Thursday, February 18, 2010

Supreme Court of Canada rejects claims by Giant Mine Widows and Orphans

Thomas Cromwell, the most recent appointee to the Supreme Court of Canada, and a Queen's University graduate, has been busy writing judgments. The SCC released another today in the case of Fullowka v. Pinkerton's of Canada Ltd.:

In May 1992, a strike began at the Giant Mine near Yellowknife. The employees' bargaining agent, CASAW Local 4, and the mine owner, Royal, had reached a tentative agreement, but it was rejected by the Local's membership. Royal decided to continue operating the mine during the ensuing strike with replacement workers. The strike rapidly degenerated into violence. Faced with attacks on its security guards and unable to control the situation, the private security firm Royal had hired withdrew. Royal turned to Pinkerton's for security services and by the end of May, Pinkerton's had 52 guards on site.

The violence continued and escalated after Pinkerton's arrival. In mid-June, a large number of strikers rioted, damaging property and injuring security guards and replacement workers. Following the riot, Royal fired about 40 strikers, including W, and the police laid many criminal charges. Later in the same month, three strikers, including B, entered the mine through a remote entrance. While underground, they stole explosives and painted graffiti threatening replacement workers.

As the summer progressed, the atmosphere grew calmer although some trespassing, property damage and violence continued. On Royal's urging, Pinkerton's reduced its force to 20 guards. The police presence was also reduced. In late July, some strikers, including B, set an explosion which blew a hole in a satellite dish on mine property and, in early September, set a second explosion which damaged the mine's ventilation shaft plant. In the early morning hours of September 18, W evaded security, entered the mine and, while underground, planted an explosive device. When a man car carrying nine miners triggered the trip wire, they were all killed in the explosion. N was among the first on the scene and discovered the dismembered bodies of his colleagues, including a close friend. The territorial government ordered closure of the mine following the bombing. At the time of the fatal blast, CASAW Local 4 was affiliated with CASAW National which, in 1994, amalgamated with CAW National.

The miners' survivors sued Royal, Pinkerton's and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' national union, some union officials and members of CASAW Local 4 for failing to control W and for inciting him. As for N, he brought an action against the same defendants and Local 4, seeking damages for post traumatic stress disorder which he alleged resulted from his having come upon the scene of the fatal explosion. Their claims largely succeeded at trial but were dismissed by the Court of Appeal.

The SCC dismissed the appeals.

Justice Cromwell wrote on behalf of a unanimous court as follows:

"During a bitter strike at the Giant Mine in Yellowknife, N.W.T., one of the strikers, Roger Warren, evaded security and surreptitiously entered the mine. He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners. Their survivors and another worker who came upon the carnage after the explosion sued the mine owner, its security firm and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' union, some union officials and members for failing to control Mr. Warren and for inciting him. Their claims largely succeeded at trial but were dismissed on appeal to the Court of Appeal. The principal issues on the appeal to this Court are whether the security firm and the government should be liable in negligence for failing to prevent the murders and whether the unions should be responsible, directly or vicariously, for the miners' deaths. The claims involving the mine owner, its chief executive officer and one of its directors have been settled and are therefore not before us.

In my opinion, the appeals should be dismissed. Although I would find that the security firm and the government owed a duty of care, my view is that the trial judge erred when he found that they had breached that duty. With respect to the claims against the union, union officers and members, I agree with the Court of Appeal that the trial judge's findings of liability cannot be sustained. I also agree with the Court of Appeal that the claims of Mr. O'Neil (the worker who came upon the carnage) should have been dismissed.

Did Pinkerton's and the government owed a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren's intentional wrongful act and, if so, whether they breached that duty. My conclusion is that they did owe a duty of care but that they did not breach it.

Did the trial judge applied the wrong legal test for causation. In my respectful view, he did.

In respect of the claims against the union. The questions to be answered are whether a national union and its local union are separate legal entities, whether vicarious liability should be found and whether the trial judge's findings concerning incitement are sound. I conclude that the national and the local unions are separate legal entities, that vicarious liability should not have been found and the national union cannot be found to have incited Mr. Warren.

In respect of the claim against Mr. Bettger and the claim advanced by Mr. O'Neil. In my view, the claims against Mr. Bettger and by Mr. O'Neil should be dismissed."



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