TELUS COMMUNICATIONS INC. Appellant v. FEDERATION OF CANADIAN MUNICIPALITIES and OTHERS, 2023 FCA 79

Date: 20230413 Docket: A-217-21 Citation: 2023 FCA 79 CORAM: DE MONTIGNY J.A. LOCKE J.A. LEBLANC J.A. BETWEEN: TELUS COMMUNICATIONS INC. Appellant and FEDERATION OF CANADIAN MUNICIPALITIES and OTHERS Respondents Heard at Ottawa, Ontario , on December 12 and 13, 2022 . Judgment delivered at Ottawa, Ontario , on April 13, 2023 . REASONS FOR JUDGMENT BY: DE MONTIGNY J.A. CONCURRED IN BY: LOCKE J.A. LEBLANC J.A. Date: 20230413 Docket: A-217-21 Citation: 2023 FCA 79 CORAM: DE MONTIGNY J.A. LOCKE J.A. LEBLANC J.A. BETWEEN: TELUS COMMUNICATIONS INC.

Appellant and FEDERATION OF CANADIAN MUNICIPALITIES and OTHERS Respondents REASONS FOR JUDGMENT DE MONTIGNY J.A. [ 1 ] Mobile wireless telecommunications services are a key component of the everyday life of Canadians and an important driver of economic competitiveness.

As noted by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) in its Notice of Consultation 2019-57, Canadians rely on these services to communicate with each other, for entertainment, to conduct business, to interact with all levels of government, and to further their education. [ 2 ] With the advent of fifth generation (5G) wireless networks, and given the importance of mobile wireless services, the CRTC undertook to review the associated regulatory framework to ensure that it remains relevant, that the needs of Canadians are met, and that the policy objectives set out in the Telecommunications Act , S.C. 1993, c. 38 (the Act ) are being achieved.

After inviting comments from

stakeholders and holding public hearings, the CRTC issued Review of mobile wireless services, Telecom Regulatory Policy CRTC 2021- 130 (CRTC Decision) on April 15, 2021.

The decision is the result of a comprehensive review by the Commission of its regulation of wireless services under the Act . [ 3 ] The CRTC Decision is quite comprehensive, being 128 pages long, and addresses three main issues: (1) competition in the retail mobile wireless service market; (2) the current regulatory framework for wholesale mobile wireless services, with a focus on wholesale mobile virtual network operator (MVNO) access service; and (3) the future of mobile wireless services in Canada, and how to reduce barriers to infrastructure deployment. [ 4 ] This is the decision that gave rise to the appeal before us.

This appeal, however, raises only two discrete issues: (1) whether wireless transmission infrastructure is excluded from the regulatory scheme established by the Act for access by carriers to highways and other public places for the placement and operation of telecommunications infrastructure (the access issue); and (2) whether the CRTC can direct the national wireless carriers to provide seamless roaming (the roaming issue). [ 5 ] After having carefully considered the appeal record as well as the written and oral representations of the parties, I have come to the conclusion that the CRTC Decision should be upheld.

In my view, the CRTC did not err in determining that a proper

interpretation of the words " “transmission line” " in sections 43 and 44 of the Act refers to physical wire and cables. Accordingly, I find that its jurisdiction does not extend to resolving disputes regarding access to municipal and other public infrastructure for the purposes of constructing, operating and maintaining mobile wireless infrastructure.

Moreover, the CRTC’s decision to mandate the condition of seamless roaming in the provision of wholesale roaming services fell squarely within its power to impose conditions of service, and does not conflict with the conditions of spectrum licence determined by the Minister of Industry (the Minister) pursuant to the Radiocommunication Act , R.S.C. 1985, c. R-2 . [ 6 ] These are my reasons for so concluding. I. Background [ 7 ] In the mid-1990s, the Commission forbore, to a significant extent, from regulating the mobile wireless services offered by wireless carriers.

While being of the view that the provision of wireless telecommunications constituted the provision of a " “telecommunications service” " within the meaning of the Act , and that Canadian carriers providing such services were subject to Commission regulation, the Commission was of the view that, pursuant to

section 34 of the Act , it was appropriate to refrain from exercising some or all of its powers. It came to that conclusion on the basis that there was sufficient competition to protect the interests of users, thereby enabling market forces to guide the sector’s growth: see, for example, Telecom Decisions CRTC 94-15 and 96-14.

This meant, among other things, that wireless carriers were not required to obtain prior Commission approval for the rates that they charged. [ 8 ] As the retail mobile wireless service market grew through the late 1990s and early 2000s, three national wireless carriers emerged as the main and often only choices for Canadians: Bell Mobility Inc. (Bell), Rogers Communications Canada Inc. (Rogers), and TELUS Communications Inc. (Telus).

The high cost of investment in network facilities, together with access to spectrum, were and still are significant barriers to market entry (CRTC Decision at paras. 95 and 101-102). Since then, targeted regulatory measures have reduced some of these barriers to entry, thus facilitating the emergence of new regional carriers.

Some of these regulatory measures include the Minister setting aside spectrum licences for new or smaller carriers in spectrum auctions, and mandating spectrum licensees to provide wholesale roaming services at commercially negotiated rates in the conditions of licence. [ 9 ] The Commission also monitored market developments and held public proceedings to consider a variety of regulatory measures to protect consumers and foster competition.

In 2013, for example, it imposed a mandatory code of conduct on providers of retail mobile wireless services (see The Wireless Code (3 June 2013), Telecom Regulatory Policy CRTC 2013-271). In Regulatory framework for wholesale mobile wireless services (5 May 2015), Telecom Regulatory Policy CRTC 2015-177 (TRP 2015-177), the Commission mandated the provision of wholesale roaming service by the national wireless carriers to competitors. At the time, the Commission found that there was insufficient evidence in the record to go further and to impose seamless roaming as a condition of service.

The advantage of seamless roaming is significant for wireless telecommunications service users, as it involves, to quote the definition provided by the CRTC in the impugned decision (at para. 392), " “handing off and receiving calls and data sessions to and from other networks without any interruption in service” " . [ 10 ] Since TRP 2015-177, which established the current wholesale mobile wireless service regulatory framework, the competitive and technological environments surrounding the wireless service industry have evolved in many respects.

Accordingly, the CRTC issued on February 28, 2019 Telecom Notice of Consultation CRTC 2019-57 for the purpose of initiating a broad review of mobile wireless services and their associated regulatory framework, to ensure that " “(

i) it remains relevant, (ii) the needs of Canadians are met, and (iii) the policy objectives set out in

section 7 of the [ Act ] are being achieved” " ( Review of mobile wireless services (28 February 2019), Telecom Notice of Consultation CRTC 2019-57 at para. 3 (Notice of Consultation)). [ 11 ] In the Notice of Consultation, the Commission noted that the mobile wireless service market is on the verge of a major transformation with the introduction of 5G wireless technology.

Because that technology relies on the installation of a dense network of small cell antennas providing wireless coverage over a more limited geographical area (as opposed to the large macro cells placed on wireless tower infrastructure used for previous generations of wireless technology), the wireless carriers will be required to make significant investments in network infrastructure and to negotiate with a variety of stakeholders to secure adequate access to fibre facilities, rights of way, and small-cell sites.

Indeed, according to the evidence of the Federation of Canadian Municipalities (FCM), " “[e]stimates that seem to be widely accepted indicate that providing coverage to the majority of the Canadian population will require 250,000 to 300,000 such installations” " (Federation of Canadian Municipalities, Further Comments to Notice of Hearing 2019-57 Review of Mobile Wireless Services, 22 November 2019 at para. 8).

This is obviously a much larger number than the 13,000 or so cell phone towers that currently provide services to Canadians, according to Industry, Science and Economic Development Canada (ISED) (Government of Canada, " “Facts about Towers” " (last modified (20 November 2018), online: Industry, Science and Economic Development Canada <https://ised-isde.canada.ca/site/spectrum-management-telecommunications/en/safety-and-compliance/facts-

about-towers>). [ 12 ] Needless to say, access to various types of physical infrastructure to install these numerous small cells will be required. These include light standards, lamp posts, bus shelters and other municipal structures situated on public land, and existing telecommunications wireline support structures and support structures owned by provincial energy utilities. Importantly, however, each of these small cells also has to be hard-wired into the carrier’s wireline network to carry the data to other points, including to other antennas, so that it can reach wireless users elsewhere.

To that extent, the 5G network is no different from the traditional cell phone antennas installed on tall towers and buildings over the last decade. [ 13 ] The Notice of Consultation invited parties to provide comments on whether there was a need for any adjustments or improvements to the mandated wholesale roaming policy established in the 2015 Decision, stating that " “as wireless technology develops and the market continues to evolve, there may be aspects of the Commission’s existing wholesale roaming policy that may need to be modified or improved” " (Notice of Consultation at para. 33).

Parties were also invited to provide their views on whether any further regulatory measures are required to reduce barriers to the deployment of cellular infrastructure. [ 14 ] Public hearings were held from February 18 to 28, 2020. Due to the Covid-19 pandemic, deadlines for the filing of final submissions were delayed. The Commission’s decision was issued on April 15, 2021. II. The impugned decision [ 15 ] As previously mentioned, the decision is very comprehensive and covers a lot of ground.

It is structured in four parts: (1) the state of competition in the retail market, which includes a market power analysis (CRTC Decision at paras. 28-157); (2) regulatory measures at the wholesale level, which include measures related to wholesale MVNO access service, wholesale roaming service and seamless roaming, and access to infrastructure (CRTC Decision at paras. 158-489); (3) regulatory measures at the retail level to support competition (CRTC Decision at paras. 490-600); (4) other issues raised by the parties during the proceeding (CRTC Decision at paras. 601-630). [ 16 ] The key aspects of the decision for the purposes of this appeal are the paragraphs dealing with the roaming issue (CRTC Decision at paras. 392-411) and the access issue (CRTC Decision at paras. 423-489). [ 17 ] As it did for other aspects of its decision, the Commission first summarized the positions of the parties.

On the roaming issue, it noted that seamless roaming is important for regional wireless carriers because it enables them to offer a higher quality of service to Canadians and therefore to be more competitive. Shaw and Vidéotron, in particular, submitted that the absence of seamless roaming is the biggest barrier to their growth, particularly outside urban centres, and that dropped calls at the periphery of their networks was the main reason why their customers switch to the national wireless carriers’ services.

The national carriers and SaskTel, on the other hand, pointed to the significant technical and engineering obstacles that the design and implementation of seamless roaming would pose, and to the significant costs that it would involve. [ 18 ] Having considered these submissions, the CRTC found that mandated seamless roaming would benefit both consumers, who would have fewer dropped calls, and competition since regional carriers would offer a higher quality of service. The CRTC noted that if prioritized, seamless roaming could be implemented faster than what was proposed by the national wireless carriers.

Updates would be limited to cell sites at network border locations and technical information required to maintain seamless roaming could be exchanged using existing processes, significantly reducing the cost of implementation.

In the end, the CRTC was of the view that although cost estimates for implementing seamless roaming varied, none of the cost estimates outweigh the overall benefit of seamless roaming to competition and consumers. [ 19 ] Given that market forces cannot be relied upon to ensure that seamless roaming is available to all carriers and their retail customers, the CRTC decided that mandating seamless roaming and making it subject to cost-based rates would be an efficient and proportionate means of furthering its policy objectives.

It also considered that this functionality is not a new service but rather an additional condition under which the existing mandated wholesale roaming service must be offered. Accordingly, the CRTC directed the national carriers to file for approval tariffs for wholesale roaming service which include support for seamless roaming and to begin offering seamless roaming within one year of the date of its decision.

The CRTC added that the additional costs involved in the implementation of seamless roaming could be reflected in the tariffed rates. [ 20 ] As for access to infrastructure, the Commission grouped the parties’ comments into four categories: (1) delays or denials associated with access to incumbent local exchange carrier (ILEC) support structures; (2) small cell attachments and existing ILEC support structure tariffs; (3) access to towers and sites; and (4) access to municipal infrastructure. [ 21 ] Across Canada there are ILEC owned or controlled support structures.

These include poles, which support aerial facilities such as steel wires which themselves support transmission facilities, and conduits, capable of containing communications facilities and are usually located beneath ground level. In Canada, the ILECs are Bell, Telus and SaskTel in Saskatchewan; Rogers is not an ILEC. Many wireless carriers reported difficulties in accessing ILEC support structures, but the CRTC concluded that the evidence was insufficient to determine whether, or what, modifications to the ILEC regulations or tariffs would be appropriate.

The evidence provided was anecdotal and without a better understanding of the reason for those denials, the CRTC determined it would be inappropriate to adopt specific regulatory measures at this time. [ 22 ] As for small cell attachments and existing ILEC support structure tariffs, the CRTC rejected Telus’ proposal to amend the existing support structure tariffs originally designed to facilitate wireless competition because attachments for mobile wireless services give rise to different issues and are different from Wi-Fi equipment.

The CRTC determined that there was insufficient evidence before it to determine if small cells are sufficiently different from Wi-Fi deployments. Consequently, it could not determine if amendments to the existing ILEC tariffs are warranted.

[ 23 ] The Commission similarly determined that it was not necessary for it to take any additional action in relation to tower and site sharing. It noted that it had not been approached to resolve any dispute alleging undue preference or unjust discrimination with regard to access to towers or sites. [ 24 ] Finally, the Commission determined that sections 43 and 44 of the Act do not grant it jurisdiction to adjudicate disputes involving access to public places to install mobile wireless transmission facilities.

These provisions grant Canadian carriers access to " “any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines” " (the Act, s. 43(2) ). They also grant the Commission powers to regulate carriers’ access to public places and to regulate disputes between carriers and municipalities. [ 25 ] That determination rested heavily on the Commission’s

interpretation of the term " “transmission line” " in the relevant statutory provisions. The Commission first noted that the term " “transmission facility” " is defined in

section 2 of the Act as " “any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus” " . That definition, in the Commission’s view, shows that Parliament was aware of the possibility to transmit telecommunications wirelessly, and that a transmission facility would clearly include a radio apparatus such as a small cell for 5G wireless technology.

Given that Parliament used the distinct and undefined term " “transmission line” " in sections 43 and 44, the Commission reasoned that it must mean something different. It further held that, " “given the all-encompassing scope of the term “transmission facility”, it is very likely that “transmission line” is meant to have a narrower meaning” " (CRTC Decision at para. 482). [ 26 ] The Commission then turned to dictionary

definitions of " “line” " and " “transmission line” " and found that they were varied but contemplate for the most part a " “physical and tangible pathway” " (CRTC Decision at para. 483). Considering the importance of its conclusion on this topic, it is worth quoting from the CRTC Decision: 484. In light of the above, the Commission considers that, in using the term “transmission line”, Parliament meant to capture “transmission cables” and “transmission wires”, both of which are identified in the Act ’s definition of “transmission facility” as types of such facilities. 485. Far from frustrating Parliament’s intent, an

interpretation limiting transmission lines to transmission cables and wires appropriately recognizes the broader statutory scheme enacted by Parliament, including the scheme of the closely related Radiocommunication Act , which provides the Minister of Industry with the power to approve sites for the placement of radio apparatus, as set out in subsection 5(1) of that Act . [ 27 ] Finally, although several parties argued that there is a need for a streamlined and expedited dispute resolution mechanism to settle disputes over rates, terms and conditions between municipalities and carriers, the CRTC determined that no further action was necessary or appropriate at this time.

Even assuming that these issues were within the Commission’s jurisdiction, it was of the view that existing policies and procedures were sufficient to address them. III. Issues [ 28 ] This appeal by Telus raises two issues: A . Did the CRTC err in concluding that the term " “transmission line” " used in sections 43 and 44 of the Act does not include wireless telecommunications infrastructure, and therefore that it could not resolve disputes with municipalities and other public authorities relating to carrier access to highways and other public places? B .

Did the CRTC exceed its jurisdiction by imposing seamless roaming on the national carriers? [ 29 ] Bell and Rogers, the two other national carriers, broadly support the position and arguments put forward by Telus, and added some of their own arguments. [ 30 ] A group of regional wireless carriers (Bragg Communications Inc., Cogeco Communications Inc., Québecor Média Inc., Vidéotron Ltd. and Xplore Inc.), commonly represented before this Court, participated in this appeal as a respondent to support the decision of the CRTC with respect to seamless roaming.

Along with Ice Wireless Inc. (Ice Wireless), a regional mobile wireless carrier that primarily operates in Canada’s North, they submitted that the CRTC did not err in law and/or jurisdiction when it imposed the condition of service requiring the national wireless carriers to offer seamless roaming.

Neither of these two respondents took a position on the access issue. [ 31 ] Electricity Canada (EC) and the FCM responded only to the access issue and supported the CRTC’s finding that its jurisdiction does not extend to resolving disputes regarding access to municipal and other public infrastructure for the purposes of constructing, operating and maintaining mobile wireless infrastructure. EC is the national industry association for the electricity industry in Canada and represents power utilities.

The FCM is a national organization representing Canadian municipalities of all sizes, and is dedicated to advocating for municipalities on matters under federal jurisdiction. [ 32 ] His Majesty the King in right of the province of British Columbia (BC) also made submissions in relation only to the access issue. Aside from supporting the position of the FCM and of EC with respect to the statutory

interpretation of

section 43 of the Act and the term " “transmission line” " , the gist of BC’s submissions are its concern that it would lose its current ability to enter into agreements with carriers seeking to install mobile wireless infrastructure on provincial rights of way and structures and to charge market rent to the carriers for this access.

BC is also concerned that if mobile wireless infrastructure falls within the Commission’s jurisdiction, the Commission’s policies would govern the access carriers have, rather than the province. [ 33 ] Before dealing with all these arguments, I shall first address a jurisdictional issue raised by EC. Both in its written submissions and orally, counsel for EC argues that the CRTC’s conclusion on the access issue is not subject to appeal because it is not a " “decision” "

within the scope of

section 64 of the Act , and is not the outcome of an adjudication over access but was the result of a policy consultation. IV. The legislative framework [ 34 ] To better understand the issues raised in this appeal and the arguments put forward by the parties, it is essential to have a good grasp of the legislative scheme governing telecommunication and radiocommunication in Canada.

Equally important are the roles played by the CRTC when imposing conditions of service to Canadian carriers, and by the Minister in issuing and amending the conditions of licence authorizing carriers to use specific radiofrequency bands for the provision of their services, and in approving the location at which wireless facilities such as antennas may be situated. [ 35 ] As the Supreme Court held in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010- 168 , 2012 SCC 68 , [2012] 3 S.C.R. 489 [ Reference re Broadcasting ] (at paras. 34 and 37 ), the Broadcasting Act , S.C. 1991, c. 11 the Radiocommunication Act and the Telecommunications Act are part of an " “interrelated scheme” " ; while they have different aims, their subject matters will overlap in certain circumstances.

As a result, persons regulated under one of the Acts may well be regulated under one of the other Acts as well. [ 36 ] Broadly speaking, the Telecommunications Act ’s main objective is the supervision of telecommunications services (voice and data) provided to the public throughout Canada and, as an accessory, the regulation of facilities-based telecommunications common carriers.

The Act falls under the responsibility of the Minister of Innovation, Science and Economic Development, but for all intents and purposes, the primary responsibility for the implementation and administration of the Act falls to the CRTC. [ 37 ] Pursuant to

section 47 of the Act , the CRTC is required to consider the policy objectives set out in

section 7 of the Act when exercising any of its powers: " 47 The Commission shall exercise its powers and perform its duties under this Act and any special Act " " 47 " " Le Conseil doit, en se conformant aux décrets que lui adresse le gouverneur en conseil au

titre de l’article 8 ou aux normes prescrites par arrêté du ministre au

titre de l’article 15, exercer les pouvoirs et fonctions que lui confèrent la présente loi et toute loi spéciale de manière à réaliser les objectifs de la politique canadienne de télécommunication et à assurer la conformité des services et tarifs des entreprises canadiennes avec les dispositions de l’article 27. " " (

a) with a view to implementing the Canadian telecommunications policy objectives and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with

section 27; and " " [blank] " " (

b) in accordance with any orders made by the Governor in Council under

section 8 or any standards prescribed by the Minister under

section 15. " " [blank] " [ 38 ] These objectives are set out in

section 7 of the Act , and include the following: " 7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives " " 7 " " La présente loi affirme le caractère essentiel des télécommunications pour l’identité et la souveraineté canadiennes; la politique canadienne de télécommunication vise à : " " (

a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions; " " a) " " favoriser le développement ordonné des télécommunications partout au Canada en un système qui contribue à sauvegarder, enrichir et renforcer la structure sociale et économique du Canada et de ses régions; " " (

b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada; " " b) " " permettre l’accès aux Canadiens dans toutes les régions — rurales ou urbaines — du Canada à des services de télécommunication sûrs, abordables et de qualité; " " (

c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications; " " c) " " accroître l’efficacité et la compétitivité, sur les plans national et international, des télécommunications canadiennes; " " … " " … " " (

f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective; " " f) " " favoriser le libre jeu du marché en ce qui concerne la fourniture de services de télécommunication et assurer l’efficacité de la réglementation, dans le cas où celle-ci est nécessaire; " " … " " … " " (

h) to respond to the economic and social requirements of users of telecommunications services; and " " h) " " satisfaire les exigences économiques et sociales des usagers des services de télécommunication; " [ 39 ]

Section 8 of the Act authorizes the Governor in Council to " “issue to the Commission directions of general application on broad policy matters with respect to the Canadian telecommunications policy objectives” " . An order made under that

section is binding on the

Commission (the Act, ss. 11(1) and 47 ( b )). At the time the decision under appeal was issued, two directions given by the Governor in Council were particularly relevant.

The first one, issued in 2006, directed the Commission, when relying on regulation, to use measures that satisfy four criteria, one of them being: 1(b)(iv) if they relate to network interconnection arrangements or regimes for access to networks, buildings, in-building wiring or support structures, ensure the technological and competitive neutrality of those arrangements or regimes, to the greatest extent possible, to enable competition from new technologies and not to artificially favour either Canadian carriers or resellers Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, S.O.R./2006- 355 [ 40 ] The second direction, released in 2019, directs the CRTC to consider the extent to which its decisions " “enable innovation in telecommunications services, including new technologies and differentiated service offerings” " : Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition , Affordability, Consumer Interests and Innovation , S.O.R./2019-227, para. 1 ( a )(vi). [ 41 ] Also of particular relevance for this appeal are the following

definitions found in

section 2 of the Act : " Canadian carrier means a telecommunications common carrier that is subject to the legislative authority of Parliament; (entreprise canadienne) " " entreprise canadienne " " Entreprise de télécommunication qui relève de la compétence fédérale. (Canadian carrier) " " telecommunications means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication) " " télécommunication " " La transmission, l’émission ou la réception d’information soit par système électromagnétique, notamment par fil, câble ou système radio ou optique, soit par tout autre procédé technique semblable. (telecommunications) " " telecommunications facility means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility; (installation de télécommunication) " " installation de télécommunication " " Installation, appareils ou toute autre chose servant ou pouvant servir à la télécommunication ou à toute opération qui y est directement liée, y compris les installations de transmission. (telecommunications facility) " " transmission facility means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus. (installation de transmission) " " installation de transmission " " Tout système électromagnétique — notamment fil, câble ou système radio ou optique — ou tout autre procédé technique pour la transmission d’information entre des points d’arrivée du réseau, à l’exception des appareils de transmission exclus. (transmission facility) " [ 42 ] Parliament expressly empowered the CRTC to subject the provision of telecommunications services by a Canadian carrier to conditions (the Act, s. 24 ).

There is no dispute that the national carriers – Telus, Bell and Rogers – are Canadian carriers and that wholesale roaming is a telecommunications service within the meaning of

section 2 of the Act . [ 43 ] To achieve the objectives of Canadian telecommunications policy, it is essential to ensure the efficient, widespread deployment of telecommunications infrastructure. To that effect, both the Act and its predecessor, the Railway Act , R.S.C. 1985, c. R-3 (ss. 327-330), establish a regulatory scheme governing access by carriers to highways and other public places. In particular, sections 43 and 44 of the Act provide carriers with a qualified right to access highways and other public places for the purposes of constructing, maintaining and operating their transmission lines.

It is worth pointing out at this stage that the Act provides no definition for the words " “transmission line” " , which replaced the narrower references to " “telegraph or telephone lines” " in the Railway Act (s. 327). The right to access highways and other public places for the construction of facilities is subject to the consent of the public authority with jurisdiction over the highway or public place to the construction. Where the carrier and public authority are unable to reach an agreement on the terms of access, the Commission may set the terms at the request of either party.

The full text of these provisions reads as follows: " Entry on public property " " Accès aux lieux publics " " 43(2) Subject to subsections (3) and (4) and

section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place. " " 43(2) " "

Sous réserve des paragraphes (3) et (4) et de l’article 44, l’entreprise canadienne et l’entreprise de distribution ont accès à toute voie publique ou tout autre lieu public pour la construction, l’exploitation ou l’entretien de leurs lignes de transmission, et peuvent y procéder à des travaux, notamment de creusage, et y demeurer pour la durée nécessaire à ces fins; elles doivent cependant dans tous les cas veiller à éviter toute entrave abusive à la jouissance des lieux par le public. " " Consent of municipality " " Approbation municipale " "

(3) No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place. " " (3) " " Il est interdit à l’entreprise canadienne et à l’entreprise de distribution de construire des lignes de transmission sur une voie publique ou dans tout autre lieu public — ou au-dessus, au-dessous ou aux abords de ceux-ci — sans l’agrément de l’administration municipale ou autre administration publique compétente. " " Application by carrier " " Saisine du Conseil "

"

(4) Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.

" " (4) " " Dans le cas où l’administration leur refuse l’agrément ou leur impose des conditions qui leur sont inacceptables, l’entreprise canadienne ou l’entreprise de distribution peuvent demander au Conseil l’autorisation de construire les lignes projetées; celui-ci peut, compte tenu de la jouissance que d’autres ont des lieux, assortir l’autorisation des conditions qu’il juge indiquées. " " Access by others " " Accès " "

(5) Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.

" " (5) " " Lorsqu’il ne peut, à des conditions qui lui sont acceptables, avoir accès à la structure de soutien d’une ligne de transmission construite sur une voie publique ou un autre lieu public, le fournisseur de services au public peut demander au Conseil le droit d’y accéder en vue de la fourniture de ces services; le Conseil peut assortir l’autorisation des conditions qu’il juge indiquées.

" " " " Applications by municipalities and other authorities " " Demande d’une municipalité ou autre administration publique " " 44 On application by a municipality or other public authority, the Commission may " " 44 " " Sur demande d’une administration municipale ou autre administration publique, le Conseil peut : " " (

a) order a Canadian carrier or distribution undertaking, subject to any conditions that the Commission determines, to bury or alter the route of any transmission line situated or proposed to be situated within the jurisdiction of the municipality or public authority; or " " a) " " soit obliger, aux conditions qu’il fixe, l’entreprise canadienne ou l’entreprise de distribution à enfouir les lignes de transmission qu’elles ont, ou projettent d’avoir, sur le territoire de l’administration en question ou à en modifier l’emplacement; " " (

b) prohibit the construction, maintenance or operation by a Canadian carrier or distribution undertaking of any such transmission line except as directed by the Commission. " " b) " " soit ne leur en permettre la construction, l’exploitation ou l’entretien qu’en exécution de ses instructions. " [ 44 ] In Barrie Public Utilities v.

Canadian Cable Television Assn. , 2003 SCC 28 , [2003] 1 S.C.R. 476 [ Barrie ] the Supreme Court clarified that subsection 43(5) of the Act does not include power utilities distribution lines, and therefore does not grant the CRTC jurisdiction with respect to telecommunications companies’ access to power poles belonging to power utilities undertakings. [ 45 ] The Radiocommunication Act , on the other hand, focuses on the regulation of the equipment and activities that make use of the radio spectrum, as well as the allocation and management of the radio spectrum itself.

It is implemented and administered primarily by Industry Canada, under the responsibility of the Minister. [ 46 ] Paragraphs 5(1) ( a )(i.1) and (

b) of the Radiocommunication Act give the Minister the ability to issue licences authorizing carriers to use specific radiofrequency bands for the provision of their services, including mobile wireless services (Industry Canada, Spectrum Management and Telecommunications: Framework for Spectrum Auctions in Canada (Issue 3: March 2011), s. 1 ). Pursuant to the Radiocommunication Act , the Minister may also fix and amend terms and conditions of licences: " 5

(1) Subject to any regulations made under

section 6, the Minister may, taking into account all matters that the Minister considers relevant for ensuring the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada, " " 5 (1) " "

Sous réserve de tout règlement pris en application de l’article 6, le ministre peut, compte tenu des questions qu’il juge pertinentes afin d’assurer la constitution ou les modifications ordonnées de stations de radiocommunication ainsi que le développement ordonné et l’exploitation efficace de la radiocommunication au Canada : " " (

a) issue " " a) " " délivrer et assortir de conditions : " " … " " … " " (i.1) spectrum licences in respect of the utilization of specified radio frequencies within a defined geographic area, " " (i.1) " " les licences de spectre à l’égard de l’utilisation de fréquences de radiocommunication définies dans une zone géographique déterminée, et notamment prévoir les conditions spécifiques relatives aux services pouvant être fournis par leur titulaire, " " … " " … " " (

b) amend the terms and conditions of any licence, certificate or authorization issued under paragraph (a); " " b) " " modifier les conditions de toute licence ou autorisation ou de tout certificat ainsi délivrés; " [ 47 ] In exercising those powers, the Minister " “may” " have regard to the objectives of the Canadian telecommunications policy set out in

section 7 of the Act ( Radiocommunication Act , s. 5(1.1) ). This is to be contrasted with the CRTC, which " “shall” " exercise its powers under the Act with a view to implementing those same Canadian telecommunications policy objectives (the Act, s. 47 ). Apart from the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in

Canada (see the

preamble of subsection 5(1) of the Radiocommunication Act), the Minister must also consider the objectives set out insection 5 of the Department of Industry Act, S.C. 1995, c. 1 in the exercise of his powers. They are mostly of an economic nature, as canbe gathered from the text of that section: "5 The Minister shall exercise the powers and performthe duties and functions assigned by subsection 4(1) ina manner that will " "5"" Le ministre exerce les pouvoirs et fonctions quelui confère le paragraphe 4(1) de manière à : " "(

a) strengthen the national economy and promotesustainable development; " "a)"" renforcer l’économie nationale et promouvoir ledéveloppement durable; ""(

b) promote the mobility of goods, services and factorsof production and of trade and commerce in Canada; " "b)"" favoriser la circulation des biens, des services etdes facteurs de production ainsi que le commerceintérieur; ""(

c) increase the international competitiveness ofCanadian industry, goods and services and assist in theadjustment to changing domestic and internationalconditions; " "c)"" accroître la compétitivité de l’industrie, des bienset des services canadiens sur le plan international etfaciliter l’adaptation aux situations intérieure etinternationale; ""(

d) encourage the fullest and most efficient andeffective development and use of science andtechnology; " "d)"" favoriser le plein essor de la science et de latechnologie et encourager leur utilisation optimale; " "(

e) foster and promote science and technology inCanada; " "e)"" favoriser la science et la technologie au Canada; " "(

f) strengthen the framework for the development andefficiency of the Canadian marketplace; " "f)"" renforcer la structure nécessaire à l’essor et àl’efficacité du marché canadien; ""(

g) promote the establishment, development andefficiency of Canadian communications systems andfacilities and assist in the adjustment to changingdomestic and international conditions; " "g)"" encourager la mise sur pied, le développement etl’efficacité des systèmes et installations decommunications du pays et faciliter l’adaptation auxsituations intérieure et internationale; ""(

h) stimulate investment; and " "h)"" stimuler l’investissement; ""(

i) promote the interests and protection of Canadianconsumers. " "i)"" promouvoir les intérêts et la protection duconsommateur canadien. " [48] Under the supervision of the Minister, therefore, Industry Canada regulates the use and allocation of radio frequency spectrum.

Tothat end, it is guided by the Spectrum Policy Framework for Canada (Industry Canada, Spectrum Management andTelecommunications, DGTP-001-07: Spectrum Policy Framework for Canada (June 2007) [Spectrum Policy Framework for Canada]),which sets out a sole spectrum-specific general policy objective to "“maximize the economic and social benefits that Canadians derivefrom the use of radio frequency spectrum”" (ibid at p. 8). [49] Paragraph 5(1)(

f) of the Radiocommunication Act also gives the Minister the authority to "“approve each site on which radioapparatus, including antenna systems, may be located, and approve the erection of all masts, towers and other antenna-supportingstructures”". This power, however, does not authorize the Minister to interfere with the property rights of third parties. In other words, theMinister does not have the power to require a public land owner to allow access to the site for the installation of radio facilities, or toadjudicate disputes with respect to such access, in contrast to the CRTC’s power under

section 43 of the Act. The RadiocommunicationAct does not contain, for antennas, an equivalent to the right conferred on carriers by the Act to access municipal property to install"“transmission lines”".

For antennas, access to each site – regardless of its owner, public or private – must be obtained throughnegotiation. [50] This is reflected in the Minister’s Client Procedures Circulars which prescribe the process and technical, safety and environmentalrequirements that must be followed for the installation and modification of antenna systems at any location (public or private) (IndustryCanada, Spectrum Management and Telecommunications, Client Procedures Circular CPC-2-0-03: Radiocommunication andBroadcasting Antenna Systems (Issue 5: June 26, 2014), p. 3-5 [Antenna Systems]; Industry Canada, Spectrum Management andTelecommunications, Client Procedures Circular CPC-2-0-17: Conditions of Licence for Mandatory Roaming and Antenna Tower andSite Sharing and to Prohibit Exclusive Site Arrangements, (Issue 2: March 2013) at p. 3-6, 11-13 [Conditions of Licence]). [51] Antenna proponents must consult with local land use authorities and the public to "“address reasonable and relevant concerns […]from both the land-use authority and the community they represent”" regarding the proposed antenna site (Antenna Systems at p. 5).They must also comply with technical and other requirements established for antennas by the Minister.

When parties are unable toresolve relevant and reasonable concerns regarding a proposed site, a party may ask the Minister to approve or disapprove the site. TheMinister’s decision, however, only determines the apparatus location. Telecommunication carriers must separately negotiate the termsand conditions of access to an approved site with the site owner. Only parties who already hold radio authorizations granted by theMinister are required to allow radio apparatus proponents access to their antenna sites and towers.

Otherwise, spectrum licence holdersare left to rely on the municipality’s goodwill to expropriate the land it seeks to use for radio antennas, or on the Minister’s power ofexpropriation: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467 at para. 54 [Châteauguay]. [52] It is in this legislative context that the issues raised in this appeal must be resolved. V. The jurisdictional issue [53] As previously mentioned, EC argues that the CRTC’s conclusion on the access issue is not subject to appeal because it is not a"“decision”" within the scope of

section 64 of the Act. This Court has established that CRTC’s regulatory policies set out policyframeworks and provide context for telecom orders or decisions, which in turn apply these policies to the facts found in a proceeding: seeBell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 42 [Broadband Association],leave to appeal refused, (SCC), (SCC). And as previously found, such CRTC policy guidelines,

frameworks and statements are not binding on the CRTC and are therefore outside the scope of appellate review: see, for example, Bell Canada v. Canada (Attorney General) , 2016 FCA 217 at paras. 26-29 [ Bell Canada ]. This Court similarly found in Canadian Institute of Public and Private Real Estate Cos. v. Bell Canada , 2004 FCA 243 [ Canadian Institute of Public and Private Real Estate Cos. ] that it did not have " “jurisdiction to hear appeals from mere statements by the CRTC as to its potential jurisdiction in future cases” " (at para. 3). This Court applied the same reasoning in the context of an appeal under subsection 31(2) of the Broadcasting Act , which parallels

section 64 of the Act : Bell Canada . At issue in that case was a policy issued following submissions and a public hearing solicited by the CRTC on various topics including simultaneous substitution. The Court held that the regulatory policy was " “clearly not justiciable” " , even though the CRTC used the word " “determination” " .

EC claims that the CRTC, in issuing its Telecom Regulatory Policy 2021-130, did exactly the same thing, undertook the same process as in the simultaneous substitution, and made non-appealable policy guidance statements expressing its view on its own jurisdiction. [ 54 ] EC further submits that the CRTC’s decision was not the outcome of an adjudication over access but was the result of a policy consultation. The CRTC did not issue binding conditions or orders affecting the legal rights of Telus or anyone else.

This jurisdictional barrier is not a mere formality because if this were an adjudication of rights, all the relevant parties would have participated and provided a more robust factual record. [ 55 ]

Section 64 of the Act states that " “[a]n appeal from a decision of the Commission on any question of law or of jurisdiction” " may be brought in this Court with leave (emphasis added).

Section 2 , in turn, defines a " “decision” " as including " “a determination made by the Commission in any form ” " ( " “ " " [t]oute mesure " " prise par le Conseil, quelle qu’en soit la forme ” " ) (emphasis added). On its face, this language is quite broad and would seem to encompass a large variety of pronouncements made by the CRTC. Indeed, the jurisdiction of the CRTC is not limited to the adjudication of disputes, and subsection 52(1) of the Act provides that it may determine any question of law or fact in the exercise of its powers and in the performance of its duties.

The Commission can even make a determination on its own motion (the Act, s. 48 ). These determinations are binding, in contrast to guidelines and statements which are not binding on the Commission (the Act, s. 58 ). [ 56 ] There is no doubt that mere guidelines having no binding effects on the parties do not constitute a decision. This is precisely what was at stake in Canadian Institute of Public and Private Real Estate Cos. , a case upon which EC heavily relied in support of its position.

In that case, the CRTC had set out guidelines in a telecom decision to assist local exchange carriers and private owners of multi-dwelling units in their negotiations of access arrangements. The CRTC, however, had expressly declined to impose any orders or conditions on the owners of multi-dwelling units, and commented that it would be prepared to issue an order were it to determine that access had not been, or was not likely to be, provided on a reasonable basis.

Interestingly, the CRTC itself stated that it did not consider it had made any decision and that there would be no decision until there was a specific fact situation adjudicated upon. In that context, this Court found that the CRTC’s comments regarding multi-dwelling units were of no legal effect and did not constitute a decision. [ 57 ] A similar conclusion was reached in the second decision of this Court upon which EC relies. In Bell Canada , the appellants were seeking to quash two broadcasting regulatory policies issued by the CRTC regarding simultaneous substitution.

In its First Policy, the CRTC announced that it would continue to allow simultaneous substitution generally, but would disallow its use for specialty channels and the Super Bowl starting in the 2016-2017 season. It also stated that it would amend regulations to be able to remove simultaneous substitution privileges and require licensees to pay compensatory rebates for recurring errors in the simultaneous substitution process.

In the Second Policy, the CRTC announced the enactment and coming into force of the regulations implementing penalties and rebates for simultaneous substitution errors which it had announced in the First Policy, and indicated that the elimination of broadcasters’ simultaneous substitution rights for the Super Bowl would be implemented not by regulation, as stated in the First Policy, but by an order made under paragraph 9(1) (

h) of the Broadcasting Act . [ 58 ] Relying on its previous decision in Canadian Institute of Public and Private Real Estate Cos. , the Court found that the two Policies, insofar as they purport to disallow simultaneous substitution for the Super Bowl effective in 2017, were in the nature of statements of intent to exercise statutory powers in the future and therefore did not qualify as decisions or orders within the meaning of subsection 31(2) of the Broadcasting Act (substantially to the same effect as s. 64(2) of the Act ).

The Court reasoned that the policy reform proposed by the Commission had " “no direct, immediate or legal effect on the appellants unless and until they are formally implemented through regulation or order” " ( Bell Canada at para. 25 ), and that decisions and orders have to be final in nature to be considered by courts of law. [ 59 ] Bell had argued that the Commission had not sought comments on the substantive decision that it made, but only on the text of the proposed distribution order regarding simultaneous substitution for the Super Bowl.

After first noting that the Commission had already reversed its course and announced that simultaneous substitution would be eliminated from the Super Bowl, not through an amendment to the Broadcasting Distribution Regulations, S.O.R./97-555 but through an order pursuant to the Broadcasting Act , the Court had no difficulty rejecting Bell’s argument at paragraph 31: While this is no doubt true, strictly speaking, it would not preclude the Commission from deciding not to pursue its course of action, or alternatively from altering the order to either broaden its scope (e.g., to capture other types of events) or to make it effective only at the expiry of the agreement between the NFL and Bell.

The result of the consultation should not be prejudged, and the administrative process should follow its course before the Court is called upon to adjudicate what may well turn out to be a moot issue.

This is not only more respectful of the specialized body put in place by Parliament to oversee the regulatory regime applying to a complex field of activity, but it is also a better use of scarce judicial resources. [ 60 ] The impugned decision, at least to the extent of its findings with respect to seamless roaming and access to infrastructure, is very different from the policy decisions of the CRTC considered in the two cases described above. This is particularly obvious when considering seamless roaming, as is made clear from paragraph 410 of the CRTC Decision: 410.

In light of the above, the Commission directs the national wireless carriers to (

i) file for approval, within 90 days of the date of this decision, tariffs for wholesale roaming service (wholesale roaming tariffs) with updated terms and conditions to support seamless roaming; and (ii) begin offering seamless roaming within one year of the date of this decision.

(Emphasis in the original) [61] There is no ambiguity whatsoever in these words. The decision of the Commission with respect to seamless roaming is final and hasimmediate and legal effect on the national wireless carriers. [62] While the language of the Commission with respect to access to municipal infrastructure is not as prescriptive or forceful as it is forseamless roaming, its ultimate finding that sections 43 and 44 of the Act do not provide the Commission with jurisdiction to adjudicatedisputes involving mobile wireless transmission facilities is no less definitive.

There is no room left for ambiguity or to revisit the CRTCDecision at a later date. The following extracts from the CRTC Decision, in my view, make it clear that it is not just a policy statement ora guideline but that legal rights have been determined: 479. Ultimately, in light of the arguments made on the record and the applicable principles of statutory

interpretation, theCommission considers that these statutory provisions do not provide the Commission with jurisdiction to adjudicate disputesinvolving mobile wireless transmission facilities. The Commission’s conclusion largely turns on the use of the term“transmission line” in the relevant statutory provisions. 485. Far from frustrating Parliament’s intent, an

interpretation limiting transmission lines to transmission cables and wiresappropriately recognizes the broader statutory scheme enacted by Parliament, including the scheme of the closely relatedRadiocommunication Act, which provides the Minister of Industry with the power to approve sites for the placement of radioapparatus, as set out in subsection 5(1) of the Act. 489. In light of all the above, the Commission determines that no further action is necessary or appropriate with respect tomunicipal access issues at this time.

Insofar as these issues are within the Commission’s jurisdiction, existing policies andprocedures are sufficient to address them. [63] On the basis of that language, I fail to see how the CRTC could later entertain an application by a carrier for an order to access amunicipal structure for the purposes of constructing, operating and maintaining mobile wireless apparatus.

There is nothing tentative inthe wording of its decision, and there is no further step involved before the decision becomes effective as was the case in the earlierpolicy decisions which this Court determined not to be "“decisions”" for the purposes of

section 64 of the Act. Moreover, the Decision isbased on the CRTC’s

interpretation of the Act, not on the assessment of facts or the existence of a particular technology that couldchange or evolve in the future. In other words, the Decision is clearly definitive and is meant to be a definitive finding. [64] The CRTC also had the benefit of a full record before coming to its decision, contrary to EC’s submission. The Commission invitedcomments on the matters it intended to review and posed a number of specific questions to help inform parties’ submissions.

Participantsin the proceeding included telecommunications service providers, non-profit organizations representing consumer interests, variouslevels of government, industry organizations, and individual Canadians. Many of these parties also provided further comments andreplied to representations made by other parties. The proceeding also included a public hearing, which took place from February 18 to28, 2020.

It is therefore fair to say that the Commission had all the necessary information to come to its conclusions on the issues that arenow before this Court, and I fail to see how the record could have been more robust or how the Commission could have had the benefitof a wider range of submissions to inform its deliberation. [65] For all of the foregoing reasons, I am therefore of the view that the CRTC’s conclusion with respect to access and seamless roamingare "“decisions”" for the purpose of

section 64 of the Act and can be the subject of the present appeal. VI. Standard of review [66] All the parties agree, and rightly so, that the standard of review applicable to a question of law or jurisdiction appealed undersubsection 64(1) of the Act is correctness: see Broadband Association at paras. 49-54, 80-81; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 37 [Vavilov]. VII. Analysis A.

Did the CRTC err in concluding that the term "“transmission line”" used insections 43 and 44 of the Act does not include wireless telecommunicationsinfrastructure, and therefore that it could not resolve disputes with municipalities andother public authorities relating to carrier access to highways and other publicplaces? [67] Telus submits that the CRTC adopted a literal and static approach to

interpretation which is inconsistent with the modern approachto statutory

interpretation. Telus argues that the modern approach requires the Court to consider not only the meaning of "“transmissionline”" in its grammatical and ordinary sense, but to do so harmoniously with the regulatory scheme, the object of the Act and theintention of Parliament. A dynamic and purposive approach is best suited to give effect to Parliament’s intention, as exemplified by theextension of the word "“telegraph”" in paragraph 92(10)(

a) of the Constitution Act, 1867 to include "“telephone”" (see Reference reRegulation and Control of Radio Communication (SCC), [1931] S.C.R. 541). Moreover, Telus submits that this Courthas held that legislative intent is more significant to statutory

interpretation than the grammatical and ordinary sense of a given phrase (X(Re), 2014 FCA 249, [2015] 1 F.C.R. 684 at para. 71) and that statutory

interpretation should be aligned with the legislative intent evenwhen a literal approach could lead to a different

interpretation.

[ 68 ] Telus emphasizes that technology has evolved since the Act was enacted and under a dynamic and purposive

interpretation, upgrading existing wireline technology to the newer technology should be subject to the same statutory access process. The CRTC Decision means that if Telus wishes to attach small cells to its own poles and infrastructure, it has no recourse if it cannot reach an access agreement with a municipality. This

interpretation, says Telus, frustrates Parliament’s purposes and prevents the Commission from ensuring the technological and competitive neutrality of the regulatory regime. [ 69 ] Telus also submits that the CRTC failed to realize that the ordinary meaning of a " “line” " is simply a path between two points and so a " “transmission line” " should be understood as a path for the conveyance of intelligence, whether the communication is conveyed through wires or wirelessly. Telus argues that the CRTC erred in relying on " “transmission facility” " to exclude wireless technology from its

interpretation of " “transmission line” " because a similar argument was rejected by the Supreme Court in interpreting the terms " “communicate” " and " “transmit” " in the Copyright Act , R.S.C. 1985, c. C-42 : see Entertainment Software Association v. Society of Composer, Authors and Music Publishers of Canada , [2012] 2 S.C.R. 231, 2012 SCC 34 at paras. 76-77 [ Entertainment Software ].

Telus also claims that interpreting the access regime in the Act to encompass both wired and wireless infrastructure is more consistent with the Supreme Court’s guidance in Barrie than the CRTC’s removal of " “wireless” " from " “transmission line” " . [ 70 ] Relying on parliamentary debates, Telus argues that the legislative history of the Act demonstrates an intention that it be interpreted and applied in a technology-neutral manner, and points to the definition of " “telecommunications service” " , which includes both wireline and wireless services, and to the provisions regulating various aspects of telecommunications, which apply without regard to the type of technology used. [ 71 ] Finally, Telus submits that the result of the CRTC Decision is that no regulator has the authority to resolve access disputes for wireless equipment, which in turn will inhibit the orderly development of Canada’s telecommunications system contrary to the Act ’s stated objective.

Without the CRTC’s dispute resolution powers, there is a risk of arbitrary action by a municipality which may hinder the development of telecommunications infrastructure. Contrary to what the CRTC stated, the Minister’s power to approve a site under paragraph 5(1) (

f) of the Radiocommunication Act does not include the power to require a public land owner to allow access to the site or give the Minister the jurisdiction to adjudicate disputes, and therefore does not fill the gap left by the CRTC’s

interpretation. [ 72 ] Bell and Rogers broadly support Telus’ submissions and expand on some of them. Bell emphasizes, in particular, that the CRTC’s

interpretation of

section 43 leaves a significant gap in the legislative scheme comprised of the Act , the Broadcasting Act , and the Radiocommunication Act . Whereas the Minister has the exclusive power to approve the sites for radio apparatus under paragraph 5(1) (

f) of the Radiocommunication Act , the Minister is not authorized to interfere with the property rights of third parties. Thus, the Minister cannot require a public land owner to allow access to the site for the installation of radio facilities or to adjudicate disputes in that regard. The Minister is only empowered to impose as a condition of licence for radio authorization the obligation to facilitate the sharing of antenna towers and sites. Non-holders of radio authorizations, whether public or private, are not required to give apparatus proponents access to their property. The Minister’s subsection 5(1) power is therefore not a substitute for

section 43 of the Act , which grants Canadian carriers and distribution undertakings a limited property right to construct, operate or maintain transmission lines in public places and allows the CRTC to resolve disputes if a municipality or other public authority with jurisdiction over the public place refuses to consent on acceptable terms. Bell argues that by limiting

section 43 to wireline facilities, the CRTC has created a vacuum since neither the CRTC nor the Minister has the power to require entry to public places to construct wireless facilities. [ 73 ] In addition, Bell submits that the CRTC ignored the fact that the terms " “Canadian carrier” " and " “distribution undertaking” " , also used in

section 43 , are defined to include wireless facilities (see s. 2(1) of the Act and s. 2(1) of the Broadcasting Act ). Accordingly, Parliament would have been explicit had it intended to limit

section 43 to wireline facilities. [ 74 ] Finally, Bell submits that the CRTC’s

interpretation is contrary to the principle of technological neutrality. This is one of the criteria that the Commission should satisfy when using its regulatory powers, pursuant to two Cabinet Directions: Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives , S.O.R./2006-355 and Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition Affordability , Consumer Interests and Innovation , S.O.R./2019-227 . Paragraph 47 (

b) of the Act further states that the Commission " “shall exercise” " its powers in accordance with such orders. [ 75 ] As for Rogers, it faults the CRTC for having adopted a narrow and static definition of the term " “transmission line” " , without any analysis of the context and purpose of the provisions. It submits that the

definitions of " “line” " are varied and inconclusive, as recognized by the Commission, and that transmission line can have many

interpretations, the narrowest of which was adopted by the Commission. In the context of telecommunications services, Rogers submits that the line is used to refer to a path between two points. When used in conjunction with the word " “transmission” " , it includes a path or connection for transmission of intelligence by any means and must encompass wireless transmission infrastructure. [ 76 ] Second, Rogers submits that the technology-neutral regulatory framework intended by Parliament would be frustrated by the Commission’s

interpretation. The policy objectives do not discriminate between wireline and wireless services. Rogers argues that access to highways and other public places on reasonable terms is essential to the development of Canada’s telecommunications system. A purposive analysis of the Act provides evidence of Parliament’s intent to include the entirety of the telecommunications transmission system in the regulatory scheme of sections 43 and 44. This Court previously rejected narrow

interpretations of sections 42 to 44 of the Act ’s objectives which encourage the " “efficient and orderly development of communications networks” " ( Edmonton (City) v. 360 Networks Canada Ltd. , 2007 FCA 106 at para. 64 ). Rogers submits that only its

interpretation is consistent with the comprehensive and technology-neutral regulatory framework established by the Act . [ 77 ] Rogers further argues that the dynamic principles of statutory

interpretation support including wireless technology in the definition of transmission line. According to Rogers, the CRTC’s

interpretation of transmission line effectively freezes the scope of the provisions and makes them incapable of achieving their purpose today while a dynamic

interpretation is wholly consistent with the statutory objectives and Parliamentary intent. Much like Telus, Rogers also submits that the Minister’s authority under the Radiocommunication Act to approve specific sites for radio apparatus is no substitute for the regulatory scheme provided by sections 43 and 44 of the Act , since the Minister has no authority to prescribe the terms of access by wireless carriers to public highways and other public places when

carriers and public authorities are unable to reach agreement on those terms. [78] Having carefully weighed these arguments, I find that they are not persuasive for the following reasons. [79] In trying to determine the true meaning of the expression "“transmission line”", the Commission rightly turned to the ordinary andnatural meaning of these words, but also to the surrounding context and the purpose of the provision (CRTC Decision at para. 480). Thisis in keeping with the teachings of the Supreme Court of Canada, which has reiterated this modern approach to statutory

interpretation ona number of occasions, including in the context of

section 43 of the Act: see Barrie at para. 20. The Supreme Court most recentlysummarized that approach in the following terms: A court interpreting a statutory provision does so by applying the “modern principle” of statutory

interpretation, that is, thatthe words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously withthe scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21 and Bell ExpressVu Ltd. Partnership v Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

Vavilov at para. 117 [80] In Barrie, the Supreme Court had to determine whether the words "“transmission line”" in subsection 43(5) of the Act were broadenough, when properly interpreted, to give the CRTC jurisdiction over the power poles of provincially regulated electric powercompanies. To reach its conclusion that they were not, the highest Court considered (1) the grammatical and ordinary meaning of thewords "“transmission line”" in the context of sections 43 and 44 of the Act; (2) other related provisions of the Act and of theRadiocommunication Act; and (3) the policy objectives of Parliament.

In the following paragraphs, I will follow the same approach toascertain whether the CRTC erred in finding that the same words do not encompass mobile wireless transmission facilities and thereforedoes not give wireless carriers a qualified right to access highways and other public places for the purpose of installing their small cellattachments and other wireless apparatus.

(1) The grammatical and ordinary meaning of the words "“transmission line”" [81] Relying on dictionary

definitions, the CRTC found that the word "“line”", when used in the context of telecommunicationsfacilities, refers to a physical or tangible pathway, both in French and in English. In my view, that conclusion is the only correct one. [82] Telus attempted to escape from this straightforward, common sense

interpretation of the word "“line”" by relying on the creative(albeit distorted) notion that a line is merely a path between two points. A transmission line would therefore be a path for conveyance ofintelligence, either through wires or wirelessly. Such an

interpretation, in my humble opinion, stretches credibility. [83] First of all, the construction proposed by Telus has the disadvantage of divorcing its proposed meaning of a line from its historicalorigin. The concept of a line was well known in the Railway Act, and clearly referred to physical pathways. Indeed, the authority to enteron, break up and open any highway or other public place finds its origin in

section 327 of that Act, and was conferred on companies toconstruct, operate and maintain telegraph or telephone lines. These were clearly wired transmission facilities. [84] Moreover, contrary to what Telus submits, an antenna does not create a linear path but a sphere. A 5G antenna, like any other largeradio antenna, has a transmission area that radiates from the antenna in every direction.

Again, Parliament must be taken to know thedifference between transmission along a one-dimensional line and the three-dimensional spherical pattern that radiates from an antenna. [85] The common acceptance of a line as a physical and one-dimensional pathway is also more consistent with the wording of sections43 and 44. Subsection 43(2), for example, speaks of "“enter[ing] on and break[ing] up”" any highway or public place for the purpose ofconstructing, maintaining and operating transmission lines. Installing wireless small cells apparatus hardly requires "“breaking up”" ahighway or other public places.

Similarly, subsection 43(3) speaks of constructing a transmission line on, over, under or along a highwayor other public place, which is also more attuned to a tangible line than to a wireless device. In the same vein, the wording of paragraph44(

a) does not easily fit with Telus’ proposed definition of "“transmission line”". Pursuant to that section, the Commission may order aCanadian carrier or distribution undertaking "“to bury or alter the route of any transmission line”". I fail to see how the sphericaltransmission area of a 5G antenna could be buried or rerouted. [86] It is clear from this review of the wording of sections 43 and 44, of the dictionary

definitions of "“line”" in the context oftelecommunications, of the use of "“line”" in the Railway Act and of the mismatch between the notion of a line and wireless technology,that Telus’ submission that a line is to be understood merely as a geometrical path between two points does not sit well with the commonunderstanding of a transmission line, at least as it is used in the Act. In the absence of a statutory definition that particularizes the use of aword or expression, it is a well-accepted canon of construction that the starting point of every interpretive exercise is the ordinary andwell-understood meaning of such a word or expression.

(2) The internal and external context [87] This construction of the word "“line”" in sections 43 to 44 of the Act is buttressed by the history of its enactment, and by the use ofthe same or similar expressions elsewhere in the Act and in the closely related Radiocommunication Act. [88] When Parliament enacted the Act in 1993 to replace the Railway Act, it created the first full legislative scheme addressingtelecommunications and made a number of changes not only to streamline the various regulations adopted under many different acts butalso to modernize the regime and take into account the new technology.

With respect to the municipal access framework in particular, allprovisions relating to the relationship between carriers and municipalities were removed from the Railway Act and brought under thejurisdiction of the CRTC. [89] Apart from removing some detailed prescriptions from the access framework (for example, the requirements that poles be "“nearly

as possible straight”", that they be painted in cities and towns, and that the company shall not unnecessarily cut down or mutilate anyshade, fruit or ornamental tree), the only major change to the existing right of access regime was to extend its scope and replacetelephone and telegraph lines with the current expression "“transmission lines”". Parliament could have used broader language andmoved away from the concept of a line had it wanted to incorporate wireless technology. This was clearly not an oversight, because asnoted by the CRTC, wireless technology was well known at the time.

As a matter of fact, a "“transmission facility”" as defined in section2 of the Act clearly includes the technologies that transmit telecommunications wirelessly. It refers not only to wire and cable, but also toradio, optical or other electromagnetic systems. In the Radiocommunication Act, radiocommunication or radio is defined as the"“transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagneticwaves”", and therefore refers to the propagation of waves without a line.

"“Transmission line”", on the other hand, is not defined in theAct and must be taken to be a subset of transmission facility. [90] It is worth highlighting that the expression "“transmission facility”" is not the only one making explicit reference to the full range oftransmission techniques. The definition of "“telecommunications”" (and of its many derivatives) also encompasses wireless transmissiontechnology and infrastructure.

It is also interesting to note that sections 42 (works ordered by the Commission) and 46 (expropriation bycarrier) of the Act apply to all kinds of telecommunications facilities (which include transmission facilities), whereas sections 43 and 44(which relate to the qualified right of access to municipal property) only apply to transmission lines. The same is true of

section 45,which grants landowners the right to request the construction of drainage works or the laying of utility pipes "“over, under or along atransmission line”", and of subsection 67(1), which grants the Commission the right to make regulations with respect, among otherthings, to the height of transmission lines. [91] The appellant has put great emphasis on the concept of "“technological neutrality”" and claimed that it was very much onParliament’s mind when drafting the Act. There is scant evidence in the parliamentary debate in support of that submission.

Be that as itmay, this notion of technological neutrality finds its expression in the use of words like "“transmission facility”" and"“telecommunications”", which are broadly defined so as to encompass all matters of technology.

Once again, the expression"“transmission line”" is much narrower; one should resist the temptation to expand it beyond its ordinary meaning under the guise of aconcept that finds its expression elsewhere in the Act. [92] The appellant similarly contends that the words "“transmission line”" should be interpreted in a dynamic and evolving way, andclaims that the meaning ascribed to these words by the CRTC is frozen in time. There is no doubt that legislation must be interpreted inlight of changing circumstances.

This is particularly true of constitutional and quasi-constitutional statutes, because they are meant toendure over time and are difficult to amend. That being said, care must be taken to refrain from amending legislation in the name ofinterpreting it. Navigating between these equally important concerns is obviously a delicate exercise. [93] The Supreme Court provides some guidance in that respect. In Perka v. The Queen, [1984] 2 S.C.R. 232, (at pp.264-265) [Perka], for example, the Court started with the proposition that the words of a statute must generally receive the meaning theyhad at the time of enactment.

As the Court recognized, this is not to say that all terms in all statutes must always be confined to theiroriginal meanings. Broad statutory categories and "“open-textured”" legi

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