Fullowka et al. v. Pinkerton's of Canada Ltd. et al., (2008) 437 A.R. 390 (NWTCA)

• Judge: Costigan, Paperny and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: September 02, 2008
• Jurisdiction: Northwest Territories
• Citations: (2008), 437 A.R. 390 (NWTCA)

Fullowka v. Pinkerton's (2008), 437 A.R. 390 (NWTCA);

      433 W.A.C. 390

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.002

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 in 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 9)

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

Northwest Territories Court of Appeal

Costigan, Paperny and Slatter, JJ.A.

September 2, 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 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.

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - 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, illegal conduct by its members - The owner retained Pinkerton's to provide security - One striking miner (Warren) surreptitiously entered the mine and placed explosives on the rail line - Nine miners were killed - 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 trial judge allowed both actions against the defendants - On appeal, the actions were dismissed, as none of the defendants owed a duty of care to the plaintiffs to prevent the intentional acts of another tortfeasor (Warren) - 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 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 the 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 held that a Sanderson or Bullock order was not available to make the mine owner liable to the plaintiffs for costs awarded to the defendants.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct - [See Practice - Topic 7020.1 ].

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - [See Practice - Topic 7020.1 ].

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Costs of expert advice - Counsel for one of the defendants in a negligence action retained a renowned professor (L. Klar) to provide a legal opinion on the file - The expense was claimed as a disbursement - The Northwest Territories Court of Appeal disallowed the claim, stating that "legal research needed on a file is subsumed in the taxable fees that are awarded to the successful party, and payments for legal opinions are not a proper disbursement" - See paragraph 33.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - [See Practice - Topic 7020.1 ].

Practice - Topic 7168.1

Costs - Party and party costs - Liability for party and party costs - Between plaintiffs - [See Practice - Topic 7020.1 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7020.1 ].

Cases Noticed:

McAteer et al. v. Devoncroft Developments Ltd. et al. (2004), 340 A.R. 1; 21 Alta. L.R.(4th) 115; 2003 ABQB 425, refd to. [para. 22].

Calderbank v. Calderbank, [1975] 3 W.L.R. 586; [1975] 3 All E.R. 333 (C.A.), refd to. [para. 23].

Mosher v. Reimer, [2004] A.R. Uned. 555; 2004 ABQB 496, refd to. [para. 23].

Envirodrive Inc. v. 836442 Alberta Ltd. et al., [2005] A.R. Uned. 898; 12 B.L.R.(4th) 257; 2005 ABQB 807, refd to. [para. 23].

Sanderson v. Blyth Theatre Co., [1903] 2 K.B. 533 (C.A.), refd to. [para. 26].

Bullock v. London General Omnibus Co., [1907] 1 K.B. 264 (C.A.), refd to. [para. 26].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2001), 307 A.R. 1; 99 Alta. L.R.(3d) 6; 2001 ABQB 917, refd to. [para. 30].

Sorrel 1985 Limited Partnership et al. v. Sorrel Resources Ltd. et al. (2001), 277 A.R. 1; 242 W.A.C. 1; 85 Alta. L.R.(3d) 27; 2000 ABCA 256, refd to. [para. 30].

Bank of America et al. v. Jean Co. et al., [2006] O.T.C. 1189 (Sup. Ct.), refd to. [para. 30].

Counsel: [Not Disclosed]

This matter was heard by way of written submissions before Costigan, Paperny and Slatter, JJ.A., of the Northwest Territories Court of Appeal.

The following memorandum of judgment on costs was delivered by the Court and filed on September 2, 2008.