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Statutory Interpretation - 'Presumption of Consistent Expression'. Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
Here the court considers the statutory interpretation of 'consistent expression':[55] Applying the presumption of consistent expression, when Parliament has chosen to use different terms it is presumed to have done so intentionally “in order to indicate different meanings” (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 81). In this case, there are strong reasons to conclude, in line with this presumption, that Parliament meant something other than “transmission facility” or “telecommunications facility” when it used the distinct term “transmission line”. Had Parliament wanted to include the very broad range of facilities captured by terms like “transmission facility”, such as antennas, it had terminology on hand to do so. Instead, Parliament used a term that has an ordinary meaning strongly associated with wireline, and not wireless, infrastructure.
[56] I do not agree with the carriers’ position that because “transmission facility” is only used to define the parameters of a “telecommunications common carrier” for the ownership and control regime in s. 16 of the Act, it cannot be used to justify a narrower interpretation of “transmission line”. It is true that the presumption of consistent expression may be more easily rebutted when reviewing provisions found in different parts of a statute, particularly in frequently amended and complex statutes like the Criminal Code, R.S.C. 1985, c. C-46, or insurance legislation (Steele, at para. 65). But the definition of “transmission facility” in s. 2(1) of the Act is not itself linked to the ownership and control regime. It is a general definition that applies to the Act as a whole, in contrast to other definitions that apply to only a particular part of the Act. Further, since both terms were added to the Act at the same time, it is not obvious why one should assume that “facility” and “line” are merely inadvertent variations of an analogous term. It is clear to me that Parliament understood the difference between a “facility” and a “line”, and its choice should be respected. . 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 considered the statutory interpretation principle of 'presumption of consistent expression' (which is also applied in contractual interpretation, which see):[95] Parliament must be presumed to have drawn the distinction between various transmission technologies on purpose. When Parliament decided to expand the specific types of communication lines covered in the Railway Act with the more generic notion of "“transmission line”", it could have gone further and captured all kinds of transmission techniques, wired and wireless. It chose not to do so, and carefully drew the distinction in the Act between transmission facilities and transmission lines. This was a conscious choice. The fundamental distinction between radio transmission through space (wireless) and transmission that relied on an artificial guide (wireline) was well known in 1993, and has not changed since. Courts must respect and implement that choice. As the Supreme Court stated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (at para. 81), "“when different terms are used in a single piece of legislation, they must be understood to have different meanings”".
[96] This presumption of consistent expression has been followed by the Supreme Court in Barrie. At issue in that case was whether the phrase "“the supporting structure of a transmission line”" in subsection 43(5) of the Act was broad enough to grant the CRTC authority over the power utilities’ poles. The Supreme Court found that the wording of that section could not bear the broad meaning given to it by the CRTC and advanced by the Canadian Cable Television Association (CCTA). Noting that a transmission line carries electricity over a large distance with minimum losses, while distribution lines carry less than 50kVof electricity over short distances, the Court noted that the power poles to which the CCTA sought access were distribution lines, not transmission lines. It therefore sided with the utilities, on the premise that Parliament must be taken to have known of that distinction. As the Court stated, "“[h]ad Parliament intended to submit the Utilities’ power poles to the jurisdiction of the CRTC by means of s. 43(5), it would have employed the phrase “distribution line””" (at para. 25). The same reasoning obviously applies to the phrases "“transmission line”" and "“transmission facility”". Different expressions used in the same statute, especially those of a technical nature, must be read as having different meanings.
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