Canada: Federal Court Upholds Hiring Of Temporary Foreign Workers

In a decision issued on May 21, 2013 in Construction and Specialized Workers' Union, Local 116 v. Canada (Minister of Citizenship and Immigration), the Federal Court of Canada has dismissed a union challenge to the hiring of 201 foreign nationals by a Canadian mining company.

Background

In March 2012, HD Mining International Ltd., a British Columbia based company, applied to hire 201 temporary workers from China to work on its 'Murray River Project' in Tumbler Ridge, British Columbia. HD Mining made the application under the Temporary Foreign Worker Program (TFWP).

The TFWP was designed by the Government of Canada to allow Canadian employers to hire foreign workers to fill temporary labour positions and skill shortages by drawing from a global pool of employees. This program has enabled the entry of hundreds of thousands of temporary foreign workers into Canada every year. (It is estimated that the number of foreign nationals temporarily working in Canada is currently around 300,000). Under the TFWP, employers seeking to hire temporary foreign workers require a positive Labour Market Opinion (LMO) and a HRSDC declaration that the employment of the foreign nationals is likely to have either a neutral or positive effect on the Canadian labour market, before the workers can commence employment in Canada.

In April 2012, HSRDC issued positive LMOs. In issuing the positive LMOs, Officer Mclean of the HSRDC concluded that HD Mining's hiring of temporary foreign workers to work on their 'Murray River Project' was likely to result in a "neutral or positive effect on the labour market in Canada".

In the fall of 2012, the Construction and Specialized Workers' Union, Local 1611, and the International Union of Operating Engineers, Local 115 (the "Unions"), applied for judicial review of the positive LMOs issued by HRSDC. This is the first time that a positive decision made by HRSDC under the TFWP has been challenged in court.

Judicial Review

In its application for judicial review, the Unions argued that Officer MacLean's issuance of positive LMOs to HD Mining was unreasonable and that he had not properly considered the factors for determining the suitability of foreign workers as set out in subsection 203(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227. The Unions also argued that the hiring of the foreign nationals by HD Mining would in fact have a negative impact on the Canadian labour market and that it would result in jobs being taken away from well-qualified Canadians.

Justice Zinn dismissed the Unions' application. In doing so, Justice Zinn found that Officer MacLean had not erred when considering HD Mining's file and that he had properly followed the statutory guidelines in issuing the positive LMOs.

Comment

While the dismissal of the Unions' application is a victory for HD Mining as well as other employers seeking to bring in foreign nationals to Canada under the TFWP, it is a significant blow to organized labour as well as non-union employees.

Nevertheless, the HD Mining saga has drawn significant public attention to the hiring of foreign workers in Canada as well as the ramifications of the TFWP and in response to public criticism, the Conservative government announced in April, 2013 that sweeping changes would be made to the TFWP.

The proposed overhaul of the TFWP includes the scrapping of the '15 Percent Rule' (which allowed Canadian employers to pay foreign workers lower salaries than they would have paid to Canadian workers doing the same jobs) and placing more stringent regulations on Canadian employers looking to bring foreign workers into the country, including placing a hold on the accelerated LMO, which allowed companies to fast-track workers from outside Canada.

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