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Constitution - Telecommunications. Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal comments on the federal constitutional division-of-powers over telecommunications, in contrast to related provincial/municipal jurisdiction:[106] Another important consideration is the balancing of federal and provincial jurisdiction. It is beyond doubt that provinces have the constitutional authority to regulate local authorities such as municipalities and, to some extent, various public utilities, to facilitate telecommunications infrastructure expansion. As a matter of fact, several provinces across the country have adopted legislation to govern access to provincially regulated infrastructure for wireless and wireline equipment: see, for example, Public Utilities Act, R.S.N.S. 1989, c. 380, s. 77 (Nova Scotia); Act Respecting Certain Public Utility Installations, ch. I-13, s. 2 (Québec); Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 70 (British Columbia). Ontario recently adopted a statute to deal explicitly with the expedited delivery of wireline broadband projects: Building Broadband Faster Act, 2021, S.O. 2021, c. 2, Sched. 1, s. 1.
[107] As one of the respondents in this appeal, the Government of British Columbia objected to an interpretation of "“transmission line”" that would bring wireless infrastructure within the ambit of sections 43 and 44 of the Act, on the ground that it would lose an important source of revenue. Pursuant to section 62 of British Columbia’s Transportation Act, S.B.C. 2004, c. 44, any person who wishes to use provincial public highways must enter into an agreement with the Minister of Transportation and Infrastructure which may include the payment of a fee. The fees must be no less than market rent. For wireline telecommunications services, however, the Province is only entitled to compensation from carriers based on causal and direct costs, as a result of a CRTC decision involving the City of Vancouver (see Decision CRTC 2001-23 Ledcor/Vancouver – Construction, operation and maintenance of transmission lines in Vancouver). The CRTC subsequently adopted a model municipal access agreement, which reflects the principles enunciated in the Ledcor decision (Telecom Decision CRTC 2013-618).
[108] There is no doubt in my mind that Parliament could regulate access to municipal infrastructures and utility poles for the installation of mobile wireless infrastructure by carriers if it so chooses. The regulation of telecommunications undertakings (where they operate outside the limits of a province) and of radiocommunication is in pith and substance a matter of exclusive federal jurisdiction: see In re Regulation and Control of Radiocommunication in Canada, 1932 CanLII 354 (UK JCPC), [1932] A.C. 304; Capital Cities Comm. v. Canadian Radio-Television & Telecommunications Commission, 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141; Alberta Government Telephones v. Canadian Radio-Television & Telecommunications Commission, 1989 CanLII 78, [1989] 2 S.C.R. 225; Téléphone Guèvremont Inc. v. Québec (Régie des télécommunications), 1994 CanLII 130, [1994] 1 S.C.R. 878; Châteauguay at para. 42. Provincial legislatures have jurisdiction over municipalities, private lands, local infrastructure and land use planning, and their statutes may apply to aspects of federal undertakings so long as they do not regulate a primary federal aspect of these undertakings: Construction Montcalm Inc. v. Minimum Wage Commission, 1978 CanLII 18, [1979] 1 S.C.R. 754; Bell Canada v. Québec (Commission de la Santé et de la Sécurité du Travail), 1988 CanLII 81, [1988] 1 S.C.R. 749.
[109] In a spirit of cooperative federalism, Parliament has seen fit not to legislate to the full extent of its constitutional authority. This is in keeping with the approach favoured by the Supreme Court to provide flexibility in the interpretation and application of the division of powers: see, for example, Châteauguay at paras. 37-39; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419 at para. 23. Such an approach supports an interpretation of parallel federal and provincial legislation which allows for them to operate concurrently. Quoting from its earlier decision in Alberta (Attorney General) v. Moloney (2015 SCC 51, [2015] 3 S.C.R. 327 at para. 27) [Moloney], the Supreme Court stated in Reference re Pan-Canadian Securities Regulation (2018 SCC 48, [2018] 3 S.C.R. 189 at para. 17) that this principle is based on the presumption that "“Parliament intends its laws to co-exist with provincial laws”".
[110] The experience of British Columbia (and of other provinces) illustrates the viability of such an approach and speaks to the legitimacy of the choice made by Parliament. Not only does it allow a provincial government to raise revenues for the installation of mobile wireless infrastructure on provincial rights of way and municipal structures, but there is no gap since the terms and conditions under which carriers may access utility poles and other transmission structures owned by BC Hydro to install their mobile wireless infrastructure is regulated by the BC Utilities Commission (Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 70). It appears, therefore, that a system that respects the important role of each stakeholder pays off and is functional. In many respects, municipalities and public utilities regulators are in a better position than the CRTC to coordinate and maintain balance, safety and equitable access to their infrastructure.
[111] Indeed, the CRTC found as a fact that there is no evidence of municipalities impeding the roll out of 5G networks. At paragraph 475 of its Decision, the CRTC states:Parties did not provide persuasive evidence that municipalities systematically act as barriers to deployment. While certain wireless carriers described examples of delays they have encountered with respect to municipal approvals, this evidence does not demonstrate that there is a pattern of denial by municipalities that would require Commission intervention to address. [112] This finding of fact, which is entitled to a high degree of deference and is not subject to appeal, should come as no surprise. After all, municipalities share a common goal with the carriers and know how important an improved connectivity is to the well-being of their constituents and the prosperity of their community. Ironically, the carriers’ fear that the deployment of new technology could be at risk if the qualified right of access regime provided by sections 43 and 44 of the Act is not extended to mobile wireless transmission facilities, echoes the argument they made 20 years ago with respect to their ability to access electricity poles. At the time, the Supreme Court refused to buy the doomsday argument of the carriers that the only alternative to the CRTC’s jurisdiction over power poles would be the erection of a province-wide duplicate infrastructure of cable television poles, and retorted that other avenues (contractual and regulatory) were available. The same answer is warranted today.
[113] If the past is the guarantor of the future, there is no reason to believe that the carriers and the municipalities will be unable to achieve mutually beneficial agreements to allow for the installation of small cells and other 5G equipment on municipal infrastructure. After all, the numerous wireless antennas that have been erected under the current legislative framework are all a testament to the cooperation between municipalities and carriers once the Minister has approved the location of an antenna, as noted by the Supreme Court in Châteauguay (at para. 73). The evidence before us is to the effect that the deployment of telecommunications infrastructure – both wireline and wireless – has proceeded apace and has not been significantly hampered or delayed as a result of municipal obstruction. In fact, the carriers have been hard-pressed to provide the Court with any evidence to substantiate their fear of adverse consequences for the orderly development of 5G deployment or of arbitrary action by municipalities if the CRTC has no authority to resolve access disputes.
[114] It is also to be expected that Parliament would step in if the concerns of the carriers were to materialize. As a matter of fact, the federal government appointed an external panel – the Broadcasting and Telecommunications Legislative Review Panel – in 2018 with the mandate to review and recommend changes to Canada’s communication legislative framework. Interestingly, Telus and the other carriers made representations to the effect that the Act should be amended to state that access rights apply to the construction, maintenance and operation of transmission facilities (Telus) or telecommunications facilities (Rogers) to ensure that wireless facilities are included in the access regime of sections 43 and 44: see Review of the Canadian Communications Legislative Framework – Submission of TELUS Communications Inc., (January 11, 2019) at pp. 27-32; see also, CRTC, Interventions - Public process number: 2019-57, Telecom Notice of Consultation CRTC 2019-57 – Review of mobile wireless services: Rogers Communications Canada Inc. Intervention, May 15, 2019, para. 438.
[115] In its final report, the Legislative Review Panel recommended that all access matters, for both wireless and wireline infrastructure, be placed under the jurisdiction of the CRTC, and that oversight of the radiocommunication and broadcasting antenna siting process should similarly be assigned by the Minister to the CRTC: Broadcasting and Telecommunications Legislative Review Panel, Canada’s communications future: Time to act, January 2020, Recommendation 36. Parliament has yet to enact any statutory changes arising from the many recommendations of the Legislative Review Panel.
[116] I draw three inferences from this course of events. First, three years have elapsed since that recommendation was made and yet the government has not introduced in Parliament any amendment to the legislative framework governing Canadian telecommunications. This suggests that the government does not foresee any danger looming or any major obstacle on the road leading to the construction of a pan-Canadian 5G network. Second, it can safely be assumed that the expert members of the Legislative Review Panel were of the view that "“transmission line”" does not encompass wireless facilities and that sections 43 and 44 do not apply to the small cell antennas required to build a 5G network; otherwise there would be no need for a statutory amendment. Finally, if ever a change in the legislation is required, either because the current regime proves to be misadapted to the new technology or because of unforeseen commercial realities, Parliament will be best equipped to deal with the issue and better able than courts to strike the best compromise.
[117] For all of the foregoing reasons, I am therefore of the view that the CRTC did not err in its interpretation of the words "“transmission line”" and in finding that sections 43 and 44 of the Act do not provide it with the jurisdiction to adjudicate disputes involving mobile wireless transmission facilities.
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