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BYLAWS AND RESOLUTIONS - Grounds for invalidity - Ultra vires - Federal jurisdiction

Friday, June 26, 2020 @ 5:30 AM  

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Appeal by the City from a decision finding that a bylaw, as it applied to telecommunications, was in pith and substance legislation in respect of telecommunications which was properly a subject of federal jurisdiction under s. 92(10)(a) of the Constitution Act, 1867 and directing that the words “telecommunications services” be severed from the definition of “utility provider” in the bylaw. The City and the respondent telecommunication companies were unable to reach an agreement on access to City rights-of-way for the construction of transmission lines. The City enacted the bylaw meant to replace the negotiated access agreements that the City and the Telecoms had historically used to govern access. The bylaw set out the terms and conditions of consent and processes for private utility providers seeking to access a municipal right-of-way. The bylaw applied to “utility providers” defined as a for-profit corporate person that supplied electrical, thermal or other energy services, telecommunications services, or oil and natural gas services. A utility provider must apply to the City for a utility alignment permit by filling out the approved form and paying a fee. The City could process certain applications ahead of others and any non-compliance on a past project could delay a Telecom in obtaining a permit to begin a new project. Through this permitting scheme the City had granted itself the power to dictate the location, scope and schedule of installation, removal, construction, maintenance, repair, replacement, operation, relocation, adjustment and alteration of telecommunication facilities, including the excavation, repair or restoration of City rights-of-way. The chambers judge concluded that the inclusion of “telecommunications services” in the definition of “utility provider” was ultra vires the City and therefore invalid. The chambers judge also applied the doctrines of paramountcy and interjurisdictional immunity, finding that the bylaw was inoperative and inapplicable to the extent that it regulated telecommunications services.

HELD: Appeal dismissed. The extrinsic evidence amply supported the conclusion that the main purpose of the bylaw was to address the work done by telecommunications providers in municipal rights-of-way, to address the difficulties the City had experienced under the negotiated agreements, and to advance the City’s own interest in a fibre strategy. The extrinsic and intrinsic evidence firmly supported the chambers judge’s conclusion that the bylaw, as it related to telecommunications, was in pith and substance a law to regulate the location, construction, operation, maintenance and preservation of telecommunications networks, a matter that had been exclusively allocated to Parliament. Therefore, the bylaw was ultra vires. Parliament had given the national oversight of telecommunications services to the CRTC. It was not within the legislative authority of the City to enact the bylaw.

Bell Canada Inc. v. Calgary (City), [2020] A.J. No. 599, Alberta Court of Appeal, M.S. Paperny, P.A. Rowbotham and T.W. Wakeling JJ.A., May 21, 2020. Digest No. TLD-June222020009