Docket: T-600-19
Citation: 2020 FC 580
Ottawa, Ontario, May 6, 2020
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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ALEXANDR PETUKHOV, ZOHAR EL, DAN BRIGGS, AND MICHAEL PRATT
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Applicants
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and
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THE ATTORNEY GENERAL OF CANADA, SOUTHEAST REGIONAL SERVICE COMMISSION, BRAGG COMMUNICATIONS INC. and TERRENCE LEBLANC AND SHARON LEBLANC
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Respondents
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a decision made by Innovation, Science and Economic Development Canada (“ISED”
) approving the erection of a telecommunications tower by the Respondent, Bragg Communications Inc. (“Bragg”
). The decision under review is that of ISED in an email dated March 14, 2019, communicating to the applicants that Bragg had completed the consultation process required pursuant to s. 4.3 of ISED’s Client Procedures Circular CPC-2-0-03 Radiocommunication and Broadcasting Antenna Systems (“the Circular”
) and was therefore in compliance with its (Bragg’s) spectrum licence. The applicants contend, among other things, that Bragg and/or ISED failed to respect the requirements set out in the Circular. This failure, according to the applicants, results in a breach of procedural fairness or constitutes an unreasonable decision. For the reasons set out below, I allow the application, quash the ISED decision that the consultation process was successfully completed and order that Bragg and ISED properly undertake and complete the steps outlined in the Circular.
II.
Summary of Procedures to be followed as set out in the Circular
[2] Bragg is a cable television and telecommunications company. It seeks to erect a tower on lands adjacent to the applicants’ property. The respondent ISED is responsible for the regulation of radio and telecommunications infrastructure in Canada.
[3] As a telecommunications provider, Bragg holds a spectrum license issued by the Minister of ISED. Paragraph 5 of Bragg’s spectrum license provides as follows:
While site-specific radio licenses will not be required for each station, licensees must ensure that each radio station is installed and operated in a manner that complies with Industry Canada’s Client Procedures Circular CPC-2-0-03, Radiocommunications and Broadcasting Antenna Systems, as amended from time to time.
[4] The Circular outlines a default consultation process to follow when a proponent seeks to install a tower. While the Circular provides that Land-Use Authorities may establish their own public consultation process, the Land-Use Authority in this case, the Southeast Regional Services Commission (“SRSC”
), did not do so. Instead, it adopted the Circular’s default consultation process.
[5] The default consultation process sets out three (3) steps. First, the proponent (in this case, Bragg), must notify the local public, neighbouring land use authorities, businesses, property owners and others located within a radius of three (3) times the proposed tower height of the intended installation. Notification to the public may be accomplished by mailing or hand delivering a notice package, in some cases advertising in a local newspaper, and providing at least 30 days for written public comments. Because the applicants take no issue with the notification procedures undertaken by Bragg, no further observations will made in that regard.
[6] The second step in the consultation process, titled “Responding to the Public”
requires the proponent to respond to all “reasonable and relevant concerns”
. While there is some dispute between the parties over the identification of “reasonable and relevant concerns”
, there is no dispute about the process to follow at the second step. The Circular directs that “[i]f the local public or land-use authority raises a question, comment or concern relating to the antenna system as a result of the public notification process”
, the proponent must follow three (3) steps. First, within 14 days it must acknowledge in writing receipt of the question, comment or concern and keep a record of the communication. Second, within 60 days of receipt of the question, comment or concern
the proponent must address it in writing or explain why it does not, according to the proponent, meet the test of “reasonable or relevant”
. Finally, in the reply sent within 60 days of receipt of the question, comment or concern, the proponent is required to clearly indicate that the party has 21 days from the date of the correspondence to reply to the proponent’s response.
[7] The third step, titled “Public Reply Comments”
, provides 21 days for the party to reply to the proponent’s response. The proponent is to keep a record of any discussions between it and members of the public who have questions, comments or concerns. The proponent is required to provide a copy of all public reply comments to the local ISED office.
III.
Procedure Followed in the Circumstances
[8] Pursuant to the Circular’s consultation process, on November 21, 2018, Bragg sent notification packages to all residents located within a radius of three (3) times the height of the proposed tower and advertised in the local newspaper. Bragg invited comments from the public within 30 days. The applicants state they sent a letter expressing concerns to Bragg on November 27, 2018. Bragg has no record of having received that correspondence. The applicants submitted further communication through their solicitor on December 21, 2018, in which they expressed their concerns related to property values and health and safety issues. A representative of Bragg called the applicants’ solicitor that same day. He explained that the applicants’ concerns were not relevant pursuant to the Circular. The representative of Bragg maintained no record of the conversation. Bragg followed up on this conversation with a letter dated January 3, 2019. Bragg contends the January 3, 2019 letter constitutes both the acknowledgement of the applicants’ concerns in writing required within 14 days and the response to their concerns required within 60 days, as contemplated by step 2 of the consultation process set out in the Circular. For ease of reference, set out below is the text of the letter sent to the applicants’ solicitor by Bragg:
Dear Mr. Thompson,
Thank you for reaching out to share your concerns about the proposed site located at Zack Road in Lutes Mountain, NB.
We are currently in the midst of what is considered the public notification process, which is meant to capture community feedback like yours before we make any final decisions. With that in mind, please know that we take your concerns very seriously. We work hard to find tower site locations that provide excellent coverage for the community while minimizing any impacts to the communities we serve including minimizing the number of locations required to serve a community.
The proposed structure, a 45m monopole tower, is one of the smaller and less aesthetically impacting tower designs.
Reliable telecommunications infrastructure can be an influencing factor for homebuyers and it is common for residential developments to be in close proximity to telecommunications infrastructure.
The property at 9 Zack Road was considered as a potential location for the installation of a new telecommunications tower, however upon further due diligence it was determine (sic) that a telecommunications tower at that location would not achieve the coverage objective for the area.
Regards,
[9] The January 3 letter does not appear to identify which comments, questions or concerns raised by the applicants are considered by Bragg to be reasonable and relevant. Even if Bragg considered some of them to be reasonable and relevant, which is unclear, the letter does not address those concerns as required by step 2 of the consultation process set out in the Circular. Finally, the January 3 letter does not inform the applicants they have 21 days within which to reply, also required by step 2 of the consultation process. Bragg, not surprisingly, received no further communication from the applicants or their solicitor.
[10] Via e-mail correspondence dated February 20, 2019, SRSC confirmed to Bragg that it (Bragg) had completed the public consultation requirements set out in the Circular. It further informed Bragg it would issue a letter of concurrence once its Planning Review and Adjustment Committee (“the Committee”
) approved the subdivision of the lot required for the placement of the tower. On February 27, 2019, the Committee approved Bragg’s zoning variance application and subdivision plan. This paved the way for the issuance of the concurrence letter from SRSC and ISED’s eventual approval for the installation of the antenna.
[11] On March 5, 2019, the applicants wrote to ISED to communicate their concerns about the failure of the consultation process. On March 12, 2019, the SRSC issued Bragg a certificate of concurrence, as contemplated by section 4.3 of the Circular. On March 14, 2019, ISED replied to the applicants’ letter dated March 5, 2019 to advise them that it was satisfied Bragg had fulfilled the requirements of the Circular. The applicants challenge the issuance of the certificate of concurrence and the conclusion by ISED that Bragg had fulfilled the requirements of the Circular.
IV.
Relevant Provisions
[12] The relevant provisions are s. 5(1)(f) of the Radiocommunication Act, RSC 1985, c R-2, as well as ss. 1.1, 1.3, 4, 4.2, 4.3, and 7 of the Circular as set out in the attached Schedule.
V.
Issues
[13] The applicants contend Bragg and/or ISED failed to respect the Circular’s consultation process thereby violating their (the applicants’) procedural fairness rights. While not specifically contending in their Notice of Application that ISED’s decision fails to meet the standard of reasonableness, the applicants state that ISED “[…] utterly failed to, or otherwise refused to consider the neighbors complaints, comments, and/or concerns and for all intents and purposes entirely ignored and/or disregarded their voices”
I consider those pleadings to constitute an allegation that the decision does not meet the test of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov]. In addition, the applicants contend ISED improperly delegated its authority to the SRSC. Because I am satisfied that this Application may be determined based upon either the procedural fairness issue or that of reasonableness, I need not address the issue of alleged improper delegation.
VI.
Analysis
[14] Paragraph 5(1)(f) of the Radiocommunication Act authorizes the Minister 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. Those who wish to erect antennae pursuant to the Act must meet the requirements of the Circular. The importance of respecting those requirements is particularly evident in a case such as the present where the application to erect a tower and the consultation process are proponent-driven.
[15] Where the executive branch establishes a procedure for obtaining regulatory approval, I am of the view failure to follow that procedure, where the failure is not de minimis, constitutes a breach of procedural fairness (Mavi v Canada (Attorney General), 2011 SCC 30 at para 68, [2011] 2 SCR 504; Khadr v Canada (Attorney General), 2006 FC 727 at para 119, 268 DLR (4th) 303; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 26, 174 DLR (4th) 193 [Baker]). While the degree of procedural fairness necessary in any given circumstance might otherwise depend upon the nature of the tribunal, the importance of the decision to the individual affected and the legitimate expectations of the persons involved, (Baker), here ISED has chosen a process that, in my view, constitutes the minimum degree of procedural fairness proponents must meet. The applicants do not contend the consultation process set out in the Circular is procedurally unfair; rather, they say Bragg’s failure to follow the procedure was unfair and led to an unreasonable decision in the circumstances. I agree. I note the following:
a) First, it appears that Bragg failed to acknowledge receipt of the November 27, 2018 letter sent by the applicants. This violated step 1 of the
“Responding to the Public”
component of the consultation process as outlined at section 4.2 of the Circular.b) Second, presuming without deciding, that Bragg did not receive the November 27, 2018 letter, Bragg failed to maintain a record of its employee’s phone conversation with the applicants’ counsel of December 21, 2018, in which the employee verbally acknowledged receipt of the applicants’ concerns set out in the letter of the same date. This failure violated step 1 of the
“Responding to the Public”
component of the consultation process outlined at section 4.2 of the Circular. Although the Circular states that the letter required by step 2 may constitute a record of how the proponent addressed the concerns, the January 3, 2019 does not address the comments, questions or concerns, nor does it purport to say they are neither“reasonable” nor “relevant”.
In addition to failing to maintain a written record of the telephone communication between Bragg and counsel for the applicants, there was no evidence of any other effort to maintain a record in any other format, such as an audio recording.c) Third, presuming the first letter received by Bragg was the letter of December 21, 2018, and presuming the January 3, 2019 letter from Bragg to the applicants’ counsel constitutes both the 14-day acknowledgement and the 60-day response, the January 3, 2019 letter fails to meet the procedural requirements set out in the Circular. Bragg neither addressed the applicants’ concerns nor explained why they were not relevant or reasonable. In addition, it failed to clearly indicate to the applicants that they had 21 days within which to respond to the correspondence.
[16] Bragg contends the failure to alert the applicants to the 21-day period within which to respond is inconsequential because counsel for the applicants knew of that time limit by having read the Circular. I disagree for three (3) reasons. First, the Circular requires the proponent to clearly indicate the 21-day reply period to the receiving party. Second, because the January 3, 2019 letter is dated within 14 days of Bragg’s receipt of the December 21, 2018 letter from the applicants’ counsel, and because it fails to mention the 21-day response time, the applicants could reasonably expect that that letter was nothing more than the 14-day acknowledgement. The applicants could have reasonably expected further correspondence based upon the 60-day time period. In my view, this clearly explains the applicants’ failure to respond within 21 days of the January 3 letter. Third, the Circular provides that a proponent is required to “address in writing all reasonable and relevant concerns within 60 days of receipt or explain why the question, comment or concern is not, in the view of the proponent, reasonable or relevant”
. As already stated, in my view, the January 3 letter does neither.
[17] It is evident ISED failed to review the communications between the parties. Had it done so, it would have been apparent that no record, either written or audio, was maintained of the December 21, 2018 telephone conversation between a Bragg official and counsel for the applicants. Furthermore, had it reviewed the communications between Bragg and the applicants, ISED would have realized the applicants were never advised of their right to respond to the January 3, 2019 letter from Bragg within 21 days. Also, for the reasons already provided, it would have been evident that the January 3, 2019 letter could not be both the 14-day acknowledgement and the 60-day response from Bragg.
[18] Bragg cites Parveen v Canada (Citizenship and Immigration), 2019 FC 155, in support of the principle that failure to follow strict procedural requirements should not invalidate an otherwise valid decision. In that case, this Court upheld a decision by the Refugee Protection Division (“RPD”
) despite the RPD’s failure to provide written reasons for its decision in accordance with the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RPD had communicated its decision orally, rather than in writing, as required by the IRPA. This Court concluded there was no breach of procedural fairness. In contrast to the facts in Parveen, the missing procedural steps in the present case are those necessary to arrive at a fair decision. In Parveen, the issue was the method of communicating a decision already made through a fair procedure. The violations by Bragg and/or ISED of the procedure set out in the Circular are not merely technical, nor are they de minimis.
[19] I conclude that Bragg’s consultation efforts failed to meet the requirements of procedural fairness. Furthermore, ISED’s decision that Bragg successfully concluded the consultation process is unreasonable in the circumstances. It is not transparent, intelligible and justifiable in the circumstances: Vavilov, at para 15).
VII.
Conclusion
[20] Given my conclusion that Bragg failed to respect the procedural fairness requirements of the Circular and ISED’s unreasonable decision that the consultation process was successfully completed, I allow the Application for Judicial Review. By allowing this Application, it is apparent that I consider ISED unreasonably relied upon SRSC’s advice that Bragg had successfully completed the consultation process.
[21] Bragg and ISED both pled that Bragg should not be required to commence the siting application process de novo. I disagree. In the circumstances, the only part of the consultation process that appears to have been respected was that involving public notification. The Court has no knowledge about whether other individuals may have moved to within three (3) times the height of the proposed tower since these proceedings commenced. To dispense with the requirement of notification anew may result in the failure to respect the rights of other interested parties.
[22] All of that said, in my view it is not necessary for Bragg to seek a new variance and subdivision approval from SRSC under the Community Planning Act, SNB 2017, c 19. The provincial planning authorities have approved a subdivision. This court has no jurisdiction to interfere in that process.
[23] Presuming Bragg wishes to proceed with approval for the erection of a tower on PID 70387071, Zack Road, Lutes Mountain, New Brunswick, nothing in these reasons or this Judgment prevent it from commencing the process anew beginning with notification as contemplated by the Circular.
VIII.
Varia
[24] At the commencement of the hearing, the parties agreed that the respondent EASTLINK TELECOMMUNICATIONS COMPANY should be amended to read “BRAGG COMMUNICATIONS INC”
and the defendant “THE MINISTER FOR INDUSTRY CANADA, or INNOVATION SCIENCE AND ECONOMIC DEVELOPMENT”
should be amended to read “THE ATTORNEY GENERAL OF CANADA”
.
[25] Given the parties’ agreement in this regard, and as part of this judgment, the style of cause of the pleadings is amended accordingly.
JUDGMENT
THIS COURT’S JUDGMENT is that:
The style of cause is amended to reflect that the defendant EASTLINK TELECOMMUNICATIONSCOMPANY is now
“BRAGG COMMUNICATIONS INC”
, and that the defendant“THE MINISTER FOR INDUSTRY CANADA, or INNOVATION SCIENCE AND ECONOMIC DEVELOPMENT”
is now“THE ATTORNEY GENERAL OF CANADA”
;The Application for Judicial Review is allowed; and
ISED’s decision dated the 14th day of March, 2019 that the consultation process contemplated by the Circular was complete is quashed.
"B. Richard Bell"
Judge
SCHEDULE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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T-600-19
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STYLE OF CAUSE:
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ALEXANDR PETUKHOV, ZOHAR EL, DAN BRIGGS, AND MICHAEL PRATT v THE ATTORNEY GENERAL OF CANADA, SOUTHEAST REGIONAL SERVICE COMMISSION, BRAGG COMMUNICATIONS INC. AND TERRENCE LEBLANC AND SHARON LEBLANC
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PLACE OF HEARING:
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Fredericton, New Brunswick
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DATE OF HEARING:
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February 26, 2020
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REASONS FOR JUDGMENT AND JUDGMENT:
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BELL J.
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DATED:
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MAY 6, 2020
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APPEARANCES:
Thomas J. Thompson
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For The Applicants
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Mark S. Freeman
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For The Respondent
ATTORNEY GENERAL OF CANADA
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Nancy G. Rubin, Q.C. for Bragg Communications Inc.
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For The Respondent
BRAGG COMMUNICATIONS INC.
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SOLICITORS OF RECORD:
Thompson & Thompson
Dieppe, New Brunswick
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For The Applicants
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Attorney General of Canada
Halifax, Nova Scotia
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For The Respondent
ATTORNEY GENERAL OF CANADA
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Stewart Mckelvey
Halifax, Nova Scotia
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For The Respondent
BRAGG COMMUNICATIONS INC.
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