Court denies China Mobile request for stay of Gov. order to vacate

A telecommunications provider owned by the Chinese government has lost its appeal against an order from Prime Minister Justin Trudeau's government to pack up shop and vacate the country. In the Dec. 7 public version of an order first issued Dec. 3, Federal Court of Appeal Justice Paul Crampton denied the application for a stay from China Mobile Communications Group Co., Ltd. of an Aug. 6 order in council, writing that the telecom failed to satisfy the third element of the legal test required to grant a stay – that the balance of convenience favored granting the stay. The "public harms associated with the opportunity to use its indirect control over CMI Canada to facilitate espionage and foreign interference activities in Canada are significantly greater than the harm that the Applicants have established they will suffer if the stay they seek is not granted," Crampton wrote. China Mobile, Crampton added, failed to provide enough evidence about the types of harm the company would suffer if it is ordered to leave the country before an ultimate decision in the company's Judicial Review of the order. Without "clear and non-speculative evidence to support those harms in a detailed and concrete way, it is very difficult to have a good sense of the extent to which those harms will actually be suffered," Crampton wrote. The court's refusal to grant China Mobile a stay represents something of a validation for the Government's use of the national security review provisions of the Investment Canada Act. The provision states that if the minister of Innovation, Science, and Industry is satisfied that a foreign investment in Canada – like China Mobile's Markham, Ont.-based Canadian division – "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,” the minister can refer the investment to the Governor in Council for review. As lawyers for China Mobile pointed out in a Nov. 24 hearing in the case, China Mobile's challenge of the government order to vacate the country represents the first time the national security review provisions of the Investment Canada Act have been judicially reviewed. While that review remains to be conducted in China Mobile's case, the refusal of the stay means that China Mobile will be arguing from an increasingly marginalized position. The decision comes amidst increased focus on what decision the Government will make on deployment of Huawei Technologies Co. Ltd. gear on the nation's 5G networks. Late last month, Ed Fast, the Conservative's new critic for Innovation, Science and Economic Development, told the Wire Report that his party favored a complete ban on the company's gear on Canadian 5G networks. China Mobile's application for judicial review of the Government order will be heard on Jan 19, 202 — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo a jcocullo@thewirereport.ca

Court denies China Mobile request for stay of Gov. order to vacate

News | December 8, 2021

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Court denies China Mobile request for stay of Gov. order to vacate

News | December 8, 2021

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