Canada: Supreme Court of Canada Dismisses Negligence Action in Case Involving Miners Killed During Bitter Strike

Last Updated: June 17 2010

In Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, the Supreme Court of Canada dismissed an appeal by survivors of miners killed in a 1992 explosion at Giant Mine (NWT) owned by Royal Oaks. They claimed damages against the security company Royal Oaks had hired to protect the miners and against the territorial government (in its capacity as regulator of the mine) for negligently failing to prevent the murders. The survivors also unsuccessfully claimed against the strikers' national union, some union officials and members of CASAW Local 4 for failing to control and inciting the disgruntled former employee who set the fatal explosive device (claims made against the company had been settled). The claims largely succeeded at trial, but the trial judgment was overturned by the Court of Appeal. The Court of Appeal's decision has now been upheld by the Supreme Court, though for different reasons in some respects.


There had been a bitter strike at the mine during 1992. A tentative agreement was reached between Royal Oaks and CASAW Local 4 but was rejected by the union membership, and Royal Oaks had continued to operate the mine with replacement workers. The strike became violent, and security guards from Pinkerton's were hired by Royal. The violence continued to escalate, resulting in riots, damage to property and injury to the security guards. A number of the miners were fired, including union member Roger Warren. Explosives were then stolen from the mine by three miners. During the summer, explosions were set which damaged company property and the mine's ventilation shaft plant. In September, Warren planted an explosive device inside the mine. The device was tripped when a man car went over it, killing nine miners. The government ordered that the mine be closed and Warren was subsequently convicted of second degree murder.


The survivors of the nine victims brought an action in negligence against Pinkerton's, arguing that it failed to take reasonable precautions to prevent the murders of the miners. The NWT Government was sued in its capacity as a regulator for failing in its duties to the deceased miners to maintain safe working conditions and to order that the mine be closed until it was safe. The appellants also sued the union, arguing it was vicariously liable for breaches of a duty to avoid conduct that created a foreseeable risk of harm, for failing to make clear to persons under its influence that death or injury was unacceptable and for failing to prevent Warren from acting. It should be noted that Royal Oaks had also been sued and found liable by the trial judge. Along with the other defendants it had appealed to the NWT Court of Appeal. However, after that appeal was commenced, the company settled with the plaintiffs and abandoned its appeal, remaining a party only with respect to cross-claims by other defendants. Thus, neither appellate court commented on the employer's liability in this case.


The Supreme Court found that a prima facie duty of care had been established against both Pinkerton's and the NWT Government. The issue here was not whether the defendants were 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". In finding a duty of care existed, the Supreme Court found that Pinkerton's was aware of the earlier explosions and had heard threats that the replacement workers might be killed. Similarly, the government was aware of the earlier explosions and the potential damage they could have caused to workers in the mine at the time.

The Supreme Court found that Pinkerton's duty was to take "reasonable care" in protecting the workers and exerting control over the risk. It reviewed jurisprudence relating to regulators and concluded that the mining inspectors owed a duty of care, as they had a duty to inspect and enforce mine safety laws. While the inspectors had no authority to address strike-related violence, they were given statutory authority "to make orders to prevent obvious and serious risks to the miners in the mine even though the risks were by-products of the labour relations situation". The mine inspectors had a duty to inspect the mine and order cessation of work where unsafe. Policy considerations did not negate that duty of care.


The trial judge had made legal and factual findings that Pinkerton's breached its standard of care, and that the government's conduct had fallen below a standard of care. It was, in the trial judge's view, of no consequence that the mine inspectors had relied on legal advice suggesting the matter was essentially one involving criminal law and labour relations.

The Supreme Court agreed with the Court of Appeal that in relying on the legal advice, the government met its standard of care: the inspectors had sought advice about the scope of their powers, had been advised they did not have jurisdiction to close the mine for reasons relating to criminal law and labour relations, and they relied on such advice. It found that the trial judge had also erred in imposing an absolute duty, rather than a duty of reasonable care, on Pinkerton's. As the Supreme Court found that Pinkerton's and the government had met a standard of care, the claims against them were dismissed.


With respect to the claims against the unions, the miners had been represented by CASAW Local 4 at the time of the explosion. In 1994, the CASAW National amalgamated with CAW National. The trial judge had found CAW National liable for the acts of certain executives of the CASAW Local 4 and treated the local and national unions as one legal entity.

In reviewing jurisprudence relating to the legal status of unions, both local and parent, the Supreme Court found that the CASAW National and CASAW Local 4 were separate legal entities, and therefore CAW National had not acquired the debts and obligations of CASAW Local 4. Any duty owed by the CASAW National and CAW National to the miners "did not extend to preventing the intentional torts of persons beyond the control of the unions". As stated by the Court of Appeal: "[a]bsent a finding of incitement or other tortious conduct by a representative of the national unions within the scope of his employment, or a decision to conduct business in a tortious way, liability does not arise".

The Supreme Court concluded that CASAW Local 4 was a legal entity capable of being sued in its own right, and had "legal rights and obligations distinct from those of the national union". Each of the local and national unions had "its own management structure, areas of responsibility and assets and liabilities". The Supreme Court stated that the appellants were mistaken in arguing that a union holds its assets in trust for the membership as a whole, not just for members of a local.


The appellants further argued that the CAW National was vicariously liable for the acts of Warren and another union member. The appellants first argued that the national union was vicariously liable because one of its executives had effectively controlled the strike. However, the Supreme Court found that the facts did not support this allegation, as the Local had remained in control of the strike throughout.

The appellants also argued that the relationship between the CAW National and the CASAW Local 4 rendered the national union vicariously liable for torts committed during the strike. This argument was also rejected.

The test for broad vicarious liability involves: (1) considering whether the issue has been determined conclusively by precedent and, if not, then (2) applying a further two-part analysis where the "plaintiff must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close and the wrongful act is sufficiently connected to the conduct authorized by the party against whom liability is sought".

Here, the authorities were not settled so the Court proceeded to the two-part analysis. It found that the appellants' proposition failed at the first part, as the relationship between CASAW National and Warren and the other union member was not "sufficiently close to justify imposing vicarious liability on the national union for their unlawful acts". Moreover, the Court rejected the argument that there was joint liability with the union on the basis that it "incited" the miners: "there was no finding of any common design between Mr. Warren 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 Mr. Warren and the union".


The Giant Mine bombings was an unfortunate event all around. Through its decision, the Supreme Court has affirmed that private organizations that are hired to provide security during a strike owe a duty of care to those they are hired to protect, as will government regulators in some cases. Furthermore, the Court has confirmed that, depending on the constitutional structure of the union, the locals and national bodies are separate legal entities. The Court has also signaled that it will be difficult to find that national unions are vicariously liable for the acts of individual union members in many cases. Finally, given the analysis of the Supreme Court, it seems clear that employers will also owe a duty of care to their employees, both under statute and very likely tort law. Whether the standard of a duty of care is met in the individual case will, of course, depend on the specific facts involved. In situations of a work stoppage (e.g. strike or lockout), employers should be mindful of this duty and take all reasonable steps to ensure the safety of their employees, especially where the employer intends to operate during the work stoppage or where the stoppage involves violence or threats of violence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions