Rogers Communications Inc. Appellant v. City of Châteauguay and Attorney General of Quebec, 2016 SCC 23

SUPREME COURT OF CANADA Citation: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467 Appeal heard: October 9, 2015 Judgment rendered: June 16, 2016 Docket: 36027 Between: Rogers Communications Inc. Appellant and City of Châteauguay and Attorney General of Quebec Respondents And Between: Rogers Communications Inc.

Appellant and City of Châteauguay and Attorney General of Quebec Respondents - and - Attorney General of Canada, Christina White, Federation of Canadian Municipalities, City of Toronto, Bell Mobilité Inc., TELUS Communications Inc., Vidéotron s.e.n.c. and Union des municipalités du Québec Interveners Official English Translation Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Joint Reasons for Judgment: (paras. 1 to 77) Partially Concurring Reasons: (paras. 78 to 122) Wagner and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Brown JJ. concurring) Gascon J. Rogers Communications v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467 Rogers Communications Inc. Appellant v. City of Châteauguay and Attorney General of Quebec Respondents - and - Rogers Communications Inc. Appellant v.

City of Châteauguay and Attorney General of Quebec Respondents and Attorney General of Canada, Christina White, Federation of Canadian Municipalities, City of Toronto, Bell Mobilité Inc., TELUS Communications Inc., Vidéotron s.e.n.c. and Union des municipalités du Québec Interveners Indexed as: Rogers Communications Inc. v. Châteauguay (City) 2016 SCC 23 File No.: 36027. 2015: October 9; 2016: June 16.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for quebec Constitutional law — Division of powers — Radiocommunication — Pith and substance doctrine — Double aspect doctrine — Notice of establishment of reserve served by city to prevent construction of radiocommunication antenna system on its territory — Whether notice of reserve is ultra vires city on basis that it relates in pith and substance to exclusive federal power — Radiocommunication Act, R.S.C. 1985, c.

R-2, s. 5(1) (f) — Constitution Act, 1867, ss. 91(29) , 92(10) (a), (13) , (16) .

Constitutional law — Division of powers — Radiocommunication — Interjurisdictional immunity — Notice of establishmentof reserve served by city to prevent construction of radiocommunication antenna system on its territory — Whether notice of reserveinapplicable by reason of doctrine of interjurisdictional immunity — Radiocommunication Act, R.S.C. 1985, c. R-2, s. 5(1)(f) —Constitution Act, 1867, ss. 91(29), 92(10)(a), (13), (16). Rogers Communications Inc. (“Rogers”), a Canadian corporation, offers various communication services everywhere inCanada.

It holds a spectrum licence, which authorizes it to provide services in specified frequency ranges. This licence requires it to meeta number of obligations, one of which is to ensure an adequate network coverage in the geographic regions attributed to it. In the fall of2007, Rogers decided to construct a new radiocommunication antenna system on the territory of the City of Châteauguay(“Châteauguay”) in order to fill gaps in its wireless telephone network.

Pursuant to his powers under the Radiocommunication Act, thefederal Minister of Industry authorized Rogers to install an antenna system on property located at 411 Boulevard Saint-Francis inChâteauguay. Châteauguay, arguing that the health and well-being of people living near such an installation would be at risk, adopted amunicipal resolution authorizing the service of a notice of establishment of a reserve that prohibited all construction on the property inquestion for two years. A few days before the notice was due to lapse, it was renewed for two additional years.

Rogers filed a motion tocontest the notice of a reserve, arguing that the notice was unconstitutional because it constituted an exercise of the federal power overradiocommunication. Rogers also expressed the view that the notice was either inapplicable to it by reason of the doctrine ofinterjurisdictional immunity or inoperative by reason of the doctrine of federal paramountcy. The Superior Court, applying administrative law principles, found that Châteauguay had acted in bad faith, and annulled thenotice of a reserve and its renewal, as well as the resolutions on which they were based.

The Court of Appeal set aside the SuperiorCourt’s judgment and also rejected Rogers’ constitutional arguments. Held: The appeal should be allowed. The notice of a reserve is unconstitutional. Per McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ.: The notice of a reserve isultra vires, because it constitutes an exercise of the federal power over radiocommunication, which is an exclusive federal power. Inanalyzing the pith and substance of the notice of a reserve, a court must consider both its purpose and its effects.

An analysis of theevidence in this regard leads to but one conclusion: the purpose of the notice of a reserve was to prevent Rogers from installing itsradiocommunication antenna system on the property at 411 Boulevard Saint-Francis by limiting the possible choices for the system’slocation. The same conclusion applies with regard to the legal and practical effects of the notice of a reserve. Even if this measureaddressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power overradiocommunication.

The principle of co-operative federalism is of no assistance in this case, as it can neither override nor modify thedivision of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority. Nor can it support a findingthat an otherwise unconstitutional measure is valid. The notice of a reserve does not have a double aspect.

Because the pith and substance of the notice of a reserve is the choiceof the location of radiocommunication infrastructure, there is no equivalence between the federal aspect, that is, the power overradiocommunication, and the provincial aspects, namely the protection of the health and well-being of residents living nearby and theharmonious development of the municipality’s territory.

A finding that the siting of radiocommunication infrastructure has a doubleaspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedentestablished by the Privy Council in In re Regulation and Control of Radio Communication in Canada, (UK JCPC),[1932] A.C. 304, to the effect that the federal jurisdiction over the siting of such infrastructure is exclusive.

Although the application of the pith and substance doctrine suffices to dispose of the appeal, the application of the doctrineof interjurisdictional immunity is also discussed in order to clarify the law. The application of this doctrine is generally reserved forsituations that are already covered by precedent. There is a precedent that supports the application of interjurisdictional immunity in thissituation, namely the Privy Council’s decision in Toronto Corporation v.

Bell Telephone Co. of Canada, [1905] A.C. 52, which suggeststhat the siting of telecommunications infrastructure is at the core of the federal power. Moreover, the evidence in the record favours sucha finding as regards the siting of radiocommunication antenna systems, given that it is the appropriate and specific siting of antennasystems that ensures the orderly development and efficient operation of radiocommunication in Canada.

The siting of antenna systems ispart of the core of the federal power over radiocommunication; any other conclusion would make it impossible for Parliament to achievethe purpose for which this power was conferred on it.

Thus, the notice of a reserve seriously and significantly impaired the core of the federal power over radiocommunication.The facts show that Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence.The notice prevented Rogers from constructing its antenna system on the property at 411 Boulevard Saint-Francis for two successivetwo-year periods, and there was no alternative solution to which it could have turned on short notice. The notice of a reserve served onRogers is therefore inapplicable by reason of the doctrine of interjurisdictional immunity.

Per Gascon J.: Contrary to the opinion expressed by the majority, the notice of a reserve is intra vires Châteauguay, and theappeal should be resolved on the basis not of the pith and substance doctrine, but of the doctrine of interjurisdictional immunity. The determination of a legislative measure’s pith and substance is a delicate exercise of judgment that requires a court toconsider and assess the impugned measure as a whole, weighing all its aspects.

Although an overly general approach that would makethe pith and substance analysis superficial is not recommended, the identification of the matter to which the measure relates requires theadoption of a flexible approach tailored to the modern conception of federalism, which allows for some overlapping and favours a spiritof co-operation. It is therefore necessary to consider the context of the adoption of the resolution authorizing the notice of a reserve andthe purpose of issuing the notice while bearing in mind the presumption of validity of a provincial or municipal measure.

The factualcontext supports the existence of another normative perspective that relates to provincial jurisdiction. The history and the

preamble to themunicipal resolution show that Châteauguay opposed the construction of a tower on the property at 411 Boulevard St-Francis not simplyto control the siting of a radiocommunication system, but to respond to its residents’ concerns about their health and well-being. Thesematters correspond to a valid municipal purpose and fall within the provincial heads of power provided for in s. 92(13) and (16) of theConstitution Act, 1867.

As regards the effects of the notice of a reserve, its legal effect must be distinguished from its practical effect. Although inpractice, the effect of the notice is to prohibit Rogers from constructing its radiocommunication tower on the property at 411 BoulevardSt-Francis, the notice’s legal effect opens the way for Châteauguay to exercise its powers of expropriation, which falls within itsjurisdiction to regulate the development of its territory in accordance with its needs and priorities.

This more nuanced understanding ofthe effects of the notice is in line with a more flexible conception of the pith and substance doctrine that is more consistent with theguiding principles already set out and that favours a more accurate understanding of the matter to which the notice actually applies. The effects of a municipal measure must be considered in conjunction with its purpose. The fact that such a measure affectsa federal head of power does not on its own explain why the action was taken.

However, the evidence in the record does clearly showwhat motivated it, which, moreover, appears to outweigh its effects. Thus, if the resolution’s purposes and effects are considered as awhole in a comprehensive analysis of the pith and substance, the purposes that were pursued and achieved in establishing the landreserve were to ensure the harmonious development of the territory of Châteauguay, to allay its residents’ concerns and to protect theirhealth and well-being, despite the fact that there was clearly an effect on the siting of Rogers’ radiocommunication tower.

This approachtends to support a finding that the actions of the governments at both levels are valid and to favour the key principles underlying thedivision of powers, including subsidiarity and co-operative federalism. On the basis of the doctrine of interjurisdictional immunity, the notice of a reserve nevertheless impairs the core of thefederal power over radiocommunication. The choice of location or the siting of antenna systems is at the core of that power.

By blockingthe location decided on in accordance with the procedure provided for in the Radiocommunication Act and circular CPC-2-0-03 —Radiocommunication and Broadcasting Antenna Systems, the notice intrudes significantly on a vital and essential aspect of the power. Cases Cited By Wagner and Côté JJ. Distinguished: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536;applied: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52; referred to: Canadian Western Bank v.

Alberta, 2007SCC 22, [2007] 2 S.C.R. 3; In re Regulation and Control of Radio Communication in Canada, (UK JCPC), [1932]A.C. 304; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, (SCC), [1978] 2 S.C.R. 141;114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Goodwin v. BritishColumbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; Marine Services International Ltd. v. Ryan Estate,2013 SCC 44, [2013] 3 S.C.R. 53; Kitkatla Band v.

British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31,[2002] 2 S.C.R. 146; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Law Society ofBritish Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC14, [2015] 1 S.C.R. 693; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Lacombe, 2010SCC 38, [2010] 2 S.C.R. 453; R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463; Saskatchewan (Attorney General) v.Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; General Motors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R. 641; Alberta Government Telephones v. Canada (Canadian Radio-television and TelecommunicationsCommission), (SCC), [1989] 2 S.C.R. 225; Téléphone Guèvremont Inc. v. Quebec (Régie des télécommunications), (SCC), [1994] 1 S.C.R. 878; Hodge v. The Queen (1883), 9 App. Cas. 117; Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2 S.C.R. 161; Rio Hotel Ltd. v.

New Brunswick (Liquor Licensing Board), (SCC), [1987] 2S.C.R. 59; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Siemens v. Manitoba (Attorney General),2003 SCC 3, [2003] 1 S.C.R. 6; Telus Communications Co. v. Toronto (City) (2007), (ON SC), 84 O.R. (3d) 656. By Gascon J. Applied: Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52; referred to: Nova Scotia Board ofCensors v. McNeil, (SCC), [1978] 2 S.C.R. 662; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town),2001 SCC 40, [2001] 2 S.C.R. 241; Kuchma v.

Rural Municipality of Tache, (SCC), [1945] S.C.R. 234; Montréal (Cityof) v. Arcade Amusements Inc., (SCC), [1985] 1 S.C.R. 368; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2S.C.R. 3; Husky Oil Operations Ltd. v. Minister of National Revenue, (SCC), [1995] 3 S.C.R. 453; Reference reEmployment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Marine Services International Ltd. v. Ryan Estate,2013 SCC 44, [2013] 3 S.C.R. 53; General Motors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R.641; Multiple Access Ltd. v.

McCutcheon, (SCC), [1982] 2 S.C.R. 161; Law Society of British Columbia v. Mangat,2001 SCC 67, [2001] 3 S.C.R. 113; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; Reference reFirearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism andCulture), 2002 SCC 31, [2002] 2 S.C.R. 146; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463; Global Securities Corp. v.British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Quebec (Attorney General) v. Lacombe, 2010 SCC 38,[2010] 2 S.C.R. 453; Ward v.

Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Hodge v. The Queen (1883), 9 App. Cas.117; In re Regulation and Control of Radio Communication in Canada, (UK JCPC), [1932] A.C. 304; Capital CitiesCommunications Inc. v. Canadian Radio-Television Commission, (SCC), [1978] 2 S.C.R. 141; Quebec (AttorneyGeneral) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Bank of Montreal v. Marcotte, 2014 SCC 55,[2014] 2 S.C.R. 725. Statutes and Regulations Cited Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P-41.1.

Cities and Towns Act, CQLR, c. C-19, ss. 29.4, 570. Constitution Act, 1867, ss. 91

preamble, (29), 92(10)(a), (13), (16). Expropriation Act, CQLR, c. E-24, ss. 69 et seq.

Radiocommunication Act , R.S.C. 1985, c. R-2, s. 5(1)(f). Authors Cited Canada. Health Canada. Consumer and Clinical Radiation Protection Bureau. Limits of Human Exposure to Radiofrequency Electromagnetic Energy in the Frequency Range from 3 kHz to 300 GHz (Safety Code 6) . Ottawa: Health Canada, 2009. Canada. Industry Canada. Spectrum Management and Telecommunications. CPC-2-0-03 — Radiocommunication and Broadcasting Antenna Systems , issue 4, June 2007. City of Châteauguay. Conseil municipal.

Résolution n o 2010-904, adoptée lors de la séance ordinaire du 4 octobre 2010 (en ligne: www.ville.chateauguay.qc.ca/Proces-verbal-seance-2010-10-04). Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1). Lederman, W. R. “Classification of Laws and the British North America Act”, in W. R. Lederman, ed., The Courts and the Canadian Constitution . Toronto: McClelland and Stewart, 1964, 177. Lederman, W. R. Continuing Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public Law and Federal System of Canada . Toronto: Butterworths, 1981.

Monahan, Patrick J., and Byron Shaw. Constitutional Law , 4th ed. Toronto: Irwin Law, 2013. Ryan, Michael H. “Telecommunications and the Constitution: Re-Setting the Bounds of Federal Authority” (2010), 89 Can. Bar Rev. 695. APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Dutil and Léger JJ.A.), 2014 QCCA 1121 , 113 L.C.R. 233, [2014] AZ-51078720, [2014] J.Q. n o 5163 (QL), 2014 CarswellQue 13182 (WL Can.) , setting aside in part a decision of Perrault J., 2013 QCCS 3138 , [2013] R.J.Q. 1177, 110 L.C.R. 81, [2013] AZ-50985779, [2013] J.Q. n o 7419 (QL), 2013 CarswellQue 8577 (WL Can.) .

Appeal allowed. John B. Laskin , Nicholas Kennedy , Pierre Y. Lefebvre and Vincent Cérat Lagana , for the appellant. Patrice Gladu and Sébastien Dorion , for the respondent the City of Châteauguay. Benoît Belleau , Simon Larose and Hugo Jean , for the respondent the Attorney General of Quebec. Pierre Salois and François Joyal , for the intervener the Attorney General of Canada. No one appeared for the intervener Christina White. Stéphane Émard-Chabot , for the intervener the Federation of Canadian Municipalities. Darrel A. Smith and Jared Wehrle , for the intervener the City of Toronto.

Mathieu Quenneville , Stephen Schmidt , Valérie Beaudin and Roudine Ishak , for the interveners Bell Mobilité Inc., TELUS Communications Inc. and Vidéotron s.e.n.c. Marc-André LeChasseur , for the intervener Union des municipalités du Québec. English version of the judgment of McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ. delivered by Wagner and Côté JJ. — I. Introduction [ 1 ] Wireless telephony now dominates the means by which Canadian individuals and businesses communicate with one another every day.

The use of mobile telephones on this scale requires an efficient national radiocommunication network, the existence of which inevitably gives rise to regulatory difficulties. Although it is well established that Parliament has exclusive jurisdiction in the sphere of radiocommunication, this appeal raises the question whether a municipality may intervene in the siting of a radiocommunication antenna system. If the answer is yes, the scope of that intervention must be determined. [ 2 ] Pursuant to his powers under the Radiocommunication Act , R.S.C. 1985, c.

R-2, the Minister of Industry (“Minister”) authorized Rogers Communications Inc. (“Rogers”) to install an antenna system on property located at 411 Boulevard Saint-Francis in the municipality of Châteauguay for the purpose of improving its cellular telephone network.

The City of Châteauguay (“Châteauguay”), arguing that the health and well-being of people living near such an installation would be at risk, adopted a municipal resolution authorizing the service of a notice of establishment of a reserve (“notice of a reserve”) that prohibited all construction on the property at 411 Boulevard Saint-Francis for two years pursuant to the Cities and Towns Act , CQLR, c. C-19, and the Expropriation Act , CQLR, c. E-24. A few days before the reserve was due to lapse, it was renewed for two additional years. [ 3 ] Rogers argues that the notice of a reserve is unconstitutional.

In its opinion, the issuance of the notice constitutes an exercise of the federal power over radiocommunication and is therefore ultra vires the province. Rogers is also of the view that the notice is either inapplicable to it by reason of the doctrine of interjurisdictional immunity or inoperative by reason of the doctrine of federal

paramountcy . Finally, Rogers contests the validity of the notice from the standpoint of municipal law. [ 4 ] The respondents, Châteauguay and the Attorney General of Quebec (“AGQ”), counter that the notice of a reserve is intra vires the province, as its issuance constitutes a valid exercise of the provincial powers over property and civil rights in the province and generally all matters of a merely local or private nature. They also argue that the notice is neither inapplicable to Rogers nor inoperative by reason of the doctrine of interjurisdictional immunity or that of federal paramountcy.

Finally, they submit that, under municipal law, the issuance of the notice constitutes a valid exercise of powers delegated to Châteauguay. [ 5 ] We are of the opinion that in light of the purpose and the effects of the notice of a reserve, its pith and substance is the siting of a radiocommunication antenna system, which represents an exercise of federal jurisdiction. The notice is therefore ultra vires the province. In the circumstances, the notice impairs the core of the federal power over radiocommunication in that it compromises the orderly development and efficient operation of radiocommunication in Canada.

In addition, it is inapplicable to Rogers by reason of the doctrine of interjurisdictional immunity. II. Facts [ 6 ] Rogers, a Canadian corporation, offers various communication services — including that of wireless telephony, a form of radiocommunication — everywhere in Canada. It holds a spectrum licence, which authorizes it to provide services in specified frequency ranges. This licence requires it to meet a number of obligations, one of which is to ensure an adequate network coverage in the geographic regions attributed to it.

To do this, Rogers must install and operate radio stations. [ 7 ] In the fall of 2007, Rogers decided to construct a new radiocommunication antenna system on the territory of the city of Châteauguay in order to fill gaps in its wireless telephone network. For this, it identified an optimal “search area” within which there were a few sites that might enable it to ensure that its network provided adequate coverage. [ 8 ] Rogers has no power of expropriation. To be able to construct its installation in the established search area, it must therefore reach an agreement with an owner of property located there.

It is in this context that Rogers entered into a lease with the owner of the property at 411 Boulevard Saint-Francis in December 2007. [ 9 ] Before installing its system, Rogers also had to obtain the Minister’s approval for a specific site under s. 5(1) (

f) of the Radiocommunication Act . To do this, it had to submit to a 120-day public consultation process, as was required by circular CPC-2-0-03 — Radiocommunication and Broadcasting Antenna Systems (“ Circular ”), published by Industry Canada. The Circular required that both the public and the land-use authority (“LUA”) — Châteauguay in this case — be consulted. The purpose of this consultation was to identify concerns about the proposed installation and ensure that the licence holder reached an understanding with the LUA.

Following the consultation process, the Minister had to decide whether the licence holder had met the requirements of the Circular . The Minister could also resolve any impasse reached in the discussions between the parties regarding the construction of the antenna system by making a final decision in that regard. [ 10 ] In March 2008, Rogers notified Châteauguay of its intention to set up a radiocommunication system on the property at 411 Boulevard Saint-Francis and initiated the consultation process required by the Circular . [ 11 ] Châteauguay expressed its opposition to the project on April 28, 2008.

It argued that the project would contravene the municipality’s zoning by-law and would be visually disagreeable, and expressed a concern for a potential adverse impact on the health and safety of people living in an adjacent residential area.

Châteauguay accordingly proposed three alternatives to Rogers: (1) to install another antenna on an existing site; (2) to increase the power of the signal from an existing antenna; or, as a last resort, (3) to construct the proposed antenna system on another lot located at 50 Boulevard Industriel. [ 12 ] On August 28, 2008, Rogers advised Châteauguay that it had studied the proposed alternatives, but that the existing sites were inadequate and the property at 50 Boulevard Industriel was not available.

It responded to Châteauguay’s concerns regarding the health and safety of its residents by adding that its installation would comply with the standards of Health Canada’s Safety Code 6 . [ 13 ] In September 2008, Châteauguay reiterated its disagreement with the installation of an antenna system on the property at 411 Boulevard Saint-Francis. It nonetheless asked Rogers to identify measures that could be taken to mitigate the project’s effects and improve its visual aspect.

In February 2009, Châteauguay issued a building permit to Rogers for the property at 411 Boulevard Saint-Francis. [ 14 ] After it had issued the permit, Châteauguay received a petition signed by more than a hundred residents who opposed the construction of the antenna system on the property at 411 Boulevard Saint-Francis. They argued that, according to certain studies, such installations are harmful to health and to the environment.

On May 19, 2009, Châteauguay’s municipal council adopted a resolution that authorized Châteauguay to request that the project at 411 Boulevard Saint-Francis be halted and that the consultation process be resumed. [ 15 ] In the summer of 2009, the Minister of Health advised Châteauguay that Safety Code 6 provides adequate protection to the public. However, the Minister of Industry noted some flaws in Rogers’ initial public consultation process and asked it to resume its negotiations with Châteauguay. Rogers submitted willingly to this request.

The building permit issued to Rogers expired on August 18, 2009; at that time, the work had not yet begun. [ 16 ] On September 21, 2009, the Minister determined that the second consultation process had been completed satisfactorily. The parties nevertheless tried to find an alternative site that would have less of an impact on residents. With this in mind, Châteauguay identified two possible lots located at 20 and 50 Boulevard Industriel.

The owners of those lots showed little interest in doing business with Rogers, however. [ 17 ] On December 15, 2009, Châteauguay proposed the property at 50 Boulevard Industriel as an alternative site for the new antenna system. It informed Rogers at that time that it intended to acquire that property either by mutual agreement or by way of

expropriation. Rogers agreed to consider the property at 50 Boulevard Industriel on condition that the transaction take place no later than February 15, 2010. A few days later, the Minister confirmed that the consultation process conducted for 411 Boulevard Saint-Francis also applied to 50 Boulevard Industriel. [ 18 ] On January 18, 2010, Châteauguay’s municipal council adopted a resolution authorizing the acquisition of the property at 50 Boulevard Industriel by mutual agreement or by way of expropriation.

However, the intervener Christina White had purchased that property three days earlier, on January 15, 2010. The new owner was served with a notice of expropriation on February 16, 2010, and she responded by filing a motion to contest Châteauguay’s right to expropriate the property. [ 19 ] Representatives of Rogers, Châteauguay and the Minister met on April 15, 2010.

Rogers asked the Minister, in particular, to exercise his powers under the Circular and to resolve the impasse, as it could no longer wait to construct its antenna system and was concerned that the expropriation proceeding would drag on. [ 20 ] On July 26, 2010, the Minister confirmed that Rogers had met the consultation requirements, and resolved the impasse between the parties by approving the installation of the antenna system on the property at 411 Boulevard Saint-Francis.

Rogers therefore informed Châteauguay that it did not intend to locate its installation at 50 Boulevard Industriel and that it had decided to go ahead with the construction of the antenna system at 411 Boulevard Saint-Francis. [ 21 ] On October 1, 2010, Châteauguay proposed to Rogers that the work be delayed until a decision was rendered in the expropriation proceeding.

In exchange, Châteauguay undertook not to appeal any adverse decision in that proceeding and not to oppose the construction of the antenna system on the property at 411 Boulevard Saint-Francis if Rogers were unable to install one at 50 Boulevard Industriel by May 15, 2011. [ 22 ] On October 4, 2010, before Rogers had even responded to Châteauguay’s proposition, the municipal council adopted resolution No. 2010-904, which authorized steps to establish a reserve for the purposes of a land reserve on the property at 411 Boulevard Saint-Francis.

Châteauguay justified this resolution by referring to concerns related to the interests and well-being of its residents, as well as to the development of its territory. [ 23 ] A few days later, Rogers rejected Châteauguay’s offer of October 1, 2010 and confirmed that it intended to begin installing the new antenna system on the property at 411 Boulevard Saint-Francis. On October 12, Châteauguay served the notice of a reserve with respect to that property. Rogers then filed a motion to contest the notice and intervened in the expropriation proceeding between Châteauguay and Ms. White.

On October 2, 2012, Châteauguay renewed the reserve for an additional two-year period. III. Judgments of the Courts Below A. Superior Court, 2013 QCCS 3138 , 110 L.C.R. 81 [ 24 ] Perrault J. held that Châteauguay had acted to further a valid municipal purpose in expropriating the property at 50 Boulevard Industriel.

She noted that it was reasonable and rational, given that the evidence disclosed that the question of radiofrequency energy is controversial, to believe that Châteauguay would ensure that an antenna system would be installed at a safe distance from nearby residences. [ 25 ] Having said this, Perrault J. added that, in this case, the discretion conferred on a municipality to establish a reserve under the Cities and Towns Act and the Expropriation Act had been exercised in bad faith as regards the property at 411 Boulevard Saint-Francis and that Châteauguay’s exercise of that discretion had thus constituted an abuse of power. [ 26 ] Perrault J. was of the opinion that the act of issuing the notice of a reserve had been intended to harm Rogers or, at the very least, that it had been so inconsistent with the legislative context in which it was carried out that to find that the city had acted in good faith was impossible.

She annulled the notice of a reserve and its renewal, as well as the resolutions on which they were based. Because the case had been resolved on the basis of administrative law principles, she found that it was not necessary to consider the constitutional issues. B. Court of Appeal, 2014 QCCA 1121 , 113 L.C.R. 233 (Morissette, Dutil and Léger JJ.A.) [ 27 ] In the Court of Appeal’s opinion, the motion judge had erred in finding that Châteauguay had acted in bad faith in serving the notice of a reserve.

The court found that the power of expropriation and the power to serve such a notice could in fact be exercised for reasons related to the health and well-being of the people living in the city.

The court was therefore of the view that the motion judge could not, after holding that Châteauguay had acted for municipal purposes and in the interest of its residents in expropriating the property at 50 Boulevard Industriel, conclude that Châteauguay or its agents had acted in bad faith in serving the notice with respect to the property at 411 Boulevard Saint-Francis. [ 28 ] On the constitutional issues, the Court of Appeal agreed with Rogers that the notice of expropriation and the notice of a reserve must be considered as a whole in order to identify their pith and substance.

It also referred to the principle stated by this Court that federalism must be applied flexibly by favouring the pith and substance and double aspect doctrines. [ 29 ] After considering the notice of expropriation and the notice of establishment of a land reserve as a whole, the Court of Appeal stated that their purpose was [ translation ] “to respond to concerns of the citizens of Châteauguay concerning possible repercussions of radio waves on their health and to ensure a harmonious development of its territory”: para. 78.

The court accordingly concluded that the pith and substance of the notice of expropriation and the notice of a reserve was not to encroach upon the federal power over radiocommunication. It also expressed the opinion that Parliament does not have exclusive jurisdiction over telecommunications: para. 79. [ 30 ] The Court of Appeal added that the doctrine of interjurisdictional immunity does not apply in this case. It explained that its understanding of Canadian Western Bank v. Alberta , 2007 SCC 22 , [2007] 2 S.C.R. 3, at para. 77 , was that this doctrine applies

only where, in specific cases, there are precedents in which its application has been favoured. The court found that Rogers was wrong toinvoke In re Regulation and Control of Radio Communication in Canada, (UK JCPC), [1932] A.C. 304 (P.C.), andCapital Cities Communications Inc. v. Canadian Radio-Television Commission, (SCC), [1978] 2 S.C.R. 141, as theywere not precedents in which the doctrine of interjurisdictional immunity had been applied with respect to the siting ofradiocommunication antenna systems in search areas.

The Court of Appeal noted, on the contrary, that the Privy Council had held inToronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (“Bell”), that cities may intervene as regards the siting oftelephone poles on their territories. [31] Finally, the Court of Appeal held that the doctrine of federal paramountcy cannot apply in the instant case. First ofall, there is no operational conflict, since Rogers has been authorized to construct its antenna system on the property at 411 BoulevardSaint-Francis but could also use the property at 50 Boulevard Industriel.

It would thus be possible for Rogers to comply with the federalauthorization granted by the Minister while at the same time satisfying Châteauguay’s requirements with respect to the location of theantenna system within the search area. [32] The Court of Appeal also found that there is no frustration of the purpose of the federal legislation. It observed,relying on 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, thatmunicipalities may add to regulations made by the federal government where those regulations are permissive in nature.

In the case atbar, the purpose of the federal regulation was to [translation] “allow for the deployment of telecommunication networks while respectinglocal populations”: C.A., at para. 91. Thus, in the court’s view, the purposes of the notice of a reserve were to ensure the well-being ofresidents and the harmonious development of the municipality’s territory. It accordingly allowed the appeal on the basis that thesepurposes could be achieved “without encroaching on the fulfilment of the federal [rule]”: para. 92. IV. Issues [33] This appeal raises the following issues:

(1) Is the notice of a reserve ultra vires Châteauguay on the basis that it relates in pith and substance to an exclusive federalpower?

(2) Is the notice of a reserve inapplicable by reason of the doctrine of interjurisdictional immunity?

(3) Is the notice of a reserve inoperative by reason of the doctrine of federal paramountcy?

(4) Is the notice of a reserve ultra vires Châteauguay in light of the principles of municipal law? V. Analysis A. Application of the Constitutional Doctrines [34] The first step in a division of powers analysis is to determine whether the level of government or the entityexercising delegated powers possesses the authority under the Constitution to enact the impugned statute or adopt the impugnedmeasure: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 30; MarineServices International Ltd. v.

Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53 (“Marine Services”), at paras. 47-48; Quebec (AttorneyGeneral) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 (“COPA”), at para. 22; Canadian WesternBank, at para. 25; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R.146, at para. 52.

This is achieved by characterizing the “pith and substance” of the statute or measure: Marine Services, at para. 48. [35] A court must conduct the pith and substance analysis before inquiring into the application of the doctrines ofinterjurisdictional immunity and federal paramountcy, both of which are predicated on the constitutional validity of the impugned statuteor measure. If the doctrine of interjurisdictional immunity applies, the impugned measure remains valid but has no application withregard to the core of the power of the other level of government that it impairs: Canada (Attorney General) v.

PHS Community ServicesSociety, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 58. Similarly, where the doctrine of federal paramountcy applies, the impugnedprovincial measure is rendered inoperative to the extent of its incompatibility with the federal legislation: Canadian Western Bank, atpara. 69; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 74.

(1) Pith and Substance Doctrine [36] In analyzing the pith and substance of the notice of a reserve, the Court must consider both its purpose and itseffects: Goodwin, at para. 21; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 29;Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 63-64; Quebec (Attorney General) v. Lacombe, 2010 SCC 38,[2010] 2 S.C.R. 453, at paras. 20-22. The purpose of a municipal measure, like that of a law, is determined by examining both intrinsicevidence, such as the

preamble or the general purposes stated in the resolution authorizing the measure, and extrinsic evidence, such asthat of the circumstances in which the measure was adopted: Lacombe, at paras. 20-22; COPA, at para. 18; Canadian Western Bank, atpara. 27. As for the effects of a municipal measure, they are determined by considering both the legal ramifications of the words usedand the practical consequences of the application of the measure: R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463, atpp. 482-83. [37] When conducting a pith and substance analysis, a court must avoid adopting the watertight compartments approach,which this Court has in fact rejected.

The fact that a measure has what are merely incidental effects on an exclusive head of power of theother level of government does not suffice to justify declaring that measure to be ultra vires: COPA, at para. 18. [38] Our colleague correctly points out, at para. 85 of his reasons, that when the courts apply the various constitutionaldoctrines, they must take into account the principle of co-operative federalism, which favours, where possible, the concurrent operationof statutes enacted by governments at both levels: Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015]

3 S.C.R. 419, at para. 22, quoting Lacombe, at para. 118, per Deschamps J. (dissenting); Marine Services, at para. 50, citing GeneralMotors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R. 641; Canadian Western Bank, at para. 37. [39] However, although co-operative federalism has become a principle that the courts have invoked to provide flexibilityfor the

interpretation and application of the constitutional doctrines relating to the division of powers, such as federal paramountcy andinterjurisdictional immunity, it can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on thevalid exercise of legislative authority: Quebec (Attorney General) v. Canada (Attorney General), at paras. 17-19. Nor can it support afinding that an otherwise unconstitutional law is valid. This Court commented as follows in Reference re Securities Act, at para. 62: In

summary, notwithstanding the Court’s promotion of cooperative and flexible federalism, the constitutional boundariesthat underlie the division of powers must be respected.

The “dominant tide” of flexible federalism, however strong its pull may be,cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state. [40] In the instant case, Rogers argues that the sole purpose and effect of the notice of a reserve was to prevent it fromconstructing its antenna system on the property at 411 Boulevard Saint-Francis and that the notice therefore relates in pith and substanceto the siting of radiocommunication infrastructure, a matter that falls within exclusive federal jurisdiction. [41] The respondents counter that to ascertain the pith and substance of the notice of a reserve, it is necessary todistinguish the purpose being pursued from the means employed to achieve it.

In the respondents’ view, Châteauguay’s ultimate purposein establishing the reserve was to protect the health and well-being of its residents living close to the property at 411 BoulevardSaint-Francis and to ensure the development of its territory.

There is no question that these are matters that fall within the provincialpowers in relation to “Property and Civil Rights in the Province” and “Generally all Matters of a merely local or private Nature in theProvince” (s. 92(13) and (16) of the Constitution Act, 1867), and that the notice of a reserve is therefore intra vires the province. [42] To begin, we should point out that Parliament has exclusive jurisdiction over radiocommunication and that thisjurisdiction includes the power to choose the location of radiocommunication infrastructure: In re Regulation and Control of RadioCommunication in Canada; Capital Cities Communications, at pp. 160-61.

Moreover, under ss. 91(29) and 92(10)(

a) of the ConstitutionAct, 1867, Parliament clearly has a broader jurisdiction over telecommunications undertakings where such undertakings operate outsidethe limits of a province: Bell; Alberta Government Telephones v. Canada (Canadian Radio-television and TelecommunicationsCommission), (SCC), [1989] 2 S.C.R. 225; Téléphone Guèvremont Inc. v. Quebec (Régie des télécommunications), (SCC), [1994] 1 S.C.R. 878. [43] In the case at bar, a detailed and rigorous review of the evidence in the record reveals the following: (

i) Châteauguay did not serve the notice of a reserve until October 12, 2010, after the Minister had approved the installationof Rogers’ antenna system on the property at 411 Boulevard Saint-Francis; (ii) the notice of a reserve was served immediately after Rogers refused Châteauguay’s proposal to delay installing the systemuntil a decision was rendered in the expropriation proceeding in respect of the property at 50 Boulevard Industriel; and (iii) the notice of a reserve was served immediately after Rogers announced its intention to begin installing the system on theproperty at 411 Boulevard Saint-Francis. [44] Even a flexible and generous

interpretation of this evidence leads to but one conclusion: the purpose of the notice ofa reserve was to prevent Rogers from installing its radiocommunication antenna system on the property at 411 Boulevard Saint-Francisby limiting the possible choices for the system’s location.

This conclusion is inescapable, and it echoes that of the Superior Court.Contrary to our colleague’s assertion at para. 89 of his reasons, Perrault J. did not rule on the constitutionality of the notice of a reserve.Rather, she found that [translation] “[c]learly, by establishing the notice of reserve on the [property at] 411 Saint-Francis, the primarypurpose of the City was to block the Rogers project, i.e. installation of an antenn[a] system on this land” (para. 163).

This finding of factis relevant to the pith and substance analysis regardless of where it appears in the motion judge’s reasons. [45] The same conclusion applies with regard to the legal and practical effects of the notice of a reserve. From a legalstandpoint, it prohibited all construction on the property at 411 Boulevard Saint-Francis for an initial period of two years.

From apractical standpoint, it prevented Rogers from constructing its antenna system on the property of its choice. [46] Thus, the pith and substance of the notice of a reserve is not the protection of the health and well-being of residentsor the development of the territory but, rather, the choice of the location of radiocommunication infrastructure.

Even if the adoption of ameasure such as this addressed health concerns raised by certain residents, it would clearly constitute a usurpation of the federal powerover radiocommunication. [47] We agree completely with the flexible and generous approach our colleague advocates at para. 94 of his reasons.However, flexibility has its limits, and this approach cannot be used to distort a measure’s pith and substance at the risk of restrictingsignificantly an exclusive power granted to Parliament.

A finding that a measure such as the one adopted in this case relates in pith andsubstance to a provincial head of power could encourage municipalities to systematically exercise the federal power to choose where tolocate radiocommunication infrastructure while alleging local interests in support of their doing so. [48] The situation in this appeal is distinguishable from the situation in COPA, in which the impugned provincial statutewas, by its very nature, legislation related to land use planning and agriculture: COPA, at para. 21.

The Act respecting the preservation ofagricultural land and agricultural activities, R.S.Q., c. P-41.1, is a law of general application that has numerous legal and practicaleffects, one of which was found to be a prohibition against building aerodromes in designated areas. The legislation at issue in COPAaffected the federal aeronautics power only incidentally.

It was thus different from the notice of a reserve at issue in the instant case,whose purpose, as well as its legal effect and its practical effect, was to choose the location of Rogers’ antenna system. [49] The situation in the case at bar more closely resembles the circumstances of Lacombe. In that case, a municipal

zoning by-law that prohibited water aerodromes and aerodromes had been adopted to protect the use of Gobeil Lake by vacationers. Asin the instant case, even though the stated objective of the by-law fell under provincial jurisdiction, its real purpose and effect was toprohibit water aerodromes and aerodromes in designated areas in the municipality, which essentially constituted an exercise of thefederal aeronautics power. This Court therefore declared the by-law to be ultra vires under the Constitution. [50] Moreover, we cannot accept the AGQ’s argument that the notice of a reserve has a double aspect.

The double aspectdoctrine has traditionally been applied by courts to justify measures dealing with subjects that could fall equally under two distinct headsof power, one federal and the other provincial. As the Privy Council explained in Hodge v. The Queen (1883), 9 App. Cas. 117, atp. 130, “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall withinsect. 91”.

This “double aspect” doctrine allows governments at two levels to enact similar statutes or regulations “when the contrastbetween the relative importance of the two features is not so sharp”: Multiple Access Ltd. v. McCutcheon, (SCC), [1982]2 S.C.R. 161, at p. 182, citing W. R. Lederman, “Classification of Laws and the British North America Act”, in The Courts and theCanadian Constitution (1964), 177, at p. 193, reprinted in Lederman, Continuing Canadian Constitutional Dilemmas (1981), 229, atp. 244; Rio Hotel Ltd. v.

New Brunswick (Liquor Licensing Board), (SCC), [1987] 2 S.C.R. 59, at pp. 64-65; see alsoReference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, per LeBel and Deschamps JJ., at para. 185; Siemensv. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 22; Mangat, at paras. 49-50. [51] As we explained above, in the case at bar, the pith and substance of the notice of a reserve is the choice of thelocation of radiocommunication infrastructure.

We cannot see in this an equivalence between the federal aspect, that is, the power overradiocommunication, and the provincial aspects, namely the protection of the health and well-being of residents living nearby and theharmonious development of the municipality’s territory. [52] Furthermore, a finding that the siting of radiocommunication infrastructure has a double aspect would imply thatboth the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the PrivyCouncil in In re Regulation and Control of Radio Communication in Canada to the effect that the federal jurisdiction over the siting ofsuch infrastructure is exclusive. [53] For these reasons, we are of the opinion that the notice of a reserve is ultra vires, because it constitutes an exercise ofthe power over radiocommunication, which is an exclusive federal power. [54] It is true that a spectrum licence holder has no powers of expropriation.

When it cannot find an owner interested inleasing or selling property to it, it must, in principle, either rely on the municipality’s co-operation to expropriate the land it seeks to useor have recourse to the Minister’s power of expropriation. Our conclusion that the notice of a reserve is ultra vires does not mean thatwhen a municipality supports a spectrum licence holder in the process for the installation of an antenna system, it is exercising a federalpower.

When a municipality supports a spectrum licence holder by expropriating property, the pith and substance of the measures it takesis not the choice of the location of an antenna system, as that location has already been approved by the Minister pursuant to his or herpower under s. 5(1)(

f) of the Radiocommunication Act. In such a case, the municipality’s actions relate to the development of its territory,and there is no question from the perspective of the division of powers that it is entitled to do so. [55] This being said, a municipal measure is not intra vires simply because it has a positive effect on the exercise of thefederal power over radiocommunication, just as it is not necessarily ultra vires because it has a negative effect on the exercise of thatpower.

The distinction we are making is instead based on the premise that when a municipality aids a spectrum licence holder byexpropriating property for the licence holder’s benefit, its purpose in doing so is not to choose the location of the antenna system.

On theother hand, when the purpose of a municipal measure is to prevent or block the spectrum licence holder from, or to delay it in,constructing its antenna system at the location approved by the Minister pursuant to federal legislation, the municipality is, for thepurposes of the pith and substance analysis, exercising the federal power to choose the location of the antenna system. [56] Thus, although the application of the pith and substance doctrine suffices to dispose of the appeal, we arenonetheless of the opinion that it would be helpful, in order to clarify the law, to consider the application of the doctrine ofinterjurisdictional immunity in this case.

(2) Doctrine of Interjurisdictional Immunity [57] The doctrine of interjurisdictional immunity requires that it be determined whether the notice of a reserve applies ina situation in which it has an impact on the federal power over the siting of radiocommunication antenna systems. [58] Rogers and the Attorney General of Canada (“AGC”) submit that the notice is inapplicable.

They rely oninterjurisdictional immunity and state that this doctrine protects activities falling within the core of a federal power against impairmentby provincial legislation or by measures adopted by entities to which the provinces have delegated their powers. The respondents arguethat the doctrine of interjurisdictional immunity protects only the core of the federal power, which does not extend to the choice of aparticular site within a search area defined by Rogers.

In the alternative, they submit that the notice of a reserve does not constitute asufficiently serious intrusion on the exercise of the federal power, as its effect is only to delay the project. [59] The doctrine of interjurisdictional immunity protects the “core” of a legislative head of power from being impairedby a government at the other level: COPA, at para. 26. Its application involves two steps. The first is to determine whether a statuteenacted or measure adopted by a government at one level trenches on the “core” of a power of the other level of government.

If it does,the second step is to determine whether the effect of the statute or measure on the protected power is sufficiently serious to trigger theapplication of the doctrine: COPA, at para. 27. [60] In Canadian Western Bank, the Court explained that the doctrine of interjurisdictional immunity must be appliedwith restraint, since a broad application of interjurisdictional immunity appears to be “inconsistent . . . with the flexible federalism thatthe constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote”: para. 42; see alsopara. 67.

[61] This is why the application of the doctrine of interjurisdictional immunity is generally reserved for situations that arealready covered by precedent. The Court explained this as follows in Canadian Western Bank, at paras. 77-78: As we have already noted, interjurisdictional immunity is of limited application and should in general be reserved forsituations already covered by precedent.

This means, in practice, that it will be largely reserved for those heads of power that deal withfederal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable or necessary toenable Parliament or a provincial legislature to achieve the purpose for which exclusive legislative jurisdiction was conferred, asdiscerned from the constitutional division of powers as a whole, or what is absolutely indispensable or necessary to enable anundertaking to carry out its mandate in what makes it specifically of federal (or provincial) jurisdiction. . . .

In the result, while in theory a consideration of interjurisdictional immunity is apt for consideration after the pith andsubstance analysis, in practice the absence of prior case law favouring its application to the subject matter at hand will generally justify acourt proceeding directly to the consideration of federal paramountcy. [Emphasis added.] [62] The Court of Appeal held that the doctrine of interjurisdictional immunity could not apply in the instant case.

Itconcluded, at para. 82, that the doctrine did not apply on the basis that what is at issue in this case is the siting of radiocommunicationantenna systems within a search area established in advance by the federal undertaking and that there is no precedent in which thedoctrine has been applied in such a case. [63] With respect, we are of the opinion that there is in fact a precedent with respect to the issue in the case at bar, namelythe Privy Council’s decision in Bell, which suggests that the siting of telecommunications infrastructure is at the core of the federalpower.

That case dealt with the power of Bell, a company that had been incorporated under a special Act of Parliament, to lay cablesunder and erect poles along the streets and highways of the city of Toronto for the purpose of carrying on its business. At issue was theconstitutionality of an Ontario law that required Bell to obtain the City of Toronto’s consent before exercising that power.

The PrivyCouncil held that the provincial law was unconstitutional, stating that “no provincial legislature was or is competent to interfere with[Bell’s] operations, as authorized by the Parliament of Canada” (p. 57). [64] In Canadian Western Bank, Binnie and LeBel JJ. stated, at para. 40, citing cases that included Bell, that “[t]hedoctrine of interjurisdictional immunity was . . . applied to protect ‘essential’ parts of federal ‘undertakings’”. They later added that“[o]ne of the first cases to find a valid provincial law inapplicable to a federal undertaking was [Bell]”: para. 57.

In writing this, theyappear to have acknowledged that Bell is a precedent that allows for the application of the doctrine of interjurisdictional immunity to asituation such as the one in the instant case. For the purposes of this analysis, the siting of a radiocommunication antenna system iscomparable to the siting of telecommunications poles and cables.

A radiocommunication antenna system, like telecommunications polesand cables, is essential to a communication network, and maintaining the network requires that the antennas be installed in appropriatelocations. [65] In our respectful opinion, the Court of Appeal erred, at para. 81 of its reasons, in interpreting Bell as meaning thatmunicipalities have a certain degree of power over the determination of the exact locations of telecommunications poles.

On this point, itquoted the following passage: “Their Lordships, however, do not think the words introduced by the amendment can have the effect ofenabling the [municipal] council to refuse the company access to streets through which it may propose to carry its line or lines. Theymay give the council a voice in determining the position of the poles in streets selected by the company, and possibly in determiningwhether the line in any particular street is to be carried overhead or underground” (C.A., at para. 81, quoting Bell, at pp. 60-61). But thispassage from Bell cannot be quoted out of context.

It is true that the Privy Council had concluded that a municipality could have a say inthe location of the poles. However, the municipality’s prerogative in that regard was not grounded in powers conferred on the provincesby the Constitution, but in an amendment made by the Parliament of Canada to Bell’s incorporating statute.

This passage in no waysuggests that the siting of a telecommunications pole or radiocommunication antenna system is not part of the core of the federal power. [66] Moreover, the evidence in the record favours a finding that the siting of radiocommunication antenna systems is atthe core of the federal power over radiocommunication. It is the appropriate and specific siting of radiocommunication antenna systemsthat ensures the orderly development and efficient operation of radiocommunication in Canada.

Rogers’ manager of radio engineeringtestified that a deviation of 100 or 200 metres from a clearly specified location can prevent the antenna system from effectively meetingthe network’s identified needs. This witness stated that, [translation] “[b]ecause the position of the tower is really very . . . I’m talkingabout the new tower, it’s very crucial to the network, such that the right position must be found to remedy the problem”:examination-in-chief of Karim Trigui, A.R., vol.

II, at p. 160. [67] This view is supported by the following passage from the Ontario Superior Court’s decision in TelusCommunications Co. v.

Toronto (City) (2007), (ON SC), 84 O.R. (3d) 656, at para. 30: In terms of Telus’ national wireless network, it is vital and essential that each radio station . . . be sited, designed andoriented in . . . a manner that allows the wireless network to function properly. [A] change in the characteristics of an individual radiostation, especially the location and height of the antennas, [could] critically . . . impai[r] Telus’ wireless network thereby compromisingits performance and reliability. [68] Michael Ryan expresses the same opinion about telecommunications infrastructure in “Telecommunications and theConstitution: Re-Setting the Bounds of Federal Authority” (2010), 89 Can.

Bar Rev. 695, at p. 726: I suggested that the regulation of [telecommunications service providers’] rates and services, and the location, constructionand maintenance of their networks and facilities, are matters that the case law indicates are “essential and vital” or, “absolutelyindispensable and necessary” to the performance of the undertakings’ federal mandate.

As such, these form part of the “core” federalcompetence under section 92(10)(a). [Emphasis added.] [69] We conclude that the siting of antenna systems is part of the core of the federal power over radiocommunication andthat any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it. Thequestion therefore becomes whether, in the instant case, the effect of the notice of a reserve served by Châteauguay on the core of this

federal power is sufficiently significant for the doctrine of interjurisdictional immunity to apply. [ 70 ] In Canadian Western Bank , the Court held that it is not enough for the provincial legislation simply to “affect” that which makes a federal subject or object of rights specifically of federal jurisdiction: “The difference between ‘affects’ and ‘impairs’ is that the former does not imply any adverse consequence whereas the latter does” (para. 48).

In that same paragraph, the Court explained that “[i]t is when the adverse impact of a law adopted by one level of government increases in severity from ‘affecting’ to ‘impairing’ (without necessarily ‘sterilizing’ or ‘paralyzing’)” that the doctrine of interjurisdictional immunity may be applied.

This is why “impairment” suggests a serious or significant intrusion on the core of the power, that is, “a midpoint between sterilization and mere effects”: COPA , at para. 44. [ 71 ] In the case at bar, the service of the notice of a reserve prevented Rogers from constructing its antenna system on the property at 411 Boulevard Saint-Francis for two successive two-year periods, and there was no alternative solution to which it could have turned on short notice.

Once the resolution authorizing the service of the notice of a reserve had been adopted, Châteauguay’s offer meant that Rogers would have to wait either until the end of the expropriation proceedings with regard to the property at 50 Boulevard Industriel or for a period of approximately seven months before it would be able to construct its installation on the property at 411 Boulevard Saint-Francis. In these circumstances, Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence.

In this sense, the notice of a reserve compromised the orderly development and efficient operation of radiocommunication and impaired the core of the federal power over radiocommunication in Canada. [ 72 ] For these reasons, we consider that the notice of a reserve seriously and significantly impaired the core of the federal power over radiocommunication and that this notice served on Rogers is therefore inapplicable by reason of the doctrine of interjurisdictional immunity. [ 73 ] We note in closing that the facts of this case provide a good illustration of the co-operation between the various federal and provincial authorities that is contemplated in the Circular .

The Circular describes the mechanism for the consultation that must be held to ascertain the concerns of municipalities and take their interests into account when deciding where to locate a radiocommunication antenna system. It also ensures the establishment of an efficient and orderly radiocommunication network across the country.

The process it describes is clearly effective: at the hearing, the AGC stated that out of the more than one thousand situations in which the installation of antenna systems had been approved in the 2014-15 year, only three had resulted in an impasse between the spectrum licence holder and the municipality in question. In the instant case, Rogers initiated the required consultation process twice, and the consultation took a total of eight months to complete. [ 74 ] In light of the foregoing, we are of the opinion that it will not be necessary to discuss the doctrine of federal paramountcy. B.

Validity of the Notice of a Reserve From a Municipal Law Standpoint [ 75 ] Châteauguay and the AGQ argue that the establishment of the reserve in the case at bar constitutes a valid exercise of the powers delegated to municipalities by the province, given that municipalities have the power to establish a reserve for any municipal purpose, including the establishment of a land reserve, and to protect the health and well-being of their residents.

Rogers counters that the power to establish a reserve must be interpreted narrowly and requires a genuine intention on the municipality’s part to expropriate the property targeted by the measure.

Rogers submits that, in establishing the reserve in the circumstances of this case, Châteauguay acted beyond the scope of the powers delegated to it, and that the notice is therefore invalid. [ 76 ] Although we agree that a notice of a reserve constitutes a significant impairment of the exercise of the right of ownership and can be issued only within the limits imposed by the legislature, we are of the opinion that that question need not be addressed here in light of our conclusions with respect to the constitutional issues. VI. Disposition [ 77 ] We would allow the appeal, with costs throughout.

English version of the reasons delivered by Gascon J. — I. Introduction [ 78 ] I agree with my colleagues on the outcome of the appeal, but I disagree with the approach they have taken. In my opinion, this appeal should be resolved on the basis not of the pith and substance doctrine, but of the doctrine of interjurisdictional immunity. [ 79 ] I am unable to conclude, as my colleagues do, that the pith and substance of the impugned notice of establishment of a reserve (“notice of a reserve”) is limited to the choice of location or the siting of a radiocommunication antenna system.

I agree with the Superior Court and the Court of Appeal that the evidence in the record supports a finding that the dominant characteristic of that notice, that is, what it is intended to do and why, relates first and foremost to ensuring the harmonious development of the territory of the City of Châteauguay (“City” or “Châteauguay”) and protecting the well-being and health of the people living there. These are matters that come within the classes of subjects that fall under provincial jurisdiction pursuant to s. 92(13) and s. 92(16) of the Constitution Act, 1867 .

From this perspective, they do not relate to the federal power over radiocommunication. At a minimum, they are indicative of a situation in which the double aspect doctrine applies. [ 80 ] Having said this, although I conclude that the notice of a reserve is intra vires Châteauguay, I nevertheless agree with my colleagues that, on the basis of the doctrine of interjurisdictional immunity, the notice impairs the core of the federal power over radiocommunication. The choice of location or the siting of antenna systems is at the core of that power. By blocking the location

decided on in accordance with the procedure provided for in the federal legislation, the Radiocommunication Act, R.S.C. 1985, c. R-2,and circular CPC-2-0-03 — Radiocommunication and Broadcasting Antenna Systems (“Circular”), the notice intrudes significantly on avital and essential aspect of the power. The result, in my opinion, is that the appeal of Rogers Communications Inc. must be allowed onthis basis. II.

Constitutional Doctrines [81] In my view, it is helpful to discuss at the outset certain principles that must be applied in determining whether aprovincial or municipal measure such as the one at issue in this case is valid. The first of these principles is that the impugned measure ispresumed to be intra vires the province or municipality. The Court has often mentioned the importance of this presumption ofconstitutionality, which Ritchie J. summarized as follows in Nova Scotia Board of Censors v.

McNeil, (SCC), [1978] 2S.C.R. 662: In all such cases the Court cannot ignore the rule implicit in the proposition stated as early as 1878 by Mr. Justice Strongin Severn v. The Queen [(1878), 1878 CanLII 29 (SCC), 2 S.C.R. 70], at p. 103, that any question as to the validity of provinciallegislation is to be approached on the assumption that it was validly enacted.

As was said by Fauteux J., as he then was, in the Referencere The Farm Products Mar​keting Act, [ (SCC), [1957] S.C.R. 198,] at p. 255: There is a presumptio juris as to the existence of the bona fide intention of a legislative body to confine itself to its ownsphere and a presumption of similar nature that general words in a statute are not intended to extend its operation beyond the territorialauthority of the Legislature. [pp. 687-88] [82] Professor Hogg states that “[t]he characterization of a statute is often decisive of its validity . . . .

The choice betweencompeting characteristics of the statute, in order to identify the most important one as the ‘matter’, may be nothing less than a choicebetween validity or invalidity” (Constitutional Law of Canada (5th ed. Supp.), at p. 15-21). Hence, he notes quite rightly that, “where thechoice between competing characterizations is not clear, the choice which will support the legislation is normally to be preferred”(pp. 15-22 and 15-23).

He adds in the same vein that, “in choosing between competing, plausible characterizations of a law, the courtshould normally choose that one that would support the validity of the law” (p. 15-23). [83] As the Court observed in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40,[2001] 2 S.C.R. 241, it follows that the burden is on the party challenging the exercise of a provincial or municipal power to prove that itis invalid and that the impugned measure is ultra vires (para. 21, citing Kuchma v.

Rural Municipality of Tache, (SCC),[1945] S.C.R. 234, at p. 239, and Montréal (City of) v. Arcade Amusements Inc., (SCC), [1985] 1 S.C.R. 368, at p. 395). [84] In Spraytech, the Court also recognized the importance to be given to the principle of subsidiarity.

As the Courtexplained, this principle is the proposition that “law-making and implementation are often best achieved at a level of government that isnot only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and topopulation diversity” (Spraytech, at para. 3; see also Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 (“CWB”), atpara. 45). In the words of Professor Hogg once again, “[t]he choice [of characterization] must be guided by a concept of federalism.

Isthis the kind of law that should be enacted at the federal or the provincial level?” (p. 15-21).

At first glance, a municipality that adopts aresolution for the purposes of protecting the well-being and health of its residents and ensuring the harmonious development of itsterritory would normally be considered to be the government at the level at which the adoption of such measures would be best achieved. [85] Finally, any application of the constitutional doctrines must take into account the principle of co-operativefederalism to which the Court has referred in a number of cases (CWB, at para. 24; Husky Oil Operations Ltd. v.

Minister of NationalRevenue, (SCC), [1995] 3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23,2005 SCC 56, [2005] 2 S.C.R. 669, at para. 10). This principle favours, where possible, the operation of statutes enacted by governmentsat both levels (Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, at para. 50, citing General Motors ofCanada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R. 641; CWB, at para. 37).

The Court’s adoption of anapproach involving concurrent federal and provincial powers, as opposed to applying the outdated concept of “watertight compartments”to establish exclusive jurisdictions, is consistent with this (CWB; Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2S.C.R. 161; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2). [86] In my opinion, this backdrop must be borne in mind in determining whether the notice of a reserve is constitutional. A.

Pith and Substance Doctrine [87] Rogers is challenging municipal resolution No. 2010-904 of October 4, 2010, which authorized the issuance of thenotice of a reserve; the resolution itself was authorized by several provincial statutory provisions (Cities and Towns Act, CQLR, c. C-19,ss. 29.4 and 570; Expropriation Act, CQLR, c. E-24, ss. 69 et seq.), none of which are being challenged here. It is well established thatthe analysis with respect to the constitutional validity of an impugned measure involves two steps: “The first step is to determine the‘pith and substance’ or essential character of the law.

The second step is to classify that essential character by reference to the heads ofpower under the Constitution Act, 1867 in order to determine whether the law comes within the jurisdiction of the enacting government”(Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15). If the law or measure comes within the jurisdictionof the government that enacted or adopted it, it is valid (ibid.; P. J. Monahan and B.

Shaw, Constitutional Law (4th ed. 2013), atpp. 123-24). [88] A measure’s pith and substance is determined by identifying the “matter” to which it relates in light of its truepurpose and its effects (Hogg, at p. 15-7; Reference re Firearms Act, at para. 16; CWB, at paras. 26-27). To determine the purpose of theimpugned measure, a court must consider “both intrinsic evidence, such as purpose clauses, and extrinsic evidence, such as Hansard orthe minutes of parliamentary committees” (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002SCC 31, [2002] 2 S.C.R. 146, at para. 53).

As for the effects of the impugned measure, both the legal effects and the practicalconsequences of applying it must be taken into account (Hogg, at pp. 15-16 and 15-17; R. v. Morgentaler, (SCC),

[1993] 3 S.C.R. 463, at pp. 482-83; Global Securities Corp. v. British Columbia (Securities Commission) , 2000 SCC 21 , [2000] 1 S.C.R. 494, at para. 23 ; Kitkatla Band , at para. 54 ). To determine how the purpose of the impugned measure is intended to be achieved, the court must understand and define its “total meaning” ( Reference re Firearms Act , at para. 18, citing W. R. Lederman, Continuing Canadian Constitutional Dilemmas (1981), at pp. 239-40). [ 89 ] Neither the Superior Court nor the Court of Appeal held that the notice of a reserve was ultra vires Châteauguay, quite the contrary.

On the one hand, Perrault J. stated at first instance that the City had issued the notice [ translation ] “in order to protect the welfare of its citizens” ( 2013 QCCS 3138 , 110 L.C.R. 81, at para. 153 ). This comment by the motion judge followed her analysis of the City’s resolution (para. 152). In it, she drew a parallel with what she had already said about the notice of expropriation (para. 153); she had written at para. 149 that the notice of expropriation was neither ultra vires nor unconstitutional.

The constitutional issue that Perrault J. did not discuss with respect to the notice of a reserve was the one concerning what she characterized as “unconstitutional impairment” (Part VI.B and para. 166). It can be seen from her reasons that she was referring there to the doctrine of interjurisdictional immunity, not to the pith and substance doctrine.

The passage from para. 163 of Perrault J.’s reasons that my colleagues reproduce at para. 44 of their own reasons was part of her analysis on the municipal law issue and concerned the allegation of bad faith on the City’s part that the Court of Appeal subsequently rejected.

My colleagues do not discuss this aspect in their reasons (paras. 75-76). [ 90 ] On the other hand, Dutil J.A., writing for the Court of Appeal, concluded her analysis of the notice’s pith and substance as follows: [ translation ] The notices of expropriation and reserve examined as a whole have a valid municipal purpose because they seek to respond to concerns of the citizens of Châteauguay concerning possible repercussions of radio waves on their health and to ensure a harmonious development of its territory. Their pith and substance was not to encroach upon a federal power.

Châteauguay wished to facilitate the exercise by preventing the project from being completed on the [property at] 411 St-Francis at a time when citizens were opposed to it. ( 2014 QCCA 1121 , 113 L.C.R. 233, at para. 78 ) [ 91 ] These conclusions of the courts below were based on an in-depth review of the evidence in the record dating from the initial contacts between Rogers and Châteauguay to the adoption of the impugned notice of a reserve.

My colleagues recognize that the determination of the pith and substance of a municipal measure requires an examination of both intrinsic and extrinsic evidence, including evidence of the circumstances in which the measure was adopted (para. 36). Yet it seems to me that their analysis (at paras. 43-46) attaches little importance to certain aspects of this evidence, such as the content of t

[…]