Court rethinks liability in mine bombing (Legal view)

Security firm, union off the hook for million-dollar ruling
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 06/12/2008

The Northwest Territories Court of Appeal has overturned an earlier ruling that the negligence of a security firm, union and the territorial government contributed to the deaths of nine miners killed by a bomb during a bitter strike.

On Sept. 18, 1992, Roger Warren, a miner on strike at the Giant Mine gold mine in Yellowknife, snuck into the mine and planted a bomb that killed six replacement and three contract miners in the explosion.

Warren was convicted of nine counts of second-degree murder and the territory’s Workers’ Compensation Board filed a wrongful death lawsuit on behalf of the miners’ families.

In 2004, the Northwest Territories Supreme Court ruled the security company (Pinkerton’s of Canada), the Northwest Territories government and the miners’ union had failed to take the proper steps to ensure the safety of the miners and shared liability for their deaths with the mine owner, Royal Oak Ventures, whose use of replacement workers opened the door to violence in the bitter labour dispute.

The court awarded $10.7 million to the miners’ families. Pinkerton’s, the territorial government and the union appealed the decision.

Last month, the Court of Appeal released its decision, finding although the various parties were negligent in handling safety at the mine during the acrimonious conditions of the strike, their negligence did not contribute to the miners’ deaths. It ruled the deaths were the result of the single, independent action of Warren, which was extreme and unforeseeable.

The Court of Appeal said Pinkerton’s could only be liable for risks within its control. Warren was not under its control when he illegally entered the mine and placed the bomb. He was also specifically attempting to evade detection and thwart Pinkerton’s attempts to keep unauthorized people out of the mine.

“Even though the occupier can control who may enter the property, it may be unreasonable to impose liability if someone enters not only without the consent, but against the express wishes of the occupier,” the Court of Appeal said.

Lack of control over Warren’s actions also exonerated the union from responsibility, the court found, since “the relationship between a member and his union is not characterized by the level of control, unity of purpose and proximity needed to generate vicarious liability.”

Setting the bomb was not tied to any duty the union had assigned Warren and it couldn’t be held responsible for his criminal actions.

It was also unreasonable to find the government was liable, the court said, since its duty of care to inspect the mine was intended for health and safety issues and didn’t apply to preventing criminal acts or labour relations issues.

Ultimately, the court found Warren would not have been altered from “his intended course of conduct” — planting the bomb — even if the parties had acted more responsibly.

The court also noted the nine miners chose to cross the picket line during a bitter strike and had to have known there were risks and there was no guarantee of complete safety since there had been past violence and threats of future violence.

Negligence liability requires both foreseeability and proximity, said Glenn Tait, partner in the labour and employment group at McLennan Ross in Yellowknife. While the Court of Appeal agreed with the trial court that the bombing could have been foreseeable since there had been previous attempts at the mine, the lack of control over Warren’s actions meant the appealing parties had little connection to the incident and couldn’t be held responsible.

“The trial judgment opened doors to expansion of negligence liability but the appeal decision closed them,” said Tait. “The Court of Appeal’s decision seems to set the ship right again to conventional thinking of the extent of negligence.”

While the trial decision raised some eyebrows, security companies, mine regulators and employers can feel a little more comfortable with the Court of Appeal’s decision because it draws back the length the Supreme Court went to find liability, said Tait.

However, he cautioned the lack of an appeal from Royal Oak, the employer, showed employers still have to be vigilant during situations such as the Giant Mine labour dispute. Royal Oak reached a settlement with the miners’ families after the 2004 decision.

The Northwest Territories Workers’ Safety and Compensation Commission said it intends to appeal the decision to the Supreme Court of Canada on behalf of the miners’ widows.

“The Court of Appeal’s decision was very detailed,” said Tait. “It’s likely to engage the Supreme Court of Canada because this is an area not written about before.”

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com .

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