IT.CAN Newsletter/Bulletin
June 23, 2016/23 juin 2016

Municipality Unable to Limit Location of Cell Phone Towers

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:

[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 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, [1905] 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.

Production of Data in Native Format

TIFF version of Excel file “unusable”

The Alberta Court of Queen’s Bench has ordered disclosure of “native” versions of documents – that is, documents in their original Excel spreadsheet versions – rather than the TIFF images which had already been produced in Bard v Canadian Natural Resources. The dispute between the plaintiff Devon and the defendant CNRL related to an oil sands project operated by CNRL in which Devon was 5% shareholder. Under their agreement, Devon would not receive any payment until the proceeds exceeded the costs in a Carried Account which tracked Devon’s financial interest. Devon had never received any payment and commenced an action which, among other things, challenged CNRL’s accounting methods in the Carried Account. In this action Devon sought Excel versions of the relevant data. CNRL opposed the application, in part on the basis that they had already disclosed the relevant data in the TIFF images that had been provided.

The application judge accepted that obtaining a version of the data which not only showed the “bottom line” but which showed how the figures had been arrived at, and which permitted Devon to reverse engineer the data, was relevant. This was not just a matter of contractual interpretation, the judge noted, but also one relating to the record-keeping:

[74]…Devon’s claim questions not only whether the subject matter of certain debits or credits are permitted by the terms of the Agreement, but also the accuracy and authenticity of those debits and credits. This is consistent with Devon’s allegation that CNRL breached a duty to act in good faith as Operator.

[79] Here, Devon’s request for native files with their metadata is aimed at two ends: (i) discovering how certain numbers in each spreadsheet are calculated and interrelate, and (ii) learning the source of certain data. One of the claims in the pleadings is whether CNRL breached the Agreement by charging Hedging Costs, Excess Benefit Costs, and Other Costs to the Carried Account as part of the Facility Fee, or whether CNRL miscalculated the Other Costs: see paras 32(c)–(d). Perhaps a well-trained eye could guess how the Facility Fee was calculated based on the records produced and the questioning of witnesses, but providing native files with their mathematical formulas intact is the only way to be certain as to how certain cells were calculated. These formulas would help to significantly prove facts directly in issue, e.g. that certain costs were or were not indirectly charged to the Carried Account and/or that those costs were miscalculated. Put simply, where the calculation of amounts charged to the Account are in issue, the formulas used to calculate those amounts are relevant and material.

The issue was not just the relevance of the various documents sought, but also the difficulty and cost involved in producing native versions in place of the TIFF images. CNRL argued that it would suffer significant prejudice if it were required to produce a duplicate Excel version, presenting evidence that the cost of doing so would be $50,000. The trial judge concluded, however, that given the scale of the litigation involved this would not be an unreasonable burden to impose on the defendant.

Seemingly the most important factor swaying the application judge was evidence that the TIFF files did not really constitute meaningful disclosure. This was established in cross-examination of CNRL’s own representative:

Q. Okay. But in order to see the other columns, we have to go to the other pages of the [over 1000-page-long] TIFF image; correct?

A. Yes.

Q. So…can you start scrolling through. Just keep clicking the little arrow. You’re on page 2. Is there any way you know, Mr. Kratz, for us to quickly get to where we know where the end of the spreadsheet is so we can see the rest of the columns?

A. No.

Q. So we have to sit here and click through the number of pages –

A. It’s not useable. I understand that.

Q. So you acknowledge that TIFF images of spreadsheets of this size like this are not useable?

A. For very large TIFF images, correct, yes.

This abstract and inefficient access was not meaningful access to relevant and material records, the judge held, and left it practically difficult to test the assumptions used to arrive at the data, and therefore production of Excel versions was ordered.

Search of GoPro Camera

camera seized in arrest of stunting motorcyclist

The Alberta Provincial Court has upheld the search of a GoPro camera in R v Roy. The accused was observed, along with another person, driving a motorcycle in Banff National Park in a way which was considered reckless and possibly “stunting”. After several unsuccessful attempts the accused were eventually stopped, where the officers observed that the accused was wearing a GoPro. The officers arrested the accused, seized the camera, and then sought a warrant to examine its content. The accused argued that this seizure violated his right to be free from unreasonable search and seizure under section 8 of the Charter.

The trial judge concluded that the accused’s arrest was lawful, and considered the law set out in the Supreme Court decision in R v Fearon, dealing with the search of cell phones incident to arrest, to govern the situation. He noted that the officers in the case had actually sought a warrant before examining the phone, which went beyond what Fearon would have required them to do.

The accused also challenged the actual seizure of the camera, independently of the search of its contents, but the trial judge concluded that this was appropriate given that search incident to arrest had the purpose of preserving evidence:

[25]…It’s well-known that people wear helmet mounted cameras to record their adventures be they skydivers, skiers, bungee-jumpers or, as in this case, motorcyclists. These recordings often find their way onto the Internet or become the subject of “reality TV” shows. Although Warden Henderson did not describe the particulars of his discussion with Cst. Pho, there can be no question that this well-known fact is the reason they thought the camera might contain evidence.

No Reasonable Expectation of Privacy in Sent Text Message

Messages sent from third party phones

The Alberta Court of Queen’s Bench has concluded that the accused in R v Vader had no reasonable expectation of privacy in text messages found on the cell phones of other people. On the face of it this conclusion contradicts that of the British Columbia court of Appeal in R v Pelucco (discussed in the IT.Can newsletter of September 17, 2015), but the facts are somewhat different.

The accused objected to the introduction of text messages which had been obtained through the use of a production order, arguing that the interception of private communications provisions ought to have been used instead. The accused based this argument on R. v. TELUS Communications Co., (discussed in the IT.Can Newsletter of May 1, 2013) which found that those provisions applied to prospective text messages, but was silent on the question of existing text messages. Vader joins a list of cases finding that the reasoning in TELUS is not applicable to text messages which have already been sent (see for example the British Columbia Court of Appeal decision in R v Belcourt, discussed in the IT.Can Newsletter of April 1, 2015).

In addition, however, the application judge concluded that Vader did not have standing to challenge the search, because he did not have a reasonable expectation of privacy in the text messages on the phones of others. Pelucco had held that there was a presumption a person did retain a privacy interest in sent text messages. Here, however, the accused denied having sent the text messages at all, though he claimed to have standing because the Crown alleged that he sent the messages. In addition, none of the cell phones from which the text messages were sent were actually owned by the accused. The judge concluded that this was sufficient to displace the presumption from Pelucco. As the accused did not otherwise establish a privacy interest in the text messages, he was found to have no reasonable expectation of privacy.