Fullowka v. Pinkerton's of Canada Ltd.

Fullowka v. Pinkerton's of Canada Ltd.
Collection
Supreme Court Judgments
Date
2010-02-18
Neutral citation
2010 SCC 5
Report
[2010] 1 SCR 132
Case number
32735
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Northwest Territories
Subjects
Torts
Notes
SCC Case Information: 32735
Decision Content
SUPREME COURT OF CANADA
Citation: Fullowka v. Pinkerton’s of Canada Ltd.,
2010 SCC 5, [2010] 1 S.C.R. 132
Date: 20100218
Docket: 32735
Between:
Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev,
Ella May Carol Riggs, Doreen Vodnoski, Carlene Dawn Rowsell,
Karen Russell and Bonnie Lou Sawler
Appellants
and
Pinkerton’s of Canada Limited, Government of the Northwest Territories
as represented by the Commissioner of the Northwest Territories,
National Automobile, Aerospace, Transportation and General Workers
Union of Canada, Timothy Alexander Bettger and
Royal Oak Ventures Inc. (formerly Royal Oak Mines Inc.)
Respondents
And Between:
James O’Neil
Appellant
and
Pinkerton’s of Canada Limited, Government of the Northwest Territories
as represented by the Commissioner of the Northwest Territories,
National Automobile, Aerospace, Transportation and General Workers
Union of Canada and Timothy Alexander Bettger
Respondents
‑ and ‑
Attorney General of Canada and
Attorney General of Ontario
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 166)
Cromwell J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
______________________________
Fullowka v. Pinkerton’s of Canada, 2010 SCC 5, [2010] 1 S.C.R. 132
Sheila Fullowka, Doreen Shauna Hourie,
Tracey Neill, Judit Pandev, Ella May Carol Riggs,
Doreen Vodnoski, Carlene Dawn Rowsell,
Karen Russell and Bonnie Lou Sawler Appellants
v.
Pinkerton’s of Canada Limited, Government of the
Northwest Territories as represented by the
Commissioner of the Northwest Territories,
National Automobile, Aerospace, Transportation
and General Workers Union of Canada,
Timothy Alexander Bettger and
Royal Oak Ventures Inc. (formerly Royal Oak Mines Inc.) Respondents
‑ and ‑
James O’Neil Appellant
v.
Pinkerton’s of Canada Limited, Government of the
Northwest Territories as represented by the
Commissioner of the Northwest Territories,
National Automobile, Aerospace, Transportation
and General Workers Union of Canada
and Timothy Alexander Bettger Respondents
and
Attorney General of Canada and
Attorney General of Ontario Interveners
Indexed as: Fullowka v. Pinkerton’s of Canada Ltd.
2010 SCC 5
File No.: 32735.
2009: May 14; 2010: February 18.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for the northwest territories
Torts — Negligence — Duty of care — Territorial government — Security company — Miners — Ongoing bitter strike at mine — Striking members of local union committing several criminal acts against mine property and replacement miners, including planting bomb in mine that killed nine miners — Surviving family members of murdered miners suing security company hired by mine owner to protect property and miners and territorial government for non‑closure of mine in spite of clear knowledge of dangerous situation — Miner among first on scene of explosion also suing claiming damages for post-traumatic stress disorder — Trial judge finding both security company and government liable in negligence for failing to prevent murders — Whether security company and government owed duty of care to murdered miners — If so, whether they breached that duty.
Torts — Negligence — Duty of care — Unions — Miners — Ongoing bitter strike at mine — Striking members of local union committing several criminal acts against mine property and replacement miners, including planting bomb in mine that killed nine miners — Surviving family members of murdered miners suing unions — Miner among first on scene of explosion also suing claiming damages for post-traumatic stress disorder — Whether trial judge erred finding that national and local unions breached their duty of care to miners — Whether national and local unions separate legal entities — Whether national union directly or vicariously liable for acts of striking members of local union.
In May 1992, a strike began at the Giant Mine near Yellowknife. The employees’ bargaining agent, CASAW Local 4, and the mine owner, Royal, had reached a tentative agreement, but it was rejected by the Local’s membership. Royal decided to continue operating the mine during the ensuing strike with replacement workers. The strike rapidly degenerated into violence. Faced with attacks on its security guards and unable to control the situation, the private security firm Royal had hired withdrew. Royal turned to Pinkerton’s for security services and by the end of May, Pinkerton’s had 52 guards on site. The violence continued and escalated after Pinkerton’s arrival. In mid‑June, a large number of strikers rioted, damaging property and injuring security guards and replacement workers. Following the riot, Royal fired about 40 strikers, including W, and the police laid many criminal charges. Later in the same month, three strikers, including B, entered the mine through a remote entrance. While underground, they stole explosives and painted graffiti threatening replacement workers. As the summer progressed, the atmosphere grew calmer although some trespassing, property damage and violence continued. On Royal’s urging, Pinkerton’s reduced its force to 20 guards. The police presence was also reduced. In late July, some strikers, including B, set an explosion which blew a hole in a satellite dish on mine property and, in early September, set a second explosion which damaged the mine’s ventilation shaft plant. In the early morning hours of September 18, W evaded security, entered the mine and, while underground, planted an explosive device. When a man car carrying nine miners triggered the trip wire, they were all killed in the explosion. N was among the first on the scene and discovered the dismembered bodies of his colleagues, including a close friend. The territorial government ordered closure of the mine following the bombing. At the time of the fatal blast, CASAW Local 4 was affiliated with CASAW National which, in 1994, amalgamated with CAW National.
The miners’ survivors sued Royal, Pinkerton’s and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers’ national union, some union officials and members of CASAW Local 4 for failing to control W and for inciting him. As for N, he brought an action against the same defendants and Local 4, seeking damages for post-traumatic stress disorder which he alleged resulted from his having come upon the scene of the fatal explosion. Their claims largely succeeded at trial but were dismissed by the Court of Appeal.
Held: The appeals should be dismissed.
The plaintiffs do not claim that Pinkerton’s and the government are responsible for W’s tort; the claim is that they were negligent in trying to prevent it. The relationship between the murdered miners and Pinkerton’s and the territorial government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed.
In light of the trial judge’s finding that the territorial government’s mine safety division was aware that the explosion in the vent shaft could have caused a major fire, potentially endangering the lives of the men working underground at the time, there is no reason to interfere with his conclusion that the killing of the miners “was the very kind of thing that was likely to happen”. As for Pinkerton’s, the trial judge found that the company was advised by the mine superintendent that there was a bomb threat. Pinkerton’s also knew there had been an explosion at an electrical substation, had received information that the strikers had explosives and intended to use them, and had heard threats from union members to the effect that they intended to kill the replacement workers. These factual findings support a conclusion not only that a reasonable person would have foreseen death resulting from an explosion, but that Pinkerton’s actually foresaw that risk.
In cases of this nature, the proximity inquiry is concerned with whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close and direct to give rise to a legal duty of care, considering such factors as expectations, representations, reliance and the property or other interests involved. The reasonable expectations of both the miners and Pinkerton’s as well as Pinkerton’s undertaking to exert some control over the risk to the miners supported the trial judge’s finding of proximity. The miners reasonably relied on Pinkerton’s to take reasonable precautions to reduce the risk and Pinkerton’s must have shared the miners’ expectation since the whole point of its presence at the mine was to protect property and people and help secure the site so that the mine could continue to operate. With respect to the government, the trial judge did not err in finding that there was a sufficiently close and direct relationship between the inspectors and the miners. The mine inspectors had a statutory duty to inspect the mine and to order the cessation of work if they considered it unsafe. In exercising this statutory power, the inspectors had been physically present in the mine on many occasions, had identified specific and serious risks to an identified group of workers and knew that the steps being taken by management and Pinkerton’s to maintain safe working conditions were wholly ineffectual.
There are no residual policy considerations, alone or in combination, sufficiently compelling to oust the prima facie duty of care on the part of Pinkerton’s and the territorial government. Since the plaintiffs seek to have these parties held responsible for their own negligence, not for the fault of others, holding them liable for their own negligence does not undermine the general principles that tort liability is personal and fault‑based. Nor do considerations of control and autonomy negate the prima facie duty of care. Control is concerned with whether the defendant was either materially implicated in the creation of the risk or had control over a risk to which others have been invited. While it is true that Pinkerton’s and the territorial government had no direct control over W, given their contractual and statutory obligations, it is misleading to speak of an absence of control over W since they had a significant measure of control of the risk that his activities would kill miners. As for autonomy, it is concerned with a person’s right to engage in risky activities and to choose not to intervene to prevent others from doing so or to save them from the consequences. The miners were aware that they faced risk and decided to accept it, but they made that choice in light of the assurances given to them and with the reasonable expectation that Pinkerton’s and the territorial government would make reasonable efforts to guard against that risk. Pinkerton’s surrendered much of its autonomy by its contractual undertaking with Royal to guard the miners. The territorial government had a statutory responsibility for mine safety and its autonomy gave way to its statutory duties. Pinkerton’s and the territorial government were not mere bystanders who happened upon a dangerous situation and decided not to get involved. Given their contractual and statutory obligations, it does not unduly interfere with their autonomy to impose a duty on them to take reasonable care for the miners’ safety. The proposed duty of care does not expose the government to indeterminate liability. The duty is to the finite group of miners working in the mine which the inspectors had inspected repeatedly. The concern about the potential for over‑ or under‑regulation and conflicting duties is not justified in the circumstances of this case.
While the trial judge was correct in finding that both Pinkerton’s and the territorial government owed the murdered miners a duty of care, he erred in finding that they did not meet the requisite standard of care. The trial judge failed to articulate the standard of care to which Pinkerton’s was to be held, given the limitation of resources imposed by its contract with the mine owner and W’s determination to commit an intentional, criminal act. To the extent that the judge required Pinkerton’s to ensure that the entrances were properly guarded to avoid all clandestine access to the mine, he imposed an absolute duty, not a duty of reasonable care. The trial judge also did not indicate what “properly” guarding the entrances required Pinkerton’s to do. Moreover, his reasons contain contradictory findings highly relevant to his conclusion about Pinkerton’s breach of its standard of care. These diametrically opposed findings of fact on a critical issue constitute clear and determinative errors and require appellate intervention. With regard to the government, the trial judge erred in law by rejecting the relevance and legal effect of good faith reliance on legal advice received by officials about the scope of their statutory powers. The mining inspectors had been advised that their jurisdiction did not permit them to close the mine for reasons derived from labour relations issues and criminal activity. Although that advice was wrong, in the context of allegations of negligence against those responsible for regulating mine safety, the fact that this advice was received and acted on cannot be dismissed — as the trial judge did — as being of “no consequence”. This advice goes precisely to the issue of whether the government took reasonable care in deciding not to close the mine. The reliance on that advice, in the circumstances of this particular case, met the government’s standard of care.
The trial judge also applied the wrong legal test for causation. In not applying the “but for” test, the trial judge committed a reversible error. This case does not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” standard.
The trial judge’s findings of liability with respect to the claims against the national union, union officers and members cannot be sustained. The trial judge erred both in concluding that Local 4 and CASAW National were a single legal entity and in considering the conduct of all union participants cumulatively. A local union which is certified as a bargaining agent under the Canada Labour Code is a legal entity capable of being sued in its own right in relation to the discharge of its function and performance of its role in the field of labour relations. Here, Local 4 was the certified bargaining agent for the mine workers and had legal rights and obligations distinct from those of the national union. Furthermore, the provisions of the union constitution underline the separate and autonomous status of the national and local unions and the merger agreement treats the national union and the local unions as separate entities. Under the union constitution and merger agreement, the national and local unions have their own management structure, areas of responsibility and assets and liabilities. CAW National did not assume the debts and obligations of CASAW Local 4 upon the merger and its liability may only be sustained on the basis of its own acts or on the principles of joint and vicarious liability.
CAW National is not directly liable for the acts of Local 4's executive members. The trial judge’s reasoning was that the acts of the Local’s executive members should be considered to be acts of CASAW National. CAW National, on merger, acquired CASAW National’s obligations and liabilities; however, because the trial judge erred by concluding that the acts of CASAW Local 4 were the responsibility of CASAW National, it follows that CAW National did not assume CASAW Local 4's obligations or liabilities on merger. CAW National is also not vicariously liable for the acts of B and W as members of Local 4. The trial judge’s imposition of vicarious liability on the basis of the national unions’ control of CASAW Local 4 cannot stand. Nor does the relationship between CAW National and the members of Local 4 render CAW National vicariously liable in a broad sense for torts committed by members of the Local in the course of a strike. Union members do not fall into any of the traditional categories of vicarious liability; nor is union membership closely analogous to any of those categories. The relationship between CASAW National and the striking union members W and B was not sufficiently close to justify imposing vicarious liability on the national union for their unlawful acts. Local 4 was a separate entity, had a large measure of autonomy under the union constitution and, by early July 1992, had the sole responsibility of negotiating with Royal.
CAW National cannot be found liable as a joint tortfeasor with W. Concerted action liability may be imposed where the alleged wrongdoers acted in furtherance of a common design — this means that all participants must act in furtherance of the wrong. Here, there is no basis in law or in fact for a finding that CAW National’s liability could be sustained on the basis of concerted action liability because it “incited and participated in W’s tort and contributed to the deaths”. The trial judge’s findings of fact do not meet the applicable test. There was no finding of any common design between W and CAW National to murder the miners and no finding that the murders were committed in direct furtherance of any other unlawful common design between W and the union.
The claims against B should be dismissed. The trial judge’s reasons and findings of fact preclude imposing liability on B on the basis that he was a joint tortfeasor with W. As for causation, the trial judge did not apply the “but for” test and failed to assess B’s own conduct individually. As to the imposition of a duty of care, the claim against B does not fall into the category of cases in which the defendant’s act foreseeably causes physical harm to the plaintiff. It was W’s act, not B’s, which caused the physical harm. B had no duty to warn, and a duty to prevent W’s acts should not have been imposed on B. He had no control over W and the trial judge made no finding that he was in any way aware of his plans.
N’s claims must also be dismissed. The basis for liability of the defendants was the same in both actions. Since the defendants did not breach their duties in tort to the miners, they did not breach any duties owed to N. No submissions have been advanced that the outcome in N’s case should be different based on the fact that there were some different parties named in his action.
Cases Cited
Applied: Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Rothfield v. Manolakos, [1989] 2 S.C.R. 1259; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298; distinguished: Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers, Edmonton Local (1993), 146 A.R. 184; Canadian Union of Public Employees v. Deveau (1976), 19 N.S.R. (2d) 44, aff’d (1977), 19 N.S.R. (2d) 24; M’Kendrick v. National Union of Dock Labourers (1910), 2 S.L.T. 215; Leroux v. Molgat (1985), 67 B.C.L.R. 29; Matusiak v. British Columbia and Yukon Territory Building and Construction Trades Council, [1999] B.C.J. No. 2416 (QL); considered: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; referred to: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; Donoghue v. Stevenson, [1932] A.C. 562; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Ultramares Corp. v. Touche, 174 N.E. 441 (1931); Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202; Stafford v. British Columbia, [1996] B.C.J. No. 1010 (QL); Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493; International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers AFL‑CIO‑CLC, Local 1733 (1976), 16 N.B.R. (2d) 361; International Longshoremen’s Association, Local 273 v. Maritime Employers’ Association, [1979] 1 S.C.R. 120; Bazley v. Curry, [1999] 2 S.C.R. 534; John Doe v. Bennett, 2004 SCC 17, [2004] 1 S.C.R. 436; Mainland Sawmills Ltd. v. U.S.W., Local 1‑3567, 2007 BCSC 1433, 62 C.C.E.L. (3d) 66; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403; E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60, [2005] 3 S.C.R. 45; Re Oil, Chemical & Atomic Workers & Polymer Corp. (1958), 10 Lab. Arb. Cas. 31; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Newcastle (Town) v. Mattatall (1987), 78 N.B.R. (2d) 236, aff’d (1988), 87 N.B.R. (2d) 238; The Koursk, [1924] P. 140.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1985, c. L‑2, ss. 3(1) “bargaining agent”, “trade union”, 36(1)(a).
Constitution Act, 1867 .
Mining Safety Act, R.S.N.W.T. 1988, c. M‑13, ss. 2, 3, 5(3), 8(1)(a), (2), (9), 42, 43.
Mining Safety Regulations, R.R.N.W.T. 1990, c. M‑16, ss. 4, 15, 125(10), 138.
Authors Cited
Fridman, G. H. L. The Law of Torts in Canada, 2nd ed. Toronto: Carswell, 2002.
Klar, Lewis N. Tort Law, 3rd ed. Toronto: Thomson Carswell, 2003.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis Butterworths, 2006.
McIvor, Claire. Third Party Liability in Tort. Portland, Or.: Hart Publishing, 2006.
APPEALS from a judgment of the Northwest Territories Court of Appeal (Costigan, Paperny and Slatter JJ.A.), 2008 NWTCA 4, 66 C.C.E.L. (3d) 1, 433 A.R. 69, 429 W.A.C. 69, [2008] 7 W.W.R. 411, 56 C.C.L.T. (3d) 213, [2008] N.W.T.J. No. 27 (QL), 2008 CarswellNWT 32, allowing appeals from a decision of Lutz J., 2004 NWTSC 66, 44 C.C.E.L. (3d) 1, [2005] 5 W.W.R. 420, [2004] N.W.T.J. No. 64 (QL), 2004 CarswellNWT 71. Appeals dismissed.
Jeffrey B. Champion, Q.C., J. Philip Warner, Q.C., and W. Benjamin Russell, for the appellants Fullowka et al.
James E. Redmond, Q.C., for the appellant O’Neil.
John M. Hope, Q.C., and Malkit Atwal, for the respondent Pinkerton’s of Canada Ltd.
Peter D. Gibson and Christine J. Pratt, for the respondent the Government of the Northwest Territories.
Steven M. Barrett, Patrick G. Nugent and Ethan Poskanzer, for the respondent National Automobile, Aerospace, Transportation and General Workers Union of Canada.
S. Leonard Polsky and Heather A. Sanderson, for the respondent Bettger.
Written submissions only by Robert G. McBean, Q.C., for the respondent Royal Oak Ventures Inc.
John S. Tyhurst, for the intervener the Attorney General of Canada.
Lise G. Favreau and Lucy K. McSweeney, for the intervener the Attorney General of Ontario.
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1] During a bitter strike at the Giant Mine in Yellowknife, N.W.T., one of the strikers, Roger Warren, evaded security and surreptitiously entered the mine. He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners. Their survivors and another worker who came upon the carnage after the explosion sued the mine owner, its security firm and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers’ union, some union officials and members for failing to control Mr. Warren and for inciting him. Their claims largely succeeded at trial but were dismissed on appeal to the Court of Appeal. The principal issues on the appeal to this Court are whether the security firm and the government should be liable in negligence for failing to prevent the murders and whether the unions should be responsible, directly or vicariously, for the miners’ deaths. The claims involving the mine owner, its chief executive officer and one of its directors have been settled and are therefore not before us.
[2] In my opinion, the appeals should be dismissed. Although I would find that the security firm and the government owed a duty of care, my view is that the trial judge erred when he found that they had breached that duty. With respect to the claims against the union, union officers and members, I agree with the Court of Appeal that the trial judge’s findings of liability cannot be sustained. I also agree with the Court of Appeal that the claims of Mr. O’Neil (the worker who came upon the carnage) should have been dismissed.
II. Overview of Facts, Claims and Proceedings
A. Facts
[3] The facts, in very brief overview, are as follows.
[4] On May 23, 1992, a strike began at the Giant Mine, a gold-producing facility near Yellowknife in the Northwest Territories. A few weeks earlier, the employees’ bargaining agent, Local 4 of the Canadian Association of Smelter and Allied Workers (“CASAW Local 4”) and the mine owner, Royal Oak Mines Inc. (“Royal Oak”), had reached a tentative agreement, but it was rejected by the Local’s membership approximately one week before the strike began. Royal Oak decided to continue operating the mine during the ensuing strike with replacement workers.
[5] The strike rapidly degenerated into violence. Strikers took control of most of the mine property. Preventing trespass proved very difficult: the mine property was very large, included 23 points of entry to the underground and was bisected by a public highway. Many illegal and violent acts occurred during the strike. There were threats of bodily harm including gang rape and death; stalking and harassment of replacement workers and their families; assaults on security guards and police officers; wholesale disobedience of court injunctions aimed at controlling the violence; destruction of property by explosions; interruption of the power supply to the mine and to the nearby city, including the local hospital; vandalism, including arson, environmental spills and damage to mine property; and infiltration of the mine site for sabotage. Faced with attacks on its security guards and unable to control the situation, the private security firm Royal Oak had hired withdrew. Royal Oak turned to Pinkerton’s of Canada Ltd. for security services and by the end of May, Pinkerton’s had 52 guards on site.
[6] The violence continued and escalated after Pinkerton’s arrival. In mid-June, a large number of strikers rioted, damaging property and injuring security guards and replacement workers. The riot was eventually broken up by police using tear gas and firing warning shots. Following the riot, Royal Oak fired about 40 strikers, including Mr. Warren, and the police laid many criminal charges. Later in the same month, three strikers including Timothy Bettger entered the mine through a remote entrance, the Akaitcho mine shaft. While underground, they stole explosives and painted graffiti threatening replacement workers. This event became known as the “graffiti run”.
[7] As the summer progressed, the atmosphere grew calmer although some trespassing, property damage and violence continued. On Royal Oak’s urging, Pinkerton’s reduced its force to 20 guards. The police presence was also reduced. But the calmer atmosphere did not last. In late July, some strikers, including Mr. Bettger, set an explosion which blew a hole in a satellite dish on mine property. In early September, some strikers, including Mr. Bettger, set a second explosion which damaged the mine’s ventilation shaft plant.
[8] Finally, in the early morning hours of September 18, Mr. Warren entered the underground through Akaitcho and descended to the 750 foot level. He walked about 1.5 kilometres underground to an active area of the mine. He used machinery to transport explosives and attached a trip wire to 25-30 sticks of dynamite and a bag of a nitrate-based explosive. Undetected throughout, he left the mine through another exit. At about 8:45 a.m., a man car carrying nine miners triggered the trip wire. All nine were killed in the explosion. James O’Neil was among the first on the scene, having been sent in to investigate why the air pressure in the mine had suddenly dropped. He discovered the dismembered bodies of his colleagues, including a close friend.
[9] Mr. Warren confessed to having planted the bomb. He was found guilty of nine counts of second degree murder and sentenced to life in prison. No one else was found guilty of a criminal offence with respect to the September 18 bombing. Other strikers were found guilty of a variety of criminal acts related to the strike, including Mr. Bettger who was sentenced to three years in jail for his role in the graffiti run, the ventilation shaft bombing and another explosion.
[10] The Government of the Northwest Territories ordered closure of the mine following the bombing, a step it had decided not to take earlier even when faced with clear knowledge of the dangerous situation. The strike ended after 18 months. Giant Mine ceased operating in 2004.
B. Claims
[11] Two actions went to trial together. In the first, the Fullowka action, the plaintiffs were the surviving family members of the murdered miners. They claimed on their own behalf and on behalf of their dependent children and/or grandchildren for damages occasioned by the wrongful deaths of their loved ones. In the second action, Mr. O’Neil claimed damages for post-traumatic stress disorder which he alleged resulted from his having come upon the scene of the fatal explosion.
[12] There were some differences in the defendants named in the two actions, but the bases of their alleged liability were the same in both. In summary, the claims in addition to those against Mr. Warren were as follows:
(a) Pinkerton’s was sued in negligence, the gist of which was failing to undertake all reasonable safety precautions including those which the mine owner failed to carry out; it was also sued as an occupier of the mine property.
(b) The Government of the Northwest Territories was sued in its capacity as a regulator. The plaintiffs alleged that it and the individual officials (Mr. Whitford as Minister of Safety and Public Services and Mr. Turner as Chief Inspector of Mines) failed in their duties to the murdered miners to adopt and to implement policies and procedures that would attain and maintain safe working conditions at the mine and to order cessation of work at the mine until it was safe.
(c) The union was alleged to be directly and vicariously liable for breaches of a duty to avoid conduct that created a foreseeable risk of harm, for failing to make clear to all persons under its influence that causing death or injury was unacceptable, failing to prevent Mr. Warren from acting and failing to warn the deceased miners.
(d) Some individual union members in addition to Mr. Warren were sued for assisting him and inciting violence.
C. Proceedings
[13] After a nine-month trial, Lutz J. gave detailed reasons for judgment extending to 1300 paragraphs: 2004 NWTSC 66, 44 C.C.E.L. (3d) 1. He made the following findings of liability. Pinkerton’s was liable for failing to take reasonable steps to keep Mr. Warren from entering the mine and planting the bomb. The government was liable because of the conduct of its officials: they should have used their statutory powers to shut down the mine in the face of the unsafe conditions created by the violent strike. The union and some of its defendant officers and members were liable. In the trial judge’s view, the national and local unions were one entity and their representatives incited, acquiesced in, or at least did nothing to stop the violence. The national union was, he held, vicariously liable for the torts of union officers and members.
[14] The Court of Appeal reversed these findings, holding that the trial judge had erred in three critical areas: 2008 NWTCA 4, 66 C.C.E.L. (3d) 1. He erred, the court said, in finding that Pinkerton’s and the government owed a duty of care in negligence to the appellants. He also erred by applying the wrong legal test for determining whether the wrongful acts caused the miners’ deaths. Finally, he erred in several respects in his consideration of the union’s liability: by treating a national union and its local as a single entity, by proceeding on the basis that the national union had assumed the debts and obligations of one of its predecessor’s local unions, in finding a national union vicariously liable for the acts of members of a local and in finding that it had incited Mr. Warren’s murderous acts.
III. Analysis
[15] My analysis will be set out in four main sections. In the first, I will consider whether Pinkerton’s and the government owed a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren’s intentional wrongful act and, if so, whether they breached that duty. My conclusion is that they did owe a duty of care but that they did not breach it. I will then consider whether the trial judge applied the wrong legal test for causation. In my respectful view, he did. In the third section of the analysis, I will address the claims against the union. The questions to be answered are 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 are sound. I conclude that the national and the local unions are separate legal entities, that vicarious liability should not have been found and the national union cannot be found to have incited Mr. Warren. Finally, I will consider the claim against Mr. Bettger and the claim advanced by Mr. O’Neil. In my view, the claims against Mr. Bettger and by Mr. O’Neil should be dismissed.
A. Pinkerton’s and the Government: Duty and Standard of Care
(1) Duty of Care
[16] The appellants do not allege that either Pinkerton’s or the Government actually inflicted the fatal injuries on the murdered miners; rather, they allege that Pinkerton’s and the government breached a duty to take reasonable care to prevent the harm inflicted by Mr. Warren. The Court of Appeal characterized this as a claim that Pinkerton’s and the government were liable for Mr. Warren’s tort (para. 98). This however is not the right way to frame the issue because it does not accurately reflect the appellants’ claims.
[17] We are here concerned with allegations of direct liability. Simply put, the appellants do not claim that Pinkerton’s and the government are responsible for Mr. Warren’s tort; the claim is that they were negligent in trying to prevent it. The appellants’ position is that primary liability should be imposed based on the fault of these two defendants: see C. McIvor, Third Party Liability in Tort (2006), at p. 1; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 25-26. The question is not, therefore, whether these defendants are responsible for the tort of another, but whether they, in relation to another’s tort, failed to meet the standard of care imposed on them and thereby caused the ultimate harm.
[18] This question must be resolved by an analysis of the applicable legal duties, following the approach set down by the Court in a number of cases, including Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; and Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. The analysis turns on whether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care: see, e.g., Hill, at para. 20. The analysis must focus specifically on the relationships in issue, as there are particular considerations relating to foreseeability, proximity and policy in each: see, e.g., Hill, at para. 27.
[19] In my view, the relationship between the murdered miners and Pinkerton’s and the government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed. I also conclude that these prima facie duties are not negated by policy considerations. In these respects, I part company with the Court of Appeal.
[20] It will be helpful to consider foreseeability, proximity and residual policy considerations in turn.
(a) Foreseeability
[21] In the view of both the trial judge and the Court of Appeal, the test for foreseeability in a case like this one is whether the harm would be viewed by a reasonable person as being very likely to occur: C.A. reasons, at paras. 53-54. The Court of Appeal upheld the trial judge’s finding that this foreseeability requirement was met in the case of both Pinkerton’s and the government. Although the respondents challenge this conclusion, it is, in my view, well supported by the evidence.
[22] The trial judge found that Pinkerton’s was advised by the superintendent of the mine in June that there was a bomb threat (para. 95), that Pinkerton’s knew there had been an explosion in early June at an electrical substation that blew one of its guards a long distance away off his feet (para. 96), that Pinkerton’s had received information that the strikers had explosives and intended to blow up the head frame, the mill or the vent shaft (para. 98) and that Pinkerton’s had heard threats from union members to the effect that they intended to kill the replacement workers (para. 100), that they planned a “surprise party for the scabs” involving explosives (para. 115). These factual findings support a conclusion not only that a reasonable person would have foreseen death resulting from an explosion, but that Pinkerton’s actually foresaw that risk.
[23] As for the government, the trial judge found that the mine safety division was aware that a set explosion in the vent shaft on September 2 could have caused a major fire which would have pumped high concentrations of smoke and noxious gases into the mine workings, potentially endangering the lives of the 40 men working in the underground at the time (para. 157). His conclusion was that the killing of the miners “was the very kind of thing that was likely to happen” (para. 812). Again, and like the Court of Appeal, I see no reviewable error in that finding.
[24] Given that conclusion, it is not necessary to address the question of whether the “very likely to occur” test for forseeability sets too high a standard or of whether foresight of physical harm short of grievous bodily harm would be sufficient to satisfy the forseeability requirement.
(b) Proximity
(i) Legal Principles
[25] The appellants’ claims against Pinkerton’s and the government are based on their alleged failure to protect the murdered miners from danger created by Mr. Warren’s intentional wro