A Federal Court judge has denied an application from two unions for a court order that would have prevented more Chinese workers from coming to a coal mine near Tumbler Ridge, saying the unions failed to prove "irreparable harm" would result from allowing the workers to come.
HD Mining International, the company at the centre of the controversy over hundreds of foreign workers at a B.C. mine, called the decision a "massive victory," saying it was pleased to be able to continue work at its $300-million Murray River project.
"We have been waiting for a court to say that we have done nothing wrong and this decision does exactly that," HD Mining chairman Penggui Yan said Friday in a statement. "We hope it will cause the unions to seriously question why they are bringing these proceedings."
The Dec. 14 order is part of a court proceeding relating to foreign workers at HD Mining's Murray River coal project. HD Mining, which is owned in part by Chinese interests, applied for, and was granted, permission to bring workers from China through Canada's Temporary Foreign Worker Program.
The first group of employees arrived this fall. In November, two labour groups – Local 115 of the International Union of Operating Engineers and Local 1611 of the Construction and Specialized Workers' Union – applied for a judicial review of the process that allowed HD to hire the foreign workers, saying the company had not done enough to recruit and train local staff.
As part of that proceeding, the unions sought an interim order that would have prevented any more Chinese workers from coming to Canada.
Fifteen have already arrived and another 60 are scheduled to arrive this month.
To obtain the court order, the unions would have had to win on three questions: that there was a serious issue with Labour Market Opinions for the workers; that irreparable harm would result if the order were not granted; and that the "balance of convenience" favoured them, not the company.
Employers have to obtain Labour Market Opinions before hiring foreign workers. Justice James Russell found a serious issue with the LMOs but the unions did not clear the bar on the other two requirements.
In his decision, the judge said an injunction would result in significant disruption for the company as well as workers who have already been cleared to come to B.C.
Brian Cochrane, business manager for the International Union of Operating Engineers, one of the two unions that brought the case, said the unions are disappointed with the decision but will continue to seek a judicial review of the process through which the workers were hired.
"We've had several victories on exposing the flaws in the Temporary Foreign Worker Program," Mr. Cochrane said. "It's necessary that we continue on from this point."
The unions argued that if an injunction were not granted, the company might rush its full complement of 201 workers to Canada, in the process defeating the purpose of a judicial review.
In his decision, Judge Russell said that was speculation on the part of the unions and that the cost of bringing workers to Canada before they were needed for the project made such a prospect unlikely.
In addition, he said, "the eyes of the media and the government of Canada are firmly fixed on the situation at Tumbler Ridge. I have found there is a serious issue [with regard to underlying LMO decisions]. If HD were now to depart from its indicated scheduling to try and evade the review process that is now under way, there would likely be serious consequences for the company."
The unions and the company will continue to discuss the judicial review process.
"If at some point there is proven to be a problem with the reasoning that led to the Labour Market Opinions being issued, then we can revisit that issue at that time. But until then, everything is presumed to be okay," Aleksandar Stojicevic, a lawyer representing HD Mining, said on Friday.