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.
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
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.
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.
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).