federal government's jurisdiction over radiocommunication and allowed Rogers' appeal.

Facts of the Case

Rogers Communications Inc. ("Rogers") holds a spectrum licence which requires it to meet the obligation of ensuring adequate network coverage in its attributed geographic regions. During the fall of 2007, Rogers decided to construct a new radiocommunication antenna system in the City of Châteauguay for the purpose of improving its cellular telephone network and was authorized by the federal Minister of Industry to install an antenna system on property in Châteauguay to achieve this purpose. The City argued that the health and well-being of inhabitants near such an installation would be at risk, and adopted a notice of a reserve that prohibited all construction on the said property for two years, pursuant to the Cities and Towns Act and the Expropriation Act. A few days before the notice was due to lapse, it was renewed for two additional years. Rogers argued that issuing the notice of a reserve was the municipality's exercise of the federal power over radiocommunication and was ultra vires the province. Rogers further argued that the notice was inapplicable under the doctrine of interjurisdictional immunity or inoperative under the doctrine of federal paramountcy.

Judgments of the Courts Below

At the Superior Court (2013 QCCS 3138), Perrault J. held that although the City had "acted in order to protect the welfare of its citizens" (para 153), the discretion conferred on a municipality to establish the notice of a reserve under the Cities and Towns Act and the Expropriation Act constituted an abuse of power. She annulled the notice and its renewal, and the resolutions on which they were based.

The Court of Appeal (2014 QCCA 1121) found that the motion judge erred in finding that the City had acted in bad faith in serving the notice of a reserve. The Court held that the doctrine of interjurisdictional immunity did not apply, and interpreted the Supreme Court's decision in Canadian Western Bank v. Alberta as limiting the use of the doctrine to cases where the application of precedents has been preferred. To this effect, the Court held that Rogers incorrectly invoked In re Regulation and Control of Radio Communication in Canada and Capital Cities Communications Inc. v. Canadian Radio Television Commission as case law precedents that apply the doctrine of interjurisdictional community in the context of telecommunication. Instead, the Court relied on (and incorrectly applied) the Privy Council's decision in Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 to justify the recognition of a municipal "special power" in telecommunications.

Constitutional Analysis

Pith and Substance Doctrine

In coming to its decision, the Court began with an analysis of the pith and substance of the notice of reserve by considering both its purpose and its effects. Referring to sections 91(29) and 92(10) of the Constitution Act, 1867, it was established that Parliament has broad jurisdiction over telecommunications undertakings, particularly where those undertakings operate outside of the limits of a province. Regarding the purpose of the notice, the Court observed:

[43] In the case at bar, a detailed and rigorous review of the evidence in the record reveals the following:

(i) Châteauguay did not serve the notice of a reserve until October 12, 2010, after the Minister had approved the installation of Rogers' antenna system on the property at 411 Boulevard Saint Francis;

(ii) the notice of a reserve was served immediately after Rogers refused Châteauguay's proposal to delay installing the system until a decision was rendered in the expropriation proceeding in respect of the property at 50 Boulevard Industriel; and

(iii) the notice of a reserve was served immediately after Rogers announced its intention to begin installing the system on the property at 411 Boulevard Saint Francis.

The Court came to the "inescapable" conclusion that the pith and substance of the notice of reserve was to prevent Rogers from installing its radiocommunication antenna, thereby limiting where the system could be located. The majority acknowledged the importance of the co-operative federalism principle, but also noted its limits:

[47] We agree completely with the flexible and generous approach our colleague advocates at para. 94 of his reasons. However, flexibility has its limits, and this approach cannot be used to distort a measure's pith and substance at the risk of restricting significantly an exclusive power granted to Parliament. A finding that a measure such as the one adopted in this case relates in pith and substance to a provincial head of power could encourage municipalities to systematically exercise the federal power to choose where to locate radiocommunication infrastructure while alleging local interests in support of their doing so.

After ruling out the City's argument that the notice of a reserve fell under the double aspect doctrine (which justifies the application of certain measures to subjects that could fall equally under the provincial and federal heads of power), the Court concluded that the notice of a reserve was ultra vires as it constituted the exercise of power over an exclusive federal power. This finding was enough to dismiss the appeal; however, the majority continued its analysis by considering Rogers' alternative argument involving the application of the doctrine of interjurisdictional immunity.

Interjurisdictional Immunity

The Court went on to discuss the doctrine of interjurisdictional immunity and used the case as an opportunity to clarify the doctrine. The underlying principle of interjurisdictional immunity is that the "core" of a legislative head of power must be protected from encroachment by the other level of government. In this way, the doctrine serves as an exception to the pith and substance doctrine.1 The two-step test for the doctrine, enumerated in Quebec (Attorney General) v. Canadian Owners and Pilots Association, was applied. Under the doctrine of interjurisdictional immunity, the court must

  1. Determine whether a statute enacted or measure adopted by a government at one level trenches on the "core" of a power of the other level of government. If the enacted statute does trench on the "core", then
  2. Determine whether the effect of the statute or measure on the protected power is sufficiently serious to trigger the application of the doctrine.2

The majority reaffirmed the narrow scope of the doctrine and its reservation for situations that are covered by precedent, as stated in Canadian Western Bank v. Alberta (paras 77-78).3 In order for the doctrine to apply, the provincial law must impair a vital and essential part of the federal work or undertaking.

The Court found that the Privy Council's decision in Toronto Corporation v. Bell Telephone Co. of Canada4 served as a precedent for applying the doctrine to the case at bar, as choosing an appropriate location for infrastructure is considered a "core" part of the federal power over radiocommunication (see para 69). The majority also found that the Court of Appeal erred in its interpretation of Bell "as meaning that municipalities have a certain degree of power over the determination of the exact locations of telecommunications poles." (para 65) That case was distinguished from the case at bar: the municipality's prerogative in Bell was grounded in a federal amendment and not in powers conferred on the provinces by the Constitution.

The majority concluded that the notice of reserve "seriously and significantly" inhibited Rogers' ability to meet its obligation to serve the geographic area in question, thereby impairing a vital and essential part of its federal undertaking for four years. The notice was found to be inapplicable under the doctrine of interjurisdictional immunity:

[70] In Canadian Western Bank, the Court held that it is not enough for the provincial legislation simply to "affect" that which makes a federal subject or object of rights specifically of federal jurisdiction: "The difference between 'affects' and 'impairs' is that the former does not imply any adverse consequence whereas the latter does" (para. 48). In that same paragraph, the Court explained that "[i]t is when the adverse impact of a law adopted by one level of government increases in severity from 'affecting' to 'impairing' (without necessarily 'sterilizing' or 'paralyzing')" that the doctrine of interjurisdictional immunity may be applied. This is why "impairment" suggests a serious or significant intrusion on the core of the power, that is, "a midpoint between sterilization and mere effects": COPA, at para. 44.

[71] In the case at bar, the service of the notice of a reserve 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. Once the resolution authorizing the service of the notice of a reserve had been adopted, Châteauguay's offer meant that Rogers would have to wait either until the end of the expropriation proceedings with regard to the property at 50 Boulevard Industriel or for a period of approximately seven months before it would be able to construct its installation on the property at 411 Boulevard Saint Francis. In these circumstances, Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. In this sense, the notice of a reserve compromised the orderly development and efficient operation of radiocommunication and impaired the core of the federal power over radiocommunication in Canada. (emphasis added)

Justice Gascon agreed with the majority on the application of the doctrine, and made noteworthy comments regarding the timing of the impairment:

[121] The measure's intrusion on the core of the power is significant and amounts to an impairment. My colleagues base the impairment on the time during which the notice of a reserve was to be in effect, that is, two consecutive two year periods. In my opinion, the impairment existed as of the time when the effect of the notice is found to have prevented Rogers from installing its radiocommunication tower on the available site that had been formally approved by the Minister of Industry, given that the federal legislation and the Circular both give the Minister the last word as regards the siting of radiocommunication systems in Canada. Such an obstacle has undesirable and extremely harmful consequences on the orderly development and efficient operation of radiocommunication insofar as Rogers' activities are concerned. (emphasis added)

Implications of the Case

Wireless services have become central to the lives of Canadians and their businesses, and the scope of the federal jurisdiction over this area has been confirmed by the highest court. The Constitution gives the federal government responsibility for national infrastructure, including telecommunications, railways, and pipelines. This decision allows the federal government to exercise its constitutional powers concerning matters of a national scale within its exclusive remit, without being hindered by local concerns, which was the case here. In the context of recent politics, the majority's decision may very well be used in litigation surrounding federally regulated pipelines. This case confirms the general consensus that a municipality cannot use its planning authority to expressly or impliedly inhibit the location of radiocommunication infrastructure.

Vivian Ntiri is a summer student in McCarthy Tetrault's Toronto office.


1 Patrick J. Monahan, Constitutional Law, 4th ed (Toronto: Irwin Law, 2013) at 130.

2 Laferrière c. Québec (Juge de la Cour du Québec), 2010 SCC 39, at para 27

3 Canadian Western Bank v. Alberta, 2007 SCC 22 at paras 77-78.

4 [1905] A.C. 52.

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