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Questions Remain in HD Mining Case

Key evidence was struck from the record in federal court, say unions.

By Jeremy J. Nuttall 24 May 2013 | 24 Hours / Vancouver

Jeremy Nuttall has reported regularly on the temp foreign worker issue for The Tyee. Find his previous articles here.

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This week unions lost their challenge to have temporary foreign worker permits revoked.

Earlier this week, a federal court justice dismissed an attempt by two British Columbia unions to have temporary foreign worker permits for 201 miners revoked.

The Construction and Specialized Workers Union and the International Union of Operating Engineers Local 115 launched their case after it came to light the company, HD Mining, had advertised mining positions listing Mandarin as a job requirement.

The unions contended the language requirement was meant to exclude Canadians so the company could bring workers from China and legally pay them 15 per cent less than market wages at its Murray River project near Tumbler Ridge, B.C.

After a months-long court battle Judge Russel Zinn ruled Tuesday HD Mining filed its applications properly according to the rules that were in place at the time.

But the unions said they lost because Zinn struck from the record key evidence that would have helped their case and, in their view, showed the company misrepresented its mining plans in the form of a notice of work application.

Testimony ruled 'hearsay'

The application showed the company had planned to use room-and-pillar mining methods and not the long wall methods it said it would use, citing Canadians were unfamiliar with the technology hence the Chinese workers were needed.

Union spokesman Lee Loftus said that evidence was initially not allowed when first submitted to a different judge months ago because it wasn't submitted with the initial court file, but only because the unions had to fight in court to have it released.

"They did that because of timelines of having that information submitted," said Loftus. "Because the process didn't allow us access to that information up front... once we secured that information and tried to utilize it, it was not accepted."

Judge Zinn again rejected the evidence by striking an affidavit from Curtis Harold, described in court documents as a "business agent for the unions," who picked up what he was told were HD Mining's up-to-date records from the B.C. Ministry of Natural Resource Operations.

The reasons for judgment said Harold had at first been given the "wrong" documents by deputy chief of mines inspector Diane Howe, when he returned to get the correct ones an unknown ministry employee handed him supposedly updated records.

Zinn ruled Harold's testimony about how he got the documents was inadmissible and "hearsay" in part because he only submitted four documents of the bundle he received and because he could not give a name of the person who gave him the files.

"These concerns offer further reason to question the completeness of the materials Mr. Harold was given and has produced," wrote Zinn.

Also struck from the record was an affidavit from Douglas Sweeney, former chief mines inspector for the province.

Court documents show Sweeney testified he was "in touch" with Howe about getting a copy of the bulk sample permit issued to HD Mining, but was told the document was "immense" and it couldn't be put together in a timely way by Howe.

"How can that be if a paper and an electronic version had already been provided to Mr. Harold?" asked Zinn in his reasons for judgment.

Zinn also struck the affidavit from the record citing Sweeney did not have the documents needed to form an opinion and he was basing his opinion on documents the court already ruled to be "outdated."

Lawyer for the unions, Charles Gordon said even though the documents were not allowed, there is nothing to prove they are not the most recent regarding the company's plans and nothing to the contrary was filed in court.

"We argued that it should be inferred from the fact that HD Mining did not file any such documents that they did not exist," said Gordon in an email. "The Court did not address that argument, but simply rejected the documents we filed on the basis that they were not reliable."

Information delayed and denied

Zinn was appointed in 2008 and was one of three judges assigned to the case since Nov. 2012.

Obtaining information from both federal and provincial governments has been difficult since the story broke.

The federal government argued to have the court rule it powerless earlier in the case when the unions requested the government order HD Mining to hand over the resumes of Canadians who applied for the jobs.

A request made last year for the total court costs to the federal government for the HD Mining case up until Dec. 18 has been continually delayed.

The Province of British Columbia refused to provide proof it conducted and investigation into reports the miners were paying up to $12,500 for their positions after announcing its investigation found no evidence of wrongdoing.

Earlier this week, the province again refused to waive a more than $4,000 fee to the Information Access Operations office requesting communication records between Canadian Dehua International and the government, rejecting the argument the documents are in the public interest.  [Tyee]

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