Giant Mine Saga Nears End

THE WIDOWS OF NINE WORKERS killed in a deliberately set explosion during a hard-fought labour dispute at Yellowknife’s Giant Mine have asked Canada’s highest court to decide, once and for all, what compensation they should receive for their ultimate losses.

Jeff Champion, a lawyer with Bishop & McKenzie LLP in Edmonton who is serving as counsel for the widows, says the Supreme Court of Canada (SCC) will have the task of addressing two important and related issues: should unions be liable for the violence of their members during a strike, and should security firms be liable “if they don’t provide adequate security.”

Set by striking worker Roger Warren, the bomb blast on September 18, 1992 capped a months-long dispute marred by bitter rhetoric and escalating conflict. Warren later received a life sentence for second-degree murder in connection with the deaths of the nine men, either replacement workers or miners who had crossed the picket line.

Following Warren’s conviction, the widows filed a damages claim pursuant to the Fatal Accidents Act in September, 1994, under the authority of the then Workers’ Compensation Board (WCB) of the Northwest Territories, now the Workers’ Safety & Compensation Commission (WSCC). The commission has been paying pension benefits to survivors of the deceased miners, but was not directly a party in the suit.

In his ruling a decade later, Justice Arthur Lutz of the Supreme Court of the Northwest Territories writes that the plaintiffs argued the acts and omissions of the defendants “provide ample grounds for finding them jointly and severally liable with Warren.” For their part, the defendants maintained that the miners’ deaths were the result of a criminal act that was unforeseeable.

Ultimately, Justice Lutz found that Warren’s act in setting the bomb was an escalation or a continuation of the previous acts of violence that occurred during the strike and, therefore, was foreseeable. He spread around the responsibility widely: Warren, 26 per cent; Royal Oak Ventures Inc. (formerly Royal Oak Mines Inc.), the employer, 23 per cent; Canadian Auto Workers (CAW), which was in the process of absorbing the Canadian Association of Smelter and Allied Workers (CASAW), which represented the striking workers, 22 per cent; security firm Pinkerton’s of Canada Ltd., 15 per cent; the NWT government, nine per cent; and several union members, five per cent.

Justice Lutz determined each party, to varying degrees, was negligent and had played a contributing role in the explosion. He pointed to the use of replacement workers by Royal Oak, which officials should have known would lead to violence; Pinkerton’s failure to take the reasonable steps to keep Warren from entering the mine and planting the bomb; and the failure of the territorial government to have its mining inspectors use their powers to shut down the mine in the face of unsafe conditions created by the strike. The justice ordered all parties to jointly pay $10.7 million in compensation.

Duty of care

Before any of the money in question made it to the survivors, however, the verdict was overturned by the Court of Appeal of the Northwest Territories in May, 2007. In its deliberations, the three-justice panel focused on whether or not the appellants owed the widows “a duty to take reasonable care to prevent Warren’s intentional criminal act,” the decision notes.

The appeal court determined that none of the parties, in fact, owed such a duty. In their analysis, the justices noted “simply being able to foresee the [actions] of another is not enough.”

Rather, the defendants should only be held liable if they can be shown to have a “special relationship” with or some “control” over Warren. The panel ruled none of the parties had either.

“Arguments that the appellants could have ‘controlled the risk’ by closing the mine assume an obligation to cease engaging in a lawful activity in order to eliminate all risk of injury,” the ruling notes.

One main focus of the SCC “will have to be this idea that someone could be responsible for the tort [or civil wrong] that someone else commits,” suggests lawyer David Yazbeck, a partner at the Ottawa firm of Raven, Cameron, Ballantyne & Yazbeck LLP.

“Even in a broader way,” Yazbeck points out, “the court’s going to be concerned about all kinds of other organizations which could be in the same position,” such as businesses, political parties and advocacy organizations.

The high court may also be interested in considering where to draw the line when it comes to a regulator’s liability, he suggests. “The case has implications for any kind of regulator who may or may not do things that affect industry, but also affect the people who are served by that industry,” Yazbeck adds.

Caused or contributed?

While the NWT appeal court maintained that its finding on the defendants’ duty was “a sufficient basis to… dismiss the respondents’ claims,” the decision went on to criticize Justice Lutz’s analysis of causation. In seeking to determine if the defendants’ actions or omissions caused Warren to set the bomb, Lutz had merely considered whether or not they had “materially contributed” to his action.

The panel ruled that this was not nearly stringent enough. Instead, they argued that the proper analysis would employ the “but for” test: “the plaintiff bears the burden to prove on a balance of probabilities that his or her injury would not have occurred but for the defendant’s negligent act or omission.”

The appeal court also noted that the trial judge had inappropriately lumped the defendants together as a group. Justice Lutz, they wrote, “did not ask whether each appellant’s negligent act or omission was a cause of the respondents’ harm. Rather, he considered the conduct of the appellants collectively, concluding that the actions or inactions of all the appellants combined to contribute materially to Warren’s criminal act.”

One is not all

NWT’s appeal court further ruled Justice Lutz had erred in holding an entire union liable for the actions of members at one local. “The national unions are not vicariously liable for anything and everything their members (including Warren) did during the strike,” the decision says.

“If a member of the union [was] given some specific task to do on behalf of the union, and during the course of and within the scope of that assignment the union member committed a tort, then the union could be vicariously liable,” the ruling adds.

For his part, Justice Lutz found that some officials of the CAW and CASAW, espousing the axiom “don’t get caught,” had “condoned the illegal behaviour” of some strikers prior to the deadly bombing.

Norm Keith, a partner with Gowling, Lafleur, Henderson LLP in Toronto, says the legal status of unions has been a contentious matter. Keith says it strikes him as “inconsistent to say, ‘We want legal status to represent workers… but when it comes to being a legal entity for the purpose of other responsible behaviour or liability, then we disappear.'”

Bernie Fishbein, a senior partner at Koskie Minsky LLP in Toronto, argues that just like any partnership, “a union is an unincorporated association, and has no legal significance at law.”

More broadly, Yazbeck suspects that the Giant Mine case may be an opportunity for the legal system to back away from the labour relations business. “The Supreme Court, particularly over the last 10 or so years,” he says, “has really spent a lot of time isolating and keeping separate collective bargaining… from the judicial system.”

In general, Yazbeck is of the mind that judges are not experts in labour relations, and that “as a result, courts should only get involved in the last minute and only in the clearest of cases.” Labour relations tribunals may be better equipped to deal with any disputes that arise between unions and employers, he suggests.

Champion notes the widows are not “trying to have [parties] be responsib
le for what Roger Warren did; we wanted them to be responsible for their own errors.”

Although the widows are currently in receipt of WSCC benefits — Champion reports these are less than what the deceased were earning and regards them as woefully short of adequate compensation — the fate of the almost $11- million award “decided” five years ago sits with the SCC.

Still, Champion says he is “optimistic” that the high court, scheduled to hear the case on May 21, “will restore the trial judgement and may also increase the awarded damages.” Each party with standing will have an hour to plead its case before the justices, he reports.

Fishbein, however, says he is surprised at the SCC’s decision to hear the case at all. “You can’t tell whether they’ve elected to hear the case because they want to nail this door down tight and make sure that everybody understands it, or they’ve found it sort of intriguing, or if they actually want to make new law,” he says. “You can never tell.”

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Justice Lutz determined each party, to varying degrees, was negligent and had played a contributing role in the explosion.

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Champion says he is optimistic the SCC “will restore the trial judgement and may also increase the awarded damages.”