China Mobile makes its appeal for Gov. evidence in banning order

When the cabinet of Prime Minister Justin Trudeau ordered China Mobile Communications Group Co., Ltd. to wind down its Canadian operations and vacate the country, based off a referral from Innovation Minister François-Philippe Champagne, those twin decisions should be subject to a judicial review challenge from the Chinese telecom, the company's lawyers argued to a three-judge Federal Court of Appeal panel Monday. Champagne "erred in law and/or acted in a manner that was contrary to law by initiating a review on the basis of irrelevant considerations unrelated to national security, making the referral, and/or concluding that the unit and business would be injurious to national security without any or sufficient evidentiary basis for reaching such conclusions, and taking into account irrelevant considerations and reaching his conclusions and/or making the referral," China Mobile's lawyer told the panel, quoting from China Mobile's application. The case dates back to 2020, when the office of the Innovation Minister issued a number of requests for information from China Mobile’s Canadian business, and in January 2021 informed the company that an order for review on national security grounds had been made. The cabinet eventually quietly issued a governor-in-council order in August 2021, ordering the company to pack up and leave Canada. “As the Investor is a state-owned enterprise ultimately controlled by the Chinese state, this investment could result in the Canadian business being leveraged by the investor’s ultimate controller for non-commercial purposes, such as the compromise of critical infrastructure and foreign interference, to the detriment of Canada’s national security,” the minister wrote, according to China Mobile’s initial court filing challenging the ruling. Since January 2022, China Mobile has been fighting in court for the release of the evidence the Government used in making the banning order under the Investment Canada Act. A month later, a federal court judge dismissed the company’s request for the minister’s materials, leading to the appeal heard Monday. Key to China Mobile's argument is that both the minister's decision to refer the company for a national security review and the subsequent GIC order are subject to the same judicial review, as they are part of a single process. In the Monday hearing, China Mobile pointed to a federal court decision from 2018, David Suzuki Foundation v. Canada (Health), in which the court found that multiple decisions can be challenged at once based on a number of factors, including whether the decisions are "closely connected", if there are similarities in the facts of the two decisions, and whether separate reviews would be a waste of time. China Mobile argues their situation satisfies all the criteria, enabling them to challenge both decisions in the same application for judicial review, an argument the government rejects. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

China Mobile makes its appeal for Gov. evidence in banning order

News | May 16, 2023

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