Court File No. 32735

IN THE SUPREME COURT OF (ON APPEAL FROM THE COURT OF APPEAL OF THE ) BETWEEN: 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 (Applicants) – and – 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, BETTGER, TIMOTHY ALEXANDER ROYAL OAK VENTURES INC. (formerly ROYAL OAK MINES INC. Respondents AND BETWEEN: JAMES O’NEIL Appellant (Applicant) - and - 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, BETTGER, TIMOTHY ALEXANDER ROYAL OAK VENTURES INC. (formerly ROYAL OAK MINES INC. Respondents ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF ONTARIO Intervenors

JOINT RESPONSE FACTUM OF THE APPELLANTS (Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs, Doreen Vodnoski, Carlene Dawn Rowsell, Karen Russell, Bonnie Lou Sawler and James O’Neil) (Pursuant to Rules 29(4) and 35(4) of the Rules of the )

BISHOP & MCKENZIE LLP OSLER, HOSKIN & HARCOURT LLP Barristers and Solicitors Barristers and Solicitors 2500-10104-103 Ave. 1900 - 340 Albert Street Edmonton, Alberta, T5J 1V3 Ottawa, ON K1R 7Y6

J. Philip Warner, Q.C. Patricia J. Wilson Tel: 780-421-2464 Tel: 613-787-1009 Fax: 780-426-1305 Fax: 613-235-2867 E-mail: [email protected] E-mail: [email protected] Counsel for the Applicants, Sheila Fullowka et al Ottawa Agent for Sheila Fullowka et al

TO: REGISTRAR OF THIS HONOURABLE COURT

AND TO: James E. Redmond, Q.C. Osler, Hoskin & Harcourt LLP 1000, 10180 – 101 Street 1900 – 340 Albert Street Edmonton AB T5J 3S4 Ottawa ON K1Y 7Y6

Patricia J. Wilson Telephone: (780) 409-8289 Telephone: (613) 235-7234 Facsimile: (780) 423-2368 Facsimile: (613) 235-2867 E-mail: [email protected] E-mail: [email protected]

Solicitor for the Appellant Agent to Solicitor for the Appellant James O’Neil James O’Neil

AND TO: John M. Hope, Q.C. Jeffrey W. Beedell Duncan & Craig LLP Lang Michener LLP 2800 Scotia Place 300 - 50 O'Connor Street 10060 Jasper Avenue Ottawa, ON K1P 6L2 Edmonton, AB T5J 3V9 Tel.: (780) 428-6036 Tel.: (613) 232-7171 Fax: (780) 428-9683 Fax: (613) 231-3191 E-mail: [email protected] E-mail: [email protected] Solicitors for the Respondent Agent for Solicitors for the Pinkerton’s of Canada Limited Respondent Pinkerton’s of Canada Limited

Peter D. Gibson Jeffrey W. Beedell Field LLP Lang Michener LLP 2000 Oxford Tower 300 - 50 O'Connor Street 10235 - 101 St. N.W. Ottawa, ON K1P 6L2 Edmonton, AB T5J 3G1 Tel.: (780) 423-7631 Tel.: (613) 232-7171 Fax: (780) 424-7116 Fax: (613) 231-3191 E-mail: [email protected] E-mail: [email protected] Solicitors for the Respondent Agent for Solicitors for the Government of the Northwest Respondent Government of the Territories Northwest Territories

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Patrick G. Nugent Coleen Bauman Chivers Carpenter Sack Goldblatt Mitchell LLP 101 - 10426, 81 Ave N.W. 500 – 30 Metcalfe Street Edmonton, AB T6E 1X5 Ottawa, ON K1P 5L4 Tel.: (780) 439-3611 Ext: 238 Tel.: (613) 235-5327 Fax: (780) 439-8543 Fax: (613) 235-3041 E-mail: [email protected] E-mail: [email protected] Solicitors for the Respondents Agent for Solicitors for the National Automobile, Aerospace, Respondents National Automobile, Transportation and General Workers Aerospace, Transportation and General Union of Canada Workers Union of Canada

S. Leonard Polsky Jeffrey W. Beedell MacPherson Leslie & Tyerman Lang Michener LLP 2507, 10088 – 102 Avenue N.W. 300 - 50 O'Connor Street Calgary, AB T5J 2Z1. Ottawa, ON K1P 6L2

Tel.: (403) 693-4300 Tel.: (613) 232-7171 Fax: (403) 508-4349 Fax: (613) 231-3191 E-mail: [email protected] E-mail: [email protected] Solicitors for the Respondent Agent for Solicitors for the Respondent Timothy Alexander Bettger Timothy Alexander Bettger

Robert G. McBean, Q.C. Stephen J. Grace Parlee McLaws LLP Maclaren Corlett 1500 Manulife Place 1625 - 50 O'Connor Street 10180 – 101 St. N.W. Ottawa, ON K1P 6L2 Edmonton, AB T5J 4K1

Tel.: (780) 423-8580 Tel.: (613) 233-1146 Fax: (780) 423-2870 Fax: (613) 233-7190 E-mail: [email protected] E-mail: [email protected] Solicitors for the Respondent Agent for Solicitors for the Royal Oak Ventures Inc. Respondent Royal Oak Ventures Inc.

John S. Tyhurst Christopher Rupar Attorney General of Canada Deputy Attorney General of Canada 234 Wellington Street, Room 1251 Department of Justice Ottawa ON K1A 0H8 1212 – 234 Wellington Street Ottawa ON K1A 0H8 Tel: 613-957-4860 Tel: 613-941-2351 Fax: 613-954-1920 Fax: 613-954-1920 E-mail: [email protected] Agent for Attorney General of Canada

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Lise Favreau (LSUC no. 25251P) Robert E. Houston Attorney General for Ontario Burke Robertson Crown Law Office – Civil Law Barristers and Solicitors 20 Bay Street, 8th Floor 70 Gloucester Street Toronto ON M5G 2K1 Ottawa ON K2P 0A2 Tel: 416-325-7078 Tel: 613-236-9665 Fax: 416-326-4181 Fax: 613-235-4430 E-mail: [email protected] Counsel for Attorney General Agent for Attorney General for Ontario

PROVISIONS...... 22 STATUTORY PART VII. LISTOF PART VI. 14 STATEMENTOFARGUMENT……………………………… PART III. 13 STATEMENTOFISSUES………………………………….….. PART II. OVERVIEWANDSTATEMENTOFFACTS………….…... PART I. Statement of Facts damages……………………………………………………. 1 Overview Issue 2 Issue 1 Issue 2 Issue 1 • h etswr oeeal……………… 1 The deathswere foreseeable…………………………… Proa osmto ae Dmgs……… 16 PersonalConsumption Rates(Damages)…………… : 14 Thedeathswere reasonablyforeseeable……………. : 13 PersonalConsumption Rates(Damages)….………… : 13 Thedeathswere reasonablyforeseeable……………... : b JusticeLutzdidnoterrinhischoice (b) TheRespondents’ arguments arenot properly (a) (b) (a) JusticeLutzdidnoterrinhischoiceof (b) TheRespondents’arguments arenot properly (a) 13 AlltheRespondentsforesaw thedeaths...……… (b) 13 JusticeLutzisentitledtodeference…………….. (a) : AUTHORITIES…………………………………………..21 AUTHORITIES…………………………………………..21 The Respondentsraisegro

of Personal Consumption Rates………………….....16 of PersonalConsumptionRates………………….....16 16 before thisCourt………………………………... 15 All theRespondentsforesaw thedeaths…….... 14 Justice Lutzisentitledtodeference………...... 13 Personal Consumption Rate……………………… 13 before thisCourt…………………………………. : TABLE OFCONTENTS

unds offoreseeabilityand

1

Part I: Overview and Statement of Facts

Overview: The Respondents raise grounds of foreseeability and damages

1. The Respondents seek to uphold the Court of Appeal’s judgment on a ground not relied on by the Court of Appeal, namely, on the ground that Justice Lutz made a “palpable and overriding error” when he found that the deaths of the nine miners were foreseeable.1 Certain Respondents also purport to attack Justice Lutz’s findings on “PCR’s”, though the Court of Appeal did not find that Justice Lutz committed any error in that regard.2

2. Pursuant to Rules 29(4) and 35(4),3 the Appellants therefore file this Factum in response.

The deaths were foreseeable

3. Even before the strike started, the GNWT recognized that if Royal Oak continued operating during the strike, inadequate security would expose the replacement workers to risk. In a memo dated May 15, 1992,4 the GNWT wrote:

The site is not secure…. Accordingly, there is considerable concern within the Department of Safety and Public Services about the safety of any “replacement workers”, as well as concern about the safety of management personnel, Mine Safety Inspectors, and any other persons required to go underground.

4. On May 27, after the strike began, the Director of the Safety Division, the Acting Director of Mine Safety and the Fire Marshal (MacRae, Gould and Bell) advised GNWT’s Deputy Minister of Safety and Public Services (Quirke) to shut the Giant Mine because:5

1 Justice Lutz found foreseeability in RFJ para. 658-664, 745, 902 (Appellants’ Joint Record, Vol. I, pp 9-11, 37, 87); the Court of Appeal sustained Justice Lutz’s finding at para. 55 (Appellants’ Joint Record, Vol. III, p 107); the Respondents argue that Justice Lutz’s finding was erroneous in Bettger’s Factum, paragraph 61, Pinkerton’s Factum, paragraph 64, CAW’s Factum, paragraph 37 ff.; GNWT’s factum, paragraph 15 2 The damages issues are raised in GNWT factum paragraph 86 ff., Bettger’s factum paragraph 134, Pinkerton’s factum paragraph 117; the Court of Appeal declined to rule on damages in CAMJ para. 207 (Appellants’ Joint Record, Vol. III, p 185). 3 Rules of the Supreme Court of Canada 4 Exhibit 761 (Appellants’ Joint Supplementary Record, Tab S26, p. 7) 5 Exhibit 762 (Appellants’ Joint Record, Vol. XII, Tab 153, pp 76-78) Page 2

1. There has been vandalism and acts of arson well within the confines of the mine site. This has placed the on site workers at extreme risk.

2. Given the inability of Royal Oak Mines to maintain the security of the site, the next act of vandalism or arson could result in fatalities to on site persons.

5. On the following day, Gould wrote Dennis Patterson (the GNWT’s Minister of Safety and Public Services)6 describing a number of the strikers’ recent attacks and saying that he would issue a closure order, because “the occupational health and safety of employees is endangered”.7

6. On the same day, the CASAW’s national office published a bulletin stating:8

Although the strike is only five days old as I write, the situation has begun to develop into a vicious and dangerous confrontation….

Fires have been breaking out inside the plant regularly. Confrontations with scab security forces are a frequent occurrence. The use of explosives and the mining of roadways has also become a factor. Two company vehicles have been destroyed.

As you can see, this is not a normal five day old strike but might be better described as an undeclared war.

7. Warren testified that the strike was a “war zone” where the opposing sides were “completely, adamantly opposed to each other, unbelievable.”9 Bettger testified in discoveries

6 Exhibit 763 (Appellants’ Joint Record, Vol. XII, Tab 154, pp 79-81) 7 Exhibit 1160 (Appellants’ Joint Supplementary Record, Vol. III, Tab S36, p. 98) 8 Exhibit 746 (Appellants’ Joint Record, Vol. XII, Tab 147, p. 48) 9 Warren video evidence (Appellants’ Joint Supplementary Record, Vol. III, Tab S23, p. 1)

Response Factum Apr 23 2009.doc / 23-Apr-09 Page 3 that the strike was an “unreal environment”10 and “the rules you normally lived by didn’t seem to apply in the situation”.11 RCMP Officer Nancy Defer testified: 12

It appeared that any action could be justified because of the strike…. It was mayhem. I've never experienced any kind of a situation like that before. I don't want to ever experience it again either.

8. On July 6, 1992 the union local president (Schram) wrote a letter to the CAW’s president, Hargrove, stating:13

Our local is engaged in a fierce battle against the scabbing and police-state tactics of our employer, Royal Oak Mines.

We have now been on strike for six weeks, which may not sound long, except for the ferocity of the situation.

…The company has installed forty-plus of the infamous Pinkerton’s with attack dogs inside the minesite, after our members drove a Sudbury-based security firm from the property….

…Many casualties have been inflicted on the Pinkertons. Criminal and civil charges have been laid against dozens of our members, and thirty-eight of our 240 people have been fired…. Confrontation on the lines, in the streets, and in the courts is now the order of the day. We have the very real apprehension that someone is going to die here before it all ends….

Thanks once again for your offer of assistance. With the support of dedicated people like yourselves, we will re-bury the spectre of scab labour in whatever horrible place from which it has arisen.

10 Bettger Read-in Evidence (Appellants’ Joint Supplementary Record, Vol. I, p. 13, Tab S5,) 11 Bettger Read-in Evidence (Appellants’ Joint Supplementary Record, Vol. I, p. 12, Tab S4) 12 Defer Evidence (Appellants’ Joint Record, Vol. VIII, Tab 99-110, p. 97) 13 Exhibit 963 (Appellants’ Joint Supplementary Record, Vol. III, Tab S30, p. 28)

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9. Hargrove sent a CAW employee (Harold David) to to “ram the God damned hell out of the scabs”.14 After one day in Yellowknife, David, a professional strike organizer,15 said, “I haven’t seen anything like this in my 30 years plus union experience.”16

10. Pinkerton’s took the place of the Cambrian security firm, which the strikers had driven from the mine site. Pinkerton’s was, of course, well-aware of the strikers’ violence – it was the very reason that Pinkerton’s was called to Yellowknife. Pinkerton’s knew that security was "absolutely necessary for effective coping with labour strikes such as vandalism, sabotage, mischief, bombs, terrorism, kidnappings, assault, intimidation, espionage and similar threats."17 Though Pinkerton’s had no formal written contract with Royal Oak (there were only letters and invoices18), Pinkerton’s understood that its mandate was to protect “people and assets and to make sure that there’s a plant to go back to work….”19

11. This Court can get an insight into the strike’s “unreal environment” by considering Doreen Hourie’s testimony about her experiences on June 14.20 On that afternoon, Mrs. Hourie was taken across the picket lines to see her husband, Norm, a miner who had been living at the mine site for the previous three weeks. That evening, scores of strikers equipped with baseball bats, bear spray, helmets and shin pads invaded the mine site in an organized attack later called “The Riot”.21 Mrs. Hourie’s testimony leaves no doubt that the injuries she received that evening were intentionally inflicted. (Mrs. Hourie’s husband, Norm, was later to be killed in the fatal

14 RFJ para. 888 (Appellants’ Joint Record, Vol. II, pp. 82-83); Appellants’ Joint Record, Vol. IX, Smith evidence p. 193:37-41 (TAB 99-157), David evidence pp. 194:43-45 & 195:45-196:1 (TAB 99-158 & 99-159); Vol. VIII, Mitic read-in pp. 56:46-57:3 (TAB 99-88); Exhibit 1205 (Appellants’ Joint Record, Vol. XV, pp. 3-137 at 58-59) TAB 179 15 David evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S16, p. 47) 16 David evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S18, p. 52) 17 Exhibit 986 (Appellants’ Joint Supplementary Record, Vol. III, Tab S31, p. 30) 18 Exhibits 822 (Respondents’ Joint Record, Volume 4, Tab 7), Exhibits 824, 1104 & 1106 (Appellants’ Joint Supplementary Record, Tab S28, p.24; Tab S34, p. 89; Tab S35, p. 95) 19 St. Amour evidence (Respondents’ Joint Record, Vol. II, Tab S5, p. 62), Witte evidence), Fullowka Plaintiffs’ Opening Statement, Dales evidence, O’Sullivan evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S15, p.45-46; Tab S3, p.10-11; Tab S9, p. 27; Tab S6, p. 14), Exhibit 823 (Appellants’ Joint Supplementary Record, Vol. III, Tab S27, p. 10); Pinkerton’s refers to “limitations” in its contract, but its mandate was broad. It also suggests that Royal Oak was stingy, but from June to December, 1992, Pinkerton’s billed $2,807,471.32 and was paid $2,554,449.79 to pursue its mandate. 20 Doreen Hourie evidence (Appellants’ Joint Supplementary Record, Tab S7, pp. 15-25) 21 RFJ para. 101 (Appellants’ Joint Record, Vol. I, p. 37)

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blast.) The GNWT’s Minister of Safety & Public Services (Paterson) acknowledged that if the RCMP had not attended during The Riot, there could have been loss of life.22

12. Pete Smith, a CAW national representative, went to the picket line and watched The Riot.23 The next day, he issued the following press release24:

…After a full update on the strike the CAW Mining Council reaffirmed its full support for CASAW Local 4’s fight against Scab Labour and the Union’s attempts to negotiate a fair contract….

The importation of American tactics of utilizing Scab Labour in Canadian mines will be halted here at Royal Oak Mines in Yellowknife said Pete Smith, CAW National Representative and Executive Secretary to the CAW Mining Council.

The CAW Mining Affiliated Locals have started forwarding two hours pay per member per month as per the CAW Mining Council Mutual Defence Pact until a settlement is reached. CASAW Local 4 will also receive additional money from the CAW Mining Council to cover medical and other expenses.

13. Warren saw Smith’s press release and perceived that part of the reason he could get strike pay was because he was receiving financial support from the CAW.25

14. On June 16, 1992, Royal Oak’s manager (Byberg) filed an Affidavit26 in which he swore:

There are reports of observations of dangerous weapons being carried by the picketers. The weapons include hunting sling shots using ball bearings, glass marbles and stones as projectiles, sticks and clubs with nails imbedded into the end and hunting knives.

22 RFJ para. 104 (Appellants’ Joint Record, Vol. I, p. 38) 23 Pete Smith evidence (CAW Record, Vol. I, Tab 51, p. 132) 24 Exhibit 753 (Appellants’ Joint Supplementary Record, Vol. III, Tab S25, p. 6) 25 Warren’s evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S22A, p. 192) 26 Exhibit 1094 (Appellants’ Joint Supplementary Record, Vol. III, Tab 33, p. 81)

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These reports are frequent and cause great concern to the security guards on duty. These guards believe that the picketers who have threatened violence and indicated that they are ready to adopt violent means will at some point attack the Plaintiff’s employees and servants causing serious injury. I have personally been shot at by picketers using sling shots and observed sticks, clubs and hunting knives carried by picketers;… I have been shown the remnants of Molotov cocktails which have been hurled against the sides of our buildings.

15. At the beginning of the strike, Royal Oak had nailed a piece of plywood over the window opening in the shack at Akaitcho, but by June 29, the plywood was conspicuously missing (trial Exhibit 6 is a photograph taken by the RCMP on September 1827, shortly after the fatal blast, showing the opening as it had remained all summer). On June 29, Bettger and two other strikers (Shearing and St. Amand) climbed through the opening and then down into the underground. While underground, they stole explosives and painted graffiti. Bettger testified as follows in discoveries:28

Mr. Bettger: When myself and Mr. Shearing and Mr. St. Amand went into the mine on the graffiti trip, we knew that we were basically, like, exploring this avenue of entry into the mine, and we were somewhat aware that Mr. Kendall was attempting to organize another group who would basically follow our trail, provided, of course, that we were successful in getting in and out undetected. Mr. Champion: Which you were. A: Which we were. Q: So did you understand that another reason for the trip was to be, for lack of a better term, a bit of an advance party, to scout it out to see if it could be done? A: Yes.

27 Exhibit 6 (Appellants’ Joint Record, Vol. VII, Tab 103) 28 Bettger Read-in (Appellants’ Joint Record, Vol. VII, Tab 99-3, p. 5)

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Q: Your conclusion was that it could be done successfully without detection; is that correct? A: Yes.

16. While underground on June 29, Bettger, Shearing and St. Amand took photographs of the graffiti they had painted, which were passed around the local union hall and at a CASAW national convention in Kitimat.29 Pinkerton’s knew about the incursion on June 29.30 Harold David knew about it, too, and took the incriminating photographs and their negatives with him when he went to Vancouver, so that Bettger, Shearing and St. Amand would not be barred from the picket line.31

17. Union leaders encouraged violence against replacement workers in addresses to union members and in daily strike bulletins.32 Statements were continually made that replacement workers were not human beings and did not deserve to live and talk of injuring them was common.33 David vetted the strike bulletins,34 which Warren read nearly daily.35 David said that those who crossed the picket line had committed a “cardinal sin against the union”.36 David said, “Quebec obtained anti-scab law in only one way – Death.”37

18. Warren said he heard lots of references during the strike to the need for anti-strike legislation and “it even got me in the bandwagon”.38 RCMP Officer Bill Code said that he felt

29 Shearing Read-in (Appellants’ Joint Supplementary Record, Tab S2, p. 9) 30 RFJ 120 (Appellants’ Joint Record, Vol. II, p. 42) 31 David evidence (Appellants’ Joint Supplementary Record, Tab S17, p. 48) 32 RFJ para. 887 (Appellants’ Joint Record, Vol. II, p. 82) 33 RFJ para. 650 (Appellants’ Joint Record, Vol. II, p. 7) 34 David evidence (Appellants’ Joint Supplementary Record, Vol. 1, Tab S20, p. 54). The CAW erroneously states in footnote 38 of its factum that only Seeton testified that David vetted strike bulletins. The CAW also erroneously states in footnotes 38 and footnote 1 that Seeton’s read-ins (and the read-ins of other union members) cannot be used against them. However, the CAW acknowledged that over 700 read-ins from union members, including Seeton, constituted “some of the CAW’s information”: Counsel comments to the Court (Appellants’ Joint Supplementary Record, Tab S13, p. 34-43); Exhibit 1033 (Appellants’ Joint Supplementary Record, Vol. III, Tab S32, p. 81) 35 RFJ para. 899 (Appellants’ Joint Record, Vol. II, p. 86) 36 David evidence (Appellants’ Joint Supplementary Record, Tab S19, p. 53) 37 David evidence [(Appellants’ Joint Supplementary Record, , Tab S21, p. 58) 38 Warren’s evidence Appellants’ Joint Supplementary Record, Vol. I, Tab S22A, p. 162)

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that union members had been “brain washed” and were of the opinion that they legally had the right to resort to violence and vandalism.39 Striker Terry Legge testified:40

[S]omething happened there that just shouldn't have happened. You got a bunch of law-abiding citizens before that strike and it gradually crept up and people lost it.

And there was no system there, there was no law, there was no rules. We fought fire with fire and that's just the way it was….

But all these people, they were law-abiding people. And the only way that I can describe it is to say it was like a cancer and it was so gradual, and that's what happened.

19. Roger Warren testified that during the strike he underwent a metamorphosis from a normal guy who wouldn’t hurt anybody unless he was cornered, to someone who killed his friends and was capable of committing a terrorist act.41 He said there was wide spread hatred of replacement workers – they became ‘faceless entities’,42 or ‘digits’.43 The atmosphere was “if you do something and something happens, who cares.”44 Warren said there was an atmosphere of defiance and lawlessness at the picket line, a sense that they were justified in doing whatever they wanted and that it had “everything to do with” the blast he set. 45 He testified that as the summer of 1992 wore on, talk about people dying or being killed became common. As he says, “those things work on a person”.46 He said “other acts of sabotage by others at the time set the

39 Exhibit 30 (Appellants’ Joint Supplementary Record, Vol. III, Tab S24, p. 2); Code evidence (Appellants’ Joint Supplementary Record, Vol. 1, Tab S12, p. 30) 40 Legge evidence (Appellants’ Joint Supplementary Record, Tab S10, p. 28) 41 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 80) 42 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 34) 43 Warren evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S22A, p. 90) 44 Warren evidence (Appellants’ Joint Supplementary Record, Vol. I, Tab S22A, p. 109) 45 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 33) 46 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 29)

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stage for my formulating a plan and carrying it out”47 and “You get a mentality, like it’s a fuckin war and you don’t even think about like consequences.”48

20. On August 7, Pinkerton’s wrote to Royal Oak saying that the number of security guards should not be reduced to below twenty because “there is every indication our risks and exposures will increase in the foreseeable future” (Royal Oak did not reduce the number of guards to fewer than twenty):49

Under current conditions, untimely downsizing of security personnel to a level lower than twenty officers would increase risks and liability exposures in respect to our protective security operations at the mine.

…There is an expectation from employees of both Royal Oak Mines and Pinkerton’s that management professionals will take measures to prevent incidents and injuries particularly when such dangers are foreseeable under circumstances within our knowledge….

Based on the results of our recent security audit and on-going “situational analysis”, there is every indication our risks and exposures will increase in the foreseeable future.

21. On September 2, Bettger and others set off an explosion at the vent shaft. Terry Legge, a striker whom Bettger had recruited to assist him in setting the blast, testified:50

We could have -- I could have been in jail for murder because what we done, somebody could have got hurt. Roger Warren was just

47 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 36) 48 Warren evidence (Appellants’ Joint Supplementary Record, Vol. II, Tab S22B, p. 36); see also RFJ para. 282 (Appellants’ Joint Record, Vol. I, p. 93) 49 Witte evidence (Appellants’ Joint Record, Vol. IX, Tab 99-133, p. 153); Exhibit 838 (Appellants’ Joint Record, Vol. XII, Tab 158, p. 85) 50 Legge evidence (Appellants’ Joint Supplementary Record, Tab S10, p. 28)

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unlucky. I was lucky that I didn't kill somebody when that explosion at the vent shaft went off.

22. Commenting about the vent shaft blast to a newspaper reporter on September 4, the GNWT’s Chief Mining Inspector, Dave Turner, said:51

A Tuesday night explosion at Giant mine could have caused a disaster, says the NWT's chief mining inspector. "At worst, you could have had 40 dead men, or 40 men in the hospital with carbon monoxide poisoning," said Dave Turner.

The intake supplied air to 40 men on shift underground, Turner said. The blast could have broken a propane line, started a major fire and pumped smoke or poison gas into the mine, he added.

23. On September 16, 1992 (two days before the fatal blast), Royal Oak’s manager (Byberg) published a letter5253 in a Yellowknife newspaper saying:

… Giant employees, both permanent and temporary, have been attacked with clubs, ball-bearing-firing slingshots and flare guns, to say nothing of rocks. Families have received death threats. The mine property has been damaged by arson, dynamite and other tools of sabotage.

It has obviously not worried those responsible that the whole city has been subjected to frequent and costly power blackouts as a result, or that innocent lives have been put at risk, too. The union, which says it does not condone this violence, is clearly either unwilling or unable to control these actions… and a stick of

51 Exhibit 907 (Appellants’ Joint Record, Vol. XIII, Tab 161, p. 2) 5253 Exhibit 934 (Appellants’ Joint Supplementary Record, Vol. III, Tab S29, p. 27)

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dynamite can’t tell if a passer-by is a Giant worker or just someone who happens to be in the wrong place at the wrong time.

24. Justice Lutz held that “undoubtedly, it was a war mentality”.54 He found that Warren’s act was a reaction to the negligent acts of other strikers, including Seeton, Shearing, Bettger, Legge and others, and that Warren got caught up in the strikers' rhetoric, incitement on the line and strike bulletins. 55 Justice Lutz wrote:

[658] Dealing directly with arguments raised by counsel, I note that Royal Oak argued thusly:

Roger Warren’s act of murder was of an entirely different nature and kind of act than the acts of harassment and intimidation that preceded it. Murder was not the type of act that anyone, including the employees of Royal Oak, had (or, we submit, ought to have had) in their contemplation.

[659] I disagree. Warren’s act was but an elevation of other criminal acts committed by others, including property damage, sabotage, and infliction of unlawful acts on others engaged in this strike milieu and was an act that was very likely to happen….

[661] In the case of Pinkerton’s, serious personal injury to or death of mine workers as a result of strike-related misconduct in this case was the precise risk against which appropriate security measures needed to be taken. Pinkerton’s was at Giant to guard against “the very thing that happened” as was the case in [Stansbie v. Troman [1948] 1 All E.R. 599 (C.A.)].

[662] Was Warren’s act reasonably foreseeable to the CASAW Local 4 and CAW National? Certainly. Infliction of injury, threats, and attempts to inflict injury, particularly to the reviled replacement workers, had been a constant theme amongst the strikers and CASAW Local 4 from the moment they learned that replacement workers were to arrive.

[…]

[664] …[A]s the strike unfolded, and as more and more anger and frustration was exhibited, with increased sabotage with near death implications, all known as each occurred, the only reasonable and

54 RFJ para. 282 (Appellants’ Joint Record, Vol. 1, p. 93) 55,RFJ para. 651 (Appellants’ Joint Record, Vol. 2, p. 8)

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objective conclusion a reasonable man could reach was that an act such as Warren's would result. The deaths of the miners was but another unlawful act, elevated from earlier unlawful acts involving progressive illegal activities including physical injuries inflicted on persons, death threats, explosions that could have resulted in deaths, property damage, sabotage and the like.

[…]

[745] It is ludicrous to advance a view, as Royal Oak persisted in doing, that no reasonable person viewing these scenes at Giant was able to appreciate the foreseeability of a death. The strike talk was permeated with it; the RCMP entertained it, as did Turner and Ballantyne. It was certainly on the mind of Byberg in his affidavit of early June in support of an injunction application, and for good reason. There were physical injuries inflicted, threats, property damage, watching and besetting replacement workers’ homes, and, more importantly, sabotage with such incidents as the vent blast and the satellite dish explosion to name but two of several. There were also incidents of theft of explosives from the mine and their use on the site and of cutting off power, some of which ran the local hospital. It would have been astounding if someone had not been killed. The ugly incidents permeated the entire city. They affected school children and sank so low a line-crosser’s wife received a telephone call that she would be gang raped. In the result, the very act of Warren was an act that was very likely to happen, and it did.

[…]

[902] It would be the height of naivety not to have foreseen, as the strike unfolded, with the progression of inflammatory language, injury and death threats, infliction of personal injury, watching and besetting of homes of replacement workers, property damage and sabotage, and the pervasive view that someone was going to be killed, that a Warren act would happen. … This was the very kind of thing that was likely to happen.

25. The Court of Appeal upheld Justice Lutz’s findings, stating that “Foreseeability in this context is a mixed question of fact and law, the decision of the trial judge does not disclose palpable and overriding error, and the finding of foreseeability should therefore underlie this duty analysis.”56

56 CAMJ para. 55 (Appellants’ Joint Record, Vol. 3, p. 107)

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Part II: Statement of Issues

Issue 1: The deaths were reasonably foreseeable (a) Justice Lutz is entitled to deference (b) All the Respondents foresaw the deaths

Issue 2: Personal Consumption Rates (Damages) (a) The Respondents’ arguments are not properly before this Court (b) Justice Lutz did not err in his choice of Personal Consumption Rates

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Part III: Statement of Argument

Issue 1: The deaths were reasonably foreseeable

(a) Justice Lutz is entitled to deference

26. In Housen v. Nikolaisen [2002] 2 S.C.R. 235 this Court explained why issues of fact and mixed fact and law should be judged on the standard of “palpable and overriding error”. Some of those reasons are especially relevant to this case:

10 The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” … While this standard is often cited, the principles underlying this high degree of deference rarely receive mention. We find it useful, for the purposes of this appeal, to review briefly the various policy reasons for employing a high level of appellate deference to findings of fact.

14 …[C]omments regarding the advantages possessed by the trial judge have been made by R. D. Gibbens in “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446:

The trial judge is said to have an expertise in assessing and weighing the facts developed at trial. Similarly, the trial judge has also been exposed to the entire case. The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.

The corollary to this recognized advantage of trial courts and judges is that appellate courts are not in a favourable position to assess and determine factual matters. Appellate court judges are restricted to reviewing written transcripts of testimony. As well, appeals are unsuited to reviewing voluminous amounts of evidence. Finally, appeals are telescopic in nature, focussing narrowly on particular issues as opposed to viewing the case as a whole.

25 Although the trial judge will always be in a distinctly privileged position when it comes to assessing the credibility of

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witnesses, this is not the only area where the trial judge has an advantage over appellate judges. Advantages enjoyed by the trial judge with respect to the drawing of factual inferences include the trial judge’s relative expertise with respect to the weighing and assessing of evidence, and the trial judge’s inimitable familiarity with the often vast quantities of evidence. This extensive exposure to the entire factual nexus of a case will be of invaluable assistance when it comes to drawing factual conclusions…. [Emphasis added]

(b) All the Respondents foresaw the deaths

27. There were ample grounds for Justice Lutz to find that the deaths were reasonably foreseeable. All of the Respondents except Bettger expressed in contemporaneous writings their views that death or serious injury could result from the strike violence.

28. Bettger did not call any evidence or testify at trial, but Terry Legge, who assisted Bettger,57 recognized that the vent shaft explosion could have been lethal. Bettger not only foresaw, but intended, that other strikers would follow his footsteps into the underground via Akaitcho.

29. As the Court of Appeal observed, Justice Lutz’s finding of foreseeability should underlie the analysis of duty. Since reasonable foreseeability is also the criterion of “proximity” or “remoteness of damage”,58 Justice Lutz’s finding also rebuts arguments under those headings as well. (Justice Lutz’s findings on proximity reinforce his findings on duty, and vice versa.)

30. The issue in this appeal is thus:

Given that the Respondents foresaw that their careless acts and omissions could result in the miners’ deaths, did the Respondents owe the miners a duty of care?

57 RFJ para 155 (Appellants’ Joint Record, Vol. 1, p. 52) 58 Justice Lutz correctly summarized the law on proximity at RFJ paras. 619 and 620 (Appellants’ Joint Record, Vol. II, pp. 194-195 ).

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Issue 2: Personal Consumption Rates (Damages)

(a) The Respondents’ arguments are not properly before this Court

31. The Respondents asked the Court of Appeal to vary Justice Lutz’s damages award, but the Court of Appeal declined to do so, writing:59

The appellants appealed and the respondents cross-appealed certain aspects of the damage award. In light of the conclusions we have reached, it is not necessary to express any opinion on these issues.

32. Unlike the Respondents, the Appellants sought, and were granted, leave to argue the merits of Justice Lutz’s treatment of tax gross up and management fees. It was open to the Respondents similarly to cross appeal the damages issues they wish to bring before this Court, but they elected not to do so.

33. In seeking now to vary Justice Lutz’s award of damages, the Respondents GNWT, Pinkerton’s and Bettger purport to rely on Rule 29(3).60 However, that Rule does not apply, because the Respondents are not seeking to uphold a finding on damages by the Court of Appeal:

29 (3) A respondent who seeks to uphold the judgment appealed from on a ground not relied on in the reasons for that judgment may do so in the respondent’s factum without applying for leave to cross-appeal.

(b) Justice Lutz did not err in his choice of Personal Consumption Rates

34. The Respondents object to Justice Lutz’s findings about “PCR’s”, but have not explained what is at issue. The issue can be summarized as follows: The Appellants and the Respondents agree that, when determining the damages suffered by a deceased person’s family, it is customary and appropriate to take into account the proportion of the family’s income that would have been consumed exclusively by the deceased if he had lived – that proportion is called the deceased’s “personal consumption rate” or “PCR”. The parties also agree that PCR’s generally vary by family size (the larger the family, the smaller the proportion of the family’s income that

59 CAMJ para. 207 (Appellants’ Joint Record, Vol. III, p. 185)

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is consumed exclusively by a single family member). The parties disagree, however, on whether personal consumption rates depend on anything other than family size.

35. The Appellants’ expert, Cara Brown, analyzed data she obtained from Statistics Canada and found that personal consumption rates depend not only on family size, but also on family income. (This is partly because wealthy families spend their money on different types of things than do poorer families and also because wealthy families tend to save higher percentages of their incomes.) Brown’s determination that Canadian PCR’s depend both on family size and family income accords with a series of studies in the United States conducted over the last 30 years; 61 Brown’s methods are consistent with the methods now used by a majority of American forensic economists.62 Brown’s PCR’s do not constitute a “novel theory” – Brown simply used new statistical data to make more refined empirical estimates of PCR’s.

36. For a given size of family (say, a family having four members), the Respondents’ expert, Gerry Taunton, used a single PCR, regardless of the family’s income. For that size of family, Ms. Brown used a range of PCR’s, depending on the total family income. Taunton’s single PCR fell in the middle of Brown’s range of PCR’s.

37. The Respondents did not cite any evidence, authorities or studies purporting to establish that personal consumption rates do not vary with family income, nor did they present any analysis or argument purporting to show that PCR’s and family size must be independent. Their expert, Gerry Taunton, has never published anything.63 Their sole argument against Ms. Brown’s evidence is that those early Canadian cases that happen to mention PCR’s use PCR’s based on family size alone. But no court has ever purported to find that PCR’s do not vary by family income. No court has ever purported to dictate to other courts or to forensic economists that some specified estimate of a PCR must be used forever, despite advances in economic knowledge. Each court must assess damages, not on the basis of what other courts decided on

60 GNWT’s factum, footnote 45 61 Exhibit 662 (Respondents’ Joint Record, Vol. 3, Tab 6, p 71) 62 Michael L. Brookshire, Michael R. Luthy & Frank L. Slesnick, “2006 Survey of Forensic Economists: Their Methods, Estimates and Perspectives” (2006) 19 Journal of Forensic Economics 29 at 41-42[Tab 3] 63 Taunton evidence (Appellants’ Joint Supplementary Record, Vol. 1, Tab 14, p. 44)

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different evidence in earlier times, but on the basis of the best and most current evidence available to it.

38. The Respondents assert that Brown’s study has not been subjected to peer review. At the time of trial, Ms. Brown’s study had been submitted for publication; it has since been published in a peer-reviewed journal as “Personal Consumption Rates for Canada: Differentiated by Family Size and Income Level Using Survey of Household Spending (SHS) 2000 Data.”64 In a recent survey of forensic economists published in the same journal, 81% of the forensic economists responding indicated that they vary personal consumption rates by income (agreeing with Brown and disagreeing with Taunton).65

39. The Respondents object to Brown’s inclusion of the deceased’s ‘savings’ as part of the benefits enjoyed by his dependents. The reasons for including ‘savings’ as part of dependents’ benefits are discussed by Brown at pages 154 to 156 of her article. The issue was canvassed at length at trial and was determined by Justice Lutz in favour of Brown’s position:

[1016] …. Brown demonstrated tremendous depth into her data analysis toward the development of her PCR tables, the result of which has merit in my view.

[1017] …Brown made a good point which was that at the time of the death, the savings had not been spent, but rather saved, so it is reasonable to assume that the savings would not be spent in the same proportion as family income. Furthermore, Brown referenced literature that suggests that a large proportion of family savings is spent on indivisible items such as children's education or a second home.

40. The Respondents did not advance any cogent reason at trial for excluding ‘savings’ from the benefits enjoyed by a deceased person’s dependents and have not done so in this Court.

41. This is simply a battle of the experts, of a kind that occurs daily in the courts. On the one hand, Justice Lutz had an expert (Brown) who had studied PCR’s, had submitted a paper for peer review and had supported her position with cogent arguments. On the other hand, he had an

64 (2005) 17 The Journal of Forensic Economics 147 [Tab 2] 65 Michael L. Brookshire, Michael R. Luthy & Frank L. Slesnick, “2006 Survey of Forensic Economists: Their Methods, Estimates and Perspectives” (2006) 19 Journal of Forensic Economics 29 at 41-42 [Tab 3]

Response Factum Apr 23 2009.doc / 23-Apr-09 Page 19 expert (Taunton) who had not studied the issue, had never published anything, and could advance no arguments in support of his position other than to say “in the old days it was done my way”. Justice Lutz’s decision to rely on Brown is not an error of law.

42. Justice Lutz chose the right PCR’s. In any case, he made a reasonable decision on the evidence and committed no reviewable error (the standard of review for damages is “palpable and overriding error”66).

43. The Appellants respectfully ask that the arguments of the Respondents on damages be rejected and that Justice Lutz’s assessments of damages be allowed to stand, except for his findings on tax gross up and management fees (which the Appellants have appealed on a pure question of law).

66 Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital 1994 CarswellBC 101 (S.C.C.) [Tab 12]; Andrews v. Grand & Toy Alberta Ltd., 1979 CarswellAlta 214 at paragraph 5 (S.C.C.) [Tab 4]; Nova, an Alberta Corp. v. Guelph Engineering Co., 1989 CarswellAlta 157 (C.A.) [Tab 11]; Labbee (Estate) v. Peters, 1999 CarswellAlta 759 (C.A.) [Tab 9]; Lewis v. Todd, [1980] 2 S.C.R. 694; R. v. J.J. [2000] S.C.J. No. 52 [Tab 10]

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ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated at the City of Edmonton, in the Province of Alberta this 22nd day of April, 2009.

______J. Philip Warner, Q.C. Jeffrey B. Champion, Q.C. W. Benjamin Russell

Co-counsel for the Fullowka Appellants

RESPECTFULLY SUBMITTED WITH RESPECT TO PART I AND ISSUE 1 OF PARTS II AND III.

Dated at the City of Edmonton, in the Province of Alberta this 22nd day of April, 2009.

______James E. Redmond, Q.C. Counsel for the Appellant, James O’Neil

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PART VI - LIST OF AUTHORITIES

TAB TEXTS PARA FOOTNOTE 1 Allen M. Linden & Bruce Feldthusen, Canadian Tort Law Appellants’ Appellants’ (8th ed.) (Markham:Butterworths, 2006), pp. 108-110 35 57 2 Cara L. Brown, “Personal Consumption Rates for Canada: Differentiated by Family Size and Income Level Using Survey of Household Spending (SHS) 2000 Data” (2005) 17 The Journal of Forensic Economics 147 Reply 38 Reply 64 3 Michael L. Brookshire, Michael R. Luthy & Frank L. Slesnick, “2006 Survey of Forensic Economists: Their Methods, Estimates and Perspectives” (2006) 19 Journal of Reply 35 Reply 62 Forensic Economics 29 Reply 38 Reply 65

TAB AUTHORITIES 4 Andrews v. Grand & Toy Alberta Ltd., 1978 CarswellAlta Reply 42 Reply 66 214; [1978] 1 W.W.R. 577 (S.C.C.) 5 Cudmore v. Tabin, 32 Sask. R. 105 (Q.B.), 1984 Appellants’ Appellants’ CarswellSask 276 105 199 6 D.H. (Guardian ad litem of) v. , 2008 Appellants’ Appellants’ BCCA 222 (CanLII) 34 54 7 Foster v. Perry, 2005 BCSC 1214, [2005] B.C.W.L.D. 6024, Appellants’ Appellants’ 2005 CarswellBC 1988 105 105 8 Haynes v. Harwood [1934] All ER Rep 103 (C.A.) Appellants’ Appellants’ 35 55 9 Labbee v. Peters, 237 A.R. 382, 1999 CarswellAlta 759 Reply 42 Reply 66 10 Lewis v. Todd, 1980 CarswellOnt 617; [1980] 2 S.C.R. 694 Reply 42 Reply 66 11 Nova, an Alberta Corp. v. Guelph Engineering Co., 1989 CarswellAlta 157, 100 A.R. 241 (C.A.) Reply 42 Reply 66 12 Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Reply 42 Reply 66 Hospital, 1994 CarswellBC 101; 87 B.C.L.R. (2d) 1 (S.C.C.)

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PART VII - STATUTORY PROVISIONS

Rules of the Supreme Court of Canada

29 (3) A respondent who seeks to uphold the judgment appealed from on a ground not relied on in the reasons for that judgment may do so in the respondent's factum without applying for leave to cross-appeal.

(4) In the circumstances set out in subrule (3), the appellant may serve and file, in accordance with subrule 35(4), a factum in response not exceeding 20 pages that is bound with beige covers and on which a reference to this rule appears between the horizontal lines. SOR/2006-203, s. 10.

35. (4) Within two weeks after being served with the factum under subrule 29(3), the appellant may serve and file in accordance with subparagraph (1)(a)(i), paragraph (1)(b) and subparagraph (1)(c)(i) a factum in response.

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