Supreme Court Rules On Giant Mine Torts

The story with the biggest long-term effects on mining and labour relations in Canada happened in Ottawa, with the Supreme Court of Canada ruling on the tort aspects of the deliberately set explosion at the strike-paralyzed Giant gold mine in Yellowknife, N.W.T., in 1992, which killed nine replacement workers. Striking miner and union member Roger Warren was convicted in 1995 of nine counts of second-degree murder after having admitted to the crimes — the worst in Canadian mining history — and given a 25-year sentence in a B.C. prison. He’s eligible for parole in October.

• In its new decision on Fullowka v. Pinkerton’s of Canada Ltd., the Supreme Court, in a unanimous 9-0 verdict written by Justice Thomas Cromwell, agreed with the Northwest Territories Court of Appeal, which in May 2008 overturned a December 2004 trial ruling in the territorial Supreme Court.

The 2004 ruling had extended liability for the killings beyond Warren to mine owner Royal Oak Mines (renamed Royal Oak Ventures), security firm Pinkerton’s, the N.W.T. government as regulator, and the national level of the Canadian Auto Workers union. (The unionized Giant mine workers had been represented at the time of the strike by Local 4 of the Canadian Association of Smelter and Allied Workers, which was later folded into the CAW.)

The ruling included a $10.7-million award to the families of the nine murdered miners, represented by their widows. A separate $580,000 award was given to miner James O’Neil, who was alleging post-traumatic stress disorder (PTSD) from being the first person to come across the dismembered bodies, including that of a close friend. Royal Oak settled with the widows after that trial.

The N.W.T. Workers’ Safety and Compensation Committee, which is now on the hook for the defendants’ costs, had pursued the case from start to finish on the plaintiffs’ behalf.

The 2004 ruling effectively said that the defendants breached their duty to take reasonable care to prevent the harm inflicted by Warren. The trial judge in essence stated that the warning signs of imminent, out-of-control violence against replacement workers were clear enough for the company and security firm to shut down operations voluntarily, or for the territorial government to enforce a shut-down. For example, two other striking union members also served prison time for two earlier explosions at the mine that did not seriously injure anyone. Meanwhile the national union was alleged to have played a part by somehow inciting Warren to commit his crime.

On the other side, the level of strike-related violence seemed to have declined somewhat in the weeks leading up to the killings, and the territorial government’s mine-safety enforcer was getting bad legal advice that it could only act on technical safety violations and not ones relating to workplace violence and threats.

The big issue for the national level of the CAW’s leadership was entirely different: it was deeply concerned that the trial judge had ruled that the national union and the local bargaining unit were one legal entity, in effect, making union’s distant head office responsible for the harmful actions of any single hot-headed, kook union member on a picket line. The CAW also would have had to pay its share of the award out of cash, as it had no related insurance.

(Yes, it’s a little unusual to hear a union arguing strenuously against workers’ widows and for the principles of individual responsibility in this case, but the prospects of millions of dollars of future liability payments do tend to focus the mind.)

In its dismissal, the Supreme Court of Canada agreed that the defendants did indeed have a duty to provide adequate care to the workers, but found many errors in the trial court ruling and that the plaintiffs couldn’t prove the defendants had failed to provide adequate care. The court also dismissed O’Neil’s PTSD claim.

This is a strong ruling by the court that further entrenches decades-long trends in labour relations in Canada, and makes that 2004 ruling in the N.W.T. look more and more like a one-off outlier.

On a more practical note, mine owners, security firms and miners’ unions in Canada have never again approached the levels of animosity and chaos seen at Giant in 1992. Picket lines have gotten hot, for sure, for example in Red Lake, Ont., in the late 1990s and in Sudbury, Ont., currently, but, with Giant in the backs of everyone’s minds, all sides have the wisdom these days to cool things off before the riots and killings start.

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