China Mobile pleads for court stay on Gov. order to leave country

A telecommunications service provider owned by the Chinese government sought Wednesday to convince a Federal Court judge to stay a move by the Canadian Government to order it to pack up and leave the country by January. In order to do so, China Mobile Communications Group Co., Ltd. did its best to convince the court that a stay would satisfy the three criteria needed under the judicial test known as RJR-MacDonald. The first element of the test is whether or not the issue at hand is a "serious issue to be tried." China Mobile lawyer Erica Baron argued that the interpretation and application of the national security review provisions of the Investment Canada Act have never before been judicially reviewed. "This will be a matter of first impression before the court," she said, and pointed to the limited information about how the government came to make its decision to order China Mobile to leave the country. In its application for leave to appeal the government's order in council, China Mobile argued the order is unlawful because the minister responsible, Innovation Minister François-Philippe Champagne, “failed to meet the statutory threshold required to refer the decision to the Governor in Council.” That threshold, the company continued, is under section 25.3(6) of the Investment Canada Act, and states that after the Innovation Minister has consulted with the Minister of Public Safety, the Innovation Minister shall refer a non-Canadian investment (like China Mobile’s Canadian operation) to the Governor in Council for review if “the minister is satisfied that the investment would be injurious to national security, or on the basis of the information available, the minister is not able to determine whether the investment would be injurious to national security.” "Our position is that the conclusion the minister made or arrived at did not cross the statutory threshold," Baron said Wednesday. "Instead it appears, at least from what we have, that he concluded that the investment posed three risks … They're all 'mays' and 'coulds'" Namely, it wrote in its Aug. 6 order in council that China Mobile "may be subject to the influence or demands of, or control by, a foreign government;" that the company "may disrupt or otherwise compromise Canadian critical telecommunications infrastructure;" and that China Mobile "may gain access to highly sensitive telecommunications data and personal information that could" be used for military or espionage purposes. Baron said that the government is asking the court to focus on its use of the word "would" in the preamble of the order, and ignore its use of less definitive words in the order's reasoning. While that reasoning may prevail in the ultimate judicial review, Baron argued, the issues at hand are serious enough to merit a stay. Back in October of 2020, China Mobile said in its court filing that it formally notified the minister of its existence, “having inadvertently not notified the minister of the establishment of the business at the time of incorporation in 2015 but having obtained the License for the provision of services, and operated without issue since then.” Over the next several months into January 2021, the minister issued a number of requests for information from China Mobile’s Canadian business, and on Jan. 28, informed the company that an order for review on national security grounds had been made. In notifying China Mobile that it was reviewing the company on national security grounds, the minister included a summary of concerns, in which is wrote that the company and its subsidiaries “maintain several points of presence within Canada’s telecommunications infrastructure, including providing telephony services to individual customers, and offering general services to third parties in Canada.” Baron argued that the government order was unduly influenced by the strained relationship between the governments of China and Canada. "Even if assuming that it is a legitimate view for the government of Canada to hold -- namely that they have grave concerns about China -- it does not follow, therefore, that any conclusion reached by the respondents in this case was a reasonable one not tainted by bias," Baron said. Government lawyer Sean Gaudet told the court that the government's use of the words "may" and "could" were reasonable. "By definition, any risk is going to use language that suggests there is a certain degree of uncertainty," Gaudet said. "Unless the minister, in consultation with the minister of Public Safety, has a crystal ball and knows with 100 degree of certainty that the foreign entity is going to do these things," then ultimately "no risk would meet the test for the Minister being satisfied that allowing the investment would pose a risk to Canada's national security." — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

China Mobile pleads for court stay on Gov. order to leave country

News | 11/24/2021 7:58 pm EST

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