Rogers Communications Inc. v. Châteauguay (City) et al., (2016) 485 N.R. 200 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 09, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 485 N.R. 200 (SCC);2016 SCC 23

Rogers Com. v. Châteauguay (2016), 485 N.R. 200 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.R. TBEd. JN.012

Rogers Communications Inc. (appellant) v. City of Châteauguay and Attorney General of Quebec (respondents)

Rogers Communications Inc. (appellant) v. City of Châteauguay and Attorney General of Quebec (respondents) and Attorney General of Canada, Christina White, Federation of Canadian Municipalities, City of Toronto, Bell Mobilité Inc., TELUS Communications Inc., Vidéotron s.e.n.c. and Union des municipalités du Québec (intervenors)

(36027; 2016 SCC 23; 2016 CSC 23)

Indexed As: Rogers Communications Inc. v. Châteauguay (City) et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

June 16, 2016.

Summary:

Pursuant to the Radiocommunication Act, R.S.C. 1985, c. R-2, the Minister of Industry authorized Rogers Communications Inc. ("Rogers") to install an antenna system on property located at 411 Boulevard Saint-Francis in the municipality of Châteauguay for the purpose of improving its cellular telephone network. The City of Châteauguay ("Châteauguay") argued that the health and well-being of people living near such an installation would be at risk and it adopted a municipal resolution authorizing the service of a notice of establishment of a reserve that prohibited all construction on the property at 411 Boulevard Saint-Francis for two years, pursuant to the Cities and Towns Act, C.Q.L.R., c. C-19, and the Expropriation Act, C.Q.L.R., c. E-24. Châteauguay pursued an expropriation of another property (50 Boulevard Industriel) which it deemed more appropriate for Rogers' antenna system. On October 12, 2010, Châteauguay served the notice. Rogers then filed a motion to contest the notice and and intervened in the expropriation proceeding between Châteauguay and White, the owner of 50 Boulevard Industriel. Rogers argued that: (1) the issuance of the notice was an exercise of the federal power over radiocommunication and therefore ultra vires the province; (2) 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; and (3) the notice was not valid under municipal law. On October 2, 2012, Châteauguay renewed the reserve for an additional two year period.

The Quebec Superior Court, in a decision reported at (2013), 110 L.C.R. 81; 2013 QCCS 3138, held that Châteauguay had acted to further a valid municipal purpose in expropriating the property at 50 Boulevard Industriel. It was reasonable and rational, given that the evidence disclosed that the question of radiofrequency energy was controversial, to believe that Châteauguay would ensure that an antenna system would be installed at a safe distance from nearby residences. However, the discretion conferred on a municipality to establish a reserve under the Cities and Towns Act and the Expropriation Act had been exercised in bad faith regarding the property at 411 Boulevard Saint-Francis and Châteauguay's exercise of that discretion thus constituted an abuse of power. Rogers, White and Châteauguay appealed.

The Quebec Court of Appeal dismissed White's appeal, allowed Châteauguay's appeal, and dismissed Rogers' appeal. The court held that the motion judge had erred in finding that Châteauguay had acted in bad faith in serving the notice of a reserve. The court found that the power of expropriation and the power to serve such a notice could in fact be exercised for reasons related to the health and well-being of the people living in the city. Therefore, the motion judge could not, after holding that Châteauguay had acted for municipal purposes and in the interest of its residents in expropriating the property at 50 Boulevard Industriel, conclude that Châteauguay or its agents had acted in bad faith in serving the notice with respect to the property at 411 Boulevard Saint-Francis. The court rejected Rogers' constitutional arguments. Rogers appealed.

The Supreme Court of Canada allowed the appeal. The majority held that, in light of the purpose and the effects of the notice of a reserve, its pith and substance was the siting of a radiocommunication antenna system, which represented an exercise of federal jurisdiction. The notice was therefore ultra vires the province. The notice impaired the core of the federal power over radiocommunication in that it compromised the orderly development and efficient operation of radiocommunication in Canada. In addition, it was inapplicable to Rogers by reason of the doctrine of interjurisdictional immunity. Gascon, J., disagreed with the majority's reasons regarding the pith and substance of the notice, but agreed with them on the issue of interjurisdictional immunity.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - The Supreme Court of Canada stated that "The doctrine of interjurisdictional immunity protects the 'core' of a legislative head of power from being impaired by a government at the other level ... Its application involves two steps. The first is to 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 it does, the second step is to determine whether the effect of the statute or measure on the protected power is sufficiently serious to trigger the application of the doctrine ... In Canadian Western Bank, the Court explained that the doctrine of interjurisdictional immunity must be applied with restraint, since a broad application of interjurisdictional immunity appears to be 'inconsistent ... with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote' ..." - See paragraphs 59 to 61.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - Pursuant to the Radiocommunication Act, R.S.C. 1985, c. R-2, the Minister of Industry authorized Rogers Communications Inc. ("Rogers") to install an antenna system on property located at 411 Boulevard Saint-Francis in the municipality of Châteauguay, for the purpose of improving its cellular telephone network - The City of Châteauguay ("Châteauguay") argued that the health and well-being of people living near such an installation would be at risk and, on October 4, 2010, it adopted a municipal resolution authorizing the service of a notice of establishment of a reserve ("notice") that prohibited all construction on the property at 411 Boulevard Saint-Francis for two years, pursuant to the Cities and Towns Act, C.Q.L.R., c. C-19, and the Expropriation Act, C.Q.L.R., c. E-24 - Châteauguay pursued an expropriation of another property, 50 Boulevard Industriel, which it deemed more appropriate for Rogers' antenna system - On October 12, 2010, Châteauguay served the notice - Rogers then filed a motion to contest the notice and intervened in the expropriation proceeding between Châteauguay and White, the owner of 50 Boulevard Industriel - On October 12, 2012, Châteauguay renewed the reserve for an additional two year period - The Supreme Court of Canada held, inter alia, that the notice was inapplicable to Rogers by reason of the doctrine of interjurisdictional immunity - There was a precedent respecting the issue in this case which suggested that the siting of telecommunications infrastructure was at the core of the federal power - The court held that the notice of a reserve seriously and significantly impaired the core of the federal power over radiocommunication - Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence - The notice compromised the orderly development and efficient operation of radiocommunication in Canada - See paragraphs 57 to 74 and 118 to 122.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - Pursuant to the Radiocommunication Act, R.S.C. 1985, c. R-2, the Minister of Industry authorized Rogers Communications Inc. ("Rogers") to install an antenna system on property located at 411 Boulevard Saint-Francis in the municipality of Châteauguay, for the purpose of improving its cellular telephone network - The City of Châteauguay ("Châteauguay") argued that the health and well-being of people living near such an installation would be at risk and, on October 4, 2010, it adopted a municipal resolution authorizing the service of a notice of establishment of a reserve ("notice") that prohibited all construction on the property at 411 Boulevard Saint-Francis for two years, pursuant to the Cities and Towns Act, C.Q.L.R., c. C-19, and the Expropriation Act, C.Q.L.R., c. E-24 - Châteauguay pursued an expropriation of another property, 50 Boulevard Industriel, which it deemed more appropriate for Rogers' antenna system - On October 12, 2010, Châteauguay served the notice - Rogers then filed a motion to contest the notice and intervened in the expropriation proceeding between Châteauguay and White, the owner of 50 Boulevard Industriel - On October 12, 2012, Châteauguay renewed the reserve for an additional two year period - The Supreme Court of Canada stated that "In analyzing the pith and substance of the notice of a reserve, the Court must consider both its purpose and its effects ... The purpose of a municipal measure, like that of a law, is determined by examining both intrinsic evidence, such as the preamble or the general purposes stated in the resolution authorizing the measure, and extrinsic evidence, such as that of the circumstances in which the measure was adopted ... As for the effects of a municipal measure, they are determined by considering both the legal ramifications of the words used and the practical consequences of the application of the measure ..." - See paragraph 36.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - The Supreme Court of Canada stated that "When conducting a pith and substance analysis, a court must avoid adopting the watertight compartments approach, which this Court has in fact rejected. The fact that a measure has what are merely incidental effects on an exclusive head of power of the other level of government does not suffice to justify declaring that measure to be ultra vires ... [W]hen the courts apply the various constitutional doctrines, they must take into account the principle of co-operative federalism, which favours, where possible, the concurrent operation of statutes enacted by governments at both levels ... However, although co-operative federalism has become a principle that the courts have invoked to provide flexibility for the interpretation and application of the constitutional doctrines relating to the division of powers, such as federal paramountcy and interjurisdictional immunity, 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 law is valid." - See paragraphs 37 to 39.

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - Pursuant to the Radiocommunication Act, R.S.C. 1985, c. R-2, the Minister of Industry authorized Rogers Communications Inc. ("Rogers") to install an antenna system on property located at 411 Boulevard Saint-Francis in the municipality of Châteauguay, for the purpose of improving its cellular telephone network - The City of Châteauguay ("Châteauguay") argued that the health and well-being of people living near such an installation would be at risk and, on October 4, 2010, it adopted a municipal resolution authorizing the service of a notice of establishment of a reserve ("notice") that prohibited all construction on the property at 411 Boulevard Saint-Francis for two years, pursuant to the Cities and Towns Act, C.Q.L.R., c. C-19, and the Expropriation Act, C.Q.L.R., c. E-24 - Châteauguay pursued an expropriation of another property, 50 Boulevard Industriel, which it deemed more appropriate for Rogers' antenna system - On October 12, 2010, Châteauguay served the notice - Rogers then filed a motion to contest the notice and intervened in the expropriation proceeding between Châteauguay and White, the owner of 50 Boulevard Industriel - On October 12, 2012, Châteauguay renewed the reserve for an additional two year period - The Supreme Court of Canada held that the notice was ultra vires - The evidence led to the inescapable conclusion that its purpose was to prevent Rogers from installing its radiocommunication antenna system on the property at 411 Boulevard Saint-Francis by limiting the possible choices for its location - The same conclusion applied to the notice's legal and practical effects - Thus, the notice's pith and substance was not the protection of the health and well-being of residents or the development of the territory but, rather, the choice of the location of radiocommunication infrastructure - Even if the adoption of such a measure addressed health concerns raised by certain residents, it would clearly constitute a usurpation of the federal power over radiocommunication - The court rejected the argument that the notice had a double aspect - Traditionally, the courts had applied the double aspect doctrine to justify measures dealing with subjects that could fall equally under two distinct heads of power, one federal and the other provincial - The choice of the location of radiocommunication infrastructure was not an equivalence between the federal aspect, being 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 - Furthermore, the federal jurisdiction over the siting of such infrastructure was exclusive - See paragraphs 40 to 56.

Constitutional Law - Topic 6644

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Telecommunications - [See second Constitutional Law - Topic 2511 and third Constitutional Law - Topic 2950 ].

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - [See third Constitutional Law - Topic 2950 ].

Municipal Law - Topic 1481

Powers of municipalities - Particular powers - Health - [See second Constitutional Law - Topic 2511 and third Constitutional Law - Topic 2950 ].

Municipal Law - Topic 1495

Powers of municipalities - Particular powers - Expropriation - [See second Constitutional Law - Topic 2511 and third Constitutional Law - Topic 2950 ].

Telecommunications - Topic 1162

Wireless telecommunications services - Regulation - Federal vs. provincial jurisdiction - [See second Constitutional Law - Topic 2511 and third Constitutional Law - Topic 2950 ].

Telecommunications - Topic 1164

Wireless telecommunications services - Regulation - Siting of antenna systems - [See second Constitutional Law - Topic 2511 and third Constitutional Law - Topic 2950 ].

Counsel:

John B. Laskin, Nicholas Kennedy, Pierre Y. Lefebvre and Vincent Cérat Lagana, for the appellant;

Patrice Gladu and Sébastien Dorion, for the respondent, the City of Châteauguay;

Benoît Belleau, Simon Larose and Hugo Jean, for the respondent, the Attorney General of Quebec;

Pierre Salois and François Joyal, for the intervener, the Attorney General of Canada;

No one appeared for the intervener, Christina White;

Stéphane Émard-Chabot, for the intervener, the Federation of Canadian Municipalities;

Darrel A. Smith and Jared Wehrle, for the intervener, the City of Toronto;

Mathieu Quenneville, Stephen Schmidt, Valérie Beaudin and Roudine Ishak, for the interveners, Bell Mobilité Inc., TELUS Communications Inc. and Vidéotron s.e.n.c;

Marc-André LeChasseur, for the intervener, Union des municipalités du Québec.

Solicitors of Record:

Torys, Toronto, Ontario and Fasken Martineau DuMoulin, Montreal, Quebec, for the appellant;

Dunton Rainville, Montréal, Quebec, for the respondent, the City of Châteauguay;

Bernard, Roy & Associés, Montreal, Quebec, for the respondent, the Attorney General of Quebec;

Attorney General of Canada, Montreal, Quebec, for the intervener, the Attorney General of Canada;

Federation of Canadian Municipalities, Ottawa, Ontario, for the intervener, the Federation of Canadian Municipalities;

City of Toronto, Toronto, Ontario, for the intervener, the City of Toronto;

Prévost Fortin D'Aoust, Boisbriand, Quebec; TELUS Communications, Ottawa, Ontario; Beaudin & Associés, Verdun, Quebec; Quebecor Media, Montreal, Quebec, for the interveners, Bell Mobilité Inc., TELUS Communications Inc. and Vidéotron s.e.n.c.;

LeChasseur avocats, Montreal, Quebec, for the intervener, Union des municipalités du Québec.

This appeal was heard on October 9, 2015, by McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada, who delivered the following judgment, in both official languages, on June 16, 2016, which was comprised of the following opinions:

Wagner and Côté, JJ. (McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, and Brown, JJ., concurring) - see paragraphs 1 to 77;

Gascon, J., concurring in part - see paragraphs 78 to 122.