Unions seek contempt hearing in foreign workers case
A portal is being constructed at a proposed mine site at Murray River. December 12, 2012. (CTV)
Tamsyn Burgmann, The Canadian Press
Published Saturday, December 22, 2012 11:44AM PST
Two unions challenging Canada's temporary foreign worker program want a judge to order a federal minister to personally appear in court to explain why the government hasn't handed over documents linked to a controversial northern British Columbia mine.
A lawyer told Federal Court on Friday he's planning to apply for a contempt-of-court hearing against Human Resources Minister Diane Finley after her department failed to fulfil a Dec. 7 disclosure order related to foreign worker permits.
"We say the minister clearly has the ability to enforce the order or she must, otherwise the integrity of the system is going to break down," said lawyer Charles Gordon.
Finley's department issued 201 foreign worker permits to HD Mining to bring Chinese miners to work in the Murray River coal mine near Tumbler Ridge, B.C., 140 kilometres west of Grande Prairie, Alta.
The government accepted the company's case that there were no Canadians qualified to do the job, but Finley's department did not take possession of supporting documentation for the company's claims.
Court heard Friday the government has not been able to get the documents from HD Mining, and therefore can't give the union the majority of the labour market opinions or the 300 resumes of Canadians who had applied to work in the mine but were determined to not have the right skills.
A labour market opinion is the assessment that concludes whether or not there are Canadians qualified to do specific jobs.
Government lawyers have argued they can't force the company to hand the documents over.
"If the government says we can't make them show the evidence that there are no Canadians who can do these jobs, then how can you run this program at all?" said B.C. Federation of Labour President Jim Sinclair outside court.
He noted the potential for legal action against the minister responsible was merely a side issue from the unions' more pressing concern.
"We're asking for a moratorium on the whole program."
The two labour bodies -- the International Union of Operating Engineers and the Construction and Specialized Workers Union -- argue the documents are necessary for making their application for a judicial review of the temporary foreign worker program. The Federal Court agreed in a ruling earlier this month.
HD Mining said in a statement it has no legal obligation to give the documents to the government. It said it has been pulled into litigation that is more about the unions' concerns with the foreign temporary worker program than any errors made in authorizing its foreign workers.
"HD Mining believes that all parties need to move beyond this litigation and work towards the constructive development of this project and to a broader review of the temporary foreign worker program," said HD Mining Chair Penggui Yan in a statement.
The federal government announced in November it would undertake the review after details of hiring for the underground coal mine came to light. Finley said at the time she was not satisfied sufficient efforts were made to recruit or train Canadians interested in the jobs.
Union lawyer Gordon said the unions have not yet filed the application for contempt against the minister because it learned late Thursday she hasn't seen the court order to disclose the documents. He said the process of serving her that order is underway, but didn't know how long that would take.
"Maybe once she sees the order, she'll do something different than what's being done in court," Gordon later said outside court.
Gordon said he's been given a deadline of Dec. 28 to file the contempt application, and it's expected to be heard on Jan. 9 and 10.
He said the judge had ordered the government to produce the documents, as opposed to asking the company directly, because the court believed the government had them under its control.
"As we have repeatedly indicated, Canadians must always have the first crack at job opportunities in Canada," said Alyson Queen, spokeswoman for Finley in an email to The Canadian Press.
"It is clear to our government that there are some problems with the temporary foreign worker program. We take these very seriously and are currently reviewing the Program."
But Queen did not address the possibility of a contempt of court application raised in court on Friday.
The unions had sought an injunction to stop the company from carrying out its plan to bring over more of the workers from China last weekend, but another federal judge tossed out that application.
That decision came just a day after the firm threatened legal action against Finley and Immigration Minister Jason Kenney for public statements about the case, and said it was supporting one Chinese worker in launching a human rights complaint. The worker claims another union that has campaigned against the company is creating contempt for Chinese miners amongst the Canadian public.
The labour movement argues the workers hired by HD Mining aren't actually temporary after releasing documents showing the company expects it could be four years before any Canadians are hired. The company's transition plans also reveal it could be more than 14 years before all the workers on temporary permits returned home.
The unions say if workers are coming to Canada for such an extended period, they should come as immigrants who will have the same rights as citizens.
HD Mining says it made a "significant effort" to recruit qualified Canadians, advertising for positions that pay between $25 and $40 per hour. It says the Chinese workers will be compensated between $84,000 and $113,000 annually.
The company has invested more than $50 million in Canada.