Fullowka et al. v. Pinkerton's of Canada Ltd. et al., (2008) 437 A.R. 400 (NWTCA)

JudgeVertes, J.A.
CourtCourt of Appeal (Northwest Territories)
Case DateSeptember 22, 2008
JurisdictionNorthwest Territories
Citations(2008), 437 A.R. 400 (NWTCA)

Fullowka v. Pinkerton's (2008), 437 A.R. 400 (NWTCA);

      433 W.A.C. 400

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.003

Pinkerton's of Canada Limited, The 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 (appellants/respondents by cross-appeal) and Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs, Doreen Vodnoski, Carlene Dawn Rowsell, Karen Russell and Bonnie Lou Sawler (respondents/appellants by cross-appeal) and James O'Neil (respondent/appellant by cross-appeal) and Harry Seeton, Allan Raymond Shearing and Roger Wallace Warren (respondents/respondents by cross-appeal) and Royal Oak Ventures Inc. (formerly Royal Oak Mines Inc.)

(respondent)

(A-0001-AP2005000021; 2008 NWTCA 10)

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

Northwest Territories Court of Appeal

Vertes, J.A.

September 22, 2008.

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 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. After the appeal was filed, the mine owner settled with the plaintiffs, paying a certain sum on account of damages and costs. 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 court invited further submissions on costs. The successful defendants sought costs of the trial and appeal, some seeking enhanced costs based on offers that were made. The plaintiffs sought a Sanderson or Bullock order requiring the mine owner to pay any costs awarded to the defendants.

The Northwest Territories Court of Appeal, in a judgment reported 437 A.R. 390; 433 W.A.C. 390, awarded each of the successful defendants one set of taxed costs of the trial calculated on triple Column 6, but not to exceed 75% of solicitor-client costs. The base costs of the defendant national union were reduced by 24% to reflect its litigation conduct. To those base costs, the defendants who made unaccepted settlement offers (to be considered notwithstanding they were not formal offers complying with the Rules of Court) were entitled to add 25% of the costs incurred after their respective settlement offers were made. On appeal, each of the successful defendants were entitled to the greater of costs of the appeal taxed on column 5 of Schedule B or 50% of solicitor-client costs charged to and actually payable by its respective client. The plaintiffs other than O'Neil were jointly responsible for 90% of the costs awarded. O'Neill was severally liable for the remaining 10%. Finally, the court declined to grant a Sanderson or Bullock order to make the mine owner responsible for costs awarded to the defendants. The plaintiffs applied for leave to appeal to the Supreme Court of Canada. The plaintiffs then applied for a stay of proceedings pending either dismissal of their application for leave or, if leave was granted, pending final determination of their appeal.

The Northwest Territories Court of Appeal, per Vertes, J.A., dismissed the stay application. Although there was a serious issue to be tried, any harm suffered by the plaintiffs was compensable in money and the balance of convenience favoured not granting a stay. Merely incurring additional litigation expense did not constitute irreparable harm.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - Plaintiffs in a negligence action were successful at trial, but the decision was overturned on appeal - The plaintiffs applied for leave to appeal to the Supreme Court of Canada and sought a stay of proceedings until their leave application was dismissed or, if leave were granted, until their appeal was resolved - The Northwest Territories Court of Appeal, per Vertes, J.A., dismissed the stay application - Although there was a serious issue to be tried, any harm suffered by the plaintiffs was compensable in money and the balance of convenience favoured not granting a stay - The court stated that "merely incurring additional litigation expenses is not an aspect of 'irreparable harm' ... I do not say that wasted legal resources or the inability to recover costs may never constitute irreparable harm ... only that these factors are normally considered insufficient to meet the irreparable harm test where costs are incurred in the ordinary course of litigation" - See paragraphs 19 to 20.

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - [See Practice - Topic 8954 ].

Cases Noticed:

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 7].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 11].

Jager Industries Inc. v. Leduc No. 25 (County) (1997), 206 A.R. 303; 156 W.A.C. 303 (C.A.), refd to. [para. 11].

Northwest Territories v. Public Service Alliance of Canada et al., [2001] N.R. Uned. 12 (F.C.A.), refd to. [para. 19].

Counsel:

J.M. Hope, Q.C., for Pinkerton's of Canada Ltd.;

P.D. Gibson, for the Government of the Northwest Territories, as represented by the Commissioner of the Northwest Territories;

P. Nugent and S. Barrett, for the National Automobile, Aerospace, Transportation and General Workers Union of Canada;

S.L. Polsky, for Timothy Alexander Bettger;

J.P. Warner, Q.C., for the applicants (Fullowka et al.).

This matter was heard before Vertes, J.A., of the Northwest Territories Court of Appeal, who filed the following memorandum of judgment on September 22, 2008.

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