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

Last Updated: July 18 2016
Article by Vivian Ntiri

Most Read Contributor in Canada, September 2018

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.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.

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