Fullowka et al. v. Pinkerton's of Canada Ltd. et al., (2010) 474 A.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 18, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 474 A.R. 1 (SCC);2010 SCC 5;479 WAC 1;[2010] SCJ No 5 (QL);398 NR 20;474 AR 1;[2010] 1 SCR 132;EYB 2010-169716;71 CCLT (3d) 1;315 DLR (4th) 577;[2010] 4 WWR 35;80 CCEL (3d) 1;[2010] EXP 757;JE 2010-416;[2010] CarswellNWT 9

Fullowka v. Pinkerton's (2010), 474 A.R. 1 (SCC);

      479 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] A.R. TBEd. FE.137

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)

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 (intervenors)

(32735; 2010 SCC 5; 2010 CSC 5)

Indexed As: Fullowka et al. v. Pinkerton's of Canada Ltd. et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

February 18, 2010.

Summary:

In 1992, unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers to keep the mine operating. The union acquiesced in, or endorsed, the illegal conduct of its members. The owner retained Pinkerton's to provide security for the mine site. One striking miner (Warren) surreptitiously entered the mine at one of the 23 points of entry and placed explosives on the rail line. Nine miners were killed when their rail car struck and detonated the explosives. Three were replacement workers. Six were union members who had crossed the picket line. Warren was convicted of nine counts of second degree murder. The plaintiffs (surviving family members of the nine miners) sued for damages. The miner who first came upon the scene after the explosion (O'Neil) commenced a separate action for damages for post traumatic stress disorder. The defendants included the mine owner, Pinkerton's, the N.W.T. government, the national union and locals, local union officials, Warren and another striking miner.

The Northwest Territories Supreme Court, in a judgment reported 2004 NWTSC 66 allowed both actions. All of the defendants (except Sheridan and Hargrove) were either sufficiently proximate to the plaintiffs to qualify as "neighbours" or were "occupiers" under occupier's liability law. Accordingly, a duty of care was established. Warren's criminal act was a continuation or escalation of condoned violence and was foreseeable. There were no policy reasons negating a duty of care. The mine owner was negligent in keeping the mine open using replacement workers, when it should have known that threatened violence would lead to death or bodily harm, and in failing to bargain in good faith. Pinkerton's was negligent in failing to take reasonable steps to control the violence. The N.W.T. government was liable for failing to use its powers to shut down the mine in the face of the unsafe conditions created by the threatened violence. The unions, their officers and members were liable for inciting, acquiescing in and doing nothing to stop the violence. All of the defendants materially contributed to the plaintiffs' losses. Liability was apportioned to the defendants based on their relative degree of fault. The mine owner, Pinkerton's, the N.W.T. government, the national union and two union members appealed the findings of liability and quantum against them. The plaintiffs cross-appealed the quantification of damages. The central issues were the test for causation and whether any of the defendants owed a duty of care to the plaintiffs to prevent the intentional acts of another tortfeasor (Warren).

The Northwest Territories Court of Appeal, in a judgment reported (2008), 433 A.R. 69; 429 W.A.C. 69, allowed the appeal and dismissed the cross-appeal. None of the defendants owed the plaintiffs a duty of care to take reasonable steps to prevent Warren's intentional criminal act. The plaintiffs appealed. At issue was whether Pinkerton's and the N.W.T. government owed a duty of care to the deceased miners and, if so, whether they breached that duty of care. Also at issue was whether the unions owed a duty of care and, if so, whether they were directly or vicariously liable.

The Supreme Court of Canada dismissed the appeal. The relationship between the miners and Pinkerton's and the government had the requisite foreseeability and proximity to raise a prima facie duty of care. The court disagreed with the Court of Appeal's finding that policy considerations negated that duty of care. However, the trial judge erred in finding that Pinkerton's and the government breached their duty of care. The court affirmed the Court of Appeal's finding that the union, union officials and union members were not liable and the finding that O'Neil's claim should have been dismissed.

Labour Law - Topic 2161

Unions - Legal status or capacity - General - A trial judge found that a national union and its union local were legally one entity - The Northwest Territories Court of Appeal disagreed, stating that "the separate legal existence of local unions is now accepted as a reality in the labour community" - This change from the contrary position that union locals had no independent legal status, was the result of "(a) the evolution of unions as separate suable entities is based on a statutory foundation, and the statutes generally grant bargaining certificates to the locals, not the national unions. (b) local unions generally have their own executives and decision-making structures, and in accordance with the principles in Berry v. Pulley they should be recognized as separate entities. (c) locals can enter into contracts, the most significant of course being collective agreements. Those agreements should be enforceable only by and against the local, not the national union or other affiliated locals. (d) if locals and national unions are not separate entities, it would seem to follow that they have no separate rights to hold property. Not only would local and national entities be responsible for each other's obligations, it would appear that each local would be responsible for all the obligations of the other locals. This is a commercially unreasonable result." - The Supreme Court of Canada agreed that the national union and union local were separate legal entities, stating that "this, in my view, is confirmed by the Code, by the constitutional arrangements between the local and national union and by the terms of the merger agreement between CASAW and CAW" - Accordingly, the national union's liability could be sustained only on the basis of its own acts or on the principles of joint and several liability - See paragraphs 113 to 136.

Labour Law - Topic 2442

Unions - Liability of unions - Torts - Negligence - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - The union acquiesced in, or endorsed, the illegal conduct of its members - The owner retained Pinkerton's to provide security for the mine site - One striking miner (Warren) surreptitiously entered the mine at one of the 23 points of entry and placed explosives on the rail line - Nine miners were killed - Warren was convicted of nine counts of second degree murder - The plaintiffs (surviving family members of the nine miners) sued for damages - The trial judge, considering the national union and union local as one entity, found the unions directly and vicariously liable for acts of certain local union officials - The Supreme Court of Canada held that the unions were not liable, directly or vicariously - The national and local unions were separate legal entities - Accordingly, the national union was not vicariously liable for the acts of local union officials - The court rejected the broader assertion that unions were vicariously liable for the acts of their striking members - The court stated that "the question of whether vicarious liability should be imposed is approached in three steps. First, the court determines whether the issue is unambiguously determined by the precedents. If not, a further two-part analysis is used to determine if vicarious liability should be imposed in light of its broader policy rationales ... The plaintiff must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close and that the wrongful act if sufficiently connected to the conduct authorized by the party against whom liability is sought. ... The object of the analysis is to determine whether imposition of vicarious liability in a particular case will serve the goals of doing so: imposing liability for risks which the enterprise creates or to which it contributes, encouraging reduction of risk and providing fair and effective compensation." - The claim against the unions failed at the first step - The relationship between the national union and the striking union members was not sufficiently close to impose vicarious liability on the national union for the members' unlawful acts - See paragraphs 97 to 150.

Torts - Topic 49.37

Negligence - Standard of care - Particular persons and relationships - Security guards - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - The union acquiesced in or endorsed illegal conduct of its members - The owner retained Pinkerton's to provide security - One striking miner (Warren) surreptitiously entered the mine from one of 23 points of entry and placed explosives which subsequently killed nine miners - Warren was convicted of murder - The trial judge, although finding that Pinkerton's was not an insurer of the mine's safety, found Pinkerton's negligent for failing to take reasonable steps to keep Warren from entering the mine and placing explosives - The Supreme Court of Canada held that Pinkerton's was not negligent, stating that "to the extent that the trial judge required Pinkerton's to ensure there was no clandestine access to the mine, he imposed an absolute duty, not a duty of reasonable care. ... Lacking in the trial judge's reasons is any articulation of what constituted reasonable care on Pinkerton's part given the limitation of resources imposed by its contract with the mine owner and Mr. Warren's determination to commit an intentional, criminal act. ... the Court of Appeal was justified in reversing the trial judge's findings about Pinkerton's breach of its standard of care." - See paragraphs 76 to 82.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - The union acquiesced in or endorsed illegal conduct of its members - The owner retained Pinkerton's to provide security - One striking miner (Warren) surreptitiously entered the mine and placed explosives which subsequently killed nine miners - Warren was convicted of murder - The plaintiffs, surviving family members of the nine miners, sued for damages - The defendants included Pinkerton's and the N.W.T. government - The trial judge, applying the "material contribution" test respecting causation, found the defendants liable for failing to take reasonable steps to prevent the foreseeable tort by Warren - The Supreme Court of Canada agreed that the trial judge erred in failing to use the "but for" test rather than the "material contribution" test - The court stated that absent special circumstances, a plaintiff had to establish on a balance of probabilities that the injury would not have occurred but for the defendant's negligence - The court stated that "special situations for which the material contribution test is reserved generally have two characteristics. First, it is impossible for the plaintiff to prove that the defendant's negligence caused the injury under the 'but for' test, and second, it is clear that the defendant breached the duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which the plaintiff ultimately suffered" - Neither of these "special situations" were present - See paragraphs 83 to 85.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - At issue was whether a defendant had a duty of care to prevent harm to the plaintiff by the acts of a third party (i.e., whether the defendant had a positive duty to act even though the defendant's conduct had not directly caused foreseeable physical injury to the plaintiff) - The Supreme Court of Canada stated that there were "at least three factors which may identify the situations in which the law has recognized such duties ... The first is that the defendant is materially implicated in the creation of the risk or has control of the risk to which others have been invited. The second is the concern for the autonomy of the persons affected by the positive action proposed. ... The third is whether the plaintiff reasonably relied on the defendant to avoid and minimize risk and whether the defendant, in turn, would reasonably expect such reliance" - See paragraph 27.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - The union acquiesced in or endorsed illegal conduct of its members - The owner retained Pinkerton's to provide security - One striking miner (Warren) surreptitiously entered the mine and placed explosives which subsequently killed nine miners - Warren was convicted of murder - The plaintiffs, surviving family members of the nine miners, sued for damages - The defendants included Pinkerton's and the N.W.T. government - The trial judge found the defendants liable for failing to take reasonable steps to prevent the foreseeable tort by Warren - The Northwest Territories Court of Appeal held that the defendants did not owe the plaintiffs a duty of care - The Supreme Court of Canada disagreed - The relationship between the miners and Pinkerton's and the government had the requisite foreseeability and proximity to raise a prima facie duty of care - Pinkerton's undertook management of the risk and assumed responsibility to protect miners from intimidation and injury by strikers - It was reasonable for the miners to expect Pinkerton's to take reasonable care to mitigate the risks - The court stated that "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. In my view, the trial judge did not err in finding that there was a sufficiently close and direct relationship between the inspectors and the miners to give rise to a prima facie duty of care" - The court also disagreed with the Court of Appeal's finding that five policy considerations negated that duty of care - None of those considerations, individually or cumulatively, were compelling - Accordingly, both Pinkerton's and the government owed the miners a duty of care - See paragraphs 16 to 75.

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - The union acquiesced in or endorsed illegal conduct of its members - The owner retained Pinkerton's to provide security - One striking miner (Warren) surreptitiously entered the mine and placed explosives which subsequently killed nine miners - Warren was convicted of murder - The plaintiffs, surviving family members of the nine miners, sued for damages - The defendants included Pinkerton's and the N.W.T. government - The Northwest Territories Court of Appeal referred to policy considerations that negated Pinkerton's and the government owing a duty of care: "(a) It is contrary to the principle of individual autonomy that underlies the common law. (b) It is contrary to the general principle that tort liability is personal, and that some exceptional reason should be shown for making one person responsible for the torts of another. (c) It is unfair to hold one person responsible for the acts of someone else that they do not control. Deterrence of unsafe conduct is one objective of tort law, but liability without control cannot enhance safety in any meaningful way. Control of the immediate tortfeasor is therefore a key consideration. (d) It undermines the general principle that tort liability is fault based, in those cases where the immediate tortfeasor has deliberately evaded the efforts of the ancillary tortfeasor. (e) It is contrary to the general principle that a person has no duty to intervene just because he or she is aware that the plaintiff is exposed to a risk. Some principled exception must be identified to warrant imposing a duty. (f) Historically, the courts have been reluctant to impose liability for a failure by an individual to take some positive action. Even the definition of 'duty' is to 'avoid conduct', not to 'take action'. Preventing the intentional act of another person will generally require a positive act. (g) It undermines the responsibility of the immediate tortfeasor for his crime, which is contrary to public policy." - The Supreme Court of Canada disagreed - The court examined each of the policy considerations relied on and stated that "I do not find any of the residual policy considerations relied on by the Court of Appeal, alone or in combination, sufficiently compelling to oust the prima facie duty of care on the part of Pinkerton's and the government in this case" - See paragraphs 58 to 75.

Torts - Topic 2653

Vicarious liability - Particular persons - Unions - [See Labour Law - Topic 2442 ].

Torts - Topic 8901

Duty of care - Particular relationships - Control of conduct of others - General - [See first Torts - Topic 77 ].

Torts - Topic 9158

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Safety inspection authorities - Unionized miners were engaged in a lengthy strike marred by violence, threats and intimidation after the mine owner brought in replacement workers - One striking miner (Warren) surreptitiously entered the mine and placed explosives which subsequently killed nine miners - The plaintiff surviving family members of the nine miners sued for damages - The trial judge found the government, through its mining inspectors, was negligent in failing to shut down the mine in the face of an unreasonable risk of violence to the miners - The Supreme Court of Canada held that the government was not negligent - The mining inspectors sought legal advice as to the scope of their powers, were advised that they lacked jurisdiction to close the mine for reasons derived from labour relations issues and criminal activity and they relied on that advice in deciding not to close the mine - The court stated that "it will rarely be negligent for officials to refrain from taking discretionary actions that they have been advised by counsel, whose competence and good faith in giving the advice they have no reason to doubt, are beyond their statutory authority. ... 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. ... in the circumstances here, this is a complete answer to the negligence claims made against it and its officials." - See paragraphs 83 to 90.

Cases Noticed:

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 17].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 18].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 18].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 18].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 18].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 18].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 26].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 39].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 46].

Manolakos v. Vernon (City) et al., [1989] 2 S.C.R. 1259; 102 N.R. 249, refd to. [para. 46].

Rothfield v. Manolakos - see Manolakos v. Vernon (City) et al.

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, refd to. [para. 46].

Ultramares Corp. v. Touche (1931), 174 N.E. 441 (N.Y. Ct. App.), refd to. [para. 70].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 70].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 70].

Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), refd to. [para. 89].

Stafford v. British Columbia, [1996] B.C.J. No. 1010 (S.C.), refd to. [para. 89].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 93].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 93].

Fullowka v. Slezak, 2002 NWTSC 23, refd to. [para. 97].

Berry et al. v. Pulley et al., [2002] 2 S.C.R. 493; 287 N.R. 303; 158 O.A.C. 329; 2002 SCC 40, refd to. [para. 118].

International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265, refd to. [para. 119].

New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers AFL-CIO-CLC, Local 1733 (1976), 16 N.B.R.(2d) 361; 21 A.P.R. 361 (C.A.), refd to. [para. 119].

Maritime Employers' Association et al. v. International Longshoremen's Association, Local 273 et al., [1979] 1 S.C.R. 120; 23 N.R. 386; 23 N.B.R.(2d) 458; 44 A.P.R. 458, refd to. [para. 121].

Letter Carriers' Union of Canada et al. v. Canadian Union of Postal Workers, Edmonton Local (1993), 146 A.R. 184 (Q.B.), dist. [para. 131].

Canadian Union of Public Employees and Martell v. Deveau et al. (1976), 19 N.S.R.(2d) 44; 24 A.P.R. 44 (T.D.), affd. (1977), 19 N.S.R.(2d) 24; 24 A.P.R. 24 (C.A.), dist. [para. 131].

McKendrick v. National Union of Dock Labourers (1910), 2 S.L.T. 215 (Sess. 2nd div.), dist. [para. 131].

P.A.B. v. Curry - see P.A.B. v. Children's Foundation et al.

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119; 174 D.L.R.(4th) 45, refd to. [para. 142].

John Doe v. Bennett et al., [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215; 2004 SCC 17, refd to. [para. 142].

Leroux v. Molgat (1985), 67 B.C.L.R. 29, dist. [para. 143].

Matusiak et al. v. British Columbia and Yukon Territory Building and Construction Trades Council et al. (1999), 22 B.C.T.C. 193 (S.C.), dist. [para. 143].

Mainland Sawmills Ltd. et al. v. IWA - Canada, Local 1-3567 Society et al., [2007] B.C.T.C. Uned. F36; 62 C.C.E.L.(3d) 66; 2007 BCSC 1433, refd to. [para. 146].

G.T.-J. et al. v. Griffiths et al., [1999] 2 S.C.R. 570; 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161, refd to. [para. 147].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 147].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al., [2005] 3 S.C.R. 45; 340 N.R. 202; 217 B.C.A.C. 1; 358 W.A.C. 1; 2005 SCC 60, refd to. [para. 147].

Re Oil, Chemical & Atomic Workers & Polymer Co. (1958), 10 Lab. Arb. Cas. 31 (Ont.), refd to. [para. 149].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 154].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Newcastle (Town) v. Mattatall, Porter and Harris et al. (1987), 78 N.B.R.(2d) 236; 198 A.P.R. 236 (T.D.), affd. (1988), 87 N.B.R.(2d) 238; 221 A.P.R. 238 (C.A.), refd to. [para. 154].

Ship Koursk, Re, [1924] P. 140 (C.A.), refd to. [para. 154].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 255 [para. 154].

Fridman, Gerald Henry Louis, The Law of Torts In Canada (2nd Ed. 2002), pp. 888 to 889 [para. 154].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 488 [para. 154].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), pp. 304 to 306 [para. 57].

McIvor, Claire, Third Party Liability in Tort (2006), p. 1 [para. 17].

Counsel:

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;

Robert G. McBean, Q.C., by written representation, for the respondent, Royal Oak Ventures Inc.;

John S. Tyhurst, for the intervenor, the Attorney General of Canada;

Lise G. Favreau and Lucy K. McSweeney, for the intervenor, the Attorney General of Ontario.

Solicitors of Record:

Bishop & McKenzie, Edmonton, Alberta, for the appellants, Fullowka et al.;

James E. Redmond, Edmonton, Alberta, for the appellant, O'Neil;

Duncan & Craig, Edmonton, Alberta, for the respondent, Pinkerton's of Canada Ltd.;

Field, Edmonton, Alberta, for the respondent, the Government of the Northwest Territories;

Chivers Carpenter, Edmonton, Alberta; Sack Goldblatt Mitchell, Toronto, Ontario, for the respondent, National Automobile, Aerospace, Transportation and General Workers Union of Canada;

MacPherson Leslie & Tyerman, Calgary, Alberta, for the respondent, Bettger;

Parlee McLaws, Edmonton, Alberta, for the respondent, Royal Oak Ventures Inc.;

Department of Justice, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Crown Law Office - Civil Law, Toronto, Ontario, for the intervenor, the Attorney General of Ontario.

This appeal was heard on May 14, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On February 18, 2010, Cromwell, J., delivered the following judgment in both official languages for the Court.