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Telecommunications - Telecommunications Act (2). 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 sets out the statutory regime applicable to the telecommunications carrier system, including '5G':B. The Relevant Statutory Scheme
[9] The Act is part of an “interconnected statutory scheme” governing telecommunications in Canada (Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, at para. 34). The Act concerns telecommunications services provided to the public and the regulation of carriers. As Gonthier J. explained in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, the broad purpose of the Act is to “encourage and regulate the development of an orderly, reliable, affordable and efficient telecommunications infrastructure for Canada” (para. 38; see also Act, s. 7).
[10] Section 43 of the Act grants carriers a qualified right of access to enter and break up highways or other public places to construct, maintain or operate its transmission lines with the consent of the relevant public authority, often a municipality (ss. 43(2) and 43(3)). Where a carrier is unable to obtain consent on terms acceptable to it through negotiation, it may ask the CRTC to intervene and set out terms of access (s. 43(4)). The CRTC can also grant permission for persons to access the supporting structure of a transmission line constructed on public property (s. 43(5)). A municipality can seek an order from the CRTC under s. 44 to prohibit activity that could otherwise be authorized under s. 43.
[11] The full text of the access regime provisions is as follows:43 (1) In this section and section 44, distribution undertaking has the same meaning as in subsection 2(1) of the Broadcasting Act.
(2) Subject to subsections (3) and (4) and section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place.
(3) No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.
(4) Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.
(5) Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.
44 On application by a municipality or other public authority, the Commission may
(a) order a Canadian carrier or distribution undertaking, subject to any conditions that the Commission determines, to bury or alter the route of any transmission line situated or proposed to be situated within the jurisdiction of the municipality or public authority; or
(b) prohibit the construction, maintenance or operation by a Canadian carrier or distribution undertaking of any such transmission line except as directed by the Commission. Other relevant provisions of the Act and the Radiocommunication Act, R.S.C. 1985, c. R-2, are appended to these reasons.[12] The Radiocommunication Act is part of the same interrelated scheme. It deals with the “allocation of specified radio frequencies, the authorization to possess and operate radio apparatuses, and the technical regulation of the radio spectrum” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 44; see S. Handa et al., Communications Law in Canada (loose-leaf), at §§ 3.62-3.65).
[13] Although the carriers have purchased the necessary spectrum licences to transmit 5G, these licences do not permit them to install 5G small cell antennas wherever they choose. Section 5(1)(f) of the Radiocommunication Act vests the Minister of Industry with the authority to approve “each site on which radio apparatus, including antenna systems, may be located” (see Handa et al., §§ 3.71-3.73). Generally speaking, as part of the current ministerial approval process, the carrier must consult with the relevant land-use authorities before installing antennas (see Spectrum Management and Telecommunications, CPC-2-0-03 — Radiocommunication and Broadcasting Antenna Systems (2022), at s. 4.1). However, because 5G small cell antennas are “[n]on-tower structures”, in that they attach to existing structures, they are currently excluded from these consultation requirements (see s. 6).
[14] The Radiocommunication Act is silent on access; it does not grant carriers a right to access public property to install antennas or establish a dispute resolution mechanism. Carriers must obtain access to antenna sites through negotiation with the property owner, whether public or private. . Telus Communications Inc. v. Federation of Canadian Municipalities [5G technology explained]
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 explains the technology transition to '5G' mobile wireless networks:A. The Technology
[6] Canadian telecommunications carriers are in the midst of upgrading their 5G mobile wireless networks, which the CRTC described in 2019 as a “major transformation” in Canadian telecommunications (Telecom Notice of Consultation CRTC 2019-57, February 28, 2019 (online), at para. 18). 5G networks offer faster connectivity and enhanced data capability that will support new applications including the “Internet of Things” (Telecom Regulatory Policy CRTC 2021-130, April 15, 2021 (online) (“CRTC Decision”), at para. 2). Following an auction process in 2021 and 2023, carriers acquired the rights to use the radio frequencies needed for 5G data transmission in exchange for payments to the federal government totalling over $11 billion.
[7] Previous-generation mobile wireless networks have relied on approximately 13,000 large cell antenna towers across Canada to transmit intelligence from their wireline networks to users’ devices. 5G networks employ low-powered small cell antennas. Due to their low range, complete 5G connectivity across Canada will require an estimated 250,000 to 300,000 small cell antennas. While significantly smaller than previous-generation large cell antenna towers, 5G small cell antennas function in essentially the same way. They transmit wireless signals in multiple directions to devices, but still rely on intelligence transmitted through the wires or cables of a carrier’s wireline network. Therefore, a carrier’s mobile wireless network can be understood as involving a combination of both wireline equipment (e.g., fibre-optic cables) and wireless equipment (e.g., 5G small cell antennas).
[8] 5G small cell antennas are not usually free-standing. Instead, they are mounted on existing structures such as telephone poles, lamp posts, bus shelters, or buildings. Many of these structures are located on municipally owned public property. This means the deployment of 5G infrastructure across Canada will require carriers to access public property to install, maintain and operate 5G small cell antennas. . Telus Communications Inc. v. Federation of Canadian Municipalities [case summary]
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 summarizes it's ruling:[1] This appeal is about the proper interpretation of the term “transmission line” in ss. 43 and 44 of the Telecommunications Act, S.C. 1993, c. 38 (“Act”). These provisions are known as the “access regime”. They give telecommunications carriers a qualified right of access to construct, maintain and operate their transmission lines situated on public property. Where the carrier cannot obtain consent to access its transmission lines from the relevant public authority on terms that are acceptable to it, the Canadian Radio-television and Telecommunications Commission (“CRTC”) is empowered to determine the applicable terms of access.
[2] The appellant telecommunications carriers — Telus Communications Inc., Quebecor Media Inc., Videotron Ltd. and Rogers Communications Canada Inc. (collectively the “carriers”) — ask this Court to depart from the interpretation adopted by the Federal Court of Appeal and the CRTC that restricts the meaning of “transmission line” to wireline infrastructure. They ask this Court to declare instead that “transmission line” can include the “small cell” antennas used in new fifth-generation (“5G”) mobile wireless networks. In support of their position, they invite this Court to consider the role of dynamic interpretation and technological neutrality in the interpretation of the Act and, more broadly, in the modern approach to statutory interpretation.
[3] I would dismiss the appeal. The term “transmission line” only refers to wireline infrastructure. It would be inconsistent with the text, context and purpose of ss. 43 and 44 of the Act to say that Parliament intended the term to extend to antennas. The ordinary meaning of “transmission line” and the text of ss. 43 and 44 have a strong physical and linear connotation that readily applies to wireline infrastructure like wires or cables, but not to antennas. Likewise, the broader context of the Act, including other defined terms and the Act’s legislative history, supports the narrower interpretation. The general policy objectives in s. 7 of the Act do not require the interpretation of “transmission line” that is the most advantageous to the carriers. Parliament’s balancing of the carriers’ interests against those of public authorities must be respected. The narrower interpretation does not lead to absurd consequences nor does it raise federalism concerns, as the carriers have suggested.
[4] Ultimately, this is not an appeal about whether wireless service is important to Canadians, nor about whether the Act broadly aspires to technological neutrality. No one would seriously dispute these points. Instead, this appeal is about the proper scope of the CRTC’s power under the Act. The carriers’ interpretation would, as the CRTC itself recognized in the proceedings below, overstep principled limits inherent to the access regime.
[5] For these reasons, the CRTC was correct in concluding that it does not have jurisdiction under the access regime to adjudicate disputes over access to 5G small cell antennas situated on public property. Parliament intended to leave access to these sites up to good faith negotiation between carriers and the relevant public authorities such as municipalities. If legislative change is desirable in light of evolving policy considerations, that is the role of Parliament.
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