Supreme Court of Canada Interprets the Telecommunications Act

In Telus Communications Inc. v. Federation of Canadian Municipalities, the Supreme Court of Canada considered the correct interpretation of the term “transmission line”, as used in sections 43 and 44 of the Telecommunications Act (the “Act”). Goodmans acted for the successful respondent, Electricity Canada.

Sections 43 and 44 provide an access regime that gives telecommunication carriers a qualified right of access to construct, maintain, and operate their “transmission lines” situated on public property. In this case, the appellant telecommunication carriers argued that “transmission line” should be interpreted to include small cell antennas used in 5G mobile wireless networks. The respondents argued that the CRTC and Federal Court of Appeal below were correct in determining that a “transmission line” does not include a wireless antenna. The Supreme Court of Canada, by a 7 to 2 majority, upheld the Court's below ruling.

Majority Decision

Justice Moreau, writing for a majority of the Court, concluded that the term “transmission line”, as it is used in sections 43 and 44 of the Act, refers only to wireline infrastructure. Her reasons rest on the well-established principles of statutory interpretation, the surrounding text of the access regime, and the broader context surrounding the scheme.

1. Principles of Statutory Interpretation

The modern approach to statutory interpretation is that the meaning of a statutory provision is determined by reference to its text, context, and purpose. It is centered on the legislature’s intent at the time of enactment. But this principle does not prevent courts from applying statutes to new or evolving circumstances: “The degree to which a provision is capable of applying to new circumstances, including new technology, is an interpretive question like any other that must be answered by reading the text in context and consistent with the legislature’s purpose.”

The Court found that the use of the words “transmission” and “line” strongly suggest a linear path with a strong physical connotation, and that antennas do not fit naturally within that ordinary meaning because antennas do not transmit intelligence along physical pathways. Additionally, the Court rejected the argument that antennas are “transmission lines” because they are hard-wired into the wireline network, noting this would lead to the unintended consequence that anything attached to wires and cables could fall under the meaning of “transmission line”.

2. The Surrounding Text

The surrounding text in sections 43 and 44 supports the notion that “transmission line” is a physical linear pathway. For example, section 43 speaks of “enter[ing] on and break[ing] up property to construct transmission lines, on, over, under or along a highway or other public place”. The provisions, read as a whole, call to mind physical, linear undertakings that do not readily apply to antennas.

3. The Broader Context

The telecommunication carriers argued that Parliament clearly intended the Act to be interpreted in a way that is technologically neutral (i.e., capable of evolving with changing technologies). However, the Court found that antennas are not a new technology that was outside Parliament’s contemplation at the time of enactment. The Act’s predecessor, the Railway Act, contemplated wireless telecommunications infrastructure, but its access was limited to wireline. Moreover, the Radiocommunication Act, which specifically regulates antennas, both predates the Act and remains in force.

Additionally, the appellants argued that the objectives of the Act, particularly the “facilitation of orderly development of telecommunications”, support a broader interpretation of “transmission line” because that would best ensure the efficient deployment of 5G infrastructure across Canada. However, “orderly development” does not require that the Act be interpreted in the way that is most favourable to telecommunications carriers. The calibration of the access regime required Parliament to balance the competing interests of carriers and those of public authorities. The Court is bound to respect Parliament’s chosen balance.

Minority

Justices Côté and Martin dissented, finding that 5G antennas are captured by the term “transmission line”.

1. Grammatical and Ordinary Meaning

Justice Côté found that even if “transmission line” is to be narrowly interpreted as a physical, tangible pathway, that interpretation necessarily includes 5G small cells because they are hard-wired into existing wireline transport networks as part of a single, integrated telecommunications network.

2. Context of the Provision

The Telecommunications Act and the Radiocommunication Act form an interconnected statutory scheme that is meant to work in tandem, meaning that the regulation of antennas in the latter does not prevent their regulation by the former. The majority’s interpretation would give a municipality a veto if a carrier could not reach an agreement with it to obtain access to an installation site.

3. Object and Purpose of the Act

The principles of dynamic interpretation (i.e., an interpretation that is not frozen in time and can evolve with technology) have long been applied in the telecommunications context. An interpretation of “transmission line” that disentitles carriers from seeking recourse through the Act’s access regime runs contrary to the objectives of the Act.