LITIGATION UPDATE – MARCH 24, 2013
HD Mining continues with preparations to defend a legal challenge to 201 temporary foreign worker approvals it received in April 2012. This litigation was commenced by the International Union of Operating Engineers, Local 115, and the Construction and Specialized Workers’ Union, Local 1611, a half-year after the decisions were issued and relied upon.
Following another half-year of legal proceedings, the case will be heard in Federal Court on April 9-11, 2013.
In recent weeks, various materials have been filed and steps have occurred. These include the following:
Decision record of 922 pages filed in court
On March 7, 2013 a copy of the decision-record of William McLean (the officer who issued the labour market opinions) was filed in court. It is 922 pages and contains extensive information about the steps he took and the various sources of information and parties he consulted before concluding that approving these 201 temporary foreign workers for a 2-year period would have a neutral or positive effect on the Canadian labour market.
Affidavit of the decision-maker filed in court – unions object
On March 19, 2013 the Federal government filed an affidavit sworn by Mr. McLean. It explains the process used to reach the decisions in question. It notes that Mr. McLean issues well over 500 labour market opinions each year, but spent the better part of three weeks working on these particular applications and satisfied himself that all applicable laws and policies were complied with.
The unions have advised that they will object to all or parts of this affidavit being considered by the Court.
Unions’ evidence challenged
A motion was filed to strike out a number of affidavits that the unions have filed in recent months, on the grounds that:
o Most of them had the unions’ lawyers giving evidence in their own case
o The affidavits did not meet proper evidentiary tests (e.g. they contained hearsay evidence)
o The affidavits contained information that is not relevant to this judicial review
The unions have since advised that they will not rely on the majority of those affidavits and will instead rely on new affidavits.
New union affidavits raise further questions
On March 13, 2013 the unions filed further affidavits. One is from Brian Cochrane, Business Manager of the International Union of Operating Engineers, Local 115, and the other by Mark Olsen, Business Manager, Construction and Specialized Workers’ Union, Local 1611.
In his affidavit Mr. Olsen swears that union lawyer Charles Gordon contacted him about bringing a potential legal challenge in this case.
The affidavits of Mr. Olsen and Mr. Brian Cochrane also set out evidence of discussions between the unions and their lawyers about how the litigation came to be filed so long after the decisions had been rendered. HD Mining lawyers have taken the position that by filing this evidence the unions have waived solicitor-client privilege on those matters.
Unions seek to withdraw parts of Olsen and Cochrane affidavits
The unions’ lawyers do not accept the unions have waived solicitor-client privilege with the Cochrane and Olsen affidavits, but they have now said that they intend to retract most (not all) of the information contained in them.
There is no provision in the Federal Court Rules to unilaterally retract parts of an affidavit once filed with the Court.
Union representatives refuse to answer questions on cross-examination
On March 22, 2013 Brian Cochrane and Mark Olsen were cross-examined under oath about their affidavits. Their lawyers repeatedly objected and Mr. Olsen and Mr. Cochrane repeatedly refused to answer many questions related to the parts of the affidavits that they have said they wish to retract. Transcripts of the cross-examination will be filed with the court no later than April 3, 2013 and will be publicly available at that time.
HD Mining remains committed to the Murray River Project and will continue to vigorously contest this matter in court. The judicial review hearing will be heard April 9-11 in Vancouver.
About the Murray River Project
The Murray River Project is a proposed underground coal mine located 12.5 km southeast of Tumbler Ridge, British Columbia Canada.
Subject to environmental certification, at full production the Murray River Project would have an estimated annual production of six million tonnes of metallurgical (steelmaking) coal over 30 years. The estimated capital cost of the Murray River Project is $300 million, and it would create approximately $90 million of revenue for government annually; $2.7 billion over the life of the project. Once operating, the Murray River Project would create approximately 600 direct and 700 indirect jobs.
HD Mining has signed a Memorandum of Understanding (MOU) with Northern Lights College to develop a training curriculum for long-wall mining. As part of the MOU, Northern Lights College and HD Mining will develop a relevant curriculum and simulation models, and identify partners for program infrastructure. Northern Lights College and HD Mining will work with key community partners in the development and delivery of the training. As a Canadian employer, HD Mining is working to transition long-wall mining skills and jobs to Canadian workers.
