Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15
Category: Statutory interpretation.
Context: Hot on the heels of CISSS A, 2024 SCC 43 (Issue #162) and Piekut v Canada (National Revenue), 2025 SCC 13 (Issue #175), this is yet another entry in the Supreme Court’s ongoing mission to bring clarity to statutory interpretation. The interpretive question in this case is elegantly simple: does the term “transmission line” in the Telecommunications Act include modern 5G small cell antennas?
Procedurally, this is an appeal from a decision of the CRTC stemming from a consultation on the regulatory framework for wireless services (see paras 15-19 of the decision). The issue on appeal involves the deployment by carriers of 5G small cell antennas, which will “require carriers to access public property to install, maintain and operate 5G small cell antennas” [8]. This engages the so-called “access regime” under s.43 and 44 of the Telecommunications Act, and whether the CRTC could resolve disputes over access between carriers and public authorities. The CRTC declined authority, concluding that Parliament intended the term “transmission line” to refer to wireline infrastructure. The Federal Court of Appeal affirmed that conclusion.
Issue: Does the term “transmission line” encompass 5G wireless small cell antennas?
Holding: No. The majority (Moreau J) affirmed the CRTC’s conclusion that “transmission line” refers only to wireline infrastructure [3]. In dissent, Côté J (Martin J concurring) would have allowed the appeal, arguing that the ordinary meaning of “transmission line” encompasses 5G small cell antennas and that the purposes of the Telecommunications Act support a broader interpretation [93].
Analysis: I’m not shy about calling out the Supreme Court when I think its missed the mark, but credit where it’s due: its recent cases have brought serious rigour to statutory interpretation. Moreau J’s reasons (affirming strong reasons in the Federal Court of Appeal) in Telus Communications are a welcome addition to this pantheon, mirrored in some of the lower courts: see e.g. Manns v Vancouver Island Health Authority, 2024 BCCA 110; Canada v DAC Investment Holdings Inc, 2025 FCA 37. The holding in this case clarifies and affirms two aspects of the modern approach. Both clarifications underscore the primacy of statutory text in the modern approach.
Original Meaning and Dynamic Interpretation
First, Moreau J’s conclusion that “transmission line” must refer to physical, wireline infrastructure reflects a sound approach to the concept of “dynamic interpretation.” Courts can, as Moreau J says, apply statutes to “new or evolving circumstances” [33]. This invites the possibility that “transmission line” could refer to some phenomenon that was unknown at the time of enactment. In theory, “there is no contradiction between the principles that the interpretive exercise is grounded in the intent of the enacting legislature and that statutes can be applied to circumstances that were not contemplated by the legislature” [35].
Why is this so? Law does not exist in the minds, hopes, and dreams of the enacting legislators. The intent of the legislature as a corporate body is expressed through the enacting text, interpreted at the time of enactment, as the SCC has long and frequently recognized: see e,g, The King v Dubois, [1935] 1 SCR 378; R v Multiform Manufacturing Co, [1990] 2 SCR 624; Michel v Graydon, 2020 SCC 24 at para 21; MediaQMI inc v Kamel, 2021 SCC 23 at para 24. In other words, we are governed by intention expressed in legal text, not intention expressed in the minds of the enacting legislators. See also my article on Sir Lyman Duff, who expressed this sentiment eloquently.
If so, then it is possible for the text to encompass circumstances that legislators did not imagine, but this is entirely a function of the semantic breadth of the legislative term chosen by the legislators to express its intention: the degree to which the text is “open-textured.” As Paul Daly writes, open-texture is fundamentally different from the concepts of vagueness and ambiguity. In some of the Supreme Court’s case law, there is a reference to ambiguity which exists where a term is amenable to two different interpretations. Sometimes, the Court refers to this requirement of “ambiguity” before resorting to other principles of interpretation : see e.g. La Presse inc v Quebec, 2023 SCC 22 at para 24. Open-textured language is different. It is a recognition that even though the meaning of a term may be stable, it can be applied in different ways.
The choice of language is like an elastic band. A term can stretch broadly, or it can be narrowed, but there is always a limit. This is a function of drafting choices, and courts can arrange these different “institutional design choices” (to use the SCC Vavilov vernacular) on a spectrum, from extremely broad language (“public interest” delegations), to narrow “statutory recipes” that require a decision-maker to consider certain factors: see Almon Equipment, 2010 FCA 193. This initial recognition of breadth by an interpreter of the text is important in multiple areas of law: open-textured, broad terms tend to mean more deference under Vavilov; they tend to invite a greater role for the use of statutory purpose; and, in the Telus case, they tend to invite a greater scope for the application of the terms to new circumstances. Where, on the other hand, a word has a defined, semantically bound meaning, that term is less amenable to application to new circumstances.
In this case, I think Moreau J is right to conclude that dynamic interpretation simply has no role to play. The term “transmission line,” in its ordinary meaning, imports a requirement of physicality. The surrounding context of the term supported this conclusion: the surrounding provisions referred to the construction of transmission lines “on, over, under, or along a highway or other public place,” which connotes a physical line [49]. On the other hand, transmission from an antenna does not fit so neatly in this regime. As Moreau J notes, radio waves “do not follow a defined path” nor are they “buried or constructed” [51].
In my view, this case is a fantastic demonstration of the meaning of the Supreme Court’s important comments in CISSS A. The language used in that case was memorable: the text of the statute is the “anchor” of the modern approach. By considering—as an initial step—the relative breadth of the statutory language, courts can respect the text. This is true across statutory interpretation. No unwritten norm, purpose, or developing circumstance can be used to disrespect the semantic meaning of the text if, as CISSS A insists, the text anchors the interpretive exercise. This is because the text demonstrates how the legislature wishes to achieve its broader goals, and is therefore constitutive of the legislature’s purpose. Unravelling that choice to better approximate the judicial view of statutory purpose is dangerous business, in part because courts cannot study (or know with any precision) the potential consequences.
I will point out one quibble with the majority decision. Moreau J notes that “…Hansard does not disclose any intention that Parliament intended to expand the access regime to include wireless radiocommunication apparatus like antennas” [62]. As a general matter, we should not forget the good reasons why the Supreme Court has recently attached caution to the use of Hansard evidence (see MediaQMI, at para 37). Even if this evidence is probative, it is always dangerous to conclude that because Hansard did not say something, one can draw a positive indication of the legislature’s intention. Known in the U.S. as the ‘Sherlock Holmes Canon’ or the ‘dog that didn’t bark canon’—a reference to inferring intent from legislative silence—its use is questionable. Better, in my view, to stick to the language of the enactment rather than divining inspiration from a counterfactual.
Purpose
A second point bears mentioning about Telus and its approach to statutory purpose. As usual, parties tried to make the argument that a dynamic interpretation is supported by the purposes of the statute. The carriers argued that objectives of the Telecommunications Act compelled an interpretation that “best ensures the deployment of 5G infrastructure across Canada” [69]. At this point, CISSS A and Piekut are decisive against such a position. Piekut, for example, held that the general “fresh start principle” in bankruptcy law cannot overwhelm the specific textual design choices chosen by the legislature (Piekut, at para 110). This is a welcome development that the Court has emphasized with some vigour in recent cases.
In dissent, however, Côté J would have found that the term “transmission line” encompasses 5G technology. She reached this conclusion based on the ordinary meaning of the term. In her view, “transmission line” is not a semantically bound term, but a broad one that encompasses things that do not necessarily require a physical line [171]. This is merely a disagreement with the majority’s framing of the term, rather than a fundamental methodological disagreement. Fair enough.
However, Côté J also reaches this conclusion because the purposes of the Telecommunications Act—in her view—inform how the access regime should be interpreted. This is a different methodological choice from the majority. By concluding that the CRTC does not have authority, Côté J was worried that the purposes of the statute—in part to allow the roll-out of technological developments in a technologically neutral manner—would be undermined by the majority’s interpretation [159-166].
One can be sympathetic to Côté J’s view because of the practical consequences of the majority’s interpretation. But, in my view, this sympathy should be tempered by a dose of legal principle. There are principled and practical problems when the court steps in, under the guise of dynamic interpretation, especially when a term under interpretation is semantically bound. First, it is the constitutional role of the legislature to legislate. It is not for courts to apply defined statutory terms to new circumstances or to better approximate statutory purposes in absence of a clear warrant that this is required. Doing so, as Moreau J notes, might unravel Parliament’s balancing of competing interests in the access regime [71]. Côté J is, in my view, not attentive enough to this problem.
Second, and perhaps more importantly, courts engaging in dynamic interpretation based on purposive considerations are engaging in a complex business. When they conclude that a statute applies to new circumstances, they are extending a legislative term to new phenomenon. Courts do not know what they do not know. They do not know how this extension will impact the rest of the legislative regime or the expectations of the regulated parties. On the other hand, legislatures are better suited to adapt their regimes to new and complicated realities. That is the essence of legislative choice. Barring a clear indication, courts should hesitate before “updating” statutory terms.
This is why, as Côté, Brown and Rowe JJ said in R v Kirkpatrick, 2022 SCC 33, at para 131, it is a fundamental error to believe that “living tree” interpretation applies to statutory interpretation. The legislature’s intent at the time of enactment is represented in a text. Respect for the legislature’s position in the constitutional order requires respect for that text. What’s more, the temptation to engage in living tree-ism in statutory law is one that carries potential risks, including the unintentional mucking up of legislative schemes.
Saint Mary’s University v Nova Scotia Human Rights Commission, 2025 NSSC 107 (April 17, 2025)
Category: Reasonableness review.
Context: This is a judicial review of the Nova Scotia Human Rights Commission. It referred a complaint of a student, Gould, to a Board of Inquiry. The complaint arose because Gould complained about the content of an article written by her professor, Dr. MacKinnon. The Court (per Boudreau J) relates the content of the article:
[5] In this article Dr. MacKinnon expressed criticism toward the applicant (his employer) for its approach to Indigenous issues and students. He discussed his specific experiences with a Mi’kmaq student (who he calls “Q”) in his Philosophy of Law class during the winter of 2018. He noted that Q did quite poorly in his class, and by late in the term was on her way to earning a failing grade. To his surprise the applicant granted her a “withdrawal” from the class instead (outside of the applicable deadline). Dr. MacKinnon suggested that this student had received preferential treatment.
Gould’s complaint alleged discrimination on one prohibited ground, namely, in “the provision of or access to services or facilities” based on “ethnic, national or aboriginal origin”, contrary to sections 5(a) and (q) of the Nova Scotia Human Rights Act.
Issue: The applicant’s arguments on judicial review centre around procedural fairness and substantive unreasonableness. I will focus on the latter.
Holding: The decision is unreasonable.
Analysis: The Commission decision flounders here because it was based on a flawed investigative report. While the reporting officer began with the legislative provision, she did not end there—she spent a good deal of time talking about the “history of systemic racism in Nova Scotia regarding historically marginalized vulnerable groups.”
The officer says that this context “may have played a part” in the alleged actions [54, 56]. While this context may be relevant and probative in a human rights context, Boudreau J is right to say that a reference to “context” by itself “cannot move a complaint forward to an inquiry” [55]. That is because the legislative design of the Human Rights Act is premised on individualized complaints [55]. Context itself cannot prove that an individual complaint meets the precise legal standards contained in the statute. That means, as Boudreau J says, that the evidence must show that MacKinnon’s actions caused a discriminatory treatment as applied to Gould. That may exist on these facts, but the report (and therefore, the Commission’s referral decision) did not analyze the proper question through the right legal standards. This is a classic error in reasonableness review.
Additionally, Boudreau J faults the decision-maker for failing to consider freedom of expression. The freedom of expression is recognized in the Human Rights Act [72]. This meant that this statutory recognition was an important legal constraint on the decision that simply went unaddressed [73]. This is a drop-dead Vavilov error.
The key, practical takeaway: the enabling statute is the most important Vavilovian constraint.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own