Case Dismissed

Trent Ernst, Editor

After months of back and forth between two labour unions and the Government of Canada, HD Mining and Dehua International, a federal court has dismissed the challenge, upholding the decision of the immigration officer in issuing Labour Market Opinions for 201 Chinese Workers

“This is a complete vindication of our company, but it has come at a great cost and has raised significant questions in the international investment community,” says Penngui Yan in a press release issued shortly after the decision came down.

“During these months of litigation, the unions made many allegations – both in court and the media – which we frankly found appalling,” says Yan. “We knew this litigation was driven by a political agenda and we knew we needed to wait for a Canadian court to reject these claims. It has taken a long time, but today is that day.”

Over 300 Canadians applied for positions with the company, but none were hired to work underground. HD Mining maintains that the longwall mining technique requires specialized skills that none of these people had. The unions argued that the requirements were excessive, but Justice Zinn writes “there is simply no merit to the Applicants’ argument that the job requirements for the lower skilled positions were ‘excessive.’”

Justice Zinn says that “The novelty of this application, the recent public interest in the Temporary Foreign Worker Program (TFWP) and the significance of the issues to the Applicants, the corporate Respondents and the Ministers, made for a hard-fought application,” but ultimately ruled against the unions, saying “there is nothing on the record that establishes that [Officer MacLean] was wrong in his assessment that sufficient efforts had been made to recruit Canadians, either when he made that assessment or in hindsight.”

The Court rejected the unions’ arguments that HD Mining was planning to pay inappropriately low wages. Officer MacLean, who reviewed HD Mining’s submission, used the Working in Canada website to review wages currently offered in Canada “There can be no dispute that his decision on the prevailing wage rate was reasonable – the wages offered by HD Mining exceeded the prevailing wage rate indicated on that website,” writes Justice Zinn.

The unions maintained that Officer MacLean was under pressure to issue a positive LMO, something that Justice Zimm describes as “shocking…the record simply does not support that Officer MacLean fettered his discretion in any of the ways that have been alleged…The Applicants’ submissions are based on mere speculation and conjecture.”

Human Resources and Skills Development Diane Finley’s office issued a statement saying the government respects the court’s decision. “Our government is taking decisive action for Canadian workers by reforming the temporary foreign worker program and making sure that Canadians workers are always put first.”

Brian Cochrane, Business Manager of International Union of Operating Engineers Local 115 (IUOE) says that his union will also respect the decision. He says that they may have lost the battle, but they have made great strides towards winning the war. “At the end of the day, we’re glad that we took this on because it’s managed to highlight the flaws in the Temporary Foreign Worker Program,” says Cochrane. “If you read the comments on any of the media that has come out on this in the last few days, the Canadian public is not happy with the Temporary Foreign Worker Program.

Cochrane says he doesn’t expect that the union will do anything else to block the Temporary Workers. “From my understanding, there is no appeal process once this determination comes down. I’ve asked my lawyer to review it, but that’s my understanding.”

Cochrane says that, once the mine is up and running, it will be unionized. “All the mines in BC are unionized and I expect HD Mining will be the same. And when it is, it will bring some integrity to the process. A lot of the concerns that have been brought forward will be able to be addressed.”

Cochrane says that the IUOE was never against the project, just the way the company was going about it. “We were supportive of the project from the beginning,” he says. “We support mining and development in BC, it just needs to be responsible, and Canadians need to maximize our resources. Now that this case is behind us, we need to move forward to make sure that we maximize benefits from our resources.” Now that the decision has been made, Penggui Yan says he’s not sure when Tumbler Ridge will be seeing the return of the Temporary Foreign Workers. “The timeline schedule is an ongoing exercise,” says Yan.