No Relief for Victims of the Giant Mine Disaster, Top Court Rules
The arduous judicial process for the families of victims of one of Canada’s worst mining disasters has finally ended. Last Thursday, the Supreme Court of Canada (“SCC”) released reasons in Fullowka v Pinkerton’s of Canada Ltd., 2010 SCC 5 [Fullowka], concluding six years of civil litigation stemming from the fatal 1992 explosion at the Giant Mine near Yellowknife. The decision upheld the ruling of the Northwest Territories Court of Appeal (“NWTCA”), which overturned the trial court’s award of $10.7 million in damages to the deceased miners’ widows.
Escalating Violence at the Giant Mine
On May 23, 1992, a strike began at the gold-producing Giant Mine facility following weeks of acrimonious and unsuccessful negotiations between the employees and mine owner. Despite the strike, the owner opted to continue operating the mine with replacement workers. That decision prompted immediate and repeated illegal acts by the striking miners, including trespass, vandalism, arson, stalking and harassment of replacement workers, assaults on security guards and police officers, destruction of property by explosions, interruption of the water supply to the mine and its environs, and infiltration of the mine site for sabotage.
The owner eventually contracted with the respondent Pinkerton’s of Canada Ltd. for security services, and the firm had had fifty-two guards on site by the end of May. As the violence escalated, Pinkerton’s had difficulty controlling the situation because the mine property was extremely large (including twenty-three points of entry) and many strikers were determined to commit wrongful acts. Following an especially dangerous riot in mid-June, after which forty strikers were fired and many criminal charges were filed, the atmosphere appeared to grow calmer as incidents of violence decreased. At the owner’s urging, Pinkerton’s reduced its security force to twenty guards, despite the guards’ evident inability to prevent occasional incidents of trespass, vandalism, and two minor explosions on mine property in late July and early September.
Finally, in the early morning of September 18, one deranged miner entered the underground through a remote entrance and planted 25-30 sticks of dynamite and a bag of nitrate-based explosive in an active area of the site. Soon, a vehicle carrying nine miners triggered the trip wire, causing an explosion which killed all men aboard. The perpetrator eventually confessed and was sentenced to life in prison.
Following the bombing, the Government of the Northwest Territories ordered closure of the mine, a step it had decided not to take earlier even when faced with clear knowledge of the escalating violence. The strike ended after eighteen months. Giant Mine ceased operations in 2004. The surviving family members of the murdered miners brought an action in negligence against Pinkerton’s, the territorial government, and the strikers’ union for damages occasioned by the wrongful deaths of their loved ones. Previous claims involving the mine owner had already been settled.
The Issues on Appeal
The Supreme Court’s judgment is rather lengthy, requiring some 160 paragraphs to navigate four distinct legal issues, although it is somewhat more manageable than the trial court’s judgment (which extended to 1300 paragraphs.) The judgment is set out in four sections, corresponding to the distinct legal questions raised by the victims’ respective claims.
In the first, the Court considered whether Pinkerton’s and the territorial government owed a duty of care to the murdered miners to take reasonable steps to prevent the September 18th bombing and, if so, whether that duty was breached. Next, it determined whether the trial judge applied the wrong legal test for causation. Third, the Court explored: 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 were correct. Finally, it heard a claim advanced by a surviving miner relating to his suffering from post-traumatic stress disorder following the discovery of his colleagues’ dismembered bodies.
For the purposes of this article, I will only consider the first issue concerning duty and standard of care. It constitutes the bulk of the Supreme Court’s opinion and raises the most interesting and readily accessible legal questions.
Were Duties of Care Owed to the Murdered Miners?
“The appellants do not claim that Pinkerton’s and the government are responsible for [the bomber’s] tort,” writes Justice Cromwell for the unanimous court, but “the claim is that they were negligent in trying to prevent it.” The success of this claim depended on whether Pinkerton’s or the government owed a duty of care of the replacement workers during the labour disruption, such that they could be liable for any negligent acts or omissions causally connected to the ensuing fatal explosion. Duties would arise if the relationship between the parties met the dual requirements of foreseeability and proximity, barring any residual policy considerations which militate against such a finding.
It is long established that one may only be responsible for consequences of acts or omissions which one can reasonably foresee would be likely to cause injury.
In the first case, Pinkerton’s was informed of the strikers’ previous use of explosives and ongoing threats to kill replacement workers – specifically, to throw “a surprise party for the scabs” involving bombs – in advance of the September 18th attack. Justice Cromwell agreed with the trial judge that these undisputed factual findings support the conclusion that Pinkerton’s foresaw the risk of grievous bodily harm resulting from an explosion.
In the second case, the territorial government was well aware that the early September explosion, which was poised to cause a major fire and pump high concentrations of noxious fumes into the mine’s depths, had the potential to seriously injure replacement miners working underground at the time. Given that, Justice Cromwell again agreed with the trial judge that the government knew the killing of miners “was the very kind of thing that was likely to happen.”
As an aside, Justice Cromwell expressly did not address the question of whether the NWTCA erred by applying a “very likely to occur” test for foreseeability, as the miners’ deaths were found to be a very likely consequence of the escalating violence in any event and his comments would therefore be unnecessary.
In my respectful view, Justice Cromwell would have done well to clarify the law on this important point. Imposing the Court of Appeal’s requirement of a “very likely” consequence would muddy applications of the foreseeability test because it remains unclear how one measures something that is “very” likely – the adverb adds little by way of substantive guidance — while the current “likely” consequence standard is more easily measured against the foresight of the reasonable person. Further, requiring that a harmful consequence be “very likely” to occur arguably sets too high a standard and could indemnify tortfeasors who contemplate probable risks but fail to take appropriate precautions in protecting others.
In addition to foreseeing bodily harm, for a duty to exist Pinkerton’s and the government must have also enjoyed a relationship of sufficient proximity to the replacement workers such that the careless omission complained of would directly affect them.
Justice Cromwell correctly found that Pinkerton’s “was there to protect property and people. The whole point of its presence was to help secure the site so that the mine could continue to operate.” The firm willfully contracted to exercise reasonable care in reducing risks to a well-defined and identifiable group of replacement workers. It even made assurances that the miners would be safe if they continued to work during the strike; these miners, in turn, reasonably relied on the firm’s presence and representations. These considerations support a finding of proximity.
With regard to the territorial government as regulator, its relationship with the replacement workers turns mainly on the statute delegating regulatory powers: specifically, s. 42 of the Mining Safety Act, RSNWT 1988, c M-13 [MSA], mandates that a mining inspector “shall … order the immediate cessation of work in … a mine … that the inspector considers unsafe.” The duty provided for in this section, while perhaps not expressly contemplating intentional wrongful acts, has as its object the general protection of workers from the acts and omissions of others.
It does not matter that the inspectors’ statutory duty does not extend to resolving labour relations disputes or to detecting and preventing crime, because the duty does extend to mine safety issues generally, whatever the cause. Inspectors were privy to well-documented findings that the miners faced obvious and serious risks, giving rise to a sufficiently proximate relationship under the MSA. Justice Cromwell makes this finding with unusual zeal, asking,
[w]ould it be argued that if the inspectors had actually known that there was a bomb in the mine, they could have done nothing because the placement of the bomb resulted from a labour relations dispute and constituted a crime? I would hope not. But that is the logical extension of the position adopted by the Court of Appeal and supported by the government in argument. I cannot accept this view.
Given that Pinkerton’s and the territorial government were found to owe prima facie duties of care to the murdered miners, the question becomes whether there are any broad policy considerations beyond those relating to the parties that make the imposition of duties unwise.
Here, Justice Cromwell departs from the NWTCA by ruling that there were no policy considerations sufficiently compelling to do so. Since the victims’ families seek to recover from Pinkerton’s and the government for their own negligence, and not for the wrongful act of the deranged bomber, finding that duties exist would not undermine the general principle that tort liability is personal and fault-based.
Considering that both parties were charged by contract and statute respectively to take reasonable steps to protect the replacement workers, he also held that the duties would not offend parties’ general autonomy to become seized of matters that they choose. Finally, also considering the parties’ specific mandates, Justice Cromwell dismissed concerns that recognizing duties of care would raise the spectre of indeterminate liability.
Given That Duties Existed, Were They Breached?
Finding that duties of care exist does not necessarily result in a finding that those duties are breached. Parties may very well discharge their obligations by meeting a standard of care that is reasonable in the circumstances. Indeed, the SCC concluded that both Pinkerton’s and the territorial government took reasonable – albeit unsuccessful – steps to prevent the Giant Mine tragedy.
In my respectful view, Justice Cromwell’s discussion of Pinkerton’s burden of precautions is the most obviously wanting part of his judgment. He at once criticizes the trial judge for “failing to articulate the standard of care to which Pinkerton’s was to be held” given the limitation of resources imposed by its contract and the ardent intent of the bomber to cause harm, while failing himself to articulate the standard. This is tantamount to identifying a palpable error of law but refraining from correcting it.
Justice Cromwell also identifies two contradictory factual findings in the trial judge’s reasons that are relevant to any conclusion about Pinkerton’s breach of its standard of care. Without the benefit of a full evidentiary record, Justice Cromwell is probably prudent not to resolve these discrepancies; he also may well be correct that these clear and determinative errors require appellate intervention. I do not understand, however, what prevented him from elaborating on Pinkerton’s standard of care.
Regarding the territorial government’s alleged breach, Justice Cromwell finds that the government took reasonable care in deciding not to order the immediate cessation of work under the MSA. After all, officials refrained from taking discretionary actions on the advice of counsel, whose competence and good faith they had no reason to doubt. That was sufficient to meet the burden of precautions necessary to discharge their statutory duty.
I agree with Justice Cromwell that the law of negligence must not require the government to take action which they believed abused their powers. However, if this ruling leaves victims’ families no recourse to alternatively sue the government’s counsel for providing potentially negligent legal advice which dictated the decision not to cease operations, that cannot be an acceptable result. The fact remains that not closing the Giant Mine well-before the September 18th bombing, once it became clear that violence was escalating and that risks of an explosion were not fleeting, was an incredible disservice to the replacement workers.
I suspect that Fullowka may be regarded in the popular media as the unsatisfying denouement to a heartbreaking judicial saga. An incredibly sympathetic claimant group has been denied recovery from their protectors’ collective failure to prevent grievous bodily harm by a set of reasons that may be legally sound but at times seem deficient. Still, while it is unfortunate the legal community will have to wrestle with the issues the SCC left unresolved, hopefully this final decision will help deliver closure to the families of victims, burdened by years of legal proceedings following the tragedy at the Giant Mine.