Municipal restriction aimed at telecommunications, not health.
The Supreme Court of Canada rendered a decision concerning constitutional jurisdiction over wireless communication with its decision in Rogers Communications Inc. v. Châteauguay (City). The essence of the dispute was the construction of a new antenna as part of Rogers’ cellular telephone network. The antenna had been licensed by the federal Minister of Industry, but the municipality of Châteauguay had issued a notice of reserve prohibiting all construction on the relevant plot of land: the issue was whether the Municipality’s notice of reserve was ultra vires. The Supreme Court decided that it was.
Rogers had decided to build a new antenna in Châteauguay in order to fill a gap in its wireless telephone network. It leased a property upon which to build the antenna and began the necessary public consultation. Châteauguay opposed the project and suggested several alternatives to Rogers, including building the antenna on a different site. Nonetheless the municipality did ultimately issue a building permit for the project. However, the next day the municipality received a petition signed by more than 100 resident, opposing construction of the antenna on the basis that such installations are harmful to health and to the environment. Further negotiations ensued about options, including moving the antenna to another location, but various difficulties arose. Ultimately, at a meeting among Rogers, the federal Minister, and Châteauguay, Rogers asked the Minister to resolve the situation. This led to the Minister confirming that Rogers had met the consultation requirements and to issue the permit for the antenna. Châteauguay then issued the notice of reserve, which prevented any construction on the site.
The issue for the Supreme Court was whether that notice of reserve was ultra vires as an attempt to legislate over telecommunications. On behalf of Châteauguay it was argued that the notice of reserve was addressed to the protection of the health and well being of residents or the development of the territory, both of which would have been within their jurisdiction.
The Court noted that Parliament has exclusive jurisdiction over radiocommunication, which includes the power to choose the location of radiocommunication infrastructure. Whether the municipality had attempted to legislate with regard to radiocommunications depended on an analysis of the purpose and the effect of the notice of reserve. With regard to the purpose, the Court observed:
 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 installation of 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 system until 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 the property at 411 Boulevard Saint Francis.
That evidence, the Court concluded, led to only one possible conclusion: “the purpose of the notice of a reserve was to prevent Rogers from installing its radiocommunication antenna system on the property at 411 Boulevard Saint Francis by limiting the possible choices for the system’s location. This conclusion is inescapable” (para 44). As a result the purpose of the legislation was aimed at a matter in federal jurisdiction.
Similarly the effect of the legislation showed it to be ultra vires as well. The notice prohibited all construction on the relevant property for an initial period of two years, which from a practical standpoint prevented Rogers from constructing its antenna system on the property of its choice. Accordingly, the Court concluded, the pith and substance of the notice of a reserve was not the protection of the health and well being of residents or the development of the territory, which would be intra vires, but the choice of the location of radiocommunication infrastructure, which was ultra vires.
They also rejected the notion that the legislation could have a double aspect, since this would lead to the conclusion that both levels of government could legislate with regard to the siting of radiocommunication infrastructure, which was not the case.
In addition the Court held that the notice of reserve would be of no force due to the effect of interjurisdictional immunity, which protects the “core” of a legislative head of power from being impaired by a government at the other level. In Toronto Corporation v. Bell Telephone Co. of Canada,  A.C. 52 Bell had federally-granted authority to lay cables under and erect poles along the streets and highways of the city of Toronto. Ontario had passed a law requiring Bell to obtain the City of Toronto’s consent before exercising that power, but the Privy Council had found that provincial law to be unconstitutional. The facts of this case were governed by that precedent, the Court held, and so interjurisdictional immunity applied here as well.