Commentary: Legal warning signals from the HD Mining case

The following article is reprinted with permission from CMJ’s sister publication The Northern Miner.

The following article is reprinted with permission from CMJ’s sister publication The Northern Miner.

The HD Mining case, which is currently before the Federal Court of Canada, has a high media profile these days. It’s a story that weaves together two hot button legal issues for the labour movement: immigration and occupational health and safety (OHS).

Employers may wish to consider the issues the case raises and review existing practices for compliance, as cases like this will come under increasing regulatory scrutiny.

As background, in response to a chronic shortage of skilled labour, the number of temporary foreign workers in Canada has grown from 60,000 to over 250,000 during the last 13 years. In this context, HD Mining hired of hundreds of Chinese nationals to work at its Murray River Coal project in BC, further to an approval by Human Resources and Skills Development Canada (HRSDC).

To secure permits for the Chinese workers, HD Mining had to apply to HRSDC for a positive labour market opinion (LMO), an assessment of the local labour market to determine whether allowing a foreigner to work in Canada is justifiable in the circumstances.

Employers are required not only to undertake to comply with wage levels and working conditions promised under an LMO, but also to adhere to all rules and regulations relating to employment, including all OHS obligations in the jurisdiction where an employee will work.

Before applying for an LMO, employers are required to make reasonable efforts to find local Canadians or Permanent Residents to fill the roles in question.

The International Union of Operating Engineers and the Construction and Specialized Workers' Union have challenged the HRSDC approval in Federal Court, alleging that HD Mining did not try hard enough to find Canadians for the jobs.

The unions allege that hundreds of qualified Canadians were capable of doing the required jobs but HD Mining failed to interview or seriously consider them, with the result that it hired only 12 Canadians.

HD Mining has countered that it was unable to find local workers who had experience in longwall mining methods. It further warned that if it could not hire the foreign workers, it would not be able to develop the site or provide the many jobs which it anticipates would be available to Canadians once the site is developed.

The Federal Court heard arguments during the week of April 8 and its decision is under reserve.

Apart from the immigration law issues just noted, the United Steelworkers also filed a complaint with the BC Ministry of Energy and Mines late last November, alleging HD Mining did not take adequate steps to ensure that its foreign workers understood workplace safety rules, which were only in English. The union requested that the minister suspend HD Mining’s operations until remedial action was taken.

Every Canadian jurisdiction’s OHS legislation requires employers to take every reasonable precaution to ensure the safety of its workers. In addition there are usually specific obligations requiring employers to inform workers about certain hazards and to equip them to deal safely with them, for example, how to work in confined spaces or how to work with hazardous materials. In some cases, OHS laws specifically require employers to post certain information in the majority language of the workplace.

All of this points to the importance of employers being able to demonstrate that they have taken the necessary steps to ensure that temporary foreign workers understand their OHS rights and obligations.

Key documents relating to OHS in the workplace may need to be translated. Further, communications relating to OHS may need to be made available in the foreign workers’ language.

These steps are crucial to ensure compliance and to be able to show OHS due diligence, not only at the corporate level but also at the level of individual supervisors. Today’s legal landscape is characterized by fines in the hundreds of thousands of dollars for corporations under provincial legislation and, increasingly, the labour movement is calling for prosecutions under the criminal code as well.

Demand for foreign labour will almost certainly increase in the future as the pool of Canadians entering the labour market continues to shrink. However, the entry of foreigners into the labour market has become highly politicized. Labour groups charge that foreign labour drives down general wage levels and results in non-compliance with labour standards, particularly in the OHS field. In fact the federal government in late April announced a tightening of standards relating to the hiring of temporary foreign workers and we expect more such announcements in the future.

As a result, we predict that increased use of temporary foreign workers spells increased risk of OHS liabilities and possible sanctions under the Immigration and Refugee Protection Act, including financial penalties, denial of work permit requests, prohibition from hiring foreign workers and identification on Citizenship and Immigration Canada’s public website as an organization that is barred from hiring foreign workers.

Given the issues raised above, including the seriousness of penalties for non-compliance, employers would be wise to ensure not only that they are well aware of the rules and regulations surrounding the hiring of temporary foreign workers but that they are sufficiently and adequately applied.

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Kevin D. MacNeill is a partner at Heenan Blaikie LLP, a national law firm whose labour law department comprises more than 120 lawyers. A member of the bars of Ontario and Quebec, and an experienced litigator, Kevin represents employers in all areas of workplace law with an emphasis on OHS, workplace safety and insurance law, human rights and accommodation issues. He is the author of The Duty to Accommodate in Employment, the leading text on the subject. He may be reached at (416) 360-2602 or [email protected]. Follow Kevin on Twitter @kdmacneill.

— Sharaf Sultan is a labour law associate at Heenan Blaikie whose practice focuses on immigration law, including professional relocation, permanent resident applications and intra-company transfers.

— Daniel Mayer is a labour law associate at Heenan Blaikie, whose practice focuses on workplace health and safety law.

For more information regarding the Foreign Workers’ Program or employer obligations under OHS legislation, please contact Kevin MacNeill, Sharaf Sultan at [email protected] or Daniel Mayer at [email protected].


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