Simon's Megalomaniacal Legal Resources

Paramountcy - Conflict and Same Level of Government

. Telus Communications Inc. v. Federation of Canadian Municipalities

In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal makes useful comments on conflict in multiple legislation over the same topic area, as will always be involved with issues of paramountcy - although here it is from the same level of government:

[128] There is nothing incongruous or out of the ordinary in having an activity, a person or a legal entity being regulated by two or more authorities, even at the same level of government. In Reference re Broadcasting (at para. 37), the Supreme Court recognized that the subject matters of the Broadcasting Act and the Copyright Act will overlap in places even though they pursue different aims. The same can obviously be said of the Act, of the Radiocommunication Act and of the Department of Industry Act.

[129] The Minister, through the Department of Industry Act, the Radiocommunication Act and the Radiocommunication Regulations is responsible for spectrum management in Canada. Pursuant to subparagraph 5(1)(a)(i.1) of the Radiocommunication Act, the Minister determines what frequencies may be used, by whom and for what purposes. In the management of this finite public resource, the Minister is guided by the Spectrum Policy Framework for Canada. The sole policy objective identified in that document is "“[t]o maximize the economic and social benefits that Canadians derive from the use of the radio frequency spectrum resource”" (Spectrum Policy Framework for Canada at p. 8). The core duties of the Minister and his Department are therefore to develop policies and processes for the spectrum resource, with a view to ensuring effective management of the radio frequency spectrum resource (Industry Canada, Spectrum Management and Telecommunications, DGSO-001-13: Revised Frameworks for Mandatory Roaming and Antenna Tower and Site Sharing (March 2013) at para. 4).

[130] The Minister’s powers are therefore confined to the operation of radiocommunication, while the CRTC is tasked with the regulation of telecommunications services. In exercising his powers, he may take into account all matters that he considers relevant "“for ensuring the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada”" (Radiocommunication Act, s. 5(1)). Radiocommunication, defined in the Radiocommunication Act as the" “transmission, emission or reception of signs, signals, writing, images sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3,000 GHz propagated in space without artificial guide”", is only one of the means by which signals can be transmitted. As such, it is a subset of telecommunications, defined in the Act as "“the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system”".

[131] In short, a careful examination of the whole legislative scheme governing radiocommunication and telecommunications in Canada shows that the Minister and the CRTC exercise different powers over different types of entities and for different purposes. These powers are complementary and sometimes overlap, and the fact that the Minister and the CRTC may reach different conclusions on a specific topic is by no means a sign that one is encroaching upon the jurisdiction of the other. It is rather because they arrive at their respective conclusions from different perspectives, with a view to implementing different policy objectives.

[132] What, then, of the argument that the CRTC imposed a condition under the Act that conflicts with the Conditions of Licence established by the Minister under the Radiocommunication Act? As previously mentioned, Telus claims that there is a conflict between the Conditions of Licence issued by the Minister and the CRTC Decision since the former do not require it to provide seamless communications hand-off, whereas the latter does require such service. While Telus acknowledges that it could comply with both the Conditions of Licence and the CRTC Decision, it says it could only do so by "“renouncing”" the freedom purportedly granted spectrum licensees to not provide seamless roaming. In my view, Telus’ argument is based on an incorrect and overly broad understanding of the notion of legislative conflict.

[133] We must first start with the presumption that legislation passed by the same order of government does not contain contradictions or inconsistencies. Overlapping is not sufficient; it is only when overlapping provisions cannot stand together, either because they are in operational conflict or because their purposes are incompatible, that a conflict will be found. The Supreme Court has been quite explicit on that subject, even though its use of language has not always been consistent. In Lévis (City) v. Fraternité des policiers de Lévis Inc. (2007 SCC 14, [2007] 1 S.C.R. 591 at para. 47), Bastarache J. (with the unanimous support of his colleagues on this point) wrote that "“legislative coherence is presumed”", and that "“an interpretation which results in conflict should be eschewed unless it is unavoidable”". He then gave the following examples of what it means for two statutes to be in conflict:

Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other (Toronto Railway v. Paget (1909), 1909 CanLII 10 (SCC), 42 S.C.R 488 (S.C.C.)). Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired (Massicotte v. Boutin, 1969 CanLII 97 (CSC), [1969] S.C.R. 818).

[134] The Supreme Court reiterated this restrictive approach to conflict in Thibodeau v. Air Canada (2014 SCC 67, [2014] 3 S.C.R. 340 [Thibodeau]). In that case, the appellant contended that there was a conflict between the Carriage by Air Act, R.S.C. 1985, c. C-26, which incorporated the Montreal Convention and purported to preclude an award of damages for a breach of the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), while subsection 77(4) of the Official Languages Act permits the court to grant an appropriate and just remedy for a breach, including damages. Reiterating that legislation passed by Parliament is presumed not to contain contradictions or inconsistencies unless provisions "“are so inconsistent that they are incapable of standing together”" (Thibodeau at para. 89), the Court stated:

92. The legal framework that governs this question is not complicated. First, courts take a restrictive approach to what constitutes a conflict in this context. Second, courts find that there is a conflict only when the existence of the conflict, in the restrictive sense of the word, cannot be avoided by interpretation. Overlap, on its own, does not constitute conflict in this context, so that even where the ambit of two provisions overlaps, there is a presumption that they both are meant to apply provided that they can do so without producing absurd results. This presumption may be rebutted if one of the provisions was intended to cover the subject matter exhaustively…

See also Thibodeau at paras. 98-99 and 110