Using Legal Advice as a Shield from Liability: Fullowka v. Pinkerton’s of Canada Ltd.
March 11th, 2010
In 1992, a striking gold miner in the Northwest Territories (NWT) planted a bomb which killed nine replacement workers. The ensuing judicial saga, in which the widows of the murdered men sought compensation in tort from the security company guarding the mine, the union, and the territorial government branch responsible for mine safety, ultimately came to naught with the SCC’s recent decision in Fullowka v. Pinkerton’s of Canada Ltd, 2010 SCC 5, commented on at TheCourt.ca by Daniel Del Gobbo here. The Supreme Court’s lengthy decision offers a comprehensive analysis of the stages of a claim for negligence. One notable aspect of the judgment is the Court’s consideration of government liability in tort for failure to enforce statutorily imposed standards of safety, and in particular the surprising extent to which receiving legal advice interpreting responsibility narrowly can insulate the government from liability.
Fullowka suggests that taking legal advice will be a powerful shield against claims of negligence – even when the advice is suspect. The plaintiffs asserted that the NWT government’s decision not to close the mine in the face of ongoing threats and acts of violent sabotage amounted to a failure to meet the standard of care it owed under the Mining Safety Act. The Court rejected this argument, finding that the government met its standard of care by virtue of its good faith reliance on legal advice stating the government did not have the authority to close the mine in the circumstances. The gist of this advice was that an order to close the mine would be outside the jurisdiction of the government’s Mine Safety Division because, in the context of strike-related violence, such an order would more properly be within the purview of either the RCMP (as a criminal matter) or the Labour Board (as a matter of labour relations.) Although the legal opinion received by the government was wrong, the mere fact that it was relied upon in good faith was enough to relieve the government of any responsibility for the deaths.
Writing for a unanimous Court, Justice Cromwell agreed in no uncertain terms with the trial judge that the legal opinion was wrong: Read the rest of this entry »











