HD Mining

Protecting Canadian Jobs

When an offshore mining company was given permission to staff its entire mine with temporary foreign workers, the lawyers of Koskie Glavin Gordon acted for two unions in bringing a challenge before the Federal Court. The result was that the Federal Government made revisions to the Temporary Foreign Worker Program.

In October 2012, the Vancouver Sun reported that HD Mining had been granted labour market opinions (LMOs) allowing them to bring over 200 temporary foreign workers (TFW’s) to Canada to work in an underground coal mine near Tumbler Ridge, B.C. CSWU, Local 1611 and the Operating Engineers, Local 115, each of which had been representing miners in British Columbia for decades, knew that there were Canadians who were qualified and available for the work, and that the wage rates being paid by HD Mining were significantly less than was being paid at mines where they held bargaining rights. Further, the TFW’s being brought to do the mining would be required to speak Mandarin.

Our lawyers represented the two unions in bringing a judicial review application in Federal Court, challenging the LMOs that had been issued by Human Resources and Skills Development Canada, an application that was vigorously resisted by both the Federal Government and HD Mining, arguing that the Unions could not bring the application at all while refusing to disclose critical documents. The Unions were granted public interest standing, allowing them to bring the case, and further obtained orders from the Court requiring disclosure of documents. The Court then granted the application for leave to proceed to an oral hearing, the first time an LMO had ever proceeded to the final stage of judicial review.

In conjunction with the legal proceedings, our lawyers and the Unions coordinated a media campaign which resulted in the Temporary Foreign Worker Program becoming the focus of wide public attention. The Unions received broad public support and the Federal Government came under intense pressure to address concerns that the TFWP was undermining Canadian employment and wage rates. The Minister HRSDC publicly indicated that a review of the HD Mining file indicated problems with the LMO applications and with the TFW Program, comments which were then echoed by the Minister of Immigration.

Ultimately, the Unions’ application for judicial review was dismissed after the judge declined to admit evidence indicating that HD Mining was using conventional mining techniques for which there were qualified Canadians. Despite this, the Federal Government introduced changes to the TFW Program which would require workers to speak either English or French, eliminated a policy allowing TFW’s to be paid up to 15% less than the prevailing Canadian wage rate, and gave assurances that TFW’s would only be allowed if there were no qualified Canadians for the work. The Globe and Mail noted that these changes were attributable to the HD Mining case, quoting government sources that “The proximate cause was HD Mining” for what were described as the biggest changes to the Program in over a decade.

Read the full Globe and Mail article here.