On February 18, 2010, the Supreme Court of Canada issued its decision regarding tort claims by survivors of nine miners killed by a planted bomb during the 1992 strike at the Giant Mine in Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5.
In 1995, after a lengthy investigation and criminal trial, one of the striking miners, Roger Warren, was convicted on nine counts of second-degree murder.
The Workers' Safety and Compensation Commission of the Northwest Territories and Nunavut, having paid pensions to the miners' widows, instituted a subrogated civil lawsuit against a host of defendants including Royal Oak, the owner of the mine, its Chief Executive Officer and a director; Pinkerton's of Canada Ltd., the security company; the Government of the Northwest Territories; the National Automobile, Aerospace, Transportation and General Workers Union of Canada (better known as the Canadian Auto Workers, or CAW) and others, alleging that some or all of them were liable along with Warren for either inciting his act or for failing to prevent it.
In 2004, after a nine-month trial, Justice Arthur Lutz of the Supreme Court of the Northwest Territories found nearly all of the defendants liable, awarding damages of $10.7 million. (The case was dismissed against Royal Oak's CEO and director. Subsequent to trial but before the appeal, Royal Oak settled with the plaintiffs.) A number of defendants, including the Government of the Northwest Territories, the CAW and Pinkerton's, successfully appealed the findings of liability against them. The Northwest Territories Court of Appeal wrote a detailed analysis of prior cases in which one party was alleged to owe a duty to prevent harm caused by another person's intentional act and relied on that analysis, and other grounds, in determining that none of the appellant defendants should have been found liable at trial.
In its recent decision, the Supreme Court reviewed the legal principles in the Anns/Cooper Test – foreseeability, proximity and any negating policy considerations – as well as causation and standards of care to examine the roles and relationships of the respondents to the appellants.
Writing for the unanimous court, Justice Thomas Cromwell found that while Pinkerton's and the Government of the Northwest Territories owed a duty of care to the murdered miners, both met their duties of care.
With respect to the claims against the CAW and Timothy Bettger, a member of CASAW Local 4, the court found that parent and local unions are distinct legal entities at law and one is not liable for the conduct of the other. The court found no basis for direct liability, vicarious liability or joint tortfeasor liability, contrary to the findings of the trial judge.
John Hope, QC, and Malkit Atwal of Duncan & Craig LLP acted for respondent Pinkerton's of Canada.
Peter Gibson and Christine Pratt of Field LLP acted for respondent the Government of the Northwest Territories.
Leonard Polsky and Heather Sanderson of MacPherson Leslie & Tyerman LLP acted for respondent Timothy Bettger.
Steven Barrett, Ethan Poskanzer and Vanessa Payne of Sack Goldblatt Mitchell LLP and Patrick Nugent of Chivers Carpenter Lawyers acted for respondent union National Automobile, Aerospace, Transportation and General Workers Union of Canada.
Robert McBean, QC, James Neilson, QC, and David Wedge of Parlee McLaws LLP acted for Royal Oak Ventures Inc., its CEO and a director.
Jeffrey Champion, QC, Philip Warner, QC, and Benjamin Russell of Bishop & McKenzie LLP acted for appellants Fullowka et al.
James Redmond, QC, acted for appellant James O'Neil.
John Tyhurst acted for intervenor the Attorney General of Canada; and Lise Favreau and Lucy McSweeney for intervenor the Attorney General of Ontario.
Jeffrey Beedell and Marie-France Major of Lang Michener LLP's Supreme Court Group acted as agent for respondents Pinkerton's of Canada, Government of the Northwest Territories and Timothy Bettger.
Colleen Bauman of Sack Goldblatt Mitchell LLP acted as agent for respondent the National Automobile, Aerospace, Transportation and General Workers Union of Canada.
Stephen Grace of Maclaren Corlett LLP acted as agent for respondent Royal Oak Ventures.
Patricia Wilson of Osler, Hoskin & Harcourt LLP acted as agent for appellants Fullowka et al. and James O'Neil.
Christopher Rupar of Justice Canada acted as agent for intervenor the Attorney General of Canada.
Robert Houston, QC, of Burke-Robertson LLP acted as agent for intervenor the Attorney General of Ontario.