Court challenge against Chinese miners in B.C. dismissed

The Federal Court has dismissed a legal challenge against Ottawa's decision to approve a B.C. mining firm's request to bring in workers from China.

By: Nicholas Keung Immigration reporter

A federal court judge has dismissed a legal challenge by two unions against Ottawa’s decision to approve a B.C. mining company’s request to bring in 201 workers from China.

The foreign workers, some of whom had already been at the mine near Tumbler Ridge, B.C., were allowed in after getting the green light from Human Resources and Skills Development Canada as well as Citizenship and Immigration Canada.

They were hired by HD Mining International Ltd. to work in coal mine extracting bulk samples.

The case — the first time a positive labour market opinion (LMO) made under the federal temporary foreign workers program was challenged — attracted public attention especially after the Royal Bank of Canada was found in April of replacing Canadian IT employees with migrant workers.

“The officer did not fetter his discretion when assessing the LMO application from HD Mining, or make any unreasonable assessment when considering the factors,” Justice Russel Zinn concluded in a decision released Tuesday.

“The decision-maker must examine and assess each (factor) and then perform a weighing exercise to decide whether the LMO will issue.  This is exactly what the officer did.”

The Construction and Specialized Workers’ Union and International Union of Operating Engineers — both under the B.C. Building Trades union — filed a judicial review in federal court last November claiming there were qualified union members who could do the job.

However, the mining company insisted there weren’t Canadian workers trained in the skills needed to operate the machinery and other equipment used in the operation.

The unions alleged that the HRSDC officer who approved HD Mining’s application was “closely monitored and directed in his processing” by his superiors, who wanted positive LMOs issued.

One of the contentious issues at the hearing was the job requirement of speaking Mandarin as the predominant workplace language, which forced the federal government in April to require English and French as the only languages that can be used as a job requirement.