June 16, 2016
Torys represented Rogers with a team that included John Laskin and Nick Kennedy.
On June 16, 2016, the Supreme Court of Canada (SCC) handed down a major decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, in which the Court reaffirmed Parliament's exclusive jurisdiction over radiocommunication.
The dispute arose from Rogers' proposal to install a cellphone tower in the municipality of Châteauguay, Québec to fill a gap in its cellular network in the area. Rogers received the Minister of Industry's authorization under the Radiocommunication Act to construct the tower on a site that Rogers identified as suitable, but the municipality blocked its construction by imposing a “notice of reserve” on the proposed site. Under Québec law, a notice of reserve is a preliminary step to expropriation whereby a municipality issues a public notice of its intention to expropriate a site. After a notice of reserve is issued, no improvements to the site are permitted for two years or until the notice of reserve is cancelled. As a result, the notice of reserve blocked Rogers from building the tower at the proposed site, and no other suitable site was available in the City.
Rogers was successful in having the notice of reserve set aside in Superior Court of Québec on administrative law grounds. This decision was reversed by the Québec Court of Appeal in White c. Châteauguay (Ville de), 2014 QCCA 1121. The Court of Appeal overturned the lower court's administrative law findings, and rejected Rogers’ constitutional arguments, finding that provinces (and therefore municipalities) have some powers to determine cell tower siting.
Rogers retained Torys to appeal the Court of Appeal's decision to the SCC. On appeal, Rogers argued that the notice of reserve related, in pith and substance, to radiocommunication (an area of exclusive federal jurisdiction), that it was invalid on the basis of interjurisdictional immunity and inoperative on the basis of federal paramountcy, and that it exceeded the powers of the City. The SCC accepted Rogers’ argument that radiocommunication is an area of exclusive federal jurisdiction and that the notice of reserve related, in pith and substance, to radiocommunication. It also agreed that siting radiocommunication infrastructure goes to the core of Parliament’s exclusive power over radiocommunication, and that the notice of reserve impaired the exercise of that core power. Because the Court invalidated the notice of reserve on those bases, it did not need to consider Rogers' paramountcy and administrative law arguments.
The SCC's full decision can be found on Lexum’s website.