The Supreme Court Of Canada Renders A Long Awaited Ruling Regarding The Power To Situate Radiocommunication Antenna Systems

The proliferation of the number of radiocommunication antennas and other radiocommunication systems in Canada in recent years in response to the growing demand of cellular radiocommunication network users has given rise to numerous conflicts opposing, on the one hand, telecommunication firms asserting the scope of federal jurisdiction over radiocommunication and, on the other hand, cities and municipalities, seeking control with respect to the development of their territories.1 On June 16, 2016, the Supreme Court of Canada sealed the fate of a legal dispute opposing Rogers Communications Inc. ("Rogers") to the City of Châteauguay ("Châteauguay")2 since 2008 and, by so doing, also put an end to years of uncertainty with respect to the extent of the municipalities' powers regarding the determination of the location of radiocommunication antenna systems. On the basis of constitutional grounds, the Supreme Court of Canada found in favour of Rogers and confirmed the paramountcy of federal power over radiocommunication.

Facts

Rogers is a communications and media company that holds a spectrum license. This license requires Rogers to provide services in precisely specified Canadian geographic areas. Among such areas is the City of Châteauguay, where Rogers wished to build a new radiocommunication tower in order to fill certain coverage gaps in its network. In order to comply with the terms of its license, Rogers undertook to build a radiocommunication antenna system on the property located at 411 Saint-Francis Boulevard ("411 Saint-Francis"). Such installation was agreed to by the owner of the property.

In March 2008, Rogers informed Châteauguay of its intention to materialize its construction project. Consequently, Rogers requested the authorization of the federal Minister of Industry (the "Minister") for a specific site, as provided in the Radiocommunication Act, and subsequently initiated the 120-day public consultation process, as required under the Industry Canada circular. Rogers also notified the residents and property owners living in a determined area adjacent to 411 Saint-Francis and published a notice in a local newspaper.

On April 28, 2008, Châteauguay notified Rogers of its opposition to the project. Châteauguay argued that the project would be visually disagreeable and contravened its zoning by-law, and raised questions regarding the potential adverse impact of the project on the health and safety of residents living in the area. Châteauguay then suggested three alternatives to Rogers: to install the new antenna on an existing site; to increase the power of the signal from an existing antenna already operated by Rogers; or to complete the project on a new property located at 50 Industriel Boulevard ("50 Industriel").

Later that year, Rogers advised Châteauguay that all of the proposed alternatives were inadequate. After review, Rogers argued that the existing site and antenna were inadequate and that 50 Industriel was not available for its project. Rogers also confirmed the compliance of the projected tower with the requirements established by Health Canada in Safety Code 63 with respect to limits of exposure to radiofrequency. In February 2009, Châteauguay finally issued a building permit to Rogers to complete the project at 411 Saint-Francis.

Subsequently, Châteauguay received a petition signed by several residents opposing the project, resulting in the resumption of the public consultation process. On September 21, 2009, the Minister, by virtue of its powers under the Radiocommunication Act, determined that the consultation process had been completed satisfactorily and that the project would not negatively impact the environment. The Minister nevertheless expressed its wish that Rogers and Châteauguay come to a mutually agreeable arrangement. The Minister indicated that it would give the opportunity to Châteauguay to find an alternative site to 411 Saint-Francis before rendering its final decision regarding the location of Rogers' tower. Châteauguay then again proposed the 50 Boulevard Industriel property as an alternative site for the new antenna system, as this site was also located within the designated search area. Châteauguay notified Rogers of its intention to acquire that property either by mutual agreement or by way of expropriation. Rogers agreed to consider this alternative location, on the condition that the transaction between Châteauguay and the owner of that...