Court Adjourned (April 19, 2010)

It has taken 18 years and three court rulings since a deadly explosion at a Northwest Territories mine to get a final answer on whether or not surviving family members of the deceased workers should receive damages. The Supreme Court of Canada (SCC) determined in February that the answer to that question is “no.”

In a unanimous decision, the SCC dismissed the widows’ claims, originally detailed in a lawsuit under NWT’s Fatal Accidents Act. The suit sought damages from, among others, now-defunct Royal Oak Mines Inc., then the employer; the Government of the Northwest Territories (GNWT), the regulator; Pinkerton’s of Canada, the company hired to provide site security; the Canadian Association of Smelter and Allied Workers (CASAW), later amalgamated with the Canadian Auto Workers (CAW), the miners’ union; and several union members or officials.

NWT’s Workers’ Safety and Compensation Commission (WSCC) initiated the civil action in 1994 to recover additional compensation that it has paid and will continue to pay to the deceased workers’ families.

DEADLY HISTORY

The bid for damages follows a bitter strike at the Giant Mine, operated by Royal Oak Mines, near Yellowknife in 1992, notes the SCC ruling by Justice Thomas Cromwell. Punctuated by threats, acts of vandalism and violence, the months-long labour dispute was brought to a deadly climax on September 19, 1992, after striker Roger Warren surreptitiously entered the mine and planted an explosive device underground. The explosion, triggered by a trip wire, killed nine replacement miners.

Warren is currently serving a life sentence after being convicted of second-degree murder.

The widows argued the parties named in the lawsuit owed a duty of care to the replacement miners. For example, the suit contends that both Royal Oak Mines and GNWT were negligent in failing to shut down the mine. As well, Pinkerton’s stood accused of failing to adequately guard the site and take reasonable steps to prevent Warren from entering the mine, and the union was said to have incited Warren and failed to control his actions.

In 2004, Justice Arthur Lutz of the Supreme Court of the Northwest Territories ruled that several parties had breached the duty of care to the deceased, noting that the consequence of the cumulative acts was “reasonably foreseeable.” He apportioned responsibility to Warren, Royal Oak Mines, CAW, Pinkerton’s and GNWT, and ordered that the widows receive damages amounting to $10.7 million. The employer settled its share of damages with the widows, but the other defendants appealed to NWT’s Court of Appeal.

The appeal court overturned the trial ruling, finding that the appellants “did not owe a duty of care in negligence to the respondents.” That decision led to the appeal to the SCC, which upheld the appeal ruling, albeit with a few caveats.

“While we are disappointed with the outcome, we believe it was necessary to pursue this civil action,” Anne Clark, the WSCC’s president and CEO, says in a statement.

Jeffrey Champion, a lawyer with Bishop & McKenzie LLP in Edmonton, who represented the families in the SCC case, adds, “It’s an understatement to say that [the families] are just devastated by the whole decision.”

SOME CLARIFICATION

Beyond providing a final answer to the parties involved, the high court’s ruling offers clarity on some murky issues. Noting there were “inconsistent findings at the lower court levels,” Stuart Rudner, a lawyer with Miller Thomson LLP’s labour and employment group in Markham, Ontario, suggests the SCC “used the opportunities to clarify when duties of care exist, and when they’re breached.”

And that is likely the gist of what employers want to know, says Noella Martin, a lawyer with the Halifax firm of Wickwire Holm. “What duty do we owe to someone?” Martin asks.

Clarity is provided not only for employers and workers, but also for tertiary parties. Although both Pinkerton’s and GNWT were determined not to have violated the duty of care, the SCC ruling does make clear these types of organizations do, in fact, owe a duty of care.

“In my view, the trial judge did not err in finding that both Pinkerton’s and the government owed the murdered miners a duty of care,” notes Justice Cromwell. “However, I agree with the Court of Appeal that the trial judge erred in finding that they failed to meet the requisite standard of care.”

The SCC ruling “emphasizes that employers [and] security companies are not there to guarantee people’s safety, because that’s not the test that any of us have to meet,” comments Len Polsky, a lawyer with the Calgary law firm of MacPherson, Leslie & Tyerman LLP, who represented Timothy Bettger, a striking miner named in the lawsuit for inciting violence. “They have to act reasonably, and if they do, they will not be held liable if something happens to life, limb or property,” Polsky says. (The claim against Bettger was also dismissed.)

Duty of care demands an individual or organization take reasonable steps to prevent harm. For the duty to be proven, it is necessary to establish proximity between two parties — or that the relationship between them was sufficiently close to involve such factors as reliance, expectations and/or fiscal interests — and foreseeability of the incident.

Justice Cromwell writes, “The relationship between the murdered miners and Pinkerton’s and the territorial government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed.”

He maintains, however, that “since the plaintiffs seek to have these parties held responsible for their own negligence, not for the fault of others, holding them liable for their own negligence does not undermine the general principles that tort liability is personal and fault-based.”

The ruling determined that GNWT acted in good faith; knowing the environment was dangerous, it sought legal advice to shut down the site but was told, erroneously, that such a move was within the purview of the federal government.

The decision clarifies that a jurisdiction with responsibility for overseeing workplace safety “has to take all factors into account, even if some of those factors arose in a setting that exceeded their jurisdiction,” Polsky says.

Justice Lutz had found CASAW National “directly and vicariously liable for breaches of a duty to avoid conduct that created a foreseeable risk of harm, for failing to make clear to all persons under its influence that causing death or injury was unacceptable, failing to prevent Mr. Warren from acting and failing to warn the deceased miners.”

But Justice Cromwell found that “the relationship between CASAW and the striking union members… was not sufficiently close to justify imposing vicarious liability on the national union for [the members’] unlawful acts.”

Says CAW president Ken Lewenza, “The CAW is relieved, and the labour movement should be relieved.”

Ultimately, the SCC decision affirms that duty of care is not absolute. However, the subjectivity of what constitutes “reasonable measures” continues to be a challenge.

“It’s inherently ambiguous,” suggests Landon Young, a partner at SBH Management Lawyers in Toronto and co-chair of the firm’s oh&s group. Polsky adds that it is “always going to be difficult to try to isolate people’s actions.”

BUT FOR

Upon determining duty of care has been breached, courts must apply the “but for” test for causation, which the ruling defines as “[establishing] on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant.” The SCC ruled Warren would have committed his act even if defendants’ actions had been different.

The decision, Young suggests, could be used to argue for both expanding or imposing limits on the duty of care.

Beyond that, Polsky notes that Royal Oak Mine’s liability remains unaddressed. “Because they settled, the Supreme Court did
n’t address their obligations, and perhaps that would be the greatest unanswered question in this tragedy.”

Rudner notes, however, that every jurisdiction has oh&s legislation that requires employers to “take steps to ensure that their employees are safe at work.” As such, although workers’ comp law protects employers from lawsuits, Royal Oak Mines was still legally responsible for worker safety.

With its high profile, Martin suggests the case has elevated awareness of oh&s concerns and altered attitudes of what constitutes accountability. “This will be a very helpful precedent for having clarified the law on those points.”

Emily Landau is editorial assistant of OHS CANADA.