Rogers Communications Inc. v. Châteauguay (City)

Rogers Communications Inc. v. Châteauguay (City)
Collection
Supreme Court Judgments
Date
2016-06-16
Neutral citation
2016 SCC 23
Report
[2016] 1 SCR 467
Case number
36027
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 36027
Decision Content
SUPREME COURT OF CANADA
Citation: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467
Appeal heard: October 9, 2015
Judgment rendered: June 16, 2016
Docket: 36027
Between:
Rogers Communications Inc.
Appellant
and
City of Châteauguay and Attorney General of Quebec
Respondents
And Between:
Rogers Communications Inc.
Appellant
and
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
Interveners
Official English Translation
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Joint Reasons for Judgment:
(paras. 1 to 77)
Partially Concurring Reasons:
(paras. 78 to 122)
Wagner and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Brown JJ. concurring)
Gascon J.
Rogers Communications v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467
Rogers Communications Inc. Appellant
v.
City of Châteauguay and
Attorney General of Quebec Respondents
‑ and ‑
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 Interveners
Indexed as: Rogers Communications Inc. v. Châteauguay (City)
2016 SCC 23
File No.: 36027.
2015: October 9; 2016: June 16.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Radiocommunication — Pith and substance doctrine — Double aspect doctrine — Notice of establishment of reserve served by city to prevent construction of radiocommunication antenna system on its territory — Whether notice of reserve is ultra vires city on basis that it relates in pith and substance to exclusive federal power — Radiocommunication Act, R.S.C. 1985, c. R-2, s. 5(1) (f) — Constitution Act, 1867, ss. 91(29) , 92(10) (a), (13) , (16) .
Constitutional law — Division of powers — Radiocommunication — Interjurisdictional immunity — Notice of establishment of reserve served by city to prevent construction of radiocommunication antenna system on its territory — Whether notice of reserve inapplicable by reason of doctrine of interjurisdictional immunity — Radiocommunication Act, R.S.C. 1985, c. R-2, s. 5(1) (f) — Constitution Act, 1867, ss. 91(29) , 92(10) (a), (13) , (16) .
Rogers Communications Inc. (“Rogers”), a Canadian corporation, offers various communication services everywhere in Canada. It holds a spectrum licence, which authorizes it to provide services in specified frequency ranges. This licence requires it to meet a number of obligations, one of which is to ensure an adequate network coverage in the geographic regions attributed to it. In the fall of 2007, Rogers decided to construct a new radiocommunication antenna system on the territory of the City of Châteauguay (“Châteauguay”) in order to fill gaps in its wireless telephone network. Pursuant to his powers under the Radiocommunication Act , the federal Minister of Industry authorized Rogers to install an antenna system on property located at 411 Boulevard Saint‑Francis in Châteauguay. Châteauguay, arguing that the health and well‑being of people living near such an installation would be at risk, adopted a municipal resolution authorizing the service of a notice of establishment of a reserve that prohibited all construction on the property in question for two years. A few days before the notice was due to lapse, it was renewed for two additional years. Rogers filed a motion to contest the notice of a reserve, arguing that the notice was unconstitutional because it constituted an exercise of the federal power over radiocommunication. Rogers also expressed the view that 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.
The Superior Court, applying administrative law principles, found that Châteauguay had acted in bad faith, and annulled the notice of a reserve and its renewal, as well as the resolutions on which they were based. The Court of Appeal set aside the Superior Court’s judgment and also rejected Rogers’ constitutional arguments.
Held: The appeal should be allowed. The notice of a reserve is unconstitutional.
Per McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ.: The notice of a reserve is ultra vires, because it constitutes an exercise of the federal power over radiocommunication, which is an exclusive federal power. In analyzing the pith and substance of the notice of a reserve, a court must consider both its purpose and its effects. An analysis of the evidence in this regard leads to but one conclusion: the purpose of the notice of a reserve was to prevent Rogers from installing its radiocommunication antenna system on the property at 411 Boulevard Saint‑Francis by limiting the possible choices for the system’s location. The same conclusion applies with regard to the legal and practical effects of the notice of a reserve. Even if this measure addressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power over radiocommunication. The principle of co‑operative federalism is of no assistance in this case, as 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 measure is valid.
The notice of a reserve does not have a double aspect. Because the pith and substance of the notice of a reserve is the choice of the location of radiocommunication infrastructure, there is no equivalence between the federal aspect, that is, 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. A finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304, to the effect that the federal jurisdiction over the siting of such infrastructure is exclusive.
Although the application of the pith and substance doctrine suffices to dispose of the appeal, the application of the doctrine of interjurisdictional immunity is also discussed in order to clarify the law. The application of this doctrine is generally reserved for situations that are already covered by precedent. There is a precedent that supports the application of interjurisdictional immunity in this situation, namely the Privy Council’s decision in Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52, which suggests that the siting of telecommunications infrastructure is at the core of the federal power. Moreover, the evidence in the record favours such a finding as regards the siting of radiocommunication antenna systems, given that it is the appropriate and specific siting of antenna systems that ensures the orderly development and efficient operation of radiocommunication in Canada. The siting of antenna systems is part of the core of the federal power over radiocommunication; any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it.
Thus, the notice of a reserve seriously and significantly impaired the core of the federal power over radiocommunication. The facts show that Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. The notice 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. The notice of a reserve served on Rogers is therefore inapplicable by reason of the doctrine of interjurisdictional immunity.
Per Gascon J.: Contrary to the opinion expressed by the majority, the notice of a reserve is intra vires Châteauguay, and the appeal should be resolved on the basis not of the pith and substance doctrine, but of the doctrine of interjurisdictional immunity.
The determination of a legislative measure’s pith and substance is a delicate exercise of judgment that requires a court to consider and assess the impugned measure as a whole, weighing all its aspects. Although an overly general approach that would make the pith and substance analysis superficial is not recommended, the identification of the matter to which the measure relates requires the adoption of a flexible approach tailored to the modern conception of federalism, which allows for some overlapping and favours a spirit of co‑operation. It is therefore necessary to consider the context of the adoption of the resolution authorizing the notice of a reserve and the purpose of issuing the notice while bearing in mind the presumption of validity of a provincial or municipal measure. The factual context supports the existence of another normative perspective that relates to provincial jurisdiction. The history and the preamble to the municipal resolution show that Châteauguay opposed the construction of a tower on the property at 411 Boulevard St‑Francis not simply to control the siting of a radiocommunication system, but to respond to its residents’ concerns about their health and well-being. These matters correspond to a valid municipal purpose and fall within the provincial heads of power provided for in s. 92(13) and (16) of the Constitution Act, 1867 .
As regards the effects of the notice of a reserve, its legal effect must be distinguished from its practical effect. Although in practice, the effect of the notice is to prohibit Rogers from constructing its radiocommunication tower on the property at 411 Boulevard St‑Francis, the notice’s legal effect opens the way for Châteauguay to exercise its powers of expropriation, which falls within its jurisdiction to regulate the development of its territory in accordance with its needs and priorities. This more nuanced understanding of the effects of the notice is in line with a more flexible conception of the pith and substance doctrine that is more consistent with the guiding principles already set out and that favours a more accurate understanding of the matter to which the notice actually applies.
The effects of a municipal measure must be considered in conjunction with its purpose. The fact that such a measure affects a federal head of power does not on its own explain why the action was taken. However, the evidence in the record does clearly show what motivated it, which, moreover, appears to outweigh its effects. Thus, if the resolution’s purposes and effects are considered as a whole in a comprehensive analysis of the pith and substance, the purposes that were pursued and achieved in establishing the land reserve were to ensure the harmonious development of the territory of Châteauguay, to allay its residents’ concerns and to protect their health and well‑being, despite the fact that there was clearly an effect on the siting of Rogers’ radiocommunication tower. This approach tends to support a finding that the actions of the governments at both levels are valid and to favour the key principles underlying the division of powers, including subsidiarity and co‑operative federalism.
On the basis of the doctrine of interjurisdictional immunity, the notice of a reserve nevertheless impairs the core of the federal power over radiocommunication. The choice of location or the siting of antenna systems is at the core of that power. By blocking the location decided on in accordance with the procedure provided for in the Radiocommunication Act and circular CPC‑2‑0‑03 — Radiocommunication and Broadcasting Antenna Systems, the notice intrudes significantly on a vital and essential aspect of the power.
Cases Cited
By Wagner and Côté JJ.
Distinguished: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; applied: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52; referred to: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; R. v. Morgentaler, [1993] 3 S.C.R. 463; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225; Téléphone Guèvremont Inc. v. Quebec (Régie des télécommunications), [1994] 1 S.C.R. 878; Hodge v. The Queen (1883), 9 App. Cas. 117; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6; Telus Communications Co. v. Toronto (City) (2007), 84 O.R. (3d) 656.
By Gascon J.
Applied: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52; referred to: Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; R. v. Morgentaler, [1993] 3 S.C.R. 463; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Hodge v. The Queen (1883), 9 App. Cas. 117; In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725.
Statutes and Regulations Cited
Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1.
Cities and Towns Act, CQLR, c. C‑19, ss. 29.4, 570.
Constitution Act, 1867, ss. 91 preamble, (29), 92(10)(a), (13), (16).
Expropriation Act, CQLR, c. E‑24, ss. 69 et seq.
Radiocommunication Act, R.S.C. 1985, c. R‑2, s. 5(1) (f).
Authors Cited
Canada. Health Canada. Consumer and Clinical Radiation Protection Bureau. Limits of Human Exposure to Radiofrequency Electromagnetic Energy in the Frequency Range from 3 kHz to 300 GHz (Safety Code 6). Ottawa: Health Canada, 2009.
Canada. Industry Canada. Spectrum Management and Telecommunications. CPC‑2‑0‑03 — Radiocommunication and Broadcasting Antenna Systems, issue 4, June 2007.
City of Châteauguay. Conseil municipal. Résolution no 2010‑904, adoptée lors de la séance ordinaire du 4 octobre 2010 (en ligne: www.ville.chateauguay.qc.ca/Proces‑verbal‑seance‑2010‑10‑04).
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).
Lederman, W. R. “Classification of Laws and the British North America Act”, in W. R. Lederman, ed., The Courts and the Canadian Constitution. Toronto: McClelland and Stewart, 1964, 177.
Lederman, W. R. Continuing Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public Law and Federal System of Canada. Toronto: Butterworths, 1981.
Monahan, Patrick J., and Byron Shaw. Constitutional Law, 4th ed. Toronto: Irwin Law, 2013.
Ryan, Michael H. “Telecommunications and the Constitution: Re‑Setting the Bounds of Federal Authority” (2010), 89 Can. Bar Rev. 695.
APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Dutil and Léger JJ.A.), 2014 QCCA 1121, 113 L.C.R. 233, [2014] AZ‑51078720, [2014] J.Q. no 5163 (QL), 2014 CarswellQue 13182 (WL Can.), setting aside in part a decision of Perrault J., 2013 QCCS 3138, [2013] R.J.Q. 1177, 110 L.C.R. 81, [2013] AZ‑50985779, [2013] J.Q. no 7419 (QL), 2013 CarswellQue 8577 (WL Can.). Appeal allowed.
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.
English version of the judgment of McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ. delivered by
Wagner and Côté JJ. —
I. Introduction
[1] Wireless telephony now dominates the means by which Canadian individuals and businesses communicate with one another every day. The use of mobile telephones on this scale requires an efficient national radiocommunication network, the existence of which inevitably gives rise to regulatory difficulties. Although it is well established that Parliament has exclusive jurisdiction in the sphere of radiocommunication, this appeal raises the question whether a municipality may intervene in the siting of a radiocommunication antenna system. If the answer is yes, the scope of that intervention must be determined.
[2] Pursuant to his powers under the Radiocommunication Act, R.S.C. 1985, c. R‑2 , the Minister of Industry (“Minister”) 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”), arguing that the health and well‑being of people living near such an installation would be at risk, adopted a municipal resolution authorizing the service of a notice of establishment of a reserve (“notice 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, CQLR, c. C‑19, and the Expropriation Act, CQLR, c. E‑24. A few days before the reserve was due to lapse, it was renewed for two additional years.
[3] Rogers argues that the notice of a reserve is unconstitutional. In its opinion, the issuance of the notice constitutes an exercise of the federal power over radiocommunication and is therefore ultra vires the province. Rogers is also of the view that the notice is either inapplicable to it by reason of the doctrine of interjurisdictional immunity or inoperative by reason of the doctrine of federal paramountcy. Finally, Rogers contests the validity of the notice from the standpoint of municipal law.
[4] The respondents, Châteauguay and the Attorney General of Quebec (“AGQ”), counter that the notice of a reserve is intra vires the province, as its issuance constitutes a valid exercise of the provincial powers over property and civil rights in the province and generally all matters of a merely local or private nature. They also argue that the notice is neither inapplicable to Rogers nor inoperative by reason of the doctrine of interjurisdictional immunity or that of federal paramountcy. Finally, they submit that, under municipal law, the issuance of the notice constitutes a valid exercise of powers delegated to Châteauguay.
[5] We are of the opinion that in light of the purpose and the effects of the notice of a reserve, its pith and substance is the siting of a radiocommunication antenna system, which represents an exercise of federal jurisdiction. The notice is therefore ultra vires the province. In the circumstances, the notice impairs the core of the federal power over radiocommunication in that it compromises the orderly development and efficient operation of radiocommunication in Canada. In addition, it is inapplicable to Rogers by reason of the doctrine of interjurisdictional immunity.
II. Facts
[6] Rogers, a Canadian corporation, offers various communication services — including that of wireless telephony, a form of radiocommunication — everywhere in Canada. It holds a spectrum licence, which authorizes it to provide services in specified frequency ranges. This licence requires it to meet a number of obligations, one of which is to ensure an adequate network coverage in the geographic regions attributed to it. To do this, Rogers must install and operate radio stations.
[7] In the fall of 2007, Rogers decided to construct a new radiocommunication antenna system on the territory of the city of Châteauguay in order to fill gaps in its wireless telephone network. For this, it identified an optimal “search area” within which there were a few sites that might enable it to ensure that its network provided adequate coverage.
[8] Rogers has no power of expropriation. To be able to construct its installation in the established search area, it must therefore reach an agreement with an owner of property located there. It is in this context that Rogers entered into a lease with the owner of the property at 411 Boulevard Saint‑Francis in December 2007.
[9] Before installing its system, Rogers also had to obtain the Minister’s approval for a specific site under s. 5(1) (f) of the Radiocommunication Act . To do this, it had to submit to a 120‑day public consultation process, as was required by circular CPC‑2‑0‑03 — Radiocommunication and Broadcasting Antenna Systems (“Circular”), published by Industry Canada. The Circular required that both the public and the land‑use authority (“LUA”) — Châteauguay in this case — be consulted. The purpose of this consultation was to identify concerns about the proposed installation and ensure that the licence holder reached an understanding with the LUA. Following the consultation process, the Minister had to decide whether the licence holder had met the requirements of the Circular. The Minister could also resolve any impasse reached in the discussions between the parties regarding the construction of the antenna system by making a final decision in that regard.
[10] In March 2008, Rogers notified Châteauguay of its intention to set up a radiocommunication system on the property at 411 Boulevard Saint‑Francis and initiated the consultation process required by the Circular.
[11] Châteauguay expressed its opposition to the project on April 28, 2008. It argued that the project would contravene the municipality’s zoning by‑law and would be visually disagreeable, and expressed a concern for a potential adverse impact on the health and safety of people living in an adjacent residential area. Châteauguay accordingly proposed three alternatives to Rogers: (1) to install another antenna on an existing site; (2) to increase the power of the signal from an existing antenna; or, as a last resort, (3) to construct the proposed antenna system on another lot located at 50 Boulevard Industriel.
[12] On August 28, 2008, Rogers advised Châteauguay that it had studied the proposed alternatives, but that the existing sites were inadequate and the property at 50 Boulevard Industriel was not available. It responded to Châteauguay’s concerns regarding the health and safety of its residents by adding that its installation would comply with the standards of Health Canada’s Safety Code 6.
[13] In September 2008, Châteauguay reiterated its disagreement with the installation of an antenna system on the property at 411 Boulevard Saint‑Francis. It nonetheless asked Rogers to identify measures that could be taken to mitigate the project’s effects and improve its visual aspect. In February 2009, Châteauguay issued a building permit to Rogers for the property at 411 Boulevard Saint‑Francis.
[14] After it had issued the permit, Châteauguay received a petition signed by more than a hundred residents who opposed the construction of the antenna system on the property at 411 Boulevard Saint‑Francis. They argued that, according to certain studies, such installations are harmful to health and to the environment. On May 19, 2009, Châteauguay’s municipal council adopted a resolution that authorized Châteauguay to request that the project at 411 Boulevard Saint‑Francis be halted and that the consultation process be resumed.
[15] In the summer of 2009, the Minister of Health advised Châteauguay that Safety Code 6 provides adequate protection to the public. However, the Minister of Industry noted some flaws in Rogers’ initial public consultation process and asked it to resume its negotiations with Châteauguay. Rogers submitted willingly to this request. The building permit issued to Rogers expired on August 18, 2009; at that time, the work had not yet begun.
[16] On September 21, 2009, the Minister determined that the second consultation process had been completed satisfactorily. The parties nevertheless tried to find an alternative site that would have less of an impact on residents. With this in mind, Châteauguay identified two possible lots located at 20 and 50 Boulevard Industriel. The owners of those lots showed little interest in doing business with Rogers, however.
[17] On December 15, 2009, Châteauguay proposed the property at 50 Boulevard Industriel as an alternative site for the new antenna system. It informed Rogers at that time that it intended to acquire that property either by mutual agreement or by way of expropriation. Rogers agreed to consider the property at 50 Boulevard Industriel on condition that the transaction take place no later than February 15, 2010. A few days later, the Minister confirmed that the consultation process conducted for 411 Boulevard Saint‑Francis also applied to 50 Boulevard Industriel.
[18] On January 18, 2010, Châteauguay’s municipal council adopted a resolution authorizing the acquisition of the property at 50 Boulevard Industriel by mutual agreement or by way of expropriation. However, the intervener Christina White had purchased that property three days earlier, on January 15, 2010. The new owner was served with a notice of expropriation on February 16, 2010, and she responded by filing a motion to contest Châteauguay’s right to expropriate the property.
[19] Representatives of Rogers, Châteauguay and the Minister met on April 15, 2010. Rogers asked the Minister, in particular, to exercise his powers under the Circular and to resolve the impasse, as it could no longer wait to construct its antenna system and was concerned that the expropriation proceeding would drag on.
[20] On July 26, 2010, the Minister confirmed that Rogers had met the consultation requirements, and resolved the impasse between the parties by approving the installation of the antenna system on the property at 411 Boulevard Saint‑Francis. Rogers therefore informed Châteauguay that it did not intend to locate its installation at 50 Boulevard Industriel and that it had decided to go ahead with the construction of the antenna system at 411 Boulevard Saint‑Francis.
[21] On October 1, 2010, Châteauguay proposed to Rogers that the work be delayed until a decision was rendered in the expropriation proceeding. In exchange, Châteauguay undertook not to appeal any adverse decision in that proceeding and not to oppose the construction of the antenna system on the property at 411 Boulevard Saint‑Francis if Rogers were unable to install one at 50 Boulevard Industriel by May 15, 2011.
[22] On October 4, 2010, before Rogers had even responded to Châteauguay’s proposition, the municipal council adopted resolution No. 2010‑904, which authorized steps to establish a reserve for the purposes of a land reserve on the property at 411 Boulevard Saint‑Francis. Châteauguay justified this resolution by referring to concerns related to the interests and well‑being of its residents, as well as to the development of its territory.
[23] A few days later, Rogers rejected Châteauguay’s offer of October 1, 2010 and confirmed that it intended to begin installing the new antenna system on the property at 411 Boulevard Saint‑Francis. On October 12, Châteauguay served the notice of a reserve with respect to that property. Rogers then filed a motion to contest the notice and intervened in the expropriation proceeding between Châteauguay and Ms. White. On October 2, 2012, Châteauguay renewed the reserve for an additional two‑year period.
III. Judgments of the Courts Below
A. Superior Court, 2013 QCCS 3138, 110 L.C.R. 81
[24] Perrault J. held that Châteauguay had acted to further a valid municipal purpose in expropriating the property at 50 Boulevard Industriel. She noted that it was reasonable and rational, given that the evidence disclosed that the question of radiofrequency energy is controversial, to believe that Châteauguay would ensure that an antenna system would be installed at a safe distance from nearby residences.
[25] Having said this, Perrault J. added that, in this case, 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 as regards the property at 411 Boulevard Saint‑Francis and that Châteauguay’s exercise of that discretion had thus constituted an abuse of power.
[26] Perrault J. was of the opinion that the act of issuing the notice of a reserve had been intended to harm Rogers or, at the very least, that it had been so inconsistent with the legislative context in which it was carried out that to find that the city had acted in good faith was impossible. She annulled the notice of a reserve and its renewal, as well as the resolutions on which they were based. Because the case had been resolved on the basis of administrative law principles, she found that it was not necessary to consider the constitutional issues.
B. Court of Appeal, 2014 QCCA 1121, 113 L.C.R. 233 (Morissette, Dutil and Léger JJ.A.)
[27] In the Court of Appeal’s opinion, 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. The court was therefore of the view that 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.
[28] On the constitutional issues, the Court of Appeal agreed with Rogers that the notice of expropriation and the notice of a reserve must be considered as a whole in order to identify their pith and substance. It also referred to the principle stated by this Court that federalism must be applied flexibly by favouring the pith and substance and double aspect doctrines.
[29] After considering the notice of expropriation and the notice of establishment of a land reserve as a whole, the Court of Appeal stated that their purpose was [translation] “to respond to concerns of the citizens of Châteauguay concerning possible repercussions of radio waves on their health and to ensure a harmonious development of its territory”: para. 78. The court accordingly concluded that the pith and substance of the notice of expropriation and the notice of a reserve was not to encroach upon the federal power over radiocommunication. It also expressed the opinion that Parliament does not have exclusive jurisdiction over telecommunications: para. 79.
[30] The Court of Appeal added that the doctrine of interjurisdictional immunity does not apply in this case. It explained that its understanding of Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 77, was that this doctrine applies only where, in specific cases, there are precedents in which its application has been favoured. The court found that Rogers was wrong to invoke In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304 (P.C.), and Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141, as they were not precedents in which the doctrine of interjurisdictional immunity had been applied with respect to the siting of radiocommunication antenna systems in search areas. The Court of Appeal noted, on the contrary, that the Privy Council had held in Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (“Bell”), that cities may intervene as regards the siting of telephone poles on their territories.
[31] Finally, the Court of Appeal held that the doctrine of federal paramountcy cannot apply in the instant case. First of all, there is no operational conflict, since Rogers has been authorized to construct its antenna system on the property at 411 Boulevard Saint‑Francis but could also use the property at 50 Boulevard Industriel. It would thus be possible for Rogers to comply with the federal authorization granted by the Minister while at the same time satisfying Châteauguay’s requirements with respect to the location of the antenna system within the search area.
[32] The Court of Appeal also found that there is no frustration of the purpose of the federal legislation. It observed, relying on 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, that municipalities may add to regulations made by the federal government where those regulations are permissive in nature. In the case at bar, the purpose of the federal regulation was to [translation] “allow for the deployment of telecommunication networks while respecting local populations”: C.A., at para. 91. Thus, in the court’s view, the purposes of the notice of a reserve were to ensure the well‑being of residents and the harmonious development of the municipality’s territory. It accordingly allowed the appeal on the basis that these purposes could be achieved “without encroaching on the fulfilment of the federal [rule]”: para. 92.
IV. Issues
[33] This appeal raises the following issues:
(1) Is the notice of a reserve ultra vires Châteauguay on the basis that it relates in pith and substance to an exclusive federal power?
(2) Is the notice of a reserve inapplicable by reason of the doctrine of interjurisdictional immunity?
(3) Is the notice of a reserve inoperative by reason of the doctrine of federal paramountcy?
(4) Is the notice of a reserve ultra vires Châteauguay in light of the principles of municipal law?
V. Analysis
A. Application of the Constitutional Doctrines
[34] The first step in a division of powers analysis is to determine whether the level of government or the entity exercising delegated powers possesses the authority under the Constitution to enact the impugned statute or adopt the impugned measure: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 30; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53 (“Marine Services”), at paras. 47‑48; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 (“COPA”), at para. 22; Canadian Western Bank, at para. 25; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 52. This is achieved by characterizing the “pith and substance” of the statute or measure: Marine Services, at para. 48.
[35] A court must conduct the pith and substance analysis before inquiring into the application of the doctrines of interjurisdictional immunity and federal paramountcy, both of which are predicated on the constitutional validity of the impugned statute or measure. If the doctrine of interjurisdictional immunity applies, the impugned measure remains valid but has no application with regard to the core of the power of the other level of government that it impairs: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 58. Similarly, where the doctrine of federal paramountcy applies, the impugned provincial measure is rendered inoperative to the extent of its incompatibility with the federal legislation: Canadian Western Bank, at para. 69; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 74.
(1) Pith and Substance Doctrine
[36] In analyzing the pith and substance of the notice of a reserve, the Court must consider both its purpose and its effects: Goodwin, at para. 21; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 29; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 63‑64; Quebec (At