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Statutory Interpretation - 'Presumption of Consistent Expression'

. 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 considered the statutory interpretation principle of 'presumption of consistent expression' (which is also applied in contractual interpretation, which see):
[95] Parliament must be presumed to have drawn the distinction between various transmission technologies on purpose. When Parliament decided to expand the specific types of communication lines covered in the Railway Act with the more generic notion of "“transmission line”", it could have gone further and captured all kinds of transmission techniques, wired and wireless. It chose not to do so, and carefully drew the distinction in the Act between transmission facilities and transmission lines. This was a conscious choice. The fundamental distinction between radio transmission through space (wireless) and transmission that relied on an artificial guide (wireline) was well known in 1993, and has not changed since. Courts must respect and implement that choice. As the Supreme Court stated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (at para. 81), "“when different terms are used in a single piece of legislation, they must be understood to have different meanings”".

[96] This presumption of consistent expression has been followed by the Supreme Court in Barrie. At issue in that case was whether the phrase "“the supporting structure of a transmission line”" in subsection 43(5) of the Act was broad enough to grant the CRTC authority over the power utilities’ poles. The Supreme Court found that the wording of that section could not bear the broad meaning given to it by the CRTC and advanced by the Canadian Cable Television Association (CCTA). Noting that a transmission line carries electricity over a large distance with minimum losses, while distribution lines carry less than 50kVof electricity over short distances, the Court noted that the power poles to which the CCTA sought access were distribution lines, not transmission lines. It therefore sided with the utilities, on the premise that Parliament must be taken to have known of that distinction. As the Court stated, "“[h]ad Parliament intended to submit the Utilities’ power poles to the jurisdiction of the CRTC by means of s. 43(5), it would have employed the phrase “distribution line””" (at para. 25). The same reasoning obviously applies to the phrases "“transmission line”" and "“transmission facility”". Different expressions used in the same statute, especially those of a technical nature, must be read as having different meanings.



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Last modified: 16-04-23
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