Appeal Watch: Chinese Company Brought to Court, Telecom Takes a Hit and the Deportation of Foreign Criminals

Chinese Company Can Be Charged in Case Involving the Deaths of Two Temporary Workers

Over the past few years, billions of dollars have been funneled into Alberta’s oil sands. The Chinese, in particular, have a voracious appetite for Canadian natural resources. While most Canadians welcome foreign investors, who inject money into the economy, build infrastructure, develop land and so on, labour unions have been more reticent. They are concerned that certain standards are not met by these companies. More importantly, these companies often find legal loopholes to shirk responsibility for the safety and well-being of their employees.

Earlier this week, the Supreme Court of Canada upheld an appellate court decision from Alberta; in denying the appellant’s appeal in the case of Sinopec Shanghai Engineering Co. Ltd. v. Her Majesty the Queen in Right of Alberta, 2011 ABCA 331, the Court forces a Chinese state-owned corporation to face criminal proceedings in Canada related to the deaths of two oil sands workers in 2007.

In 2007, a union official reported that a massive storage tank could be structurally unsound to the Alberta Federation of Labour. It was built by Sinopec Shanghai Engineering Co. Ltd., whose parent company is one of the largest companies in the world, China Petroleum and Chemical Corp. According to Jeff Gray at the Globe and Mail, Sinopec Shanghai Engineering Co. Ltd. used a skeletal Canadian subsidiary to set up the deal at Fort McMurray, contracting with Canadian Natural Resources to build storage tanks in the area.

In 2007, the support structure holding up the metal tank’s roof collapsed, killing two Chinese workers who held temporary work visas. The ensuing legal battle centered on whether Sinopec Shanghai Engineering Co. Ltd. can avoid health-and-safety charges in a Canadian court. The company argues that it has no presence in Canada and that it was not served properly with the charges. The lower court agreed (R. v. Sinopec Shanghai Engineering Co. Ltd., 2010 ABPC 106), but their decision was overturned by the Court of Appeal of Alberta in 2011. The appellate court would have the last word, since the Supreme Court refused to hear the case this week. While the questions regarding jurisdiction are obviously important, what is more important is the sense of accountability that has been renewed by the courts. If a company goes out of its way to arrange its affairs to avoid having a presence in Canada, it should not serve as an excuse to evade criminal charges.

Telecom Takes a Hit

In Canadian law, the path to a class action is long and drawn out; it is no wonder most cases settle. In the case of a Canadian telecommunications-related class action suit, the Supreme Court of Canada dismissed the company’s appeal on June 29th, 2012.  The respondents were trying to recover twenty odd years of “system access” fees paid for “access” to a government network. The case went all the way up the highest court. However, it did so on a matter of class certification.

In this case, Mark Frey and others sought certification as a class action against six corporations that provide cellular or wireless ice services across Canada: Rogers, Telus, Bell Aliant, Bell Mobility, MTS and SaskTel. The respondents claimed that these corporations were unjustly enriched. They sought to recover improperly imposed “system access fees.” The appellants appealed the decision of the trial court, which found that the respondents had met the criteria to start a class action lawsuit under s. 6 of the Class Actions Act, SS 2001, c. C-12.01. The Court of Appeal of Saskatchewan, 2011 SKCA 136 affirmed the lower court’s decision.

Now that the Supreme Court  has established that there is a class, the real action can begin. Or the parties will finally settle. Either way, the respondents have class certification and, with that, greater bargaining power in any settlement that can be made.

Canada’s Latest Attempt at Fast-tracking: Bill C-43

Canada’s immigration policy never ceases to be an endless source of media scrutiny and dark entertainment: recently, the government attempted to cancel hundreds of thousands of pending immigration applications, rejected the tourist and family visit visa applications of retired military officers, and now, attempted to speed up the removal of foreign criminals with the passage of Bill C-43. Unambiguously titled the Faster Removal of Foreign Criminals Act, it has three main objectives: (1) to limit the immigration application review of individuals who are considered criminals in their country/ies of origin; (2) to deny permanent residency status to such people and their families, on grounds of public policy; and (3) and to provide for the “mandatory imposition of minimum conditions on permanent residents or foreign nationals who are the subject of a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security or who, on grounds of security, are named in a certificate that is referred to the Federal Court.” In short, if the Bill passes, anybody deemed a criminal under Canadian law could be subject to immediate deportation.

With any well-intentioned policy, there is a chance that, if implemented poorly, it would serve no one at the end. The goal of the policy is certainly laudable — Canadians should be entitled to live in a society with as little crime as possible and, therefore, the government should avoid allowing criminals into the country. The fact remains, however, that the Bill may be intentionally vague. As this commentary points out, it is a blunt instrument that could be broadly used against anybody with ‘criminal’ status, including the young and the mentally ill potentially, without a right to appeal. And a quick look at the international affairs section in any newspaper nowadays shows the contradictory definitions of ‘crime’ present in the world. Bill C-43 doesn’t seem to distinguish between a civilian who has exercised the right to free speech and a dictator responsible for genocide. If passed, Canada would be doing grave injustice to its immigration policy and its reputation as a welcoming community. While Minister Kenney is adamant that the Bill is meant to close a loophole in the system that allows for “appeal after appeal,” a strong appeal process is the benchmark of a strong and legitimate legal system. Taking that right away from anyone without a justifiable reason will only undermine the things we are most proud of in this country – our tolerance, democratic outlook and acceptance of difference.