$10.7 million negligence award in Giant Mine bombing overturned

Mine owner, security firm not responsible for 'unforeseeable' criminal actions of striking employee, says Northwest Territories Court of Appeal
|employmentlawtoday.com

The Northwest Territories Court of Appeal has overturned a $10.7 million wrongful death award to the widows of nine miners who were killed by a bomb during a bitter strike in 1992.

On Sept. 18, 1992, Roger Warren, a miner on strike at the Giant Mine gold mine, snuck into the mine and placed a bomb that set off an explosion that killed six replacement and three contract miners. Warren was convicted of nine counts of second-degree murder and the territory’s Worker’s Compensation Board filed a wrongful death lawsuit on behalf of the miner’s 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.

On May 22, 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 miner’s 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 Royal Oak and Pinkerton could only be liable for risks within their control. Warren was not under their control when he illegally entered the mine and placed the bomb. He was also specifically attempting to evade detection which put Royal Oak and Pinkerton at a disadvantage.

“Even though 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 of Appeal 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 the criminal action of this individual.

It was also unreasonable to find the government was liable, the Court of Appeal said, since its duty of care under the Mining Safety Act is intended for health and safety issues and doesn’t apply to preventing criminal acts or labour relations.

In the end, the Court of Appeal used the “but for” test, where liability could be found if it was determined the deaths would not have happened but for the negligence of the parties involved. However, the Court of Appeal found Warren’s intentional criminal conduct would not have been altered from “his intended course of conduct” if the parties had acted more responsibly.

The appeal court also noted the nine miners chose to cross the picket line during a bitter strike and, while they could expect the company and the security firm to make things as safe as possible, they had to have known there were risks as there had been violence and threats of future violence. They each made an independent choice to take the risk of crossing the line.

“(The miners) must have realized they were still exposed to some residual risk,” the Court of Appeal said. “If they believed they had an unconditional guarantee of safety, that belief was unreasonable.”

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