In a closely watched ruling by Quebec municipalities that pitted a Montreal suburb against a Canadian telecommunications giant in a constitutional debate over whether a city can prevent a federal enterprise from building a communications tower, the Quebec Court of Appeal held that municipalities cannot prevent the installation of new cell towers but can have a say over its location within its city limits.
In a unanimous ruling that highlights the “significant challenges that can sometimes occur with the installation of communications towers in urban settings,” the Quebec Court of Appeal held that the Montreal bedroom community was not overstepping its bounds nor was it meddling in federal matters when it proposed an alternate site in an industrial sector for the future cell phone tower.
“The ruling is important for municipalities because it holds that they can play an active role to help telecommunication companies install communication towers in their territory while respecting the fundamental objective of a municipality to ensure the harmonious development and the well-being of its citizens,” observed Patrice Gladu, a Montreal lawyer with Dunton Rainville who successfully plead the case.
In 2008, with cell phone use exploding across Canada, ratcheting up demand for wireless networks, Rogers Communications Inc. wanted to install a cell tower in a residential neighborhood in Chateauguay, an off-island suburb of Montreal, and struck a deal with the owner of the property. But facing opposition from citizens concerned about the eyesore and the potential long-term exposure to electromagnetic energy fields, the city proposed an alternative site in an industrial sector, bordering the Kahnawake Mohawk Territory reserve, that conformed to the standards set by Industry Canada. Cell tower locations are ultimately decided by Industry Canada but telecommunications companies normally make recommendations after they have scouted desired locations. The municipality then filed a land reserve — which prohibits during its term any construction, improvement or addition on the immovable — on the residential property as well as an expropriation notice on the property located in the city’s industrial sector.
Rogers fought back as did Christina White, the owner of the property that was served with an expropriation notice. Rogers argued that both the land reserve and the expropriation notice were unconstitutional because they sought to prevent the telecom company from installing a cell tower on the residential property. It maintained that both notices should be deemed as ultra vires because it infringed on a sector, radio communications, that falls exclusively with federal jurisdiction. At the very least, Rogers argued, the paramountcy doctrine should be applied to render the two notices null and void.
A lower court upheld the expropriation notice but concluded that the city had acted in bad faith and abused its power by imposing a land reserve on the residential property to prevent Rogers from installing its antenna.
The Quebec Court of Appeal partially overturned the lower court ruling and held that since the city had acted in the “interests of its citizens, for municipal reasons,” it did not act in bad faith and upheld the land reserve notice on the residential property. Under the Quebec Cities and Towns Act, municipalities have the power to possess immovables for the purposes of land claims and expropriation. Municipal council can under the Act launch expropriation procedures prescribed by law, appropriate all buildings or part of a building or servitude if needed for municipal purposes. In order to determine whether both notices were ultra vires, an analysis of the “true nature” of the notice of expropriation and land reserve must be conducted, said Quebec Court of Appeal Justice Julie Dutil.
“The notice of expropriation and land reserve, examined together, have a valid municipal objective as its goal was to respond to the concerns of the citizens of Chateauguay who were worried about the possible health repercussions of radio waves and to ensure a harmonious development in their territory,” said Justice Dutil in her reasons. “Its true nature was not to infringe upon a federal jurisdiction.”
Justice Dutil also rejected Rogers’ contention that the doctrine of interjurisdictional immunity should apply because radio communications is a sector that falls exclusively within federal jurisdiction. Heeding guidance from the Supreme Court of Canada in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39,  2 SCR 536, Justice Dutil noted that in order to apply the doctrine of interjurisdictional immunity long-standing precedent must be established – and there is none over the placement of radio communication equipment. In fact, a 1905 ruling, Toronto Corporation v. Bell Telephone Co. of Canada, held that municipal council has a say “in determining the position of the (telephone) poles in streets selected by the company.”
“In this case, since the objective of this litigation is the determination of the radio communication antennas in the geographical area pre-established by the federal enterprise and that there is no precedent that supports the application of the doctrine of interjurisdictional immunity in this case, I conclude that it does not apply,” said Justice Dutil, who also rejected Rogers’ contention that the doctrine of federal paramountcy should be applied in this case.
The appeal court notes that since the SCC ruling in Canadian Western Bank v. Alberta, 2007 SCC 22,  2 SCR 3, the Supreme Court has insisted on several occasions over the past few years that a flexible and modern approach to federalism should be encouraged. “It seems to me that this case is a good example of putting cooperative federalism into practice,” said Justice Dutil. “Chateauguay cannot prevent Rogers from installing a tower in the geographical area (approved by Industry Canada) within its territory, but it can specify its location for municipal purposes.”
It has proven to be very difficult for companies to successfully plead the doctrine of interjurisdictional immunity ever since the SCC ruling in Canadian Western Bank, observed Jean Leclair, a constitutional law professor at the Université de Montréal. “The test since Western Bank is not easy to meet,” said Leclair. “Rogers would have had to demonstrate that it touched at the heart of federal jurisdiction insofar as radio communications is concerned. But that wouldn’t be enough. They would also have to make the case that it led to adverse consequences, and not just affect,” that which makes a federal subject or object of rights specifically of federal jurisdiction.
“There are certain questions where rather than seek refuge behind the doctrine of interjurisdictional immunity, one is going to have to proceed in a cooperative manner – that is what the appeal court is saying, especially in cases that does not lead to adverse consequences,” added Leclair.
The Union of Quebec Municipalities is delighted with the ruling as it is clear that municipalities now have a say over the placement of cell towers, said spokesman François Sormany.
Rogers intends to file a motion for leave to appeal before the Supreme Court.
This story was originally published in The Lawyers Weekly.