Statutory Open Texture and Dynamic Statutory Interpretation: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15

I had the privilege to be involved in Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15 as counsel for one of the intervenors (the Canadian Telecommunications Association) in this fascinating statutory interpretation case.

The difficulty was as follows: the Telecommunications Act provides that in the event of a disagreement between telecommunications carriers and municipalities, the Canadian Radio-television and Telecommunications Commission can grant the carrier permission to construct a “transmission line” on conditions determined by the Commission. These provisions (especially ss. 43(4) and 43(5)) are controversial because they do away with any requirement of municipal consent. And their interpretation led to this litigation because carriers would like access to install antennae for 5G wireless networks. The question for the Supreme Court was: “does ‘transmission line’ include antennae for 5G networks?”

To begin with, the question illustrates the phenomenon of open texture. Evidently, when the relevant provisions of the Telecommunications Act were debated and adopted, 5G technology was, at best, a gleam in the eye of a particularly farsighted innovator. But the emergence of new technologies can cause us to call into question our settled understanding of concepts. This is because of open texture, the “limit, inherent in the nature of language, to the guidance which general language can provide.”: H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) at p. 126, cited in Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555, at para. 44). Frederick Schauer describes the phenomenon as follows:

Because language cannot anticipate all possible occurrences in all possible worlds … there persists the ineliminable potential that a definition of an empirical concept bounded in all now-foreseeable dimensions can break down in the face of unforeseen and unforeseeable events.

The British philosopher JL Austin gave a vivid example of the phenomenon by introducing the “exploding goldfinch”. We all know what a goldfinch is. But if a goldfinch exploded in front of our eyes, we would have revisit our understanding of what a goldfinch is.

Similarly, the emergence of 5G antennae as integral parts of a communications network causes us to call into question our settled understanding of “transmission line”.

Notice, as Schauer goes on to explain, that the open texture of language does not result from vagueness or ambiguity. Open texture can call into question even the meaning of a ‘clear’ statutory provision:

But open texture is different. It is the possibility of vagueness – the potential vagueness – of even those terms that appear to have no uncertainties with respect to known or imagined applications. We could list all of the existing criteria for something being a goldfinch, and thus the term “goldfinch” would not be vague for any of the known existing goldfinches and non-goldfinches in the world. But because such a precise and non-vague definition of “goldfinch” would not likely contain the criteria of “does not explode” … the occurrence of the previously unimagined would render the hitherto non-vague term newly vague with respect to that application.

Schauer was sceptical that open texture in law is distinct from open texture in language. HLA Hart seemed to disagree, treating open texture as a distinctive legal phenomenon. I am hardly going to arbitrate between Professors Schauer and Hart, but it does seem to me that open texture often occurs in legal settings for two reasons. First, legal rules are invariably drafted in the abstract and in general terms but have to be applied in specific settings. To take Hart’s famous example, it is difficult to know whether a “no vehicles in the park” rule excludes bicycles, skateboards or a decommissioned military tank used as a monument. The open texture of language is, in this case, exacerbated by the difficulty of applying the text of the “no vehicles in the park” rule with due regard to the purpose of the rule. Second, legal rules are adopted at a particular point in time to respond to a particular set of circumstances but have to be interpreted and applied when circumstances have changed. A notorious example in Ontario is the Pensions Benefits Act, drafted on the background assumption that pension schemes would be defined benefit but now operating in a world where defined benefit schemes are almost entirely a relic of a bygone era. In an ideal world, legislatures would update statutory terms regularly to take account of social, political and other changes. But we do not live in an ideal world and so interpreters must do the best they can in applying old law to new circumstances.

The lesson of open texture for legal interpreters is that text cannot be considered in a vacuum: it has to be interpreted having regard to the context in which it is applied (Peacock c. Adessky, 2009 QCCA 2259, at para. 36). Statutes are no different. Therefore, even provisions which seem prescriptive at first sight may, when considered in their full context, adapt to take account of particular circumstances. The concept of open texture means that statutory “words and concepts do not bear one consistent and coherent meaning but many meanings that vary with the context in which they are relevant” (Manrique c. R., 2020 QCCA 1170, at para. 19). As such, the context in which a provision falls to be applied will influence the interpretation of the provision.

This brings us to the Telus case, which was argued on the basis of ‘dynamic statutory interpretation’, i.e. that law should be interpreted (or perhaps actively updated) to take account of changing circumstances. The Supreme Court saw only a limited role for dynamism, as Moreau J explained in her majority reasons.

First, respect for original meaning is paramount: “Statutory interpretation is centered on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent” (at para. 32). This led Moreau J to look closely at the concepts that were known to Parliament at the time of drafting. For example, “Hansard does not disclose any indication that Parliament intended to expand the access regime to include wireless radiocommunication apparatus like antennas” (at para. 62). In my view, a focus on original meaning is defensible, but in this passage the Supreme Court came quite close to looking to the original expected applications of the drafters. This sort of exercise has, however, long since fallen out of fashion because of the considerable epistemic difficulties it provokes. To be fair to Moreau J, she was also contrasting the treatment of antennae across different statutes, which is a rather different exercise than attempting to divine what the people in the room at the time of drafting had in mind about what the statute should apply to.

Second, courts can nonetheless respond to changing circumstances where the statutory language is broad enough to permit them to do so:

It is uncontroversial that, in the exercise of their legislative authority, enacting legislatures can use broad or open-textured language to cover circumstances that are neither in existence nor in their contemplation (see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 61; Perka, at p. 265; Côté and Devinat, at para. 285). Indeed, they frequently do so to ensure the long-term objects of an enactment can be achieved without constantly reopening the statute (see Sullivan, § 6.01[2]). A legislature may in this way intend that a provision be interpreted dynamically, in that the provision should be capable of applying to new sociological or technological circumstances as they arise (Sullivan, at § 6.03). If this original intention is to be preserved, courts must interpret broad or open-textured concepts in a manner sensitive to the evolving context (see R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 38). Such an approach does not detract from the enacting legislature’s will — it furthers it. This principle has been codified in s. 10 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that the law is “always speaking” and “shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning”. (at paras. 33-34).

Third, there is no particular role for dynamic statutory interpretation to play. Determining whether a statute (of any vintage) applies to a given set of facts depends on the breadth of the text, when considered in conformity with its purpose and harmoniously with the statutory regime as a whole:

There is no bright line between statutes that are “static” and statutes that are “dynamic”. The degree to which a provision is capable of applying to new circumstances, including new technology, is an interpretive question like any other that must be answered by reading the text in context and consistent with the legislature’s purpose (at para. 36).

For a variety of reasons, Moreau J went on to hold that a “transmission line” does not include 5G antennae. The ordinary textual meaning suggested Parliament intended “to capture wireline infrastructure only” (at para. 42). Looking to dictionary definitions, Moreau J posited that the word line has physical connotations:

In my view, even if there is an abstract definition of “line” that refers to any connection between two points, its pairing with the word “transmission” gives it a strong physical connotation (para. 483). Physical lines can use different types of technology, for example, coaxial or fibre-optic cables, and still readily align with an ordinary meaning of “transmission line”. But antennas, even 5G small cell antennas, do not fit naturally within that ordinary meaning because antennas do not transmit intelligence along physical pathways. Antennas are a form of radio apparatus, equipment that transmits intelligence “by means of electromagnetic waves . . . in space without artificial guide” (Radiocommunication Act, s. 2, sub verbo “radiocommunication”) (at para. 45).

This was supported by the surrounding text in s. 43, which permits activities like burying things, breaking up roads and altering routes. As anyone who has ever wielded a pickaxe knows, these are physical activities with a capital “P”:

But antennas cannot be buried “under” or run “along” public property. It is also very difficult to see how one could alter the “route” of an antenna, since antennas, unlike wires and cables, do not follow a “route” in the first place. It is of course true, as the carriers emphasized at the hearing, that some transmission wires and cables will not be buried, nor will they necessarily require breaking up public property. Similarly, I acknowledge that antenna construction could involve entering onto or breaking up public property. However, one can imagine burying a cable or wire or running them over public property in a way that is not possible for antennas. Reading the provisions as a whole calls to mind physical, linear undertakings — the construction of wires or cables that run on, over, under, or along public property — and all the unique challenges that installation, operation or maintenance of that type of infrastructure may pose (at para. 50).

In addition, the broader context, including legislative history, demonstrated “that antennas or other wireless equipment have never been part of the access regime and that Parliament intentionally distinguished antennas from wireline equipment like wires or cables” (at para. 57).

As to statutory purpose, Moreau J was not persuaded that either the carriers’ interpretation or the municipalities’ interpretation would be incompatible with the Telecommunications Act. Parliament had attempted to strike a balance between competing interests  (at para. 71) but neither interpretation advanced that purpose in a compelling way. Put differently, resolving the matter one way rather than the other would invariably favour one of the interest groups Parliament was arbitrating between, which meant that legislative purpose was, for want of a better word, neutral.

In dissent, Côté J did take a dynamic approach. She found the text of ss. 43 and 44, read in their immediate context and in harmony with the whole legislative scheme, was broad enough to encompass 5G technology. In terms of purpose, she also noted that Parliament intended “to create a legislative scheme that will not become obsolete with changing technologies” (at para. 170).

An efficient and effective telecommunications regulatory regime that facilitates reliable, high quality services throughout Canada is one that makes it easier — not more difficult — for carriers to carry out the major upgrades necessary to develop Canada’s telecommunications networks. Of course, these policy objectives do not ground the CRTC’s jurisdiction on their own — rather, they inform how the access regime must be interpreted. With respect, an interpretation of “transmission line” that disentitles carriers from seeking recourse through the access regime in the Telecommunications Actruns contrary to these objectives. Requiring carriers to negotiate access with municipalities or other public authorities without recourse to the CRTC in case of an impasse will naturally make it harder to deploy 5G infrastructure. The sheer number of 5G small cells that must be deployed — at least 250,000 compared to only 13,000 large cell towers — significantly increases the difficulty of negotiation due to the fact that 20 times the number of antennas must be installed in the same amount of space (at paras. 160-161).

As I represented a party that was broadly supportive of the telecommunications carriers, it should not come as a surprise to learn that I enjoyed reading the dissent much more than the majority reasons. Côté J responds quite effectively to the challenge of open texture, recognizing that a term that seems narrow at first glance — “transmission line” — might have to be understood more broadly given the context in which it now applies.

However, Moreau J deserves credit for treating dynamic statutory interpretation explicitly and providing the Canadian legal community with a straightforward framework for applying statutes to changing circumstances. We should not expect these issues to go away though. This case is a vivid illustration of the problem of open texture in law, a problem that is not going to go away any time soon and will no doubt prompt further interesting litigation in the future.

This content has been updated on April 27, 2025 at 00:43.