$10 million award in N.W.T. mine blast

Nine workers killed after striking employee plants bomb in Yellowknife mine

Background

On Sept. 18, 1992, nine miners died in an explosion in a mineshaft at Giant Mine in Yellowknife. A bomb, planted by a striking employee of the mine, caused the explosion. On Dec. 16 2004, the Northwest Territories Supreme Court handed down a decision in two lawsuits filed by the Northwest Territories and Nunavut Workers Compensation Board arising out of the explosion. The court’s decision on these lawsuits is remarkable because it finds a number of parties negligent and responsible to pay damages totalling more than $10 million.

Variety of defendants held responsible

The first lawsuit was brought on behalf of the families of the nine miners who were killed in the explosion. Six of the miners were employees who had returned to work during the strike, the other three were hired through a contractor after the strike started. The second lawsuit was brought on behalf of another miner who was first on the scene after the explosion. The lawsuits were brought against a variety of defendants:

•The owner of the mine and employer of six of the nine miners who were killed, Royal Oak Ventures, as well as several of its directors;

•Pinkerton’s of Canada, who supplied security services to the mine once the strike had started; •the Government of the Northwest Territories and several of its officials;

•the Canadian Auto Workers (CAW), which succeeded the union representing the employees who were on strike, its president and local union leaders; and

•a number of striking employees, including Roger Warren who was convicted of second degree murder in the deaths of the nine miners.

The lawsuits claimed that the negligence of some or all of these defendants caused the death of the nine miners and the trauma suffered by the miner who was first to arrive at the scene of the blast.

In order to succeed in the negligence claim, the court had to be convinced that each defendant:

Owed a duty of care: Each defendant should have reasonably expected or foreseen that if they were careless, their carelessness would cause damage to those who were killed and injured.

Breached that duty of care: Each defendant did something that they shouldn’t have done, or did not do something that they should have done.

The breach of the duty of care caused damages: The action or inaction of each defendant caused the death of the nine miners, or caused the trauma to the miner who was first on the scene following the explosion.

The damages were connected to the breach: Each defendant should have contemplated that their action or inaction would have resulted in damages such as the explosion that killed the nine miners and caused trauma to the miner who first arrived on the scene afterwards. The court had no difficulty finding Warren, the striking employee who placed the bomb, was guilty of negligence. He planted the charge that caused the fatal explosion. The court determined that he was 26 per cent responsible for the damages.

Besides the bomber, who was responsible?

The court also found a number of others were also liable for the deaths and trauma, listed below.

The employer

Royal Oak, as an employer of six of the miners who were killed, was immune, because provisions of the Workers’ Compensation Act prevented it from being sued by its own employees or their families.

The claim against it was only on behalf of the three miners working for another employer. As the owner of the premises where the explosion occurred, Royal Oak owed a duty of care to both the miners who were its employees and to the other miners who worked for another employer. Royal Oak breached that duty of care by continuing to operate the mine during the strike while not keeping it secure from trespassers and by failing to warn workers that the mine premises were not reasonably secure. Royal Oak breached its duty of care by breaching occupational health and safety legislation, and by not bargaining with its union in good faith — a finding that had been made some years earlier by the Canada Labour Relations Board.

The court found these breaches materially contributed to the deaths and injuries, and they could have been foreseen by Royal Oak at the time it breached its duty of care. Royal Oak was found to be 23 per cent responsible for the damages the court awarded.

The security firm

Pinkerton’s, as the supplier of security to the mine, was also an occupier of the mine and owed a duty of care as an occupier in the same way the employer did. Pinkerton’s failure to keep the mine site secure was a breach of its duty of care. Its failures contributed to the deaths and injuries from the explosion and should have been contemplated by Pinkerton’s. The court found the security firm 15 per cent responsible for the damages assessed.

The government

The Government of the Northwest Territories owed a duty of care because of its responsibility to enforce mine safety legislation. The court found that by not enforcing this legislation the government breached this duty of care. As with the other defendants, the court found the government’s inaction contributed to the deaths and injuries. The government could have foreseen that by not enforcing its legislation, an action, such as the striking miner placing the explosive charge in the mineshaft, would occur. The government was held to be nine per cent responsible for the damages.

The union

The CAW, at the time of the explosion, was not representing the employees who were on strike. The striking employees were members of the Canadian Aluminum and Allied Workers (CASAW). The CAW provided and paid for a person to assist the CASAW local, which was on strike, with negotiations and other activities.

The CAW also contributed more than $1 million to the strike. In 1994, two years after the strike, the CAW and CASAW merged. By providing assistance to the CASAW during the strike, the CAW had “beneficially absorbed” the CASAW, the court found. Because of that, it found the CAW owed a duty of care even though it was not, at the time of the explosion, the union representing the striking employees.

The court found the CAW breached that duty of care in a number of ways. It did nothing to stop the illegal acts occurring during the strike. It paid fines and legal fees for striking miners who were charged with offences during the strike. The person it provided to assist the striking union prolonged the strike. The union had been found, by the Canada Labour Relations Board, to have bargained in bad faith, which was also a breach of the duty of care.

The court found that, together, these breaches of the duty of care materially contributed to the actions of the striking miner who planted the bomb. The court determined that the CAW was 22 per cent responsible.

Union leadership

The Court then turned its attention to a striking employee who, at the time the strike started was vice president of the CASAW local. This employee later, during the strike, became the local president. Because of his positions, he was found to owe a duty of care.

The court found he had encouraged the strikers to participate in illegal activities. He encouraged them to damage mine property and he frightened replacement employees and their families. He went outside his responsibilities as a union-elected official and “misused the union’s facilities to encourage the strikers’ illegal activities.”

By doing so, the court found this employee had breached his duty of care. The court found his actions materially contributed to the actions of the striking employee who placed the explosive charge. This employee was found to be two per cent responsible for the damages.

Another member of the union executive was found to have actively participated in a number of trespassing incidents on mine property after the strike began, and to have encouraged striking employees to participate in illegal activities. This employee was found to have owed a duty of care and breached that duty of care. The court determined this employee’s actions materially contributed to the explosion. This employee was also found to be two per cent responsible.

Striking worker

The final defendant found negligent was a striking employee who was not a member of the union executive at any time. This employee had caused explosions to occur at the mine site prior to the fatal explosion and had participated in other illegal activities as well. The court found this employee owed a duty of care to the nine miners who were killed. He was, “…carrying out the union’s mandate of destruction against Royal Oak and Pinkerton’s and the replacement and line-crossing workers and that his conduct was criminal, obviously not employment-related and created a risk to the very same persons whose lives were lost.” The court found this employee’s actions materially contributed to the death of the nine miners and he was found to be one per cent responsible.

What employers must know

While there are some very unique facts in this case, these findings against an employer, a union, its executive and members, the government and a security company may well have a broader application.

These determinations of negligence may well be applied to any situation where an employer chooses to maintain operations during a labour disruption. They may apply to any situation where a union, its members or executive, encourage union members to participate in illegal activities. They may apply to any situation where an employer or a union (or both) are found to have bargained in bad faith. They may apply to any situation where a security company fails to keep a property secure.

The potential ramifications of the court’s decision are farreaching. This decision of the Northwest Territories Supreme Court may not be the last word in this matter. At least one defendant has publicly indicated that there may be an appeal.

This in-depth look at negligence was provided by Glenn Tait, a partner in the labour and employment practice group in the Yellowknife office of McLennan Ross. He can be reached at [email protected] or (867) 766-7676.

Who was responsible?

According to the Northwest Territories Supreme Court, responsibility for the fatal bombing was split as follows:

•26 per cent — Roger Warren, the man who planted the bomb;

•23 per cent — Royal Oak, the employer that operated the mine;

•22 per cent — the Canadian Auto Workers;

•15 per cent — Pinkerton’s, the firm responsible for security;

•nine per cent — the Government of the Northwest Territories;

•two per cent — employee who was president of the union local;

•two per cent — a member of the local union executive; and

•one per cent — another employee who had planted bombs in the past.

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