August 2014
Commercial Real Estate Bulletin
The Quebec Court of Appeal
Recognizes Certain Powers of
Municipalities with respect to
the Location of
Radiocommunications Towers
On May 30, 2014, the Quebec Court of Appeal rendered judgment
regarding several appeals from a decision made by the Superior
Court on 2 July 2013. In doing so, the Court of Appeal found that
the municipality of Châteauguay was acting within its powers when
it issued a notice of land reserve that in effect prevented Rogers
from installing a radiocommunications tower at a particular address
for which Industry Canada had granted authorization, where that
authorization also permitted construction at an alternative site.
Facts
Rogers Communications Inc. (“Rogers”) is a Canadian corporation
that controls and manages a wireless communications network. In
Autumn of 2007, Rogers undertook a survey of the Châteauguay
area with an view to finding propitious locations for the installation
of a new wireless communications tower, in order to fill existing
gaps in its network coverage. In December 2007, Rogers negotiated
a lease with the owner of 411 St-Francis for the installation of a
tower.
In March 2008, Rogers advised Châteauguay of its intention to
install a new tower at 411 St-Francis, a process that requires a 120day public consultation as specified in the Industry Canada circular.
Rogers also published a notice in a local newspaper and sent a letter
to each resident and property owner within a designated area
surrounding the proposed tower.
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On April 28 2008, Châteauguay informed Rogers that it opposed the
project, giving as reason the lack of conformity to applicable zoning
regulations, the unappealing aesthetic of such installations, and
fears for the safety and health of nearby residents. Châteauguay
proposed that Rogers add a new tower at an existing installation or
augment one of its existing towers with a stronger signal, or build
its new tower at another location, 50 Industriel. Rogers responded
on 28 August 2008, arguing that the existing sites were inadequate
and that 50 Industriel was unavailable. Rogers assured
Châteauguay that the tower would comply with Health Canada’s
edict on exposure limits to radiofrequency electromagnetic energy,
Safety Code 6.1 Châteauguay, despite reiterating its disagreement
with Rogers, delivered a permit for construction at 411 St-Francis in
February 2009.
Following a petition by Châteauguay’s citizens, further consultation
and various discussions took place in September of 2009, following
which Industry Canada advised Châteauguay and Rogers that the
public consultation had been completed to its satisfaction and that
the project would have no negative impact on the environment.
Industry Canada also advised, however, that it would prefer
Châteauguay and Rogers to agree on a site, and would not render a
final decision on the dossier until Châteauguay had had an
opportunity to find an alternative site.
Rogers and Châteauguay attempted to find an alternative site and
eventually settled on 50 Industriel. The owners of that property
were negotiating its sale when Rogers and Châteauguay approached
them and they expressed little interest in dealing with Rogers,
leaving 411 St-Francis as the only effective alternative. It should be
noted that both the 50 Industriel and the 411 St-Francis sites were
located within the research area designated by Rogers for the
purpose of erecting its new tower.
Rogers agreed to consider the alternative site at 50 Industriel if
Châteauguay could complete an acquisition (by expropriation or
private agreement) within 60 days from December 15, 2009.
Châteauguay adopted a resolution to expropriate the site on
January 18, 2010, but in the meantime, Ms. Christine White had
acquired the property from the previous owners. Châteauguay
moved ahead with the expropriation, publishing the notice in the
land register on February17, 2010 -- outside the 60-day period
required by Rogers.
1
See “Safety Code 6: Health Canada's Radiofrequency Exposure Guidelines”, online: < www.hc-sc.gc.ca/ewhsemt/pubs/radiation/radio_guide-lignes_direct/index-eng.php >.
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On March 8, 2010, Ms. White deposited a motion challenging
Châteauguay’s notice of expropriation.
After several months and considerable discussion among Industry
Canada, Châteauguay, and Rogers, Industry Canada granted Rogers
permission to proceed with the installation of a new tower at 411
St-Francis; Rogers advised Châteauguay of its intent to proceed.
Châteauguay continued to request that Rogers install its new tower
at 50 Industriel, if its expropriation turned out to be successful.
Châteauguay promised not to contest Rogers’ moving forward with
the installation at 411 St-Francis if the municipality lost to Mme
White’s challenge. Rogers rejected Châteauguay’s offer, and on
October 12, 2010, Châteauguay served a notice of land reserve in
respect of 411 St-Francis. On October 27, 2010, Rogers filed a
motion to contest the notice. The notice was renewed October 2,
2012.
First Instance Decision
Relying on Spraytech,2 the trial judge concluded that Châteauguay
had exercised its power of expropriation at 50 Industriel with a view
to protecting the well-being of its citizens, and had not done so
abusively or to favour a private enterprise. The judge also
concluded that the expropriation had purpose, since Rogers’ refusal
of the offer to build at 50 Industriel was not definitive.
Châteauguay’s actions did not trench on federal powers either, since
there was no obligation upon Rogers to use 50 Industriel.
However, while recognizing Châteauguay’s right under the Cities
and Towns Act3 to take possession of buildings for purposes of
creating a land reserve, the judge concluded that in the case of 411
St-Francis, Châteauguay acted in bad faith: its only goal was to
prevent Rogers from constructing a tower. He concluded, in
consequence, that the reserve taken by Châteauguay on 411 StFrancis was null.
All three parties appealed.
2
114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40 [“Spraytech”].
3
Cities and Towns Act, CQLR c C-19.
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The Appeal
Rogers contended that the notices of expropriation and reserve
were unconstitutional and that the trial judge erred in allowing the
expert evidence on the safety of electromagnetic fields. On the
opposite, Châteauguay argued that the judge erred in finding that
Châteauguay had acted in bad faith and abused its power. Lastly,
Ms. White asked the Court to assess whether the expropriation
order at 50 Industriel was made without object, given that Rogers
no longer wished to install its tower at that location.
In a nutshell, the Court had to determine whether the municipality
had the right to take steps, in the particular circumstances of this
case, to influence the location of the tower within the designated
area determined by Rogers.
The Constitutional Questions
(a) True Nature (Pith and Substance)
The Court noted that the constitutional issue amounted to whether
the true nature of Châteauguay’s notices of expropriation and
reserve, taken together, were ultra vires, trenching on the federal
radiocommunications power. To that end, the issue was whether
Châteauguay acted in service of legitimate municipal purposes.
The Court of Appeal invoked the application of constitutional
doctrines raised by the Supreme Court of Canada in Canadian
Western Bank,4 noting the Court’s favouring of the doctrines of pith
and substance, double aspect, and federal paramountcy over the
notion of interjurisdictional immunity. The Court of Appeal also
called on the notion of cooperative federalism endorsed in PHS
Community Services,5 stating that the modern tendency is to find a
just balance between the two orders of government.
The Court noted that Châteauguay’s expropriation of 50 Industriel, a
site for Rogers’ installation that would have the least impact, was
motivated by the goals of protecting the well-being of citizens and
the harmonious organization of the municipal territory. The Court
also noted that these were both legitimate municipal goals, sharing
the view of the trial judge that the power of expropriation may be
exercised by a municipality in service of the well-being of citizens.
In this case, the municipality was unable to find conclusive evidence
showing the harmlessness of electromagnetic fields of the type
4
Canadian Western Bank v. Alberta, 2007 SCC 22 [“Canadian Western Bank”].
5
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 [“PHS Community Services”].
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generated by Rogers’ equipment. In order to address the concerns
of citizens regarding their health, whether the concerns were wellfounded or not, Châteauguay was within its rights to put an end to a
controversy that was creating uneasiness by expropriating 50
Industriel.
The Court disagreed with the trial judge, however, as to the finding
of bad faith on the part of Châteauguay with respect to the notice of
reserve. The Court noted that the trial judge had recognized that
Châteauguay’s goal in making the notice of reserve was in service of
the well-being of the citizens, which is a legitimate municipal
purpose. Without putting such a notice in place, all of
Châteauguay’s efforts in creating an alternative for Rogers at 50
Industriel would have been in vain.
In consequence, the Court concluded that Châteauguay acted in the
interests of its citizens and for legitimate municipal goals, and that
the true nature of the notices taken together did not trench on
federal competence.
(b) Interjurisdictional Immunity
The Court also held that, contrary to Rogers’ pleadings, there was
no precedent for applying the doctrine of interjurisdictional
immunity to the specific placement of radiocommunications
antennae within an area already found suitable. The Court noted
that the Privy Council determined in Bell6 that municipal councils
had a voice in determining the placement of telephone poles,
concluding that the placement of radiocommunications towers was
not an indivisible core element of the federal radiocommunications
power suitable for the application of interjurisdictional immunity.
(c) Federal Paramountcy
The Court of Appeal also concluded that there was no reason to
apply the doctrine of federal paramountcy in the instant case. In its
reasons, the Court spelled out the two forms of conflict that can
lead to the application of paramountcy: a conflict of application
between federal and provincial law, or a conflict arising where a
provincial law frustrates the purpose of a federal law.
The Court found no conflict of application, stating that Industry
Canada’s authorization allowing Rogers to build a new tower
permitted construction at either of 411 St-Francis or 50 Industriel.
It was possible, therefore, for Rogers to comply both with the
6
Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (C.P.) [“Bell”].
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federal authorization and the requirements of Châteauguay
regarding the placement of the tower within the relevant area.
The Court also found no conflict arising from frustration of federal
purpose. The Court described the purpose of the
Radiocommunication Act7 as permitting the deployment of
radiocommunication networks while respecting the needs of local
populations. In addition, the Court remarked that Châteauguay’s
purpose in respect of the expropriation and reserve notices was to
protect the well-being of its citizens and the harmonious
development of its territory, both objectives that can be attained
without frustrating a federal purpose. Here, Châteauguay did not
prevent the installation of Rogers’ tower altogether, but merely
designated an alternative location.
Conclusion
The Court of Appeal has confirmed certain powers conferred on
municipalities to self-determine the development of their territories
and to protect the well-being of their citizens, despite the federal
nature of radiocommunications towers and the issuance of
authorizations by the federal government. The threshold for the
demonstration of bad faith and abuse of power in expropriation and
issuance of land reserve notices is a high one and the onus is on the
expropriated. Consequently, according to the Court of Appeal’s
reasoning, it is difficult for one to successfully argue that a
municipality’s decision to relocate a proposed tower is null by
reason of abuse of right or bad faith, especially in the presence of a
legitimate municipal purpose.
Unlike aerodromes,8 in certain circumstances, the location of a
radiocommunications tower does not constitute an essential and
indivisible core of a federal power. Therefore, a municipality does
not necessarily infringe on federal jurisdiction by merely requiring a
tower to be erected at a different location on its territory, where
such additional location is located within the research area of the
telecommunications company.
by Stéphanie Hamelin and Pierre-Christian Collins Hoffman
7
Radiocommunication Act, R.S.C. 1985, c R-2.
8
Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39.
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For more information on this topic please contact:
Montréal
Stéphanie Hamelin
514.987.5085
stephanie.hamelin@mcmillan.ca
Montréal
Pierre-Christian Collins
514.987.5062
pierre-christian.hoffman@mcmillan.ca
Hoffman
a cautionary note
The foregoing provides only an overview and does not constitute legal advice. Readers are
cautioned against making any decisions based on this material alone. Rather, specific legal
advice should be obtained.
© McMillan LLP 2014
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