01/16/2013 07:03 EST | Updated 03/18/2013 05:12 EDT

Judge refuses to let Ottawa off the hook for documents in Chinese miners case

VANCOUVER - A Federal Court judge has ordered Ottawa to reconsider whether it can do anything more to convince a mining company to turn over material related to its plan to bring roughly 200 Chinese miners to British Columbia.

The ruling is part of the proceedings around a legal challenge related to those temporary foreign worker permits, a case that remains bogged down in a fight over documents.

Two unions are challenging the government's decision to allow HD Mining to bring Chinese miners to its proposed Murray River project near Tumbler Ridge, B.C., rather than hiring Canadian workers.

Last month, a judge ordered Human Resources and Skills Development Canada to turn over any documents it had related to HD Mining's applications for foreign worker permits, as well as any material within HD Mining's possession that had not yet been handed over to the government.

Federal lawyers told court they had asked HD Mining three times for those documents, including resumes from Canadian workers that HD Mining said were not qualified for jobs at the proposed mine. The company refused.

Ottawa claimed it had no way to compel HD Mining to produce documents that weren't already in the government's possession and asked that the production order be changed to reflect that reality.

Judge Michael Manson ruled that the order still stands.

Manson didn't outline just what the federal government should do to comply, instead leaving that with Human Resources Minister Diane Finley. He noted that the government's previous requests to HD Mining were made without any consequences if the company refused.

"It is not my decision on case management to now determine if the minister has sufficiently exercised that control, but the judge hearing the applicants' application for leave for judicial review may draw an adverse inference against the minister if the judge is not satisfied that the minister has complied," Manson wrote in his decision, issued Tuesday.

"The minister, in her discretion, shall further consider the scope and nature of her compliance with the production order."

Manson said if the federal government decides it can do more to convince HD Mining to turn over the documents, it must take action by Jan. 21.

The unions are challenging Human Resources and Skills Development Canada's decision to provide HD Mining with a positive labour market opinion, a document that confirms that a company needs to use foreign workers because it can't hire or train Canadians.

Any company that wants to use temporary foreign workers must first obtain a positive labour market opinion. HD Mining received positive labour market opinions for its workers last year.

The Federal Court production order in question deals with documents that support the claims HD Mining made in its application for its labour market opinions.

Manson's ruling notes the department tells applicants to keep documents related to their attempts to hire or train Canadians for two years. Manson quotes a passage from the department's website that explains the documents may be needed "in the event that a Service Canada officer contacts you to verify your advertising efforts."

He also notes the department has the power to revoke those labour market opinions, at least until a worker is admitted into Canada.

The unions told court earlier this month that Ottawa should threaten to revoke HD Mining's temporary foreign worker permits if it continues to refuse to turn over the documents.

HD Mining couldn't immediately be reached to comment on the Federal Court decision.

The company has previously said the federal government has no power to compel it to turn over the documents. HD Mining also insists the documents aren't relevant and that the hundreds of pages it has already submitted to the court should be enough.

HD Mining is a partnership between China-based Huiyong Holding Group, which owns a 55 per cent stake, and Canadian Dehua International Mines Group Inc.

The project is currently in the exploration phase as it awaits an environmental review. Several dozen Chinese miners have already arrived for that exploration work.