January 16, 2013

Company may be forced to turn over documents by feds

RICHARD GILBERT

staff writer

Two major construction unions are pressuring the federal government to force a Vancouver company to hand over documents about Canadians, who applied for jobs at a coal mine in northeastern B.C. where only Chinese temporary foreign workers are being hired.

“Our goal is to get the disclosure of the documents that are being withheld,” said Charles Gordon, lawyer for the Construction and Specialized Workers’ Union (CSWU) and the International Union of Operating Engineers (IUOE).

“We brought a contempt motion to force that issue. The contempt issue and the motion to vary have a lot to do with how far the minister (Diane Finley) can go to compel the production of these documents.”

Toronto immigration lawyer Lorne Waldman represented the unions in Vancouver Federal Court on Jan. 9.

According to Waldman, the minister for Human Resources and Services Development Canada (HRSDC) has the power to force HD Mining International to hand over documents relating to Canadians that applied to work at a proposed $300 million coal mine.

“The minister clearly has the power to demand documents and the responsibility to follow a court order,” said Waldman.

“Behind all this case law is an ongoing duty to provide documents<0x2026> (It’s) the inherent powers of the minister to enforce legislation.”

In response, a lawyer from the federal Department of Justice argued for a variance of a Federal Court disclosure order.

The government lawyer argued that Finley has no power to force HD Mining to comply with a previous court order by Justice Douglas Campbell.

As a result, Justice Michael Manson adjourned a contempt motion by the unions until early this week, when he rules on whether Finley has this power.

Late last month, the construction unions brought a motion of contempt to force Finley to enforce a court order made by Justice Campbell on Dec. 7 for HRSDC and HD Mining to hand over all the documents that were used to grant about 201 Temporary Foreign Workers (TFWs) permission to work at the underground mine.

HD Mining received 300 applications from Canadian citizens or permanent residents to work at the mine.

However, the company did not hire one of these applicants, claiming they were not qualified.

Despite the court order, HD Mining is refusing to hand over the confidential documents.

“A court order is a clear direction, it’s not a request<0x2026> and it’s expected to be complied with,” Gordon told Justice Manson.

In court, Gordon argued against the government’s position that Finley is without power to verify documents critical to HD Mining’s claim that none of the Canadian applicants were qualified, even for jobs classified as low skill.

If that position is accepted, Gordon said, it would mean any employer could bring in TFWs claiming there are no Canadians qualified, and the minister could not verify that claim.

The unions claim the Labour Market Opinions (LMOs) issued to HD Mining failed to ensure there were no Canadians to do the work, while the TFWs were offered wages far below prevailing rates.

An LMO is an opinion provided by HRSDC to Citizenship and Immigration Canada, which assesses the impact that hiring the TFWs may have on the Canadian labour market.

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