Supreme Court rejects damage award for Giant Mine

The Canadian Press ~ The News
Published on February 19, 2010

OTTAWA - The Supreme Court of Canada has rejected a $10-million damage award for widows of the miners slain during Yellowknife's bitter 1992 Giant Mine dispute, striking down earlier rulings that found government, unions and private security forces all bore some responsibility for one of Canada's worst outbreaks of labour violence.
The ruling finally brings to an end the long, bitter legal legacy of the strike, which was marked by a deliberately set underground explosion that killed nine replacement workers.
"It's deeply disappointing," said Edmonton lawyer Jeff Champion, who for 15 years has been representing the widows attempt to get compensation through the courts.
"But in many aspects, we have prevailed on a couple of important points. Some important legal principles have been established."
In September 1992, striking miner Roger Warren set and exploded a bomb in the mine, which had been operating with replacement workers. Warren was convicted in 1995 of nine counts of murder and is serving a life sentence.
The widows of the nine victims as well as James O'Neil - the first man on the scene of the bombing - sued the Canadian Auto Workers, the government of the Northwest Territories and security company Pinkerton's of Canada.
They argued that the owners and the union should have known the dangers and had a duty to protect the victims.
A lower court agreed in 2004 and ordered the defendants to pay $10.7 million.
The Northwest Territories Court of Appeal overturned that decision, along with the award, and the widows appealed to the Supreme Court.
In Thursday's decision, the Supreme Court ruled that although the government and private security were responsible for providing a reasonable level of security, the original trial judge didn't use the correct legal means to find that they'd breached that responsibility.
"The trial judge did not err in finding that both Pinkerton's and the government owed the murdered miners a duty of care," the judgment reads.
"However, I agree with the Court of Appeal that the trial judge erred in finding that they failed to meet the requisite standard of care. It follows that, like the Court of Appeal, I would dismiss the claims against these parties."
Champion said the fact the Supreme Court agreed that private security companies bear some legal responsibility for what happens on their watch is an important principle - especially as their presence grows in an increasingly security-obsessed world.
"If they accept the obligation to protect, they have to take reasonable steps and if they don't, they can be sued," Champion said. "Prior to today, that wasn't all that clear in Canadian law."
The ruling also establishes the principle that national unions aren't responsible for the actions of their locals, said Lewis Gottheil, legal advisor to the Canadian Auto Workers, to which the striking workers belonged. It also says that unions aren't necessarily responsible for what a rogue member might do, he added.
"The relationship between the union member and the union is not so close as to control him," said Gottheil. "It was a good decision."
Thursday's ruling also denied the appeal of miner Jim O'Neill, who had won a $580,000 award for damages he suffered as a result of discovering the bodies of his dead colleagues in the mine shaft.
Meanwhile, the court's decision has "destroyed" the families of the murdered men, said their lawyer Peter Gilchrist.
Although Warren is in jail and has confessed to the crime, the families always felt that there was plenty of blame for the deaths of their husbands and fathers to go around.
"It's never been about the money," said Gilchrist. "It's always been about accountability."
The original $10-million award, intended to help support the 17 children left fatherless after the killings, was never paid out. It sat in trust until after the original appeal and was refunded when that decision went against the widows.
The widows have had to make do with standard workers' compensation pensions.
Gilchrist said family members were too upset to talk Thursday.
However, Doreen Hourie spoke to The Canadian Press in October 2007 at the appeal hearing.
"The enablers don't want to stand up to the plate and take their part of the responsibility for what happened," she said outside court.
"People always think there's going to be closure, that time will ease. It doesn't.
"When something like this happens to your family, the pain stays with you, the hurt stays with you and your husband stays with you."
The N.W.T.'s Workers' Safety and Compensation Commission, which initiated the lawsuit on behalf of the widows, said the decision at least ends a lengthy and draining court action.
"While we are disappointed with the outcome, we believe it was necessary to pursue this civil action," said commission president Anne Clark.
"We hope the families will take some comfort knowing the decision removes any legal uncertainty in this tragedy."