R. v. Sinopec Shanghai Engineering Co. et al., (2011) 515 A.R. 182

• Judge: Slatter, McDonald and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 06, 2011
• Citations: (2011), 515 A.R. 182;2011 ABCA 331

R. v. Sinopec Shanghai Eng. (2011), 515 A.R. 182; 532 W.A.C. 182 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.108

Her Majesty the Queen in Right of Alberta (respondent/applicant) v. Sinopec Shanghai Engineering Company Ltd. (appellant/respondent) and The Honourable Bruce R. Garriock, Judge of the Provincial Court of Alberta (not a party to the appeal/respondent/not a party to the Application)

(1103-0106-A; 2011 ABCA 331)

Indexed As: R. v. Sinopec Shanghai Engineering Co. et al.

Alberta Court of Appeal

Slatter, McDonald and Bielby, JJ.A.

November 23, 2011.

Summary:

An Information was sworn charging three corporations with violating the Occupational Health and Safety Act. Two of the named defendants had a presence in Canada. The third, Sinopec Shanghai, had none. The Crown applied for an order that the trial proceed ex parte.

The Alberta Provincial Court, in a decision reported at [2010] A.R. Uned. 460, dismissed the application. The court held that the appearance by defence counsel on behalf of Sinopec Shanghai for the purpose of opposing the Crown's application for an ex parte trial and by arguing invalid service upon his client, did not constitute an attornment by Sinopec Shanghai to the court's jurisdiction. The Crown sought certiorari and mandamus to compel the Provincial Court to bring Sinopec Shanghai before it to face trial.

The Alberta Court of Queen's Bench, in a decision reported at 516 A.R. 150, quashed the Provincial Court's decision on the basis that Sinopec Shanghai had attorned to the latter's jurisdiction. If Sinopec Shanghai did not attend at the time scheduled for trial, service had been effected and the Crown would be in a position to apply for an ex parte trial (Criminal Code, s. 800(3)). Sinopec appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting, dismissed the appeal.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - The Alberta Court of Appeal stated that "... a distinction must be made between matters that relate to the jurisdiction of a court to try an offence and those that arise from procedural defects in service. While an accused may appear conditionally to challenge jurisdiction in relation to the former, any attempt to appear in this fashion to challenge the efficacy of service will be ineffective and will result in attornment to the jurisdiction of the court." - See paragraph 1.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - [See Criminal Law - Topic 2810 ].

Criminal Law - Topic 2810

Jurisdiction - General principles - Jurisdiction over the accused - An Information was sworn charging three corporations with violating the Occupational Health and Safety Act - Two of the named defendants had a presence in Canada - The third (Sinopec) had none - The Crown applied for an order that the trial against Sinopec proceed ex parte - The Provincial Court dismissed the application - The court held that the appearance by defence counsel on behalf of Sinopec for the purpose of opposing the Crown's application for an ex parte trial and by arguing invalid service upon his client, did not constitute an attornment by Sinopec to the court's jurisdiction - The Crown sought certiorari and mandamus to compel the Provincial Court to bring Sinopec before it to face trial - The Court of Queen's Bench quashed the Provincial Court's decision on the basis that Sinopec had attorned to the latter's jurisdiction - An information was properly sworn that conferred jurisdiction upon the court - There was a defect in relation to the service of the summons contemplated by s. 702(3) of the Criminal Code - In fact, the Provincial Court Judge had found that there was not service in accordance with the statute - This was not a nullity, but a curable deficiency - It was corrected when the accused appeared through counsel in the court having jurisdiction to hear the matter - At that point, the Provincial Court judge should have taken a plea from Sinopec - If Sinopec did not attend at the time scheduled for trial, service had been effected and the Crown would be in a position to apply for an ex parte trial (s. 800(3)) - Sinopec appealed - The Alberta Court of Appeal dismissed the appeal - See paragraphs 1 to 16.

Criminal Law - Topic 3275

Compelling appearance, detention and release - Summons - Service (incl. outside Canada) - [See Criminal Law - Topic 2810 ].

Criminal Law - Topic 4208

Procedure - Irregularities - Curing of - [See Criminal Law - Topic 2810 ].

Criminal Law - Topic 7122

Extraordinary remedies - Certiorari - When available - An Information was sworn charging three corporations with violating the Occupational Health and Safety Act - Two of the named defendants had a presence in Canada - The third (Sinopec) had none - The Crown applied for an order that the trial against Sinopec proceed ex parte - The Provincial Court dismissed the application - The court held that the appearance by defence counsel on behalf of Sinopec for the purpose of opposing the Crown's application for an ex parte trial and by arguing invalid service upon his client, did not constitute an attornment by Sinopec to the court's jurisdiction - The Crown sought certiorari and mandamus to compel the Provincial Court to bring Sinopec before it to face trial - The Court of Queen's Bench quashed the Provincial Court's decision on the basis that Sinopec had attorned to the latter's jurisdiction - If Sinopec did not attend at the time scheduled for trial, service had been effected and the Crown would be in a position to apply for an ex parte trial (Criminal Code, s. 800(3)) - Sinopec appealed - The Alberta Court of Appeal agreed that Sinopec had attorned to the Provincial Court's jurisdiction - Further, it was open to the reviewing judge to grant judicial review to quash the contrary decision of the Provincial Court, notwithstanding the arguable existence of a parallel right to appeal - See paragraphs 13 to 16.

Criminal Law - Topic 7142

Extraordinary remedies - Mandamus - When available - [See Criminal Law - Topic 7122 ].

Criminal Law - Topic 7263

Summary conviction proceedings - Informations - Nullities - General - [See Criminal Law - Topic 2810 ].

Trials - Topic 1064

Summary convictions - Jurisdiction - Effect of appearance of accused - [See Criminal Law - Topic 2810 ].

Cases Noticed:

R. v. Gougeon (1980), 55 C.C.C.(2d) 218 (Ont. C.A.), appld. [para. 1]; refd to. [para. 45].

R. v. Naylor (1979), 42 C.C.C.(2d) 12 (Ont. C.A.), appld. [para. 1]; refd to. [para. 45].

R. v. Hrankowski (1980), 22 A.R. 597; 54 C.C.C.(2d) 174 (C.A.), appld. [para. 1]; refd to. [para. 45].

R. v. Harnish (1979), 38 N.S.R.(2d) 273; 49 C.C.C.(2d) 190 (C.A.), folld. [para. 6]; refd to. [para. 47].

R. v. Reynolds (R.J.) Tobacco Co. (Delaware) et al. (2007), 230 O.A.C. 89; 230 C.C.C.(3d) 72; 2007 ONCA 749, refd to. [paras. 10, 50].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 142 D.L.R.(4th) 595, refd to. [para. 15].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 33].

R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1, refd to. [para. 33].

Rozander and Groeneveld v. Energy Resources Conservation Board and Calgary Power Ltd. (1978), 13 A.R. 461; 8 Alta. L.R.(2d) 203; 1978 Alta SCAD 391, consd. [para. 33].

Merchant v. Law Society of Alberta (2008), 440 A.R. 377; 438 W.A.C. 377; 97 Alta. L.R.(4th) 216; 2008 ABCA 363, refd to. [para. 33].

Barclays Bank of Swaziland Ltd. v. Hahn, [1989] 2 All E.R. 398 (H.L.), refd to. [para. 41].

Canadian-Dominion Leasing Corp. Ltd. v. Corpex Ltd., [1963] 2 O.R. 497 (S.C. Master), affd. [1963] 2 O.R. 499, refd to. [para 41].

Kuwait Airways Corp. v. Iraqi Airways Co. - see Kuwait Airways Corp. v. Iraq (Republic) et al.

Kuwait Airways Corp. v. Iraq (Republic) et al., [1995] 1 W.L.R. 1147; 187 N.R. 192 (H.L.), refd to. [para. 41].

Canada (A.G.) v. Western Nut & Chocolate Co., [1972] 6 W.W.R. 627 (Sask. Dist. Ct.), refd to. [para. 41].

Mona Lisa Inc. v. Ship Carola Reith, [1979] 2 F.C. 633; 100 D.L.R.(3d) 69 (T.D.), refd to. [para. 41].

Kroetsch v Domnik (H.W.) Industries Ltd. (1985), 60 A.R. 69 (Q.B. Master), refd to. [para. 41].

R. v. Hrankowski, [1980] 5 W.W.R. 684; 22 A.R. 597; 1980 ABCA 196, refd to. [para. 45].

R. v. Lindsay (D.-K.) (2006), 224 B.C.A.C. 172; 370 W.A.C. 172; 207 C.C.C.(3d) 296; 2006 BCCA 150, refd to. [para. 45].

R. v. Sidor (1982), 39 A.R. 541 (Q.B.), refd to. [para. 45].

R. v. Grice (1957), 11 D.L.R.(2d) 699; 26 C.R. 318 (Ont. S.C.), refd to. [para. 46].

R. v. Reynolds (R.J.) Tobacco Co. (Delaware), [2003] O.J. No 6304 (C.J.), revd. (2004), O.T.C. 126; 182 C.C.C.(3d) 126 (Sup. Ct.), refd to. [paras. 48, 49].

Pearks, Gunston & Tee, Limited v. Richardson, [1902] 1 K.B. 91, refd to. [para. 51].

R. v. Garrett-Pegge, ex parte Brown, [1911] 1 K.B. 880 (Div. Ct.), refd to. [para. 52].

Counsel:

B.Q.H. Der, Q.C., for the appellant;

T.L. Couillard, for the respondent.

This appeal was heard on October 6, 2011, by Slatter, McDonald and Bielby, JJ.A., of the Alberta Court of Appeal. The Court of Appeal filed the following reasons for judgment at Edmonton, Alberta, on November 23, 2011, which included the following opinions:

Bielby, J.A. (McDonald, J.A., concurring) - see paragraphs 1 to 16;

Slatter, J.A., dissenting - see paragraphs 17 to 64.