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This April, the Supreme Court of Canada (“SCC”) dismissed the appeal in Telus Communications Inc. v Federation of Canadian Municipalities, 2025 SCC 15 [Telus]. Applying the modern approach to statutory interpretation, the SCC held that “transmission line,” as contemplated under sections 43 and 44 of the Telecommunications Act, SC 1993, c 38 [Act], does not capture 5G network antennas.
Facts
The Technological Context
Several Canadian telecommunications carriers (“carriers”) offer 5G network services that provide consumers faster connectivity and enhanced data capability than older networks (Telus, para 6). Older networks rely on free-standing, large cell antenna towers to transmit intelligence from wireline networks to consumers. By contrast, 5G networks use low-powered small cell antennas mounted on existing structures (Telus, para 7). As carriers implement 5G networks across Canada, they require access to public property to install, maintain, and operate small cell antennas (Telus, para 8).
The Statutory Scheme
Sections 43 and 44 of the Act create an access regime for carriers to build and use transmission lines. Specifically, section 43 provides carriers a qualified right of access to construct, maintain, and operate their transmission lines situated on public property. When a public authority, such as a municipality, refuses to grant access to a carrier, section 43 provides the Canadian Radio-television and Telecommunications Commission (“CRTC”) authority to intervene and determine the applicable terms of access (Telus, para 10). In turn, municipalities and other public authorities can seek an order from the CRTC under section 44 of the Act to prohibit an activity that would otherwise be lawful under section 43 (Telus, para 10).
The Radiocommunication Act, RSC 1985 c R-2 is part of the legislative scheme that governs telecommunications. Section 5(1)(f) of the Radiocommunication Act vests the Minister of Industry (“Minister”) with the authority to approve sites for the location of antenna systems (Telus, para 13). Generally, a carrier must consult relevant land-use authorities before installing radio apparatus, like antennas, through the ministerial process. 5G carriers, however, are not required to engage in this consultation because small cell antennas attach to existing structures (Telus, para 13). The Radiocommunication Act does not grant carriers a right to access public property. It instead requires carriers to negotiate access with private and public property owners (Telus, para 14).
The Dispute
In February 2019, the CRTC issued a Notice of Consultation to review the legislative scheme governing mobile wireless services (Telus, para 15). Several carriers engaged in the consultation process. They highlighted issues in accessing the necessary public infrastructure to install 5G small cell antennas. As such, the CRTC had to address whether 5G small cell antennas—in other words, wireless telecommunications infrastructure—is considered a transmission line under sections 43 and 44 of the Act. If not, carriers have no recourse with the CRTC to regulate access to public property for the purposes of installing small cell antennas. Rather, the Radiocommunication Act governs potential disputes arising from the access regime.
Judicial History
The CRTC’s Decision
On April 15, 2021, the CRTC released a decision concluding that a transmission line does not include 5G small cell antennas for two reasons.
First, the CRTC found the ordinary meaning of transmission line indicates Parliament intended the statutory term to refer only to wireline infrastructure (Telus, para 18). The CRTC relied on the definition section of the Act, which defined a “transmission facility” broadly as “any wire, cable, radio, optical or other electromagnetic system, or any similar technical system…” (Telus, para 18). As sections 43 and 44 of the Act refer to a transmission line—a narrower definition than a transmission facility—the CRTC concluded that Parliament must have intended a narrow interpretation.
Second, given that the Radiocommunication Act grants the Minister statutory power to approve sites for the placement of radio apparatus, this narrow interpretation fits neatly within the broader legislative scheme (Telus, para 18).
The carriers appealed the CRTC’s decision to the Federal Court of Appeal (“FCA”).
The FCA’s Decision
The FCA dismissed the carriers’ appeal for three reasons.
First, the presumption of consistent expression—the principle that different words mean different things in statutory interpretation—supports the CRTC’s finding that Parliament used transmission line rather than transmission facility under sections 43 and 44 of the Act to establish a narrow interpretation (Telus, para 22).
Second, the term transmission line was a specific technical term, ousting the dynamic interpretation approach (Telus, para 22).
Third, vesting the approval power with the Minister under the Radiocommunication Act is consistent with the statutory scheme (Telus, para 22).
The carriers brought a further appeal to the SCC.
Issue
The central issue before the SCC was whether 5G antennas fall under the meaning of “transmission line” as contemplated by sections 43 and 44 of the Act.
The SCC’s Decision
Moreau J., writing for the majority, dismissed the appeal. The majority’s reasons clarified how courts and administrative decision makers ought to apply the modern approach to statutory interpretation. Moreau J. assessed the text, context, and purpose of the sections to support the majority’s conclusion.
The Text
The majority first established the ordinary meaning of the term transmission line. Moreau J. considered the dictionary definition of “line,” which describes a “line” as a physical and tangible pathway. The term “transmission” also conveys a strong physical connotation (Telus, paras 44-45). Since antennas transmit intelligence through electromagnetic waves, and not physical pathways, antennas are beyond the ordinary meaning of sections 43 and 44 of the Act.
Further, even if 5G antennas need to be hard-wired into wireline equipment, that alone is insufficient to bring them within the ordinary meaning of transmission line. The majority explained that this interpretation would result in an unnatural use of language, extending the definition of transmission line to anything attached to wires or cables (Telus, para 46).
Moreau J. then examined the surrounding text of sections 43 and 44. Section 43 contemplates the “enter[ing]” and “break[ing]” up of property “on, over, under or along a highway or other public place” (Telus, para 49). The majority concluded that burying and running a cable or wire under and over public property is fundamentally different from what is required for the installation and maintenance of antennas. Moreover, electromagnetic signals cannot run over public property as they are not buried nor constructed.
The Context
Turning to the broader context, Moreau J. applied the principle of consistent expression. The majority reasoned that Parliament intentionally narrowed its language by using the term “transmission line” under sections 43 and 44 rather than the broader term “transmission facility” as defined under section 2(1) of the Act (Telus, para 55). Additionally, legislative history demonstrates that antennas were never intended to be part of the access regime. The access regime was, in part, drafted from the Railway Act, which references telegraph and telephone lines and a carrier’s right to “break” or “open” public property—contextual evidence that supports the narrow interpretation of transmission line (Telus, paras 58-59). Further, given that the Radiocommunication Act predates the Act, remains in force, and captures the meaning of small cell antennas, it follows that Parliament did not intend the access regime to regulate 5G networks.
The Purpose
The majority’s purposive analysis also supported an interpretation of a transmission line that did not capture antennas. Moreau J. acknowledged that section 7 of the Act provides the broad policy objective of “orderly development” in telecommunications (Telus, para 69). Nevertheless, the majority held that policy objectives do not permit an interpreter to apply an interpretation inconsistent with a statutory provision’s text and context (Telus, para 70). In fact, countervailing policy objectives support the differential treatment of wirelines and wireless equipment, as illustrated in section 5 of the Radiocommunication Act. This provision contemplates distinct safety, environmental, and community considerations flowing specifically from antenna implementation rather than wires and cables (Telus, para 73). Put differently, the purposive analysis both avoids frustrating the legislative purpose and enhances the orderly development of telecommunications.
Analysis
The majority’s statutory interpretation is more compelling than the dissent’s holding for two key reasons, as discussed below.
Côté J.’s dissent aligns with the modern approach to statutory interpretation and adopts a dynamic view of legislation that considers contemporary policy issues in the telecommunications industry. However, a closer reading of the factual record reveals that Moreau J.’s narrow interpretation best reflects Parliament’s intent. Moreover, the majority’s reasons not only apply the modern approach to statutory interpretation persuasively but also address the specific distinguishing features between 5G technology and older networks. Relatedly, the facts reveal that the dissent’s reasons beg the question: does removing a carrier’s recourse to the CRTC inhibit the orderly development of the telecommunications industry? The answer: no.
Outlining the Modern Approach
The majority and the dissent agree that the modern approach to statutory interpretation requires reference to a provision’s text, context, and purpose (Telus, paras 30, 104). This analysis first involves determining the ordinary meaning of the provision’s text through relevant interpretive tools, such as dictionaries and an interpreter’s initial impression of the term(s) at issue. Both the majority and the dissent then engaged meaningfully with internal and external context, alongside a purposive analysis.
For example, Moreau J. draws on dictionary definitions to establish the ordinary meaning, consults the wider statutory scheme to assess the context, and returns to the Act’s language under section 7 to determine its purpose. The dissent follows this exact line of reasoning. It found an ordinary meaning through dictionary definitions and textual analysis while consulting the Act’s context and purpose in the broader statutory scheme. This similarity in analytical structure is welcome and affirms the modern approach to statutory interpretation.
Applying the Modern Approach
The majority and dissent disagreed on how to apply the modern approach to the facts. This disagreement centres on the dynamic interpretation of the modern approach. The dynamic approach is a statutorily protected line of interpretation that contends a provision should be capable of applying to new circumstances as they arise (Telus, para 34). Critically, the majority concluded that the degree to which a provision applies to these new circumstances is determined by reading the text and context as consistent with the legislature’s purpose. Notably, the majority and the dissent agreed on this point of interpretation.
The disagreement, however, stems from Côté J.’s interpretation of the Act’s purpose under section 7. As discussed, section 7 outlines the Act’s objective of orderly development. The dissent places a disproportionate emphasis on the purposive analysis in the modern approach to justify the dynamic interpretation of transmission lines. In simple terms, the dissent held that the orderly development objective necessitates a dynamic understanding of sections 43 and 44 to capture 5G antennas. The dissent reasons that removing a carrier's recourse to the CRTC through a narrow interpretation of sections 43 and 44 will inevitably make it more challenging to implement and maintain 5G networks, running contrary to orderly development (Telus, para 161). This framework falls short because the dissent confuses factual differences in the record, as demonstrated below.
At the CRTC hearing, the carriers provided no evidence that public authorities, such as municipalities, are making it difficult for carriers to deploy 5G networks. The majority held that these bodies have not systematically interfered with 5G deployment (Telus, para 78). And, in the alternative, the Radiocommunication Act addresses safety and environmental issues specific to antenna infrastructure, which are absent from the Act. A dynamic approach, then, would defeat the purpose of orderly development. It would overlook the factually distinct circumstances arising from the 5G antenna industry, never mind gaps in the evidentiary record. Thus, the majority got it right. It provided a modern approach to a modern problem.