Factum - Federal Court of Appeal

808
Court File No.
FEDERAL COURT OF APPEAL
B E T W E E N:
TELUS COMMUNICATIONS INC.

Appellant
- and -
CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS

COMMISSION AND OTHERS
Respondents
MEMORANDUM OF FACT AND LAW OF THE APPELLANT,

TELUS COMMUNICATIONS INC.
(Rule 352 Motion for Leave to Appeal)
May 14, 2021 BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9
Catherine Beagan Flood LSO #43013U

Tel: 416-863-2269
cbe@blakes.com
Naiara Toker LSO #77849J

Tel: 416-863-2612
Fax: 416-863-2653
naiara.toker@blakes.com
Michael Ryan LSO #19686U

michael.ryan@mhryanlaw.com
Solicitors for the Appellant,

TELUS Communications Inc.
809
2
TO: The Administrator

Federal Court of Appeal
180 Queen Street West
Suite 200
Toronto ON M5V 3L6
TO: CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS

COMMISSION
Claude Doucet
Secretary General
sec-gen@crtc.gc.ca
AND TO: RESPONDENTS AS SET OUT IN SCHEDULE A TO THE ORDER OF

JUSTICE NEAR DATED MAY 14, 2021
810
TABLE OF CONTENTS
Page No.
PART I - STATEMENT OF FACTS ................................................................ 4

A. Regulation of Canada’s Telecommunications Sector ..................... 4
B. Construction of Telecommunications Infrastructure ...................... 6
C. The Minister’s Conditions of Licence relating to Seamless
Roaming ............................................................................................ 10
D. The CRTC Decision .......................................................................... 12
PART II - POINTS IN ISSUE......................................................................... 14
PART III - STATEMENT OF SUBMISSIONS ............................................... 14
A. The Test on a Motion for Leave to Appeal ..................................... 14
B. The Standard of Review on Appeal................................................. 15
C. There is an Arguable Case that the CRTC Erred in Law or
Jurisdiction ....................................................................................... 15
i. The Access Issue ........................................................................ 15
ii. Seamless Roaming Issue ........................................................... 23
PART IV - STATEMENT OF THE ORDER SOUGHT ................................... 30
PART V - LIST OF AUTHORITIES ............................................................... 31
811
OVERVIEW
1. This is a motion by TELUS Communications Inc. (“TELUS”) for leave to
appeal two aspects of the decision of the Canadian Radio-television and
Telecommunications Commission (“CRTC” or “Commission”) in Review of
Mobile Wireless Services, Telecom Regulatory Policy CRTC 2021-130, dated
April 15, 2021 (the “CRTC Decision”).1 For clarity, TELUS is not seeking leave
to appeal the CRTC’s conclusion in the CRTC Decision that TELUS and other
national wireless carriers will be required to introduce a wholesale service
(known as wholesale mobile virtual network operator (MVNO) access service)
that will enable eligible regional wireless carriers to use the national wireless
carriers’ networks to provide competing services while they build out their own
networks. Rather, this application for leave to appeal relates to two other
important matters decided by the CRTC in the CRTC Decision.
2. First, the CRTC erred in law or jurisdiction in concluding that the right
granted to telecommunications carriers by s. 43 of the Telecommunications Act
(“TA”) to access highways and other public places to construct, maintain and
operate telecommunications infrastructure applies only to infrastructure to
provide wireline services, and does not extend to the infrastructure for wireless
telecommunications, such as new 5G technology (the “Access Issue”). The
CRTC reached this conclusion despite its own findings that “[o]ne of the first
1 Canadian Radio-television and Telecommunications Commission. Telecom

Regulatory Policy CRTC 2021-130 (Ottawa: Canadian Radio-television and
Communications Commission, 15 April 2021) [CRTC Decision], Motion Record
of the Moving Party (“MR”), Tab 2.
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steps toward the introduction of 5G technology is the construction of the cellular
network infrastructure that the technology requires”,2 that “[telecommunications]
carriers will continue to need to acquire and develop high-power cell sites where
they can install radio equipment on ground-based masts, towers, rooftops, and
other existing structures,”3 and that upgrading Canada’s networks to 5G will
make them “exponentially faster, more pervasive and more versatile.”4
3. The CRTC incorrectly concluded that it did not need to exercise
jurisdiction given the power of the Minister of Innovation, Science and Industry
(the “Minister”) under the Radiocommunication Act (“RA”) to approve sites for
the placement of radio apparatus. The RA does not provide access to such
sites. By reading s. 43 of the TA narrowly to exclude newer technologies, and
declining jurisdiction over access for their deployment, the CRTC has created a
lacuna in the federal regulatory scheme that is inconsistent with the modern
approach to statutory interpretation,5 and will delay 5G services for Canadians.
2 Canada, Canadian Radio-television and Telecommunications Commission.

Notice of Consultation CRTC 2019-57 (Ottawa: Canadian Radio-television and
Communications Commission, 28 February 2019) at para. 42 [Notice of
Consultation], Affidavit of Daniel Stern affirmed May 14, 1021 (“Stern
Affidavit”), MR, Tab 3A.
3 Notice of Consultation at para. 42, Stern Affidavit, MR, Tab 3A.
4 CRTC Decision at para. 417, MR, Tab 2.
5 The Supreme Court of Canada has adopted Driedger’s modern principle of
statutory interpretation: “Today, there is only one principle or approach, namely,

the words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament”: Stubart Investments Ltd v. R., [1984] 1
S.C.R. 536 at 578, Book of Authorities of the Moving Party (“BA”), Tab 1.
813
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4. Second, the CRTC exceeded its jurisdiction by establishing a new
“condition of service” that requires the national wireless carriers, including
TELUS, to provide an enhanced form of roaming,6 called “seamless roaming”,
to eligible regional wireless carriers (the “Seamless Roaming Issue”). This
new condition effectively purports to amend a “condition of licence” attached to
the spectrum licences issued to wireless carriers by the Minister under the
Radiocommunications Act (“RA”), which states the opposite — that wireless
carriers are not required to provide seamless roaming to competitors.
5. TELUS and other wireless carriers have spent billions of dollars licensing
wireless spectrum from the Minister under the specific conditions of licence set
by the Minister. Jurisdiction to amend the Minister’s condition of licence is
reserved exclusively to the Minister in the RA. The CRTC cannot simply reach
a different policy conclusion and issue a conflicting condition.
6. Both the Access Issue and the Seamless Roaming Issue raise important
legal questions regarding the respective jurisdictions of the CRTC under the TA
and the Minister under the RA and the Department of Industry Act (“DIA”) in
relation to wireless telecommunication. This Court has never previously
addressed the division of or overlap in jurisdiction as between the CRTC and
the Minister, or the implications of a conflict between them. In the absence of
such guidance, the CRTC wrongfully declined jurisdiction with respect to the
6“Roaming” is a service provided by TELUS to another carrier, which allows the

carrier to offer their customers the ability to use their mobile phones outside the
carrier’s coverage area, by using TELUS’s network.
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Access Issue, and overreached its jurisdiction with respect to the Seamless
Roaming Issue.
7. There is an “arguable case” that the CRTC erred in law and jurisdiction
in the determinations it made on the Access Issue and the Seamless Roaming
Issue. Leave to appeal is therefore merited.
PART I - STATEMENT OF FACTS
A. Regulation of Canada’s Telecommunications Sector
8. Wireless communications are regulated by two agencies: i) the CRTC,
which regulates matters such as rates and services under the TA;7 and ii) the
Minister (acting through the Department of Innovation, Science and Economic
Development Canada (“ISED”)), who regulates the use of spectrum over which
telecommunications carriers provide wireless services under the RA.8
9. The DIA also grants the Minister all federal powers over
telecommunications that have not been assigned to the CRTC or another
agency:9
Powers, duties and functions

4 (1) The powers, duties and functions of the Minister extend to and
include all matters over which Parliament has jurisdiction, not by law
assigned to any other department, board or agency of the
Government of Canada, relating to …
(k) telecommunications, except in relation to
7 Telecommunications Act, SC 1993, c. 38 [TA].

8 Radiocommunication Act, RSC 1985, c R-2 [RA].
9 Department of Industry Act, SC 1995, c. 1, s. 4(1) [DIA].
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(i) the planning and coordination of

telecommunication services for departments,
boards and agencies of the Government of
Canada, and
(ii) broadcasting, other than in relation to
spectrum management and the technical
aspects of broadcasting;
(l) the development and utilization generally of
communication undertakings, facilities, systems and
services for Canada; …
10. The RA makes the Minister responsible for planning the allocation and
use of the spectrum, and specifically assigns to the Minister the responsibility to
determine to whom a radio or spectrum licence may be issued, and to fix the
related terms and conditions:10
Minister’s powers
5 (1) Subject to any regulations made under section 6, the Minister
may, taking into account all matters that the Minister considers
relevant for ensuring the orderly establishment or modification of
radio stations and the orderly development and efficient operation of
radiocommunication in Canada,
(a) issue
(i.1) spectrum licences in respect of the utilization of
specified radio frequencies within a defined geographic
area, …
and may fix the terms and conditions of any such licence,
certificate or authorization including, in the case of a radio
licence and a spectrum licence, terms and conditions as to the
services that may be provided by the holder thereof;
(b) amend the terms and conditions of any licence, certificate

or authorization issued under paragraph (a); …
10 RA, s. 5.
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11. Since the passage of the TA in 1993, wireless communications have
exploded, and wireless infrastructure now makes up an integral and increasingly
important part of Canada’s telecommunications networks.11
B. Construction of Telecommunications Infrastructure
12. TELUS provides wireline and wireless telecommunications services to
customers across Canada. In order to provide its services, TELUS owns and
operates an extensive network that includes both wireline facilities (e.g., fibre
optic cable and copper wire, installed on poles and in underground ducts) and
wireless facilities (e.g. microwave and cellular antennas). Some of this
infrastructure is installed along and under public roads and in other public
places.
13. The mobile wireless service market is on the verge of a major
transformation, since wireless carriers, including TELUS, are starting to deploy
fifth generation or “5G” technology into their networks.12 Access to “highways
and other public places”, and in particular rights of way along municipal roads,
will be key to the deployment of 5G technology.13 This will require installation
of a dense network of thousands of small cells which will transmit intelligence
wirelessly to mobile phones (over spectrum that is licensed by the Minister, as
11 Rogers Communications Canada Inc., Intervention to Telecom Notice of

Consultation CRTC 2019-57 (15 May 2019) at para. 436 [Rogers Intervention],
Stern Affidavit, MR, Tab 3F.
12 Notice of Consultation at para. 18, Stern Affidavit, MR, Tab 3A.
13 Shaw Communications Inc., In the matter of Telecom Notice of Consultation
CRTC 2019-57, Call for comments: Review of mobile wireless services (15 May
2019) at paras. 100-101 [Shaw Intervention], Stern Affidavit, MR, Tab 3H.
817
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further described below).14 Each small cell needs to be affixed to supporting
infrastructure, such as light standards, lamp posts, bus shelters, and buildings.
These small cells connect to the carrier’s core radio network, typically by fibre
optic cable.15
14. TELUS intends to add small cells to various types of infrastructure,
including existing wireline infrastructure that is already in the rights-of-way to
which TELUS has access under s. 43 of the TA.16
15. Parliament recognized at an early stage that the rollout of
telecommunications service required that telecommunications carriers must
have ready access to public lands to install their infrastructure. In 1899,
Parliament amended the Railway Act to confer on “telephone and telegraph
companies” the right to enter upon and break up highways and other public
places to construct, operate and maintain their “telegraph and telephone lines”.17
14 Notice of Consultation at para. 42, Stern Affidavit, MR, Tab 3A; TELUS
Communications Inc., Telecom Notice of Consultation CRTC 2019-57: Review
of mobile wireless services intervention (15 May 2019) [TELUS Intervention] at
para. 134, Stern Affidavit, MR, Tab 3B; Shaw Intervention at para. 97, Stern
Affidavit, MR, Tab 3H.
15 Rogers Intervention at para. 163, Stern Affidavit, MR, Tab 3F; Federation of
Canadian Municipalities (FCM), Further Comments (22 November 2019) [FCM

Further Comments] at para. 8, Stern Affidavit, MR, Tab 3I; Review of mobile
wireless services Telecom Notice of Consultation CRTC 2019-57, Transcript,
Hearing February 21, 2020, Vol. 4 (Revised) at 6406-6408, 6467-8 [Transcript,
Vol. 4].
16 TELUS Intervention at para. 135, Stern Affidavit, MR, Tab 3B; Rogers
Communications Canada Inc., Further Comments (22 November 2019) at para.

258, Stern Affidavit, MR, Tab 3G.
17 Railway Act, RSC 1899, 62-63 Vic, c. 37, s. 90. The 1899 legislation and
subsequent iterations of the Railway Act regulating carrier access to public lands
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16. In 1993, Parliament enacted the first Telecommunications Act. This
legislation carried forward many provisions of the Railway Act. Section 43 of
the TA, quoted below, was one such provision, although the phrase “telegraph
and telephone lines,” which had remained in the legislation governing carrier
access to public lands until this point, was replaced with “transmission line.” The
latter term is not defined in the TA.
17. Under the s. 43 regime, a telecommunications carrier that seeks to
construct, maintain or operate its infrastructure within a public right-of-way is
required to obtain consent from the public authority.18 If a carrier is unable to
obtain consent on acceptable terms, it may apply to the CRTC for permission:19
Construction and Expropriation Powers
Definition
43 (1) In this section and section 44, distribution undertaking has the
same meaning as in subsection 2(1) of the Broadcasting Act.
Entry on public property

(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
referred to the carriers’ right to construct, operate and maintain “telegraph and
telephone lines” on public lands.
18 TA, s. 43(3). Sections 43 and 44 substituted the term “telegraph and
telephone lines” for “transmission lines”, which is not defined in the Act.
19 TA, s. 43(4); Canada, Canadian Radio-television and Telecommunications
Commission. Telecom Decision CRTC 2013-618 (Ottawa: Canadian Radio-

television and Communications Commission, 2013) at para. 1 [Telecom
Decision 2013-618], BA, Tab 2.
819
9
interfere with the public use and enjoyment of the highway or other
public place.
Consent of municipality
(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.
Application by carrier
(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.
18. One of the stated purposes of the new Act was to modernize the
legislative framework. 20 The TA’s legislative history demonstrates that
Parliament intended the Act to be interpreted and applied in a technology-
neutral manner. Perrin Beatty, then Minister of Communications, stated to the
House of Commons Sub-Committee on Bill C-62, an Act respecting
Telecommunications, during its review of the bill:21
The bill deliberately sets a framework which will be flexible for the future.
One of the things we wanted to avoid was a situation where new
20 House of Common Debates, 34th Parl, 3rd Sess, Vol 14 (19 April 1993) at
18068 [House of Common Debates], BA, Tab 21 (“Business, think-tanks and
government studies alike have concluded that a modern legislative framework
is crucial to Canada's ability to compete in telecommunications. Unfortunately,
we do not have modem and efficient legislation. While Robert Borden and
George Percy Graham are long since gone, our telecommunications industry is
still governed by the Railway Act of 1908, which is so dated that it is not even
used to regulate the railways any more”). See also at 18070.
21 House of Commons, Sub-Committee on Bill C-62, 34th Parl, 3rd Sess, Vol 1,
No 1-14 (11 May 1993) at 8:16 [Sub-Committee on Bill C-62], BA, Tab 22. See
also House of Common Debates at 18067, 18075 and 18126, BA, Tab 21.
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technologies would rapidly make the regulatory framework spelled out in

the bill obsolete. We wanted to have a bill that was technologically
neutral that would set out the broad objectives in terms of what we’re
trying to obtain and ensure that we had a regulatory structure in place
that was flexible and modern.
19. The RA has no provisions that mirror s. 43 of the TA. Section 5(1)(f) of
the RA gives the Minister the power to “approve each site on which radio
apparatus, including antenna systems, may be located, and approve the
erection of all masts, towers and other antenna-supporting structures,”22 but no
authority to access public places to attach telecommunication facilities to such
structures.
C. The Minister’s Conditions of Licence relating to Seamless

Roaming
20. Radio frequency spectrum is a finite public resource owned by the
Government of Canada. TELUS and other wireless carriers have been licensed
by the Minister to use certain bands for the provision of their wireless networks.23
TELUS spent in excess of $4.5 billion acquiring spectrum licences from the
Minister.24
21. TELUS’ licences include the following conditions issued by the Minister:25
2. Mandatory Roaming
22 RA, s. 5(1)(f).
23 Industry Canada, Spectrum Management and Telecommunications:
Framework for Spectrum Auctions in Canada (Issue 3: March 2011) s. 1
[Framework for Spectrum Auctions] , BA, Tab 23.
24 TELUS Communications Inc., Response to Request for Information,
TELUS(CRTC)24May19-101 (24 May 2019) [Telus RFI 101], Stern Affidavit,

MR, Tab 3C.
25 Government of Canada, G7-CPC-2-0-17 Conditions of Licence, BA, Tab 24.
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Cellular and PCS licensees must comply with the mandatory roaming
requirements set out in Industry Canada's Client Procedures Circular
CPC-2-0-17 Conditions of Licence for Mandatory Roaming and Antenna
Tower and Site Sharing and to Prohibit Exclusive Site Arrangements, as
amended from time to time.
22. On the subject of seamless roaming, CPC-2-0-17 says the following (the
“Conditions of Licence”):26
2. The roaming which must be offered in accordance with this licence

condition is defined by the following characteristics: …
o Roaming does not require communications hand-off between

Home and Host Networks, such that there is no interruption of
communications in progress; …
23. While seamless roaming is technically possible on 5G technologies, it is
subject to major technical challenges and expensive to maintain. For example,
elements of the two carriers’ networks need to be physically connected in areas
where they overlap, and radio sites along the border areas of the respective
networks need to be defined for special hand-off. Furthermore, because carriers
are continually changing their network boundaries, each location where
seamless hand-off is to occur would need to be modified every time a new site
is added to the edge of a network.27
26Industry Canada, Spectrum Management and Telecommunications, Client

Procedures Circular CPC-2-0-17, Conditions of Licence for Mandatory Roaming
and Antenna Tower and Site Sharing and to Prohibit Exclusive Site
Arrangements (Issue 2: March 2013) [Conditions of Licence], BA, Tab 25. In the
“Background and Guidance” portion of the Conditions of Licence, the Minister
explained: “Seamless communications hand-off between Home and Host
Networks (i.e. which ensures no interruption of communications in progress) is
not mandated; however, this service may be the subject of negotiations”: s. 38.
27 TELUS Communications Inc., Response to Request for Information,
TELUS(CRTC)5Jul9-217 (12 September 2019) at 1, 3, Stern Affidavit, MR, Tab

3D; Review of mobile wireless services Telecom Notice of Consultation CRTC
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24. In 2012-2013, the Minister considered requests to amend the Condition
of Licence providing that seamless roaming is not required.28 In deciding not to
make the amendment, the Minister noted: “Industry Canada is not aware of any
other country that mandates seamless communications hand-off,” and that
“mandating these types of arrangements is not considered necessary for the
advancement of Industry Canada’s stated policy objectives.”29
D. The CRTC Decision
25. The CRTC issued its Decision on April 15, 2021. Among other things,
the CRTC concluded that it lacked jurisdiction over access to public places for
the purpose of constructing, maintaining or operating wireless transmission
facilities.
26. The CRTC’s determination that it lacks jurisdiction over access to public
places for the purpose of constructing, maintaining or operating mobile wireless
transmission facilities, such as small cell attachments required for 5G
technology, rested heavily on a narrow interpretation of the term “transmission
line” found in s. 43 of the TA, a term that is not defined in the Act. The CRTC
2019-57, Transcript, Hearing February 21, 2020, Vol. 3 (Revised), Stern

Affidavit, MR, Tab 3J.
28 Industry Canada, Spectrum Management and Telecommunications:
Proposed Revisions to the Framework for Mandatory Roaming and Antenna

Tower and Site Sharing (March 2012) [Mandatory Roaming Revisions], BA, Tab
26.
29 Industry Canada, Spectrum Management and Telecommunications: Revised
Frameworks for Mandatory Roaming and Antenna Tower and Site Sharing -
Spectrum management and telecommunications (March 2013) at s. 5.2, and
specifically paras. 43-44.
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Decision acknowledged that dictionary definitions of the term “line” “are varied
but for the most part contemplate a physical and tangible pathway.” 30 The
CRTC concluded that “Parliament meant to capture ‘transmission cables’ and
‘transmission wires,’” but not infrastructure for wireless services.31
27. The CRTC stated that “an interpretation limiting transmission lines to
transmission cables and wires appropriately recognizes the broader statutory
scheme enacted by Parliament, including the scheme of the closely related
Radiocommunication Act, which provides the Minister of Industry with the power
to approve sites for the placement of radio apparatus, as set out in s. 5(1) of that
Act.”32
28. The CRTC Decision also directed the national carriers, including TELUS,
to begin offering seamless roaming within one year of the date of the CRTC
Decision,33 in conflict with, and effectively amending the existing Conditions of
Licence issued by the Minister.
29. The CRTC Decision setting this new condition rests entirely on the
CRTC’s consideration “that mandating the provision of seamless roaming would
be consistent with the [CRTC’s] 2019 Policy Direction’s call to reduce barriers
to entry into the market and to competition for telecommunications service
providers that are new, regional, or smaller than the incumbent national service

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providers” and with the policy objectives set out at s. 7 of the TA.34 The CRTC
did not address the conflict between its new seamless roaming requirement and
the Minister’s Conditions of Licence.
PART II - POINTS IN ISSUE
30. The issue on this motion is whether TELUS should be given leave
pursuant to s. 64(1) of the TA to appeal the portions of the CRTC Decision
relating to:
a. carriers’ access to public property to construct, maintain and
operate wireless telecommunications infrastructure; and
b. the authority of the CRTC to require TELUS to provide seamless
roaming to other wireless carriers.
PART III - STATEMENT OF SUBMISSIONS
A. The Test on a Motion for Leave to Appeal
31. A decision of the CRTC may be appealed to this Court on a question of
law or jurisdiction with leave. The threshold on a motion for leave to appeal is
not an especially high one: TELUS must demonstrate only that there is an
arguable ground on which the proposed appeal might succeed. TELUS is not
required to demonstrate that it is likely to succeed on the merits of the appeal,
only that the proposed appeal raises an “arguable case”.35 TELUS submits that
34CRTC Decision at para. 407, MR, Tab 2.

35CKLN Radio Inc. v. Canada (Attorney General), 2011 FCA 135 at para. 6, BA,
Tab 3.
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each of the questions of law or jurisdiction at issue in this leave application meet
or exceed this standard.
B. The Standard of Review on Appeal
32. If leave is granted, the questions of law and jurisdiction at issue in this
application will be reviewed on a standard of correctness. In Vavilov, the
Supreme Court held that where a legislature has provided a right of appeal from
an administrative decision to a court (either as of right or with leave), the
legislature has evidenced its intention that the standards of appellate review set
out in Housen v. Nikolaisen apply.36
33. This Court has confirmed that the standard of review applicable to a
question of law or jurisdiction for which leave to appeal has been granted under
s. 64(1) of the TA is correctness.37 That stringent standard of review militates
in favour of a conclusion that TELUS’s proposed grounds of appeal raise, at a
minimum, arguable issues.
C. There is an Arguable Case that the CRTC Erred in Law or

Jurisdiction
i. The Access Issue
34. There is at least an arguable case that the CRTC erred in law and
jurisdiction in concluding that the provisions of the TA dealing with access to
36 Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at

para. 37, BA, Tab 4.
37 Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at
paras. 80-81, BA, Tab 5.

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public places for purposes of “constructing, maintaining or operating
transmission lines” do not apply to wireless infrastructure, including the
infrastructure needed for 5G network deployment across Canada. The CRTC’s
interpretation of “transmission line” in the CRTC Decision depends upon a
narrow reading of “line” that fails to appropriately take into account the wording
of Parliament’s constitutional head of power with respect to telecommunications,
and the statutory history and purpose of s. 43 of the TA.
35. As the CRTC acknowledged, the term “line” can carry various meanings.
It was incumbent on the Commission to consider all aspects of the modern,
purposive approach to statutory interpretation. If the Commission had done so,
it would have recognized that “transmission line” was intended to be technology-
neutral, and to extend to all tangible infrastructure that is part of the pathway for
communications.
(a) The Distinction between “Transmission Facility” and

“Transmission Line” is Purposive, not Technology-
Based
36. With respect to the Access Issue, the CRTC focussed on the fact that the
TA defines the phrase “transmission facility,” but uses a different undefined
phrase, “transmission line,” in s. 43. “Transmission facility” is defined in s. 2 of
the TA as “any wire, cable, radio, optical or other electromagnetic system, or
any similar technical system, for the transmission of intelligence between
network termination points, but does not include any exempt transmission
apparatus. (installation de transmission).” The phrase is then used only in
connection with Canadian ownership and control requirements, and the

827
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application of the Act in general (TA ss. 5, 16). The Canadian ownership and
control requirement, and the phrase “transmission facility” were new concepts
added to the TA in 1993 (whereas, as set out above, s. 43 was a carryover from
“telegraph and telephone lines” in the Railway Act).
37. Given this legislative history of a very old statute with new concepts
added later, and the completely different purposes of ss. 16 and 43, Parliament
may not have intended “transmission lines” to be a subset of “transmission
facilities.” However, even if it did, the subset should be identified based on
purpose, not technology. Section 43 is intended to facilitate deployment of the
communications analogue to 19th century railway tracks – the multiple
transmission pathways that need to be dispersed throughout the entire
Canadian landscape to connect Canadians.
38. 5G small cells fit within that subset of transmission facilities for which
right-of-way access is needed. Although 5G small cells transmit intelligence
wirelessly to mobile phones (over spectrum that is licensed by the Minister), the
rest of the transmission is typically through cables that connect the small cells
to the TELUS network.38 The small cells are part of the physical, connecting
“lines” of transmission for which TELUS needs access to public places to
construct, maintain and operate.
38Rogers Intervention at para. 163, Stern Affidavit, MR, Tab 3F; FCM Further
Comments at para. 8, Stern Affidavit, MR, Tab 3I; Transcript, Vol. 4 at 6406-
6408, 6467-8, Stern Affidavit, MR, Tab 3K.
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39. Indeed, in some cases the access that TELUS needs under s. 43 of the
TA to upgrade its network to 5G is access to its existing infrastructure that was
constructed and is maintained pursuant to s. 43.39 The CRTC Decision could
lead to disputes about whether TELUS can rely on s. 43 for access to its own
telephone poles that are in public rights of way to attach a 5G small cell to the
pole. That would be an absurd result when s. 43 of the TA is intended to facilitate
upgrading of Canada’s telecommunications networks.
40. In Barrie Public Utilities, the Supreme Court read “transmission line” in s
43(5) of the TA as being harmonious with “transmission facilities,” “so that in
both provisions the thing being transmitted is ‘intelligence’” (and not electricity). 40
Interpreting the access regime in the TA to extend to all telecommunications
infrastructure that transmits intelligence and for which physical access to rights
of way is needed would be entirely consistent with Barrie Public Utilities.
(b) The Statutory History and Constitutional Context of the

TA Favours a Technology-Neutral Interpretation of
“Transmission Line”
41. The TA should be interpreted in a technology-neutral manner, consistent
with its legislative history, 41 the purposes of the Act, which extend to all
39 TELUS Intervention at para. 135, Stern Affidavit, MR, Tab 3B; Rogers
Communications Canada Inc., Further Comments (22 November 2019) at para.
258, Stern Affidavit, MR, Tab 3G.
40 Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R.
476, 2003 SCC 28 at para 33.

41 See paras. 15-16, 18-19 above.
829
19
telecommunications technologies that connect Canadians, 42 the Governor in
Council’s 2016 Policy Direction to the CRTC “for access to … support structures,
ensure the technological and competitive neutrality of those arrangements or
regimes, to the greatest extent possible, to enable competition from new
technologies,” and the Governor in Council’s 2019 Policy Direction directing the
CRTC to consider the extent to which its decisions “enable innovation in
telecommunications services, including new technologies.”43
42. Both the Supreme Court and this Court have described the purpose of
the TA as being to facilitate and regulate the development of an orderly, reliable,
affordable and efficient telecommunications infrastructure for Canada.44 This
requires federally regulated access to infrastructure for the purpose of deploying
both wired and wireless telecommunication networks that are not dependent on
varying approaches and requirements for each municipality.
43. While traditionally telecommunications occurred first by telegraph and
then telephone, under a dynamic and purposive interpretation of the TA,
upgrades to TELUS’s network using new technology in the same public property
42 The legislative history of the Telecommunications Act supports an intention

that the Act be technology-neutral. See e.g. Sub-Committee on Bill C-62 at 8:16,
BA, Tab 22; House of Commons Debates at 18070, 18075, 18126, BA, Tab 21.
43 Order Issuing a Direction to the CRTC on Implementing the Canadian
Telecommunications Policy Objectives to Promote Competition, Affordability,

Consumer Interests and Innovation, SOR/2019-227, s. 1(a)(vi), 1(a)(i). See also
Order Issuing a Direction to the CRTC on Implementing the Canadian
Telecommunications Policy Objectives, SOR/2006-355, s. 1(b)(iv).
44 Bell Canada v Bell Alliant Regional Communications, [2009] 2 S.C.R. 764,
2009 SCC 40 at para. 75, BA, Tab 8; Globalive Wireless Management Corp. v
Public Mobile Inc., [2011] 3 F.C.R. 344, 2011 FCA 194 at para. 20, BA, Tab 9.
830
20
rights of way would be subject to the same statutory access process. As the
Supreme Court held in R. v. 974649 Ontario Inc.:45
The intention of Parliament or the legislatures is not frozen for all time
at the moment of a statute’s enactment, such that a court interpreting
the statute is forever confined to the meanings and circumstances
that governed on that day. Such an approach risks frustrating the
very purpose of the legislation by rendering it incapable of
responding to the inevitability of changing circumstances. Instead,
we recognize that the law speaks continually once adopted.
Preserving the original intention of Parliament or the legislatures
frequently requires a dynamic approach to interpreting their
enactments, sensitive to evolving social and material realities. While
the courts strive ultimately to give effect to legislative intention, the
will of the legislature must be interpreted in light of prevailing, rather
than historical, circumstances.
44. Indeed, Parliament’s constitutional jurisdiction over telecommunications,
including wireless telecommunications, stems from a dynamic and purposive
interpretation of s. 92(10)(a) of the Constitution Act, 1867: “Lines of Steam or
other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings
connecting the Province with any other or others of the Provinces, or extending
beyond the Limits of the Province.”46
45. Just as Parliament’s jurisdiction is not frozen in the era of telegraphs,
federal, provincial and UK legislation has been interpreted to extend to new
technologies, even when the words used in the statute could be strictly
interpreted to refer only to the technology that was in common use at the time it
45 R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 at para. 38, BA,
Tab 10 [citations omitted].
46 Constitution Act, 1867 (UK), 30 & 31 Vict. C 3, reprinted in RSC 1985, App II,
No 5, s. 92(10)(a). This phrasing also demonstrates that “line” can mean

pathway or route, rather than a cable.
831
21
was drafted. For example, the UK Telegraph Act was interpreted to apply to
telephones.47 “Newspaper” has been interpreted to extend to online articles. 48
In British Columbia Telephone Co. v Canada, this Court interpreted “wire or
cable” in the Income Tax Act to extend to fibre-optic (silicon or glass fibre)
transmission infrastructure, even though use of fibre optics for
telecommunications transmissions was not addressed or even thought of when
the relevant provision was enacted.49
46. In Edmonton v 360 Networks, this Court held that its interpretation of the
words “any highway or other public place” should not be coloured by “the fact
that much of the language of ss. 43 and 44 has been borrowed from older
legislation, enacted when the transmission lines principally contemplated were
telephone or telegraph wires strung on poles along roads or electricity cables
buried under roads.”50 Justice Evans, writing for this Court, concluded:51
Sections 42 to 44 of the Act appear to have been drafted, in part at

least, by “cut and paste.” The history of statutory language should
not determine the meaning of words or phrases when used in a
relatively new Act if this would thwart the effective administration of
the legislation. As already noted, the objects of the
Telecommunications Act include encouraging the efficient and
orderly development of communications networks by providing a
regulatory framework which is responsive to advances in
47 Attorney General v. Edison Telephone Co. of London Ltd. (1880), 6 QBD 244,
BA, Tab 11.
48 John v. Ballingall, 2017 ONCA 579; leave to appeal to SCC ref’d, 2018 CanLII
43780 (SCC), BA, Tab 12.

49 British Columbia Telephone Co. v Canada (1992), 139 N.R. 211 (F.C.A.), at
paras. 24-25; see also para. 17, BA, Tab 13.

50 Edmonton at paras. 58-60, BA, Tab 7.
51 Edmonton at para. 64, BA, Tab 7.
832
22
telecommunications technology and to the introduction of a

competitive business environment and market forces.
47. In the same decision, this Court held that even though ss. 42 to 44 of the
TA do not expressly cover entry on public lands to maintain fibre optic
transmission lines that had already been installed, 52 an unduly narrow
interpretation that would “lead to a patchwork approach to telecommunications
issues” should be avoided.53
(c) There is No Parallel RA Access Regime
48. The CRTC further erred in concluding that its narrow interpretation of
“transmission line” would not frustrate Parliament’s intent that the deployment of
telecommunications not be stymied by bottlenecks created by the multiplicity of
overseers of public property — because the Minister could deal with that issue
for wireless infrastructure under the RA. While s. 5(1)(f) of the RA gives the
Minister the power to “approve each site on which radio apparatus, including
antenna systems, may be located, and approve the erection of all masts, towers
and other antenna-supporting structures,”54 there is no parallel to s. 43 of the
TA in the RA, and the Minister has no jurisdiction or process for resolving
disputes relating to access to public property for the installation of wireless
infrastructure.

54 RA, s. 5(1)(f).
833
23
49. In contrast with the “seamless roaming” issue on which the CRTC
overreached its jurisdiction and established a second, conflicting condition on
the same issue, in the access portion of the CRTC Decision the CRTC
wrongfully declined jurisdiction in an area in which the Minister has no statutory
powers, creating a lacuna that Parliament could not have intended. Consistent
with a comprehensive statutory scheme for regulating telecommunications,
jurisdiction over access to public property needed to deploy 5G infrastructure
must fall to the CRTC.
ii. Seamless Roaming Issue
(a) The RA Gives the Power to Amend the Minister’s

Conditions of Licences Exclusively to the Minister
50. The CRTC erred in law or jurisdiction by imposing a seamless roaming
condition, effectively amending the Conditions of Licence issued by the Minister,
which explicitly state that seamless roaming is not required. Pursuant to s.
5(1)(b) of the RA, the power to amend the Minister’s conditions of licence is
reserved to the Minister.
51. The Conditions of Licence for Mandatory Roaming issued by the Minister
pursuant to s. 5(1)(a) of the RA expressly exclude seamless roaming:
Roaming does not require communications hand-off between

communications in progress; …55
55 Conditions of Licence at para. 2, BA, Tab 25.

834
24
52. In the “Background and Guidance” portion of its decision setting this
Condition of Licence, the Minister explained:56
Seamless communications hand‑off between Home and Host

Networks (i.e. which ensures no interruption of communications in
progress) is not mandated; however, this service may be the
subject of negotiations.
53. The Minister specifically considered requests to amend this Condition of
Licence, and concluded: “mandating seamless communications hand-off is not
considered necessary to advance Industry Canada’s stated policy objectives.”57
54. In contrast, in the CRTC Decision, the CRTC purported to mandate the
provision of seamless roaming in direct conflict to the Conditions of Licence.
The CRTC directed the national carriers, including TELUS, to begin offering
seamless roaming within one year of the date of the CRTC Decision.58
55. In effect, the CRTC is purporting to amend TELUS’ Conditions of Licence
for the spectrum it licenced from the Minister by striking out the “not”:
2. The roaming which must be offered in accordance with this

licence condition is defined by the following characteristics: …
o Roaming does not require communications hand-off between

communications in progress; …
56. Not surprisingly, only the Minister has the power (subject to regulations
made by the Governor in Council) to amend the conditions of licence that he has
issued. Section 5 of the RA provides:59
56Conditions of Licence at para. 38, BA, Tab 25.

57 Mandatory Roaming Revisions, at para. 27, BA, Tab 26.
59 RA, s. 5 [emphasis added]
835
25
Minister’s powers
5 (1) Subject to any regulations made under section 6, the Minister

may, taking into account all matters that the Minister considers
relevant for ensuring the orderly establishment or modification of
radio stations and the orderly development and efficient operation of
radiocommunication in Canada,
(a) issue
(i) radio licences in respect of radio apparatus,
(i.1) spectrum licences in respect of the utilization of specified

radio frequencies within a defined geographic area, …
and may fix the terms and conditions of any such licence, certificate
or authorization including, in the case of a radio licence and a
spectrum licence, terms and conditions as to the services that may
be provided by the holder thereof;
(b) amend the terms and conditions of any licence, certificate or

authorization issued under paragraph (a);
57. It is notable that while the Minister’s s. 5(1) powers are subject to
regulations made by the Governor in Council under the RA, they are not subject
to the TA, or to the CRTC’s decisions, conditions or regulations.
58. Subsection 5(1.1) of the RA provides that in issuing and amending
spectrum conditions of licence, “the Minister may have regard to the objectives
of the Canadian telecommunications policy set out in s. 7 of the
Telecommunications Act.” Paragraph 4(1)(k) of the DIA also gives broad
powers to the Minister with respect to telecommunication, so as to achieve the
objectives of Parliament set out under s. 5 of that Act.60 It is thus the Minister,
and not the CRTC, whom Parliament has made responsible for policy decisions
60Telus Communications Company v. Canada (Attorney General), 2014 FC

1157 at para. 46, BA, Tab 14; Telus Communications Co. v. Canada (Attorney
General), 2014 FC 1 at para. 95, BA, Tab 15.
836
26
with respect to issuance and amendment of spectrum conditions of licence,
taking into account policy objectives that include, but extend beyond, those set
out in the TA. The Minister specifically considered whether seamless roaming
is needed to achieve the Ministry’s objectives, and concluded it is not.
59. TELUS has spent in excess of $4.5 billion acquiring spectrum licences
from the Minister to build world class networks that have propelled Canada into
a leadership position in wireless networks.61 Those licences contained specific
conditions that seamless roaming would not be required. While TELUS
understood that the Minister may change its conditions of licence pursuant to
the RA, there is no legal basis for the CRTC to do so.
60. Federal statutes should be interpreted not to conflict. This principle
extends to statutes like the TA, DIA and RA that set out dovetailing regulatory
regimes with respect to wireless telecommunications. As the Supreme Court
held in Thibodeau v. Air Canada: “Even where provisions overlap in the sense
that they address aspects of the same subject, they are interpreted so as to
avoid conflict wherever this is possible.”62 The fact that s. 4(1)(k) of the DIA gives
the Minister plenary jurisdiction over telecommunications, unless allocated to
another department, board or agency reinforces that Parliament intended the
Minister and the CRTC to have distinct spheres of jurisdiction. There is no
61Telus RFI 101, Stern Affidavit, MR, Tab 3C.

62Thibodeau v. Air Canada, [2014] 3 S.C.R. 340, 2014 SCC 67 at para. 89, BA,
Tab 16.
837
27
conflict in the statutes, as the power to amend the Minister’s conditions of licence
is clearly given exclusively to the Minister.
(b) The CRTC Cannot Impose Conflicting Conditions
61. Even if this issue had not arisen in the context of Conditions of Licence
that the Minister has exclusive jurisdiction to amend, the CRTC could not impose
conditions under the TA that conflict with decisions of the Minister made under
the RA. In the Broadcasting Reference, the Supreme Court held that the
CRTC’s powers to implement regulations and issue licences as set out in the
Broadcasting Act must be exercised within the larger framework, including
interrelated statutes. 63 In holding that the regime proposed by the CRTC
conflicted with a related statute and was therefore ultra vires, the majority held:64
Cases applying the doctrine of federal paramountcy present some

similarities in defining conflict as either operational conflict or conflict
of purpose (Friends of the Oldman River Society, at p. 38). These
definitions of legislative conflict are therefore helpful in interpreting
two statutes emanating from the same legislature. The CRTC’s
powers to impose licensing conditions and make regulations should
be understood as constrained by each type of conflict. Namely, in
seeking to achieve its objects, the CRTC may not choose means that
either operationally conflict with specific provisions of
the Broadcasting Act, the Radiocommunication Act,
the Telecommunications Act, or the Copyright Act; or which would
be incompatible with the purposes of those Acts.
62. Operational conflict occurs if one law “says ‘yes’ and the other says ‘no’;
the same citizens are being told to do inconsistent things.”65 The Conditions of
63 Reference re Broadcasting Regulatory Policy CRTC 2010-167 and

Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, 2012 SCC 68 at
para. 2 [Broadcasting Reference] BA, Tab 17.
64 Broadcasting Reference at para. 45, BA, Tab 17 [emphasis added].
65 Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161 at 191, BA, Tab 18.
838
28
Licence issued by the Minister under s. 5(1)(a) of the RA do not require TELUS
to provide seamless communications hand-off. 66 Pursuant to the CRTC
Decision, the CRTC does require TELUS to provide such service. 67 On the
issue of whether TELUS is required to provide seamless roaming, the regimes
mandated by the Minister and the CRTC give inconsistent answers. This is
operational conflict.
63. While TELUS can comply with both schemes by providing seamless
roaming in accordance with the CRTC Decision, such an anemic view of
paramountcy is inconsistent with recent Supreme Court case law.
64. In Alberta (Attorney General) v. Moloney, the Supreme Court found
operational conflict. The federal regime provided that, when Moloney was
discharged from bankruptcy, he was released from all debts provable in his
bankruptcy; the provincial scheme provided that, where Alberta paid a damages
award on behalf of an uninsured driver, the driver’s licence is suspended until
Alberta is repaid. Moloney’s debt to Alberta was one of the claims released in
his bankruptcy, but Alberta refused to reinstate his driver’s licence until he repaid
it. At the Supreme Court, the dissenting judge found no operational conflict
because Moloney could comply with both schemes by “either opt[ing] not to drive
or voluntarily pay[ing] the discharged debt.”68 The majority disagreed, and held
that “the test for operational conflict cannot be limited to asking whether
66 Conditions of Licence at s. 38, BA, Tab 25.

68 Alberta (A.G.) v. Moloney, [2015] 3 S.C.R. 327, 2015 SCC 51 at para. 123
[Moloney], BA, Tab 19.

839
29
[Moloney] can comply with both laws by renouncing the protection afforded to
him…under the federal law”:
This is a case where the provincial law says ‘yes’ (‘Alberta can
enforce this provable claim’), while the federal law says ‘no’ (‘Alberta
cannot enforce this provable claim’). The provincial law gives the
province a right that the federal law denies, and maintains a liability
from which the debtor has been released under federal law.69
65. TELUS can only comply with both the Conditions of Licence and the
CRTC Decision by “renouncing the protection” – the permission not to provide
seamless roaming – that the Minister granted it pursuant to the Minister’s powers
under the RA.
66. Similarly, in British Columbia (A.G.) v. Lafarge, the Supreme Court found
operational conflict because a municipal bylaw imposed a 30-foot height limit on
a structure approved at a taller height under federal law. The Court reasoned
that, had the city sought an injunction to stop the project, the judge “could not
have given effect both to the federal law (which would have led to a dismissal of
the application) and the municipal law (which would have led to the granting of
an injunction).” 70 Here, if a regional wireless carrier claims entitlement to
seamless roaming, a judge or other decision maker cannot give effect to both
the Conditions of Licence the Minister granted to TELUS under the RA and the
CRTC Decision.
69Moloney at paras. 60, 63, BA, Tab 20 [emphasis added]; see also para. 69.
70British Columbia (A.G.) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, 2007 SCC
23 at paras. 75, 81-82, BA, Tab 20.
840
30
67. The CRTC’s purported requirement to provide seamless roaming also
constitutes frustration of purpose. The federal purpose expressed in the RA is
that the Minister should have exclusive and final decisional authority to regulate
spectrum licences and the terms on which such licences are issued. The
CRTC’s decision frustrates Parliament’s intent by purporting to overrule the
Minister on matters addressed in the Minister’s Conditions of Licence.
PART IV - STATEMENT OF THE ORDER SOUGHT
68. TELUS seeks an order granting it leave to appeal the access to public
property and seamless roaming aspects of the CRTC Decision. TELUS
acknowledges that costs cannot be awarded against the CRTC, pursuant to s.
64(6) of the TA. If leave to appeal is granted, costs are sought only in relation
to other parties that oppose this motion.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 14th day of May, 2021.
BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9
Catherine Beagan Flood LSO #43013U
Tel: 416-863-2269
cbe@blakes.com
Naiara Toker LSO #77849J
Tel: 416-863-2612
Fax: 416-863-2653
naiara.toker@blakes.com
Michael Ryan LSO #19686U
michael.ryan@mhryanlaw.com
Solicitors for the Appellant,
TELUS Communications Inc.
841
PART V - LIST OF AUTHORITIES
Cases
1. Stubart Investments Ltd v. R., [1984] 1 S.C.R. 536
2. Telecom Decision CRTC 2013-618
3. CKLN Radio Inc. v. Canada (Attorney General), 2011 FCA 135
4. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC

65
5. Bell Canada v. British Columbia Broadband Association, 2020 FCA 140
6. Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1

S.C.R. 476, [2003] 1 S.C.R. 476, 2003 SCC 28
7. Edmonton (City) v. 360Networks Canada Ltd., [2007] 4 F.C.R. 747, 2007

FCA 106
8. Bell Canada v Bell Alliant Regional Communications, [2009] 2 S.C.R.

764, 2009 SCC 40
9. Globalive Wireless Management Corp. v Public Mobile Inc., [2011] 3

F.C.R. 344, 2011 FCA 194
10. R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81
11. Attorney General v. Edison Telephone Co. of London Ltd. (1880), 6 QBD
244
12. John v. Ballingall, 2017 ONCA 579
13. British Columbia Telephone Co. v Canada (1992), 139 N.R. 211 (F.C.A.)
14. Telus Communications Company v. Canada (Attorney General), 2014 FC

1157
15. Telus Communications Co. v. Canada (Attorney General), 2014 FC 1
16. Thibodeau v. Air Canada, [2014] 3 S.C.R. 340, 2014 SCC 67 at para. 89
17. Reference re Broadcasting Regulatory Policy CRTC 2010-167 and

Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, 2012 SCC 68
18. Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161
19. Alberta (A.G.) v. Moloney, [2015] 3 S.C.R. 327, 2015 SCC 51

842
32
20. British Columbia (A.G.) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, 2007
SCC 23
Government Documents
21. Canada, House of Common Debates, 34th Parl, 3rd Sess, Vol 14 (19 April
1993) (excerpts)
22. Canada, House of Commons, Sub-Committee on Bill C-62, 34th Parl, 3rd
Sess, Vol 1, No 1-14 (11 May 1993 April 1991) (excerpts)
23. Industry Canada, Spectrum Management and Telecommunications:

Framework for Spectrum Auctions in Canada (Issue 3: March 2011)
24. Government of Canada, G7-CPC-2-0-17 Conditions of Licence
25. Industry Canada, Spectrum Management and Telecommunications,

Client Procedures Circular. Conditions of Licence for Mandatory
Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive
Site Arrangements (Issue 2: March 2013)
26. Industry Canada, Spectrum Management and Telecommunications:

Proposed Revisions to the Framework for Mandatory Roaming and
Antenna Tower and Site Sharing (March 2012)
843
APPENDIX A – TEXT OF STATUTES AND REGULATIONS
Telecommunications Act, SC 1993, c. 38

ss 7, 43, 44, 64(1)
Objective Politique
7 It is hereby affirmed that 7 La présente loi affirme le caractère

telecommunications performs an essential essentiel des télécommunications pour
role in the maintenance of Canada’s l’identité et la souveraineté canadiennes;
identity and sovereignty and that the la politique canadienne de
Canadian telecommunications policy has télécommunication vise à :
as its objectives
a) favoriser le développement
(a) to facilitate the orderly ordonné des télécommunications
development throughout Canada partout au Canada en un système
of a telecommunications system qui contribue à sauvegarder,
that serves to safeguard, enrich enrichir et renforcer la structure
and strengthen the social and sociale et économique du Canada
economic fabric of Canada and its et de ses régions;
regions;
b) permettre l’accès aux Canadiens
(b) to render reliable and affordable dans toutes les régions — rurales
telecommunications services of ou urbaines — du Canada à des
high quality accessible to services de télécommunication
Canadians in both urban and rural sûrs, abordables et de qualité;
areas in all regions of Canada;
c) accroître l’efficacité et la
(c) to enhance the efficiency and compétitivité, sur les plans national
competitiveness, at the national et international, des
and international levels, of télécommunications canadiennes;
Canadian telecommunications;
d) promouvoir l’accession à la
(d) to promote the ownership and propriété des entreprises
control of Canadian carriers by canadiennes, et à leur contrôle,
Canadians; par des Canadiens;
(e) to promote the use of Canadian e) promouvoir l’utilisation

transmission facilities for d’installations de transmission
telecommunications within Canada canadiennes pour les
and between Canada and points télécommunications à l’intérieur du
outside Canada; Canada et à destination ou en
provenance de l’étranger;
(f) (f) to foster increased reliance on
market forces for the provision of f) favoriser le libre jeu du marché en
telecommunications services and ce qui concerne la fourniture de
services de télécommunication et
assurer l’efficacité de la
844
to ensure that regulation, where réglementation, dans le cas où

required, is efficient and effective; celle-ci est nécessaire;
(g) to stimulate research and g) stimuler la recherche et le

development in Canada in the field développement au Canada dans le
of telecommunications and to domaine des télécommunications
encourage innovation in the ainsi que l’innovation en ce qui
provision of telecommunications touche la fourniture de services
services; dans ce domaine;
(h) to respond to the economic and h) satisfaire les exigences

social requirements of users of économiques et sociales des
telecommunications services; and usagers des services de
télécommunication;
(i) to contribute to the protection of
the privacy of persons. i) contribuer à la protection de la vie
privée des personnes.
Definition Définition
43(1) In this section and section 44, 43(1) Au présent article et à l’article 44,
distribution undertaking has the same entreprise de distribution s’entend au sens
meaning as in subsection 2(1) of the du paragraphe 2(1) de la Loi sur la
Broadcasting Act. radiodiffusion.
Entry on public property Accès aux lieux publics
(2) Subject to subsections (3) and (4) and (2) Sous réserve des paragraphes (3) et
section 44, a Canadian carrier or (4) et de l’article 44, l’entreprise
distribution undertaking may enter on and canadienne et l’entreprise de distribution
break up any highway or other public place ont accès à toute voie publique ou tout
for the purpose of constructing, autre lieu public pour la construction,
maintaining or operating its transmission l’exploitation ou l’entretien de leurs lignes
lines and may remain there for as long as de transmission, et peuvent y procéder à
is necessary for that purpose, but shall not des travaux, notamment de creusage, et y
unduly interfere with the public use and demeurer pour la durée nécessaire à ces
enjoyment of the highway or other public fins; elles doivent cependant dans tous les
place. cas veiller à éviter toute entrave abusive à
la jouissance des lieux par le public.
Consent of municipality
Approbation municipale
(3) No Canadian carrier or distribution
undertaking shall construct a transmission (3) Il est interdit à l’entreprise canadienne
line on, over, under or along a highway or et à l’entreprise de distribution de
other public place without the consent of construire des lignes de transmission sur
the municipality or other public authority une voie publique ou dans tout autre lieu
public — ou au-dessus, au-dessous ou
aux abords de ceux-ci — sans l’agrément
845
having jurisdiction over the highway or de l’administration municipale ou autre

other public place. administration publique compétente.
Application by carrier Saisine du Conseil
(4) Where a Canadian carrier or (4) Dans le cas où l’administration leur

distribution undertaking cannot, on terms refuse l’agrément ou leur impose des
acceptable to it, obtain the consent of the conditions qui leur sont inacceptables,
municipality or other public authority to l’entreprise canadienne ou l’entreprise de
construct a transmission line, the carrier or distribution peuvent demander au Conseil
distribution undertaking may apply to the l’autorisation de construire les lignes
Commission for permission to construct it projetées; celui-ci peut, compte tenu de la
and the Commission may, having due jouissance que d’autres ont des lieux,
regard to the use and enjoyment of the assortir l’autorisation des conditions qu’il
highway or other public place by others, juge indiquées.
grant the permission subject to any
conditions that the Commission Accès
determines.
(5) Lorsqu’il ne peut, à des conditions qui
Access by others lui sont acceptables, avoir accès à la
structure de soutien d’une ligne de
(5) Where a person who provides services transmission construite sur une voie
to the public cannot, on terms acceptable publique ou un autre lieu public, le
to that person, gain access to the fournisseur de services au public peut
supporting structure of a transmission line demander au Conseil le droit d’y accéder
constructed on a highway or other public en vue de la fourniture de ces services; le
place, that person may Sections 43-46 Conseil peut assortir l’autorisation des
Articles 43-46 Current to April 20, 2021 conditions qu’il juge indiquées.
Last amended on July 11, 2019 33 À jour
au 20 avril 2021 Dernière modification le
11 juillet 2019 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.
Application by municipalities and other Demande d’une municipalité ou autre

authorities administration publique
44 On application by a municipality or 44 Sur demande d’une administration

other public authority, the Commission municipale ou autre administration
may publique, le Conseil peut :
(a) order a Canadian carrier or a) soit obliger, aux conditions qu’il

distribution undertaking, subject to fixe, l’entreprise canadienne ou
any conditions that the l’entreprise de distribution à enfouir
846
Commission determines, to bury les lignes de transmission qu’elles

or alter the route of any ont, ou projettent d’avoir, sur le
transmission line situated or territoire de l’administration en
proposed to be situated within the question ou à en modifier
jurisdiction of the municipality or l’emplacement;
public authority; or
b) soit ne leur en permettre la
(b) prohibit the construction, construction, l’exploitation ou
maintenance or operation by a l’entretien qu’en exécution de ses
Canadian carrier or distribution instructions.
undertaking of any such
transmission line except as
directed by the Commission.
Appeals to Federal Court of Appeal Droit d’appel
64(1) An appeal from a decision of the 64(1) Avec son autorisation, il peut être
Commission on any question of law or of interjeté appel devant la Cour d’appel
jurisdiction may be brought in the Federal fédérale, sur des questions de droit ou de
Court of Appeal with the leave of that compétence, des décisions du Conseil.
Court.

Telecommunications Policy Objectives to Promote Competition, Affordability,
Consumer Interests and Innovation, SOR/2019-227,
s. 1(a)(vi), 1(a)(i)
Direction
Principles
1. In exercising its powers and performing its duties under the Telecommunications Act,
the Commission must implement the Canadian telecommunications policy objectives
set out in section 7 of that Act, in according with the following:
a. the Commission should consider how its decisions can promote competition,
affordability, consumer interests and innovation, in particular the extent to
which they
i. encourage all forms of competition and investment.
vi. enable innovation in telecommunications services, including new
technologies and differentiated service offerings, and

Telecommunications Policy Objectives, SOR/2006-355,
s. 1(b)(iv).
Direction
1 In exercising its powers and performing its duties under the Telecommunications Act,
the Canadian Radio-television and Telecommunications Commission (the “Commission”)
847
shall implement the Canadian telecommunications policy objective set out in section 7 of
that Act, in accordance with the following
(b) the Commission, when relying on regulation, should use measures that satisfy the
following criteria, namely, those that
(iv) if they relate to network interconnection arrangements or regimes for
access to networks, buildings, in-building wiring or support structures,
ensure the technological and competitive neutrality of those
arrangement or regimes, to the greatest extent possible, to enable
competition from new technologies and not artificially favour either
Canadian carriers or resellers; and
Radiocommunication Act, RSC 1985, c R-2

s 5(1), 5(1.1)
Minister’s powers Pouvoirs ministériels
5(1) Subject to any regulations made 5(1) Sous réserve de tout règlement pris
under section 6, the Minister may, taking en application de l’article 6, le ministre
into account all matters that the Minister peut, compte tenu des questions qu’il juge
considers relevant for ensuring the orderly pertinentes afin d’assurer la constitution
establishment or modification of radio ou les modifications ordonnées de stations
stations and the orderly development and de radiocommunication ainsi que le
efficient operation of radiocommunication développement ordonné et l’exploitation
in Canada, efficace de la radiocommunication au
Canada :
(a) issue
a) délivrer et assortir de conditions :
(i) radio licenses in respect of
radio apparatus, (i) es licences radio à l’égard
d’appareils radio, et notamment
(i.1) spectrum licences in respect of prévoir les conditions spécifiques
the utilization of specified radio relatives aux services pouvant être
frequencies within a defined fournis par leur titulaire,
geographic area,
(i.1) ) les licences de spectre à
(ii) broadcasting certificates in l’égard de l’utilisation de
respect of radio apparatus that form fréquences de radiocommunication
part of a broadcasting undertaking, définies dans une zone
géographique déterminée, et
(iii) radio operator certificates, notamment prévoir les conditions
spécifiques relatives aux services
(iv) technical acceptance pouvant être fournis par leur
certificates in respect of radio titulaire,
apparatus, interference-causing
848
equipment and radio-sensitive (ii) les certificats de radiodiffusion à

equipment, and l’égard de tels appareils, dans la
mesure où ceux-ci font partie d’une
(v) any other authorization relating entreprise de radiodiffusion,
to radiocommunication that the
Minister considers appropriate, (iii) les certificats d’opérateur radio,
and may fix the terms and conditions of (iv) les certificats d’approbation
any such licence, certificate or technique à l’égard d’appareils
authorization including, in the case of radio radio, de matériel brouilleur ou de
licence and a spectrum licence, terms and matériel radiosensible,
conditions as to the services that may be
provided by the holder thereof; (v) toute autre autorisation relative
à la radiocommunication qu’il
(b) amend the terms and conditions of estime indiquée;
any licence, certificate or
authorization issued under b) modifier les conditions de toute
paragraph (a); licence ou autorisation ou de tout
certificat ainsi délivrés ;
(c) make available to the public any
information set out in radio c) mettre à la disposition du public
licences or broadcasting tout renseignement indiqué dans
certificates; les licences radio ou les certificats
de radiodiffusion;
(d) establish technical requirements
and technical standards in relation d) fixer les exigences et les normes
to techniques à l’égard d’appareils
radio, de matériel brouilleur et de
(i) radio apparatus, matériel radiosensible, ou de toute
catégorie de ceuxci;
(ii) interference-causing
equipment, and e) planifier l’attribution et l’utilisation
du spectre;
(jjj)radio-sensitive equipment,
f) approuver l’emplacement
of any class thereof; d’appareils radio, y compris de
systèmes d’antennes, ainsi que la
(e) plan the allocation and use of the construction de pylônes, tours et
spectrum; autres structures porteuses
d’antennes;
(f) approve each site on which radio
apparatus, including antenna g) procéder à l’essai d’appareils radio
systems, may be located, and pour s’assurer de leur conformité
approve the erection of all masts, aux normes techniques fixées
towers and other sous le régime de la présente loi;
antennasupporting structures;
h) exiger que les demandeurs et les
titulaires d’autorisations de
849
(g) test radio apparatus for radiocommunication lui

compliance with technical communiquent tout renseignement
standards established under this qu’il estime indiqué concernant
Act; l’utilisation — présente et future —
de l’appareil radio, ainsi que son
(h) require holders of, and applicants coût d’installation et d’entretien;
for, radio authorizations to disclose
to the Minister such information as i) exiger que ces titulaires
the Minister considers appropriate l’informent de toute modification
respecting the present and importante des renseignements
proposed use of the radio ainsi communiqués ;
apparatus in question and the cost
of installing or maintaining it; j) nommer les inspecteurs pour
l’application de la présente loi;
(i) require holders of radio
authorizations to inform the k) prendre les mesures nécessaires
Minister of any material changes in pour assurer, notamment par voie
information disclosed pursuant to de réglementation internationale,
paragraph (h); les droits de Sa Majesté du chef
du Canada en matière de
(j) appoint inspectors for the télécommunications et consulter le
purposes of this Act; Conseil de la radiodiffusion et des
télécommunications canadiennes
(k) take such action as may be sur les questions qui lui semblent
necessary to secure, by indiquées;
international regulation or
otherwise, the rights of Her l) décider de l’existence de tout
Majesty in right of Canada in brouillage préjudiciable et donner
telecommunication matters, and l’ordre aux personnes qui
consult the Canadian Radio- possèdent ou contrôlent tout
television and Telecommunications appareil radio, matériel brouilleur
Commission with respect to any ou matériel radiosensible qu’il juge
matter that the Minister deems responsable du brouillage de
appropriate; cesser ou de modifier l’exploitation
de cet appareil ou de ce matériel
(l) make determinations as to the jusqu’à ce qu’il puisse fonctionner
existence of harmful interference sans causer de brouillage
and issue orders to persons in préjudiciable ou sans en être
possession or control of radio contrarié;
apparatus, interference-causing
equipment or radio-sensitive m) entreprendre, parrainer,
equipment that the Minister promouvoir ou aider la recherche
determines to be responsible for en matière de
the harmful interference to cease radiocommunication, notamment
or modify operation of the en ce qui touche les aspects
apparatus or equipment until such techniques de la radiodiffusion;
time as it can be operated without
850
causing or being affected by n) prendre toute autre mesure propre

harmful interference; à favoriser l’application efficace de
la présente loi.
(m) undertake, sponsor,
promote or assist in research
relating to radiocommunication,
including the technical aspects of
broadcasting; and
(n) do any other thing necessary for

the effective administration of this
Act.
Canadian telecommunications policy Politique canadienne de

télécommunication
5(1.1) In exercising the powers conferred
by subsection (1), the Minister may have 5(1.1) Dans l’exercice des pouvoirs
regard to the objectives of the Canadian prévus au paragraphe (1), le ministre
telecommunications policy set out in peut aussi tenir compte de la politique
section 7 of the Telecommunications Act. canadienne de télécommunication
indiquée à l’article 7 de la Loi sur les
télécommunications
Department of Industry Act, SC 1995, c. 1

s 2(1), 4(1)
Department established Constitution
2(1) There is hereby established a 2(1) Est constitué le ministère de

department of the Government of Canada l’Industrie, placé sous l’autorité du ministre
called the Department of Industry over de l’Industrie. Celui-ci est nommé par
which the Minister of Industry, appointed commission sous le grand sceau.
by commission under the Great Seal, shall
preside.
Powers, duties and functions Compétence générale
4(1) The powers, duties and functions of 4(1) Les pouvoirs et fonctions du ministre
the Minister extend to and include all s’étendent de façon générale à tous les
matters over which Parliament has domaines de compétence du Parlement
jurisdiction, not by law assigned to any non attribués de droit à d’autres ministères
other department, board or agency of the ou organismes fédéraux et liés :
Government of Canada, relating to
a) à l’industrie et à la technologie au
Canada;
851
(a) industry and technology in b) au commerce au Canada;

Canada;
c) à la science au Canada;
(b) trade and commerce in Canada;
d) à la consommation;
(c) science in Canada;
e) aux personnes morales et aux
(d) consumer affairs; valeurs mobilières;
(e) corporations and corporate f) à la concurrence et aux pratiques

securities; commerciales restrictives,
notamment les fusions et les
(f) competition and restraint of trade, monopoles;
including mergers and monopolies;
g) à la faillite et à l’insolvabilité;
(g) bankruptcy and insolvency;
h) aux brevets, droits d’auteur,
(h) patents, copyrights, trademarks, marques de commerce, dessins
industrial designs and integrated industriels et topographies de
circuit topographies; circuits intégrés;
(i) standards of identity, packaging i) aux normes d’identification,

and performance in relation to d’emballage et de rendement des
consumer products and services, produits et services destinés aux
except in relation to the safety of consommateurs, sauf en ce qui
consumer goods; concerne la sécurité de ces
produits;
(j) legal metrology;
j) à la métrologie légale;
(k) telecommunications, except in
relation to k) aux télécommunications, sauf en
ce qui a trait à la planification et à
(i) the planning and coordination of la coordination des services de
telecommunication services for télécommunication aux ministères
departments, boards and agencies et aux organismes fédéraux et à la
of the Government of Canada, and radiodiffusion — à l’exception de la
gestion du spectre et des aspects
(ii) broadcasting, other than in techniques de la radiodiffusion;
relation to spectrum management
and the technical aspects of l) au développement et à l’utilisation,
broadcasting; d’une façon générale,
d’entreprises, d’installations, de
(l) the development and utilization systèmes et de services de
generally of communication communications pour le Canada;
undertakings, facilities, systems
and services for Canada; m) aux investissements;
852
(m) investment; n) aux petites entreprises;
(n) small businesses; and o) au tourisme.
(o) tourism
Broadcasting Act, SC 1991, c 11

s 5(1)
Objects Mission
5(1) Subject to this Act and the 5(1) Sous réserve des autres dispositions
Radiocommunication Act and to any de la présente loi, ainsi que de la Loi sur
directions to the Commission issued by la radiocommunication et des instructions
the Governor in Council under this Act, the qui lui sont données par le gouverneur en
Commission shall regulate and supervise conseil sous le régime de la présente loi,
all aspects of the Canadian broadcasting le Conseil réglemente et surveille tous les
system with a view to implementing the aspects du système canadien de
broadcasting policy set out in subsection radiodiffusion en vue de mettre en œuvre
3(1) and, in so doing, shall have regard to la politique canadienne de radiodiffusion.
the regulatory policy set out in subsection
(2).
Canadian Radio-television and Telecommunications Commission Act, RSC, 1985,

c C-22
s 3(1)
Commission established Établissement
3(1) There is established a commission, to 3(1) Est constitué le Conseil de la

be known as the Canadian Radio- radiodiffusion et des télécommunications
television and Telecommunications canadiennes, composé d’au plus treize
Commission, consisting of not more than membres, nommés par le gouverneur en
conseil.
853
13 members, to be appointed by the

Governor in Council.
Constitution Act, 1867 (UK), 30 & 31 Vict. C 3

s 92(10)(a)
Subjects of exclusive Provincial Sujets soumis au contrôle exclusif de

Legislation la législation provinciale
92 In each Province the Legislature may 92 Dans chaque province la législature

exclusively make Laws in relation to pourra exclusivement faire des lois
Matters coming within the Classes of relatives aux matières tombant dans les
Subjects next hereinafter enumerated; catégories de sujets ci-dessous
that is to say, énumérés, savoir :
10. Local Works and Undertakings 10. Les travaux et entreprises d’une
other than such as are of the following nature locale, autres que ceux
Classes: énumérés dans les catégories
suivantes :
(a) Lines of Steam or other Ships,
Railways, Canals, Telegraphs, and a) Lignes de bateaux à vapeur ou
other Works and Undertakings autres bâtiments, chemins de fer,
connecting the Province with any canaux, télégraphes et autres
other or others of the Provinces, or travaux et entreprises reliant la
extending beyond the Limits of the province à une autre ou à d’autres
Province: provinces, ou s’étendant au-delà
des limites de la province;
(b) Lines of Steam Ships between
the Province and any British or b) Lignes de bateaux à vapeur
Foreign Country: entre la province et tout pays
dépendant de l’empire
(c) Such Works as, although britannique ou tout pays étranger;
wholly situate within the Province,
are before or after their Execution c) Les travaux qui, bien
declared by the Parliament of qu’entièrement situés dans la
Canada to be for the general province, seront avant ou après
Advantage of Canada or for the leur exécution déclarés par le
Advantage of Two or more of the parlement du Canada être pour
Provinces l’avantage général du Canada, ou
pour l’avantage de deux ou d’un
plus grand nombre des provinces;
Railway Act, RSC 1899, 62-63 Vic, c. 37

s 90
854
90(2) When any company has power by any Act of the Parliament of Canada to
construct and maintain lines of telegraph or telephone, or lines for the conveyance of
light, heat, power or electricity, such company may, with the consent of the municipal
council or other authority having jurisdiction over any highway, square or other public
place, enter thereon for the purpose of exercising the said power, and, as often as the
company thinks proper, may break up and open any highway, square, or other public
place, subject, however to the following provisions:
(a) The company shall not interefere with the public right of travel, or in any way
obstruct the entrance to any door or gateway, or free access to any building;
(b) The company shall not permit any wire to be less than twenty-two feet above
such highway or public place, nor, without the consent of the municipal council,
erect more than one line of poles along any highway;
(c) All poles shall be as nearly as possible straight and perpendicular, and shall,
in cities and towns, be painted, if so required by any by-law of the council;
(d) The company shall not be entitled to damags on account of its poles or wires
being cut by direction of the officer in charge of the fire brigade at any fire, if, in
the opinion of such officer, it is advisable that such poles or wires be cut;
(e) The company shall not cut down or mutilate any shade fruit or ornamental
tree without the approval of the corporation of the municipality in which it is
situate, and then only so far as it may be necessary;
(f) The opening up of any street, square, or other public place for the erection of
poles, or for carrying wires under ground, shall be subject to the direction and
approval of such person as the municipal council appoints, and shall be done in
such manner as the said council appoints, and shall be done in such manner as
the said council directs; the council may also designate the places where such
poles shall be erected; and such street, square, or other public place shall,
without any unnecessary delay, be restored, as far as possible, to its former
condition, by and at the expense of the company;
(g) In case efficient means are devsed for carrying telegraph or telephone wires
under ground, no Act of Parliament requiring the company to adopt such means,
and abrogating the right given by this section to carry lines on poles, shall be
deemed an infringement of the privilege granted by this Act, and the company
shall not be entitled to damages therefor;
(h) Every person employed upon the work of erecting or repairing any line or
instrumetn of the company shall have conspicuously attached to his dress a
badge, on which are legibly inscribed the name of the company and a number by
which he can be readily identified;
855
(i) Nothing herein contained shall be deemed to authorize the company to enter
upon any private property for the purpose of erecting, maintaining or repairing
any of its works, without the previous assent of the owner or occupant of the
proeprty for the time being;
(j) If for the purpose of removing buildings, or in the exercise of the public right of
travel, it is necessary that the said wires or poles right of travel, it is necessary
that the said wires or poles be temporarily removed, by cutting or otherwise, the
company shall, at its owner expense, upon reasonable notice in writing from any
person requiring it, remove such wires and poles; and in default of the company
so doing, such person may remove such wires and poles at the expense of the
company. The said notice may be given either at any office of the company, or to
any agent or officer of the company in the municipality wherein are the wires or
poles required to be removed, or, in the case of a municipality wherein there is
no such agent or officer, then either at the head office, or to any agent or officer
of the company in the nearest or any adjoining municipality to that in which such
wires or poles are;
(k) The company shall be responsible for all damages which it causes to
ornamental, shade or fruit trees, and otherwise for all unnecessary damage
which it causes in carrying out or maintaining any of its said works.

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808

Court File No.

FEDERAL COURT OF APPEAL

TELUS COMMUNICATIONS INC.

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS

MEMORANDUM OF FACT AND LAW OF THE APPELLANT,

May 14, 2021 BLAKE, CASSELS & GRAYDON LLP

Catherine Beagan Flood LSO #43013U

Naiara Toker LSO #77849J

Michael Ryan LSO #19686U

Solicitors for the Appellant,

TO: The Administrator

TO: CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS

AND TO: RESPONDENTS AS SET OUT IN SCHEDULE A TO THE ORDER OF

PART I - STATEMENT OF FACTS ................................................................ 4

1. This is a motion by TELUS Communications Inc. (“TELUS”) for leave to

appeal two aspects of the decision of the Canadian Radio-television and

Telecommunications Commission (“CRTC” or “Commission”) in Review of

Mobile Wireless Services, Telecom Regulatory Policy CRTC 2021-130, dated

national wireless carriers will be required to introduce a wholesale service

(known as wholesale mobile virtual network operator (MVNO) access service)

important matters decided by the CRTC in the CRTC Decision.

granted to telecommunications carriers by s. 43 of the Telecommunications Act

operate telecommunications infrastructure applies only to infrastructure to

telecommunications, such as new 5G technology (the “Access Issue”). The

1 Canadian Radio-television and Telecommunications Commission. Telecom

steps toward the introduction of 5G technology is the construction of the cellular

network infrastructure that the technology requires”,2 that “[telecommunications]

other existing structures,”3 and that upgrading Canada’s networks to 5G will

make them “exponentially faster, more pervasive and more versatile.”4

3. The CRTC incorrectly concluded that it did not need to exercise

sites. By reading s. 43 of the TA narrowly to exclude newer technologies, and

approach to statutory interpretation,5 and will delay 5G services for Canadians.

2 Canada, Canadian Radio-television and Telecommunications Commission.

statutory interpretation: “Today, there is only one principle or approach, namely,

4. Second, the CRTC exceeded its jurisdiction by establishing a new

“condition of service” that requires the national wireless carriers, including

TELUS, to provide an enhanced form of roaming,6 called “seamless roaming”,

to eligible regional wireless carriers (the “Seamless Roaming Issue”). This

new condition effectively purports to amend a “condition of licence” attached to

Radiocommunications Act (“RA”), which states the opposite — that wireless

carriers are not required to provide seamless roaming to competitors.

by the Minister. Jurisdiction to amend the Minister’s condition of licence is

a different policy conclusion and issue a conflicting condition.

relation to wireless telecommunication. This Court has never previously

addressed the division of or overlap in jurisdiction as between the CRTC and

the Minister, or the implications of a conflict between them. In the absence of

6“Roaming” is a service provided by TELUS to another carrier, which allows the

Issue. Leave to appeal is therefore merited.

PART I - STATEMENT OF FACTS

A. Regulation of Canada’s Telecommunications Sector

8. Wireless communications are regulated by two agencies: i) the CRTC,

Minister (acting through the Department of Innovation, Science and Economic

telecommunications carriers provide wireless services under the RA.8

telecommunications that have not been assigned to the CRTC or another

Powers, duties and functions

7 Telecommunications Act, SC 1993, c. 38 [TA].

(i) the planning and coordination of

related terms and conditions:10

(b) amend the terms and conditions of any licence, certificate

11. Since the passage of the TA in 1993, wireless communications have

exploded, and wireless infrastructure now makes up an integral and increasingly

important part of Canada’s telecommunications networks.11

B. Construction of Telecommunications Infrastructure

12. TELUS provides wireline and wireless telecommunications services to

wireless facilities (e.g. microwave and cellular antennas). Some of this

13. The mobile wireless service market is on the verge of a major

transformation, since wireless carriers, including TELUS, are starting to deploy

fifth generation or “5G” technology into their networks.12 Access to “highways

will be key to the deployment of 5G technology.13 This will require installation

of a dense network of thousands of small cells which will transmit intelligence

wirelessly to mobile phones (over spectrum that is licensed by the Minister, as

11 Rogers Communications Canada Inc., Intervention to Telecom Notice of

further described below).14 Each small cell needs to be affixed to supporting

14. TELUS intends to add small cells to various types of infrastructure,

including existing wireline infrastructure that is already in the rights-of-way to