Court File No. 32735

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF THE NORTHWEST TERRITORIES)

BETWEEN:

SHEILA FULLOWKA, DOREEN SHAUNA HOURIE, TRACEY NEILL, JUDIT PANDEV, ELLA MAY CAROL RIGGS, DOREEN VODNOSKI, CARLENE DAWN ROWSELL, KAREN RUSSELL, BONNIE LOU SA WLER Appellants (Applicants) - and-

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, ROYAL OAK VENTURES INC. (formerly Royal Oak Mines Inc.) Respondents

AND BETWEEN: JAMES O'NEIL Appellant (Applicant) - and-

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

FACTUM OF THE RESPONDENT NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA SACK GOLDBLATT MITCHELL LLP SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West 30 Metcalfe Street Suite 1100, P.O. Box 180 Ottawa, Ontario Toronto, Ontario M5G 2G8 KIP 5L4

Steven Barrett Colleen Bauman Tel: 416-977-6070 Tel: 613-235-5327 Fax: 416-591-7333 Fax: 613-235-3041 Email: [email protected] Email: [email protected]

CHIVERS CARPENTER LAWYERS Ottawa Agent for the National Automobile, Suite 101, 10426 81 Avenue Aerospace, Transportation and General Edmonton, Alberta Workers Union of Canada T6E 1X5

Patrick Nugent Tel: 780-439-3611 Fax: 780-439-8543 Email: [email protected]

Co-counsel for the National Automobile, Aerospace, Transportation and General Workers Union of Canada TO:

BISHOP & McKENZIE LLP OSLER, HOSKIN & HARCOURT LLP 2500 - 10104, 103rd Avenue 340 Albert Street, Suite 1900 Edmonton, Alberta Ottawa, Ontario T5J IV3 KIP 6L2

J. Philip Warner, Q.C. Patricia J. Wilson Telephone: 403-421-2464 Tel: 613-787-1009 Fax: 403-426-1305 Fax: 613-235-2867 Email: [email protected] Email: [email protected]

Counsel for the Applicants Sheila FuIlowka, Ottawa Agent for the Applicants Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs, Doreen Vodnoski, Carlene Ella May Carol Riggs, Doreen Vodnoski, Carlene Dawn Rowsell, Karen Russell and Bonnie Lou Dawn Rowsell, Karen Russell and Bonnie Lou Sawler Sawler

JAMES E. REDMOND, Q.C. OSLER, HOSKIN & HARCOURT LLP 1000 Manulife Place 340 Albert Street, Suite 1900 10180-101 Street Ottawa, Ontario Edmonton, Alberta KIP 6L2 T5J 3S4 Patricia J. Wilson Tel: 780-409-8289 Tel: 613-787-1009 Fax: 780-423-2368 Fax: 613-235-2867 Email: [email protected] Email: [email protected]

Counsel for the Applicant James O'Neill Ottawa Agent for the Applicant James O'Neill

DUNCAN & CRAIG LLP LANG MICHENER LLP 2800 Scotia Place Suite 300 10060 Jasper Avenue 50 O'Connor Street Edmonton, Alberta Ottawa, Ontario T5J 3V9 KIP 6L2

John M. Hope, Q.C. Jeffrey Beedell Tel: 780-428-6036 Tel: 613-232-7171 ext. 122 Fax: 780-428-9683 Fax: 613-231-3191 Email: [email protected] Email: [email protected]

Counsel for Pinkerton's of Canada Ltd. Ottawa agent for Pinkerton's of Canada Ltd. FIELDLLP LANG MICHENER LLP 2000 Oxford Tower Suite 300 10235 - 101 St. N.W. 50 O'Connor Street Edmonton, Alberta Ottawa, Ontario T5J 3Gl KIP 6L2

Peter D. Gibson Jeffrey Beedell Tel: 780-424-7116 Tel: 613-232-7171 ext. 122 Fax: 780-428-9329 Fax: 613-231-3191 Email: [email protected] Email: [email protected]

Counsel for the Government of the Northwest Ottawa agent for the Government of the Northwest Territories Territories

MacPHERSON LESLIE & TYERMAN LLP LANG MICHENER LLP 4505 Canterra Tower Suite 300 400 - 3rd Ave S.W. 50 O'Connor Street Calgary, Alberta Ottawa, Ontario T2P 4H2 KIP 6L2

S. Leonard Polsky Jeffrey Beedell Tel: 403-693-4306 Tel: 613-232-7171 ext. 122 Fax: 403-508-4349 Fax: 613-231-3191 Email: [email protected] Email: [email protected]

Counsel for Timothy Alexander Bettger Ottawa agent for Timothy Alexander Bettger

PARLEE McLAWS LLP MACLAREN CORLETT LLP 1500, 10180 -101 Street Suite 1625,50 O'Connor Street Edmonton, Alberta Ottawa, Ontario T5J 4Kl KIP 6L2

Robert G. McBean, Q.C. Stephen J. Grace Tel: 780-423-8580 Tel: 613-233-1146 Fax: 780-423-2870 Fax: 613-233-7190 Email: [email protected] Email: [email protected]

Solicitors for Royal Oak Ventures Inc. Ottawa Agents for Royal Oak Ventures Inc. Table of Contents

PART 1- OVERVIEW AND STATEMENT OF FACTS ...... 1

A. The Appellants' facta ...... 1

B. The labour dispute ...... 1

C. Roger Warren murders nine miners ...... 2

D. CAW-National's involvement in the labour dispute ...... 4

PART II - QUESTIONS IN ISSUE ...... 8

PART III - STATEMENT OF ARGUMENT ...... 8

A. CAW-National and Local 4 are separate legal entities ...... 8

(i) Governing labour law principles and the statutory regime ...... 9 (ii) The constating documents establish separate local status ...... 10 (iii)Response to the Appellants' submissions ...... 11

B. CAW-National is not tortiously liable for the murder of the nine miners ...... 15

(i) Requirements for creating duty of care on CAW-National not met ...... 15 (ii) CAW-National's conduct did not fall below any standard of care ...... 25 (iii)CA W-National did not cause Warren's act of murder ...... 28 (iv)"Concerted action liability": CAW-National is not a joint tortfeasor with Warren in committing murder ...... 32

C. CAW-National is not vicariously liable for Warren's act of murder ...... 34

(i) Union-member relationship does not give rise to vicarious liability ...... 35 (ii) No close connection between any functions or powers assigned to Warren and Warren's deliberate act of murder ...... 37

PART IV and V - COSTS AND ORDERREQUESTED ...... 40

PART VI - TABLE OF AUTHORITIES

PART VII - STATUTORY PROVISIONS PART I - OVERVIEW AND STATEMENT OF FACTS

1. On September 18, 1992, Roger Warren, acting entirely alone, planted explosives deep in the Giant Mine in Yellowknife deliberately killing nine miners. Warren was later convicted of nine counts of second degree murder. The murders occurred during a labour dispute between Royal Oak Mines Ltd. and Canadian Association of Smelter and Allied Workers, Local 4 ("Local 4"), the bargaining agent representing Royal Oak's employees. The Appellants ask this Court to reverse the Court of Appeal, and hold the National Automobile, Aerospace, Transportation and General Workers Union of Canada ("CAW-National") legally responsible for Warren's murderous acts. However, to impose legal liability, either direct or vicarious, on CAW­ National for allegedly contributing to a individual's frame of mind, thereby causing him to commit murder, would stretch the bounds of tort liability beyond any fair or reasonable limit.

A. The Appellants' facta

2. Throughout their facta, the Appellants distort and inaccurately state the facts to exaggerate CAW-National's role in the strike. Even on a cursory review, and as set out more fully below, the Appellants' citations to the record often do not support their allegations. l

B. The labour dispute

3. The Giant Mine labour dispute began on May 22, 1992. Workers at the mine were represented by Local 4, which was one of six locals affiliated with Canadian Association of Smelter and Allied Workers ("CASAW-National"). CASA W-National's constitution established and recognized the independence of CASAW local unions, as did Local 4's bylaws.2 Tthe Fullowka Appellants sought to add Local 4's successor (CAW Local 2304) as a defendant in

I In addition, many of the Appellant's citations are to discovery evidence (both transcript and video) read­ into the Record. The trial judge ruled early on in the trial that read-ins could be used only against the party who gave the evidence: CA W-National's Record ("CAW Record")-Vol. 1: Ruling on Read-ins, 34:44-35:34 (Tab 2, pp. 5-6). Insofar as CAW-National is a separate legal entity from Local 4, the Appellants cannot rely on read-ins of members or officers of Local 4 against CAW-National: Fullowka et al. v. Royal Oak Ventures Inc., et ai, 2002 NWTSC 13 (CanLII), ,-r 2-3; Rule 266, Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010-96, as amended. 2 CAW Record-Vol. II: Exhibit 1005-CASAW Constitution, ss. 4(b) and 13 (Tab 92, pp. 328, 350); Exhibit 1006-Loca14 Bylaws (Tab 93, p. 366-372) (see also ,-r27-28 below). 2

March 1997, but the action was dismissed because it was commenced after the expiry of the statute of limitations.3

4. The President of CASAW-National, Ross Slezak, was a member of Local 4's bargaining team ex officio under the CASAW-National Constitution. He believed the tentative settlement reached prior to the strike was the best deal Local 4 could get and opposed to the strike; however, CASAW-National had no power to impose a settlement on Local 4. Slezak participated in a mediation on June 6, but was later removed as the appointed contact person in favour of Local4's president.4 Slezak was in Yellowknife on only one or two occasions during the strike.s

5. The picket lines were volatile during the early weeks of the strike, but had significantly calmed down by July. 6 The police arrested numerous individuals who participated in a riot on June 14, including Warren who trespassed onto the employer's property. As a condition of release from custody, they were required to sign an undertaking to stay away from the picket lines. Warren and others were also fired. 7 c. Roger Warren murders nine miners

6. After he was released from his undertaking, Warren spent about a week on picket duty in early August. He described his experience on the picket line as being "fairly pleasant, we didn't care much then, it was nice weather, a few people would stop and chat. .. " and said that he would "usually play Scrabble".8 In about mid-August, Warren went to Peace River with his family for a week or two and "quit doing picket duty".9 Warren returned to the picket line during the week of September 7, and was on an afternoon shift for four days. The next week Warren was on

3 Reasons for Judgment at Trial ["RFJ"], ~ 13 (AR: Vol. 1, Tab 2, pp. 10). 4RFJ,~37,42,206(AR:Vol.l, Tab2,pp.17, 19,67). 5 Memorandum of Judgment of the Court of Appeal ["MOJ"], ~171 (AR: Vol. 3, Tab 6, p. 169). The Record suggests Slezak was in Yellowknife for a few days in early June and perhaps once in late August. 6 RFJ, ~ 128,147 (AR: Vol. 1, Tab 2, p. 44, 49); CAW Record-Vol. II: Murray, 4579:27-4580:12 (Tab 75, p. 221-222). 7 MOJ, ~19 (AR: Vol. 3, Tab 6, p. 90); RFJ, ~11O-111 CAR: Vol. 1, Tab 2, p. 40); CAW Record-Vol. I: Warren, 7302:7-15(Tab 6, p. 15). 8 CAW Record-Vol. I: Warren, 7302:15-20 (Tab 6, p. 15).

9 CAW Record-Vol. I: Warren, 7302:7-38 (Tab 6, p. 15); 7304:35-7305:17 (Tab 7, pp. 15-16); 7580:8- 16 (Tab 25, p. 60). 3 picket duty for several nights. Warren testified that the picket line was "quiet" and "pretty 0 boring", and that he was stiff from "sitting around reading" and doing crossword puzzles. I

7. Warren testified that it was only after he returned to picket duty in September that he began to formulate a plan to enter the mine. He started carrying out "reconnaissance" missions to gauge security at the mine site, and did so surreptitiously because he did not want to be seen or "caught".l1 He also started doing "concrete things," like making a lamp and testing a clock out as a timing deviceY Warren never told anyone, much less anyone from CAW-National, about his plan to enter the mine or set off the explosion.1 3

8. In the early hours of September 18, Warren snuck into the mine. He used almost a full bag of Amex and 20 to 30 sticks of dynamite to make the bomb, which he rigged with a trip wire to explode when triggered by a conveyance. 14 Warren knew that the first conveyance to come down the drift was usually a man-car carrying miners. 15

9. Warren's actions were deliberate, well-planned and secretive; they were not the acts of a person simply trying to damage property or to frighten people. The way in which he decided to rig the explosion, including his use of a trip wire and a huge amount of explosives, evidenced an intention to kill. Warren was an extremely experienced miner who had worked with explosives for many years, often on a daily basis and knew that what he was doing would be lethal. Indeed, he admitted knowing that anyone within 75 or 80 feet of the explosion (or anyone on that level) would be killed, and that he "didn't care". 16

10 RFJ, ~167 (AR: Vol. 1, Tab 2, p. 55); CAW Record-Vol. I: Warren, 7304:35-7305:17; 7306:44- 7307:9 (Tab 7, pp. 15, 17-18); 7577:35-7578:17 (Tab 24, pp. 58-59). 11 CAW Record-Vol. I: Warren, 7305:12-7306:12; 7306:44-7308: 29 (Tab 7, pp. 16-19); 7578:23-32 (Tab 24, p. 59). 12 CAW Record-Vol. I: Warren, 7494:31-7495:20 (Tab 17, pp. 35-36). 13 CAW Record-Vol. I: Warren, 7306:36-42 (Tab 7, p. 17); 7341 :21-26 (Tab 10, p. 22). 14 CAW Record-Vol. I: Warren, 7316:33-47 (Tab 8, p. 20). 15 MOJ, ~19 (AR: Vol. 3, Tab 6, p. 90); CAW Record-Vol. I: Warren, 7595:32-7596:8 (Tab 27, pp. 65- 66). 16 MOJ, ~19 (AR: Vol. 3, Tab 6, p. 90); CAW Record-Vol. I: Warren, 7291:1-4; 7292:6-22 (Tab 5, pp. 12-13); 7592:35-7594:33; 7594:22-33; 7596:21-46 (Tab 27, pp. 62-66); CAW Record-Vol. II: Murray, 4571:10-4575:2 (Tab 74, pp. 216-220). 4

10. It is entirely misleading to assert, as the Appellants do (~17, 86 and 96), that Warren was "convinced" to enter the mine and plant explosives based on information from "Bettger's team". (Unless otherwise stated, references herein to the "Appellants' factum" are references to the 17 Fullowka factum). Warren did not discuss his plan "in any way" with Shearing or Bettger. He said he had heard several different versions of the graffiti run story but seemed unsure of who told him what, and said he "didn't pay much attention". 18 Despite invitations to link his incursion into the mine with the graffiti runners, Warren stated that he chose Akaitcho because he could not get close enough to 138 (another option he was considering) to determine how easy it would be to enter that way. His scouting missions led him to believe that entering via Akaitcho "seemed easy" - it was in the most remote corner of the mine property and was not used by people on a regular basis. 19 Similarly, Warren did not choose the 138/B-3 pit area to exit the mine because the graffiti runners had used it, but because he scouted that location on several occasions and had himself determined that it would be "an easy way to get out of the place".2o

11. Property damage was not unknown to this (or any other) labour dispute. This was the first time in Canadian labour history, however, that replacement workers had been murdered. By all accounts, including Warren's, the murders were an "insane" and outrageous act. Warren testified that he caused the explosion and the death of the nine miners, that "nobody else did," and that his actions showed a complete "disregard for human life".21

D. CAW-National's involvement in the labour dispute

12. Contrary to the Appellants' claims, CAW-National had very limited involvement in the strike. It did not represent workers at Giant Mine. CAW-National offered support to the striking

17 CAW Record-Vol. I: Warren, 7306:29-42 (Tab 7, p. 17). In discovery, Warren indicated that he had some kind of discussion with Art St. Armand about the graffiti run, but stated that he did not pay much attention to what he was saying: Warren video, VW2 (AR: Vol. XI, Tab 108, at 10:14-10:20 a.m.). 18 Warren video, VW2 CAR: Vol. XI, Tab 108, at 10:14-10:20 a.m.). 19 RFJ, ~167 (AR: Vol. 1, Tab 2, p. 55); Warren video, VW2 (AR: Vol. XI, Tab 108, at 11:20 a.m.); CAW Record-Vol. I: Warren, 7577:23-30 (Tab 23, p. 58). 20 RFJ, ~167 (AR: Vol. 1, Tab 2, p. 55); Warren video, VW2 (AR: Vol. XI, Tab 108, at 10:16 a.m.). 21 CAW Record-Vol. I: Warren, 7321 :25-29 (Tab 9, p. 21); 7593: 15-16,36-37 (Tab 27, p. 63). 5 union, as trade unions often do. This support was offered as a symbol of solidarity, without any expectation of having input into or control over the organization or administration of the strike.22

13. Advocacy: In June and September 1992, CAW-National's President, Buzz Hargrove, wrote letters to territorial and federal politicians urging the introduction of anti-replacement worker legislation to bring an end to the strike. According to a labour relations expert (whose evidence was largely accepted by the trial judge) these letters were typical of the kind of support unions regularly provide to other unions.23

14. Financial support: The uncontradicted evidence demonstrated that, prior to September 18, CAW-National contributed a total of $2,500 to Local 4.24 Expert witnesses for both sides testified that such donations are a common, everyday occurrence.25 Warren had no specific knowledge of any financial support the national unions provided to Local 4 during the strike. 26

15. Local 4 also received financial support from a Mining Council to which it had belonged for many years. Originally, the Mining Council was comprised of, and governed by, Local 4 and three CAIMAW locals.27 In January 1992, the three CAIMAW locals became CAW locals following a merger between CAlMA W and CA Wand the CAlMAW Mining Council was renamed the CAW Mining Council. However, neither CAW-National nor CASAW-National were members of the Council nor did they play any role in its decision-making or strike fund. 28

16. Secondment: At Local 4's request, CAW-National sent Harold David, an experienced union member, to assist Local 4. David spent a total of 14 days in Yellowknife on three

22 MOJ, ~158 (AR: Vol. 3, Tab 6, p. 163); CAW Record-Vol. I: Hargrove, 7863:27-7869:13 (Tab 28, pp.67-69). 23 RFJ, ~194 (AR: Vol. 3, Tab 2, p. 64); CAW Record-Vol. I: Sims, 7799:30-7801:14 (Tab 55, pp. 145- 147). See also Hargrove, 7863:27-7864:42 (Tab 28, pp. 67-68). 24 RFJ, ~179 (AR: Vol. 1, Tab 2, p. 59); CAW Record-Vol. II: Exhibit 797-Financial Contributions (Tab 91, p. 319); CAW Record-Vol. I: Hargrove, 7883:46-7884:38 (Tab 31, p. 78-79). 25 CAW Record-Vol. I: Sims, 7799:30-7801: 14 (Tab 55, pp. 145-147); Fisher, 3707:33-3708: 10 (Tab 58, pp. 152-153). 26 CAW Record-Vol. I: Warren, 7533:19-32 (Tab 20, p. 45). 27 RFJ, ~36 (AR: Vol. 1, Tab 2, p. 17). 28 RFJ, ~36 CAR: Vol. 1, Tab 2, p. 17); CAW Record-Vol. I: Smith, 7955:40-7958:10; 7964:31-40 (Tab 51, pp. 129-133). 6 occasions prior to the murders. David first arrived in Yellowknife on July 21, two months into the strike, to help Local 4 with a mediation. He served as the Local's spokesperson in the mediation, putting forward Local4's positions and then left Yellowknife on July 25.29

17. David returned to Yellowknife for five days beginning August 12, after which he was removed by CAW-National?O Local 4 and CASAW-National were in the midst of a dispute over the role David was to play. CASA W-National wanted to ensure he "would be fully subordinate to the Local 4 executive, Local 4 membership, and C.A.S.A.W. National Union".3l For its part, Local 4 insisted on maintaining its autonomy from CAS A W-National and did not want Slezak directly involved in the strike.32 CAW-National was only willing to second David to Local 4 if CASA W-National approved and advised that he would not return to Yellowknife again unless Local 4 and CASAW-National could agree on his role.33

18. On August 30, Local 4 and CASA W-National sent a joint letter to CAW-National requesting David's continued assistance.34 They agreed that David would take direction from Local 4, that CASAW-National would have "input" into Local 4's decisions, but that neither David nor CAS A W-National would have any voting rights. David returned to Yellowknife on or about September 15 and was there until after Warren murdered the miners.35

19. Contrary to the Appellants' assertions, there is no basis in the record to conclude that CAW-National assumed management and control of the strike through David or otherwise.

29 RFJ, ~182-183, 185 (AR: Vol. 1, Tab 2, pp. 60-61); CAW Record-Vol. I: David, 8004:39-47 (Tab 42, p. 109). Being "sole spokesperson" did not put David in charge of bargaining. He took instructions from Local 4 officials and told them to interrupt the mediation if he said anything they did not like: David, 7997:5-6; 24-33 (Tab 41, p. 106). 30 RFJ, ~189 (AR: Vol. 1, Tab 2, p. 62); CAW Record-Vol. I: David, 8005:42-46; 8008: 19-24 (Tab 43, pp. 11 0, 113). 31 CAW Record-Vol. ll: Exhibit 757-Slezak letter (Tab 86, pp. 304-305). 32 CAW Record-Vol. I: Hargrove, 7950:43-7951:7 (Tab 38, p. 96-97); David, 8034:29-43 (Tab 46, p. 119). 33 CAW Record-Vol. I: Hargrove, 7943:40-7944:37 (Tab 36, p. 90-91); 7954:6-26 (Tab 39, p. 99); CAW Record-Vol. ll: Exhibit 1216-Succamore letter (Tab 96, pp. 385-386). 34 RFJ, ~189 (AR: Vol. 1, Tab 2, p. 62-63); CAW Record-Vol. ll: Exhibit 758- (Tab 87, p. 306-7). 35 CAW Record-Vol. I: David, 8010:8-13 (Tab 43, p. 115); 8014:19-28 (Tab 45, p. 118). 7

Aside from seconding him to Local 4, CAW-National gave David no instructions.36 He understood his role as helping the members of Local 4 and their families obtain financial and other assistance in order to support themselves during the strike and did not have any involvement in organizing picketers?7 The Appellants' claim (~96-b) that David vetted the August 25 bulletin referring to Vern Fullowka is without any reasonable or admissible foundation in the evidence.38 Further, David had no authority to discipline Local 4 members or to remove them from the picket line.39 Indeed, Bill Code, the RCMP labour liaison officer, did not deal with David, but rather with Local 4 President Seeton. In an effort to break the bargaining stalemate, Code tried to convince Seeton (not David) to meet with the employer. Code testified40 that he spoke to David on only a couple of occasions and neither of those discussions remotely suggest that David had assumed control of the Local or of the strike.

20. Warren testified that David "exuded calmness", "never seemed to rant or rave" and did not use "rhetoric or anything that would be inflammatory, he wasn't like that".41 David advised Local 4 executives that events such as the graffiti run and the satellite dish explosion could cost the union its picket line. Other witnesses confirmed that David did not condone violence.42

36 CAW Record-Vol. I: David, 7995:38-40 (Tab 41, p. 104); Hargrove, 7876:35-7877:12 (Tab 29, p. 75- 76); 7951:19-7952:2 (Tab 38, pp. 97-98). 37 CAW Record-Vol. I: David, 8006:29-44 (Tab 43, p. 111); Drover, 3466: 14-3467: 15 (Tab 65, pp. 182- 183). 38 As noted, David was removed from the strike on August 18 and did not return until mid-September. There is no evidence strike bulletins were sent to him (for "vetting" or any other reason) when he was not in Yellowknife, including between August 18 and 30 when his continued involvement was in question: see ~17 above and CAW Record-Vol. I: David, 8009:44-8010:6 (Tab 43, p. 114). Indeed, the only evidence that David vetted strike bulletins at all was the read-in of Local 4 president, Harry Seeton (who was examined in his personal capacity as a named defendant). Seeton, who was the author of the bulletins, claimed only that David began vetting them on or about September 1, 1992 after Local 4 resolved its differences with CASAW-National: CAW Record-Vol. I: Seaton read-in, 4810:15A813:39 (Tab 69, p. 200-203). The read-in is inadmissible against CAW-National and David flatly denied that he ever vetted any bulletins: David, 8004: 15-37 (Tab 42, p. 109); 8011: 11-13 (Tab 43, p. 116). 39 RFJ, ~277 (AR: Vol. 1, Tab 2, p. 91); CAW Record-Vol. I: David, 8013:22-29 (Tab 44, p. 117). 40 CAW Record-Vol I: Code, 5043:21-28; 5044:35-42; 5049:7-45; 5052:38-5053:44; 5061:30-5063:8 (Tab 61, pp. 161-168); 5076:1-27 (Tab 62, p. 169); 5078:46-5083:16 (Tab 63, pp. 170-175); 5083:45- 5084: 14 (Tab 64, p. 176-177). 41 CAW Record-Vol. I: Warren, 7425:25-39 (Tab 15, p. 30). 42RFJ, ~188 (AR: Vol. 1, Tab 2, p. 62). 8

PART II - QUESTIONS IN ISSUE

21. The CAW-National submits that:

a. the Court of Appeal correctly held that CAW-NationaI/CASAW-National were separate legal actors from Local 4 and, as such, CAW-National's liability in negligence for Warren's murder of the nine miners must be assessed based on its own acts, independently of the acts of Local 4;

b. the Court of Appeal correctly held that CAW-National did not owe a duty of care in negligence in respect of Warren's murder of the nine miners. Moreover, even if a duty of care was owed, CAW-National did not fall below any standard of care nor did CAW-National cause Warren to murder the nine miners. CAW-National was also not in any way a joint tortfeasor; and

c. the Court of Appeal correctly held that CAW-National is not vicariously liable for Warren's deliberate criminal act of murder.

PART III-STATEMENT OF ARGUMENT

A. CAW-National and Local 4 are separate legal entities

22. The trial judge did not recognize the separate legal status of the union entities in this case. 43 Instead, at each stage of the negligence analysis,44 he treated the separate acts of Local 4, CASAW-National and CAW-National as if they were the acts of a single legal entity. The Court of Appeal correctly held that CAW-National and Local 4 were distinct legal entities, so that at each stage of the legal analysis, it was necessary to examine the acts of its officers and agents separately from those of Local 4. As it recognized, the separate legal status of local, national and

43 The trial judge recognized the separate legal status of parent and local unions in ATU v. leTa, [1997] AJ. No. 191, in which he found that both a parent and one of its local unions had been defamed by another union and awarded damages to each plaintiff union in different amounts: ~212-217 and 225. Indeed, the case management judge observed that local unions are generally recognized as distinct legal entities from national unions, and that the relationship between them is contractual and governed by the terms of the union constitution: Fullowka et aL v. Royal Oak Ventures Ltd., [2003] N.W.TJ. No. 66, ~4. 44 See, for example, duty of care (RFJ, ~875, and 878-879), breach of the standard of care (RFJ, ~881), and causation (RFJ, ~891): AR: Vol. 2, pp. 78-84. 9 international unions depends on an analysis of the union's con stating documents, read in light of the statutory labour relations regime and governing principles oflabour law.45

(i) Governing labour law principles and the statutory regime

23. As the Court of Appeal held, the common law not only "now recognizes trade unions as suable entities, built upon the statutory foundation of the various labour codes", but also "recognizes locals of unions as being separate from national unions".46 Local 4's status as a separate entity from CASA W-National is confirmed by the provisions of the Canada Labour Code, R.S. 1985 c. L-2 (the Code"). As s. 3(1) provides, either a local or national union possess separate legal capacity to become certified as a bargaining agent under the Code. As the Court of Appeal observed, "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".47 Where, as here, a local union is certified, it assumes all of the duties of a bargaining agent under the statute in its own right. This is consistent with the collective agreement between 48 Local 4 and Royal Oak, which recognized Local 4 alone as the exclusive bargaining agent.

24. Indeed, at common law, the primary basis for recognizing trade unions as a suable legal entities rests upon the recognition of the capacity to assume statutory obligations as a bargaining agent under collective bargaining legislation. In the seminal Therien case,49 this Court held that legal personality sterns from the legislation, quoting with approval from Taff Vale Railway Co. that "the Legislature has legalised it, and it must be dealt with by the Courts according to the intention of the Legislature". Thus, affirming the separate legal status of local and national unions is consistent with Parliament's recognition oflocal unions as separate legal entities.

45 Berry v. Pulley, [2002] 2 S.C.R. 493 at ~5; MacNeil et al., Trade Union Law in Canada (Aurora: Canada Law Book, 2008), at p. 5-6: "While the governing constitutional documents and labour statutes will determine the relationship in any particular circumstances, the dominant trend in recent years has been to accept union locals as separate entities in law." 46MOJ, ~138-139 (AR: Vol. 3, Tab 6, pp. 152-154); International Brotherhood of Teamsters v. International Longshoremen's Association, Local 273 v. Maritime Employers' Association [1979] 1 S.C.R. 120, at pp. 135-137; Berry v. Pulley, supra. 47 MOJ, ~140 (AR: Vol. 3, Tab 6, p. 154). 48 CAW Record-Vol. II: Exhibit 247, Collective Agreement Article 2 (Tab 84, p. 299-300). 49 International Brotherhood of Teamsters, Chauffeurs Warehousemen & Helpers, Building Material, Construction and Fuel Truck Drivers, Local No. 213 v. Therien, [1960] S.C.R. 265, per Locke J., p. 273 10

25. Canadian courts and labour boards have consistently recognized the distinct legal status and personality of local, national and international unions. This Court confirmed the separate legal identity of local unions in Maritime Employers' Association, in which the Court stated;50

It would take the clearest possible language in my view on the part of Parliament when enacting the Code to show that Parliament did not wish to establish the bargaining agent and the employer as legal entities for the purpose of employer relations regardless of the status of each under pre-existing statute law or the common law generally. In the result, the Association is a legal entity fully capable of bringing these proceedings; and the three Locals are likewise each legal entities fully capable at law of being added as a party defendant. [emphasis added]

26. As the Court of Appeal recognized, "the separate legal existence of local unions is now accepted as a reality in the labour community", citing Penegal Trim and Supply Ltd (~81-83):51

The Labour Relations Board has always held that the "parent union" and the "local union" are separate and distinct organizations for legal and labour relations purposes. They are two DIFFERENT trade unions ... Moreover, in the contemporary labour relations community, "everyone knows" that the local unions and the parent international are distinct trade union entities (and not infrequently in conflict) .... They are not the same, nor does one speak for the other. That is the state of the law, and that is common knowledge in the labour relations community. [capitals original; underlining added]

(ii) The constating documents establish separate local status

27. Both the CASAW Constitution and Local 4's bylaws unequivocally confirm the separate legal status and responsibilities of Local 4 and CASA W-National. The Constitution specifically provides that a local has autonomy, including a separate legal right to hold property and to secede. Section 13 of the CASAW -National Constitution provides that "Local autonomy will be fostered and encouraged" and that "All locals shall have the right to retain their assets and

50 Maritime Employers' Association, at p. 137. See also Carrothers et aI., Collective Bargaining Law in Canada (Toronto: Butterworths, 1986) at pp. 737-738; Berry v. Pulley, ~40, 46; Professional Institute of the Public Service of Canada and Canada (Attorney General) (2002), 62 O.R. (3d) 682 (Ont. C.A.), at ~22, 26-27. 51 MOJ, ~140 (AR: Vol. 3, Tab 6, pp. 154), citing Penegal Trim and Supply Ltd. [1998] O.L.RD. No. 3834 at ~ 81-83. See also: Repla Limited [1990] O.L.R.B. Rep. May 612 at ~ 11-15; United Association of Journeymen and Apprentices of the Plumbing and Pipejitting Industry of the United States and Canada (UA), Local 772 v. Steen Contractors Ltd. [1991] N.B.I.R. No. 15, at ~30. 11 records and apply to the National Executive Board to secede from the National Union to affiliate to another Canadian Union, or to become an independent body".52

28. As the Court of Appeal observed, "if locals and nationals are not separate entities, it would seem to follow that they have no separate right to hold property. Not only would local and national entities be responsible for each other's obligations, it would appear each local would be responsible for all the obligations of the other locals. This is a commercially unreasonable result." Far from compelling such a commercially unreasonable result, the CASAW Constitution expressly vests management and control of the locals in the local union executive, providing that a local with the right to possess all of its assets. 53 Local 4's bylaws give it authority over all its property, and give the local executive the power to manage and direct its affairs. 54

(iii) Response to the Appellants' submissions

29. The Appellants, assert that a union is but a two-tiered entity of a single structure (eg. ~26 and 92). However, a single constitutional structure governing the existence and powers of the national and local unions does not affect or alter their separate legal status. Merely because entities are created by a single constitution does not mean they lack separate legal status. Canada is a single "structure", created under a single unified document (the Constitution Act, 1867), yet no one would suggest that the federal and provincial governments do not have separate legal status, or that federal government taxation of provincial residents and financial support to the provinces makes the federal government liable for the unlawful acts of provincial governments. 55

30. The Appellants argue (~26-28 and 92) that CAS A W's Constitution contained rules for National and local elections, duties of officers, approval of bylaws, remittance of dues, disciplinary procedures and ex officio national president committee membership, and that

52 CAW Record-Vol. II: Exhibit 1005- Constitution, s. 13 (Tab 92, p. 350). 53 CAW Record-Vol. II: Exhibit 1005- Constitution, s. 4(b) (Tab 92, p. 328). 54 CAW Record-Vol. II: Exhibit 1006- Bylaws, ss. 15, 17(c), 32, 33 and 34 (Tab 93, pp. 369, 371-2). 55 Similarly, "the province creates municipalities by statute, the municipality has to govern within the boundaries of the provincial grant of power, and the province has the authority to dissolve the municipality; but, within these confines, the municipality has a legal personality that is distinct and separate ... from the province that created it". Actions taken by a municipality do not in any way result in the province being liable: MacNeil et ai, Trade Union Law in Canada, pp. 5-7. 12 individual employees joined CASA W~National by joining a local. Yet, as the Court of Appeal noted, the existence of "financial and other links between the locals and their national unions" does not "displace the separate existence ofthe local and the national entity", concluding: 56

All organizations are either controlled by their membership, or by other organizations, but that does not mean that they do not exist as separate entities. It is only prudent for any organization to have some rule as to what will happen to its assets if it ceases to exist; indeed such a rule is not needed if there is only one entity in existence.

31. In the courts below, the Appellants relied on the 1994 Merger Agreement between CAW­ National and CASAW-National. However, as the Court of Appeal held, under the Merger Agreement, Local 4's successor (CAW-Local 2304) inherited all of Local 4's debts and obligations; CAW-National did not assume any of Local 4's debts and obligations.57 Further, contrary to the Appellants' submission (~94) that negotiation of the Merger Agreement between the two national unions is evidence that the locals were not separate entities, while the Constitution conferred on CASAW-National the authority to negotiate mergers, it was expressly subject to ratification by the locals' membership. 58 Indeed, the Merger Agreement itself treats CASAW-National and CASAW locals as separate entities, transferring rights and obligations from CASAW-National to CAW-National and from CASAW locals to new CAW locals.

32. The Appellants seek to bolster their argument that CASAW-National and Local 4 were a single entity by referring to the alleged understanding of individual employees that CASA W was a single entity (~28-29, 94). However, not only is the perception of some Local 4 members hardly determinative of the legal question, but the Appellants paint a misleading picture of those members' perceptions. When read in conjunction with the answers given by these individuals to

56 MOJ, ~141-142 (AR: Vol. 3, Tab 6, p. 155). 57 MOJ, ~143 (AR: Vol. 3, Tab 6, p. 155). Article lei) ofthe Merger Agreement specifically provided that all assets of a CASAW local would remain the exclusive property of the new CAW local; Article l(ii) that the new CAW local would retain rights and obligations flowing to it from the merged CASA W local; Article 2 that the successor CAW locals shall "become merged with and the successors to CASA W local unions respectively, and each merged local, shall acquire all of the rights, privileges and duties (including bargaining rights) of the CASA W local to which it has succeeded"; and Article 4 that each merged local union would have the authority to make decisions on local union matters: CAW Record-Vol. II: Exhibit 1034-Merger Agreement, articles 1(i), 1(ii), 2, 4 (Tab 94, p. 375-376). 58 CAW Record-Vol. II: Exhibit 1005- Constitution, s. 4(i) (Tab 92, p. 330). 13

other questions about "the union", it is clear that, in referring to "CASA W", these members were, in fact, talking only about Local 4. 59

33. According to the Appellants, the Court of Appeal held that, because plaintiffs can sue a

local for the unlawful action of local officials, they cannot sue a national union (~ 95-96). The Court of Appeal held no such thing. To the contrary, throughout its analysis and reasons, the Court of Appeal recognized that a national union can be sued, but correctly held that the national's liability must be assessed against its own actions, and not those of a local union. Moreover, the Appellants' own cases confirm that, in assessing liability of a national union in tort or for other unlawful action, the courts consistently examine the separate conduct of a national union and do not impute to it the specific conduct of a local union. Thus, for example, in Procor Ltd., the international union was found liable for injurious falsehood only because its president engaged in tortious activity. Similarly, in Gaspe Copper Mines, while the international union was found liable, it was because there were specific findings that its officials had organized and planned the various illegal acts that caused damage to the employer. In Vancouver Machinery Depot Ltd., the Court of Appeal's decision confirmed that the international union could be sued as a separate entity from the local, but nothing in that decision suggested that the actions of the local would be imputed to the national in determining its liability. Finally New Brunswick Electric Power Commission involved contempt proceeding only against the local union, recognized the local union as a separate legal entity and found the local in contempt only because of the actions of its own officials.

34. Far from conflicting with Berry, as the Appellants claim (~93), the Court of Appeal's analysis is fully consistent with this Court's approach. As in Berry, which concerned the legal relationship between a trade union and its members, the Court of Appeal based its analysis on the

59 For instance, when asked who the president or executive members of "the union" were, they gave the names of the current or former presidents of Local 4 (depending on the time period in question) and Local 4 executives. Indeed, some of the witnesses, including Warren, did not seem to know who Slezak was; they thought he was an official of CAIMAW or a member of the CAW: CAW Record-Vol. I: Warren, 7419:1-7 (Tab 14, p. 29); Legge, 3519:5-18; 3526:16-42; 3543:15-23 (Tab 66, pp. 184-186); CAW Record-Vol. II: Tuma, 2224:10-16; 2226:10-17 (Tab 70, p. 206-207); Titterton, 2313:6-35; 2331:44- 2332:5; 2359:15-26 (Tab 71, pp. 209-212); Murray, 4513: 19-26 and 40-42 (Tab 73, p. 215); Gauthier, . 703:4-27 (Tab 76, p. 223). 14 constating documents read in light of the statutory labour relations regime and governing principles of labour law. As it recognized, where "local unions ... have their own executives and decision-making structures ... in accordance with the principles in Berry v. Pulley, they should be recognized as separate entities.,,60 Recognizing the separate and independent decision-making powers and structures of national and local unions respects the principle that, absent vicarious liability, accountability for negligent acts should only attach to those persons possessing actual decision-making authority. The Appellants' legal construct, treating national and local unions as a single legal entity, is also inconsistent with the reality that locals are often in legal conflict with each other, or with their national union, and that, when such conflict arises, the courts recognize them as separate entities. 61

35. Finally, contrary to the Appellants' claim ('193-b), the rationale for this Court's holding in Berry that individual union members cannot recover against other union members for improper union actions was to limit recovery for wrongful union actions to the assets held by the union entity, thereby insulating the assets of individual union members from exposure to liability. It was not to allow individuals to recover from the assets of one legal entity (in this case, CAW­ National), based on the actions of another legal entity (in this case, Local 4).62

60 MOJ, ~140 (AR: Vol. 3, Tab 6, p. 154). Moreover, contrary to ~93-a of the Fullowka factum, nothing in Berry suggests that, simply because a constitution provides that an individual joins a parent union at the same time as she joins the local union, the local and parent are one legal entity. 61 See for example, Carrothers, Collective Bargaining Law in Canada, pp. 737-739 62 L.C.U.C. v. c.u.P. w., Edmonton Local and C.U.P.E. v. Deveau do not stand for the proposition that a local union holds its assets for all members of the national union. Rather, they involved the interpretation of the unions' constitutions relating to property and asset entitlement upon the dissolution of or secession by a local union, and proceeded on the basis that local and national unions are otherwise separate entities. Moreover, unlike the constitutional provisions in those cases, CASA W-National's Constitution specifically recognized a local's right to retain its property upon secession. As for the Appellants' reliance in footnote 165 on MacKendrick v. National Union, that decision dealt with a different union structure in a different country, where the entity in question was not a separate local with its own officers and property, but a mere branch of a union. Notably, Lord Salvesen stated at p. 224: "Had Branch No. 12 been a separate entity capable of being sued and possessing funds enabling it to meet its obligation, no question, I think, could have arisen as to its liability to the pursuer". 15

B. CA W~National is not tortiously liable for the murder of the nine miners

(i) Requirements for creating duty of care on CAW-National not met

36. For CAW-National to owe a duty of care to the replacement workers to protect against the deliberate criminal acts of a third party, it must be established that: (a) it was reasonably foreseeable to CAW-National that its actions would, if negligent, very likely result in this type of harm to the replacement workers; (b) there was a relationship of close and direct proximity between CAW-National and the replacement workers; and (c) there are no policy considerations negating imposition of a duty of care. 63 The same requirements would apply to the separate question of whether Local 4 or any particular individual owed a duty to the replacement workers.

(a) Murder of replacement workers not sufficiently foreseeable

37. Where the question of a duty of care relates to a third party's deliberate criminal acts, the highest threshold of reasonable foreseeability applies. There is a significant judicial reluctance to find that a defendant owes a duty of care in relation to the deliberate criminal acts of a third party, particularly where the basis of foreseeability involves the claim that the defendant has influenced the mindset of a third party who commits such acts. Where the act is as serious as murder, the degree of likelihood before a duty of care will be imposed should be very high:

Few things are less certainly predictable than human behaviour, and if one is asked whether in any given situation a human being may behave idiotically, irrationally or even criminally the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals ... [T]he hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur. 64

63 Cooper v. Hobart [2001] 3 S.C.R. 537, ~30-31; Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263, ~52 64 Lamb v. Camden London Borough Council, [1981] Q.B. 625 (C.A.) at 17-18 (QL), cited in ~53 of the Court of Appeal's decision. See also Klar, Tort Law, 4th ed. (Toronto: Carswell, 2008) pp. 491-99; Robertson v. Adigbite [2000] B.C.J. No. 1192 (S.C.), ~ 57-59L; Perl (Exporters) Ltd. v. Camden London Borough Council, [1983] 3 All E.R. 161 (C.A.), at p 166, leave to appeal refused [1983] 3 All ER 172 (HL); New South Wales v. Godfrey [2004] NSWCA 113, ~21-35; Smith v. Littlewoods Organisation Ltd., [1987] A.C. 241, at p. 19 (QL). 16

38. The Court of Appeal recognized that Warren's deliberate act of murder "was not necessarily foreseeable in law" given "the improbability of the scenario, combined with the intervention of an intentional act of another party (Warren)", which "pushes the legal concept of foreseeability to the edge". However, it regarded the trial judge's foreseeability finding as a mixed question oflaw and fact which did not disclose palpable and overriding error. 65

39. While some aspects of the trial judge's foreseeability findings may have involved questions of fact or mixed fact and law, his approach to foreseeability as applied to CAW­ National was rooted in three fundamental errors of law. First, because his approach to the separate legal status of CA W-National and Local 4 was incorrect, the trial judge never considered the conduct of CAW-National independently of Local 4. Instead, he treated all the acts of all the union actors as if they were committed by the same legal person. As a result, he failed to restrict his foreseeability assessment to the question of whether, objectively viewed, CA W -National should have foreseen that its own allegedly negligent actions would be very likely to result in the deliberate murder by a third party of replacement workers. Had the trial judge considered CAW-National's actual actions, he would have been compelled to conclude that it was not reasonably foreseeable, let alone very likely, that any of its conduct, taken alone or together, would result in harm to the replacement workers. This includes advocating for anti­ replacement worker legislation, contributing limited financial support to Local 4, seconding David to assist Local 4 or any of the statements made by Hargrove or David.

40. Second, the trial judge erred in consistently minimizing Warren's actions as amounting to mere negligence, an attempt to inflict property damage and/or simply to frighten the replacement workers. 66 This is not an accurate description of the murders. 67 Warren was convicted of second degree murder, not of negligently causing bodily harm or manslaughter. Further, there was no reasonable basis for finding that Warren's act was like all the others; he did not spray graffiti, throw rocks or use explosives to damage property. While these other acts are admittedly criminal behaviour, Warren's decision to murder replacement workers was an act of premeditated

65 MOJ, ~55 CAR: Vol. 3, Tab 6, p. 107). 66 RFJ, ~171, 280, 281, 965 (AR: Vol. 1, Tab 2, pp. 56,93 and Vol. 2, p. 103). 67 MOJ, ~61 CAR: Vol. 3, Tab 6. P. 110). 17 violence aimed at taking human life. Had the trial judge properly recognized the extreme and unprecedented nature of Warren's act, there would have been no basis to find that the national unions should have foreseen that such a heinous and abnormal act was very likely to occur as a result of their acts or omissions.

41. Third, the trial judge erred in failing to take into account the timing of certain acts in determining foreseeability. For example, he relied upon the vent shaft explosion to conclude that Warren's act was sufficiently similar to earlier acts that it was foreseeable as likely to happen. 68 But the vent shaft explosion did not occur until September 2, after CAW-National's allegedly negligent acts (eg., its financial donation, the bargaining positions advanced in mediation and its advocacy for replacement worker legislation). The vent shaft explosion was simply not part of the circumstances CAW-National could possibly have considered when it performed these acts.

42. To the extent CAW-National assumed the liabilities of CASA W-National under the Merger Agreement, neither the Appellants nor the trial judge identified any act committed by CASAW-National which would have made it reasonably foreseeable, on any standard, that replacement workers would be murdered. None of Slezak's actions referred to by the Appellants

(~96-a), including Slezak's limited involvement in bargaining, the positions he advanced with Local 4 officials in mediation,69 or CASAW-National's financial support to Local 470 could reasonably be foreseen as very likely to result in the deliberate murder of replacement workers by a third party. Slezak's comment at a rally in early June that "Witte could expect severe confrontation" if she used replacement workers cannot "reasonably be read as an incitement to commit violent acts",7I nor is there any basis to hold that it was reasonably foreseeable to a high degree of likelihood that this comment would result in murder. 72 Finally, even if Slezak or other

68 RFJ, ~659 (AR: Vol. 2, p. 9). 69 The so-called preconditions to bargaining were determined by Local 4: CAW Record-Vol. II: Schram Read-in, 4592:28-4593:16 (Tab 79, pp. 226-227). 70 The trial judge found that CASA W -National donated $12,000 to Local 4 in early June and later forgave its debt and postponed payment of its per capita contributions: RFJ, ~179 CAR: Vol. 1, Tab 2, p. 59). 7] MOJ, ~172 CAR: Vol. 3, Tab 6, p. 170). 72 This is equally true of the comments made by Hargrove and David: see ~ 64 below. 18 members of the CASA W -National executive praised Bettger and others for the graffiti run,73 or CASAW delegates had passed a resolution requiring members of all other CAS A W locals to picket or contribute financially to Local 4,74 there is no reasonable basis to conclude that either of those actions was very likely to lead to the murder of replacement workers.

(b) Proximity: relationship not sufficiently close and direct

43. Even where a plaintiff can establish that a defendant's acts or omissions may foreseeably lead to harm, "something more", namely proximity, is required before the law will impose a duty of care. 75 Whether or not parties are sufficiently proximate so that it is "just and fair" to impose a duty of care is generally determined with reference to established categories of relationships in which a duty has previously been found to exist. Although these categories are not closed, where (as in the case at bar) a plaintiff argues that a duty of care should be imposed in entirely novel circumstances, it is necessary to "carefully consider whether proximity is established".76 The less apt the analogy between the relationship under consideration, and those which have already been found to give rise to a duty of care, the less likely that a new duty of care will be recognized.77

44. Notably, the Appellants are unable to point to any previously recognized relationship remotely analogous to the relationship between CAW-National and the replacement workers. Proximity is determined by "looking at expectations, representation, reliance, and the property or other interests involved".78 In determining whether a particular relationship has sufficient elements of closeness and directness to found proximity, the courts look to whether it exhibits

73 In fact, Shearing's read-in appears to be a reference to the president and executive of Local 4, and not to those of the National, while Bettger made it clear to Appellants' counsel that he "had no idea" whether Slezak or the National executive knew about the graffiti run: CAW Record-Vol. II: Bettger read-in, 249:12-19 (Tab 78, p. 225). 74 In any event, this claim is false. The resolution provided only that "all locals should be encouraged to support the strike". The Policy statement cited by the Appellants clearly applies only to "all members of any CASAW local in a strike or lockout situation", not to members of other locals: CAW Record-Vol. II: Exhibit 754 CASAW convention Minutes (Tab 85, pp. 301-303). 75 Cooper, ~34, Odhavji, ~ 50; Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83, ~26; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, ~23. 76 Childs v. Desormeaux, [2006] 1 S.C.R. 643, ~15 [emphasis added]. 77 Cooper~31; Childs, ~15; Hill, ~25, 27. 78 Cooper, ~34; Odhavji, ~50. 19 the same kind of characteristics previously recognized relationships of proximity.79 Thus, the imposition of a duty of care is more likely where a defendant is able to exercise a degree of control over the conduct of others, where there is a vulnerability inherent in the relationship, where a party invites others (usually for commercial gain) to participate in inherently risky behaviour, and in situations where an entity either exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large. 8o

45. Although proximity is the "foundation of the modem law of negligence", the trial judge did not conduct a separate inquiry into proximity, and considered none of the criteria set out aboveY Rather, he found the necessary degree of proximity between CAW-National and the replacement workers by relying on the same factors that led him to conclude that the murder of the replacement workers was foreseeable. 82 The trial judge erred in equating foreseeability and proximity, and failing to consider whether the independent requirement for proximity had been met. By contrast, the Court of Appeal applied a thorough proximity analysis and concluded that, "absent any special relationship or control, there is no basis on the facts to find a general duty of care on any of the appellants to answer for Warren's intentional tort".83

46. Not one of the criteria enumerated in the case law favours the Appellants' position. CA W-National did not voluntarily assume or encourage reliance on the part of the replacement workers, nor did it make any representations which could reasonably lead them to believe that it would protect their interests. Similarly, there is no suggestion that the replacement workers relied on CAW-National to look out for them and, in any event, such reliance would not have been reasonable. Indeed, any expectations the replacement workers may have had about their protection would have been that others, by virtue of their relationship with them, would take care to control against the commission of criminal acts on the employer's property, not that CAW­ National would or could do so.

79 Childs, ~35-37; Fleming, The Law o!Torts, 9th ed. (LBC Information Services, 1998), p. 203-16. 80 Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; Childs, ~35- 37. 81 Childs, ~10. 82 RFJ, ~878-879 CAR: Vol. 2, pp. 79-80). 83 MOJ, ~100 (AR: Vol. 3, Tab 6, pp. 135-136). 20

47. CAW-National neither invited the replacement employees to the workplace, nor can it be said that CAW-National derived any benefit from their presence there. Accordingly, this is not a case where there economic justification for allocating the costs of any ensuing harm to a party benefitting from the activity. CAW-National did not exercise any element of control over Royal Oak's operations or the replacement workers, nor was there any contractual or commercial relationship between CAW-National and the replacement workers.

48. The substantive content of the 'relationship' between CAW-National and Warren's victims is bereft of any factual connection whatsoever, far less a requisite "close and direct" connection. There was no significant contact, let alone direct day-to-day contact, between CA W­ National and the replacement workers or between CAW-National and Warren, who unexpectedly turned out to be a mass murderer. 84 Certainly, there is no close causal link between the actions of CAW-National (providing financial and other support to the strike) and the loss which the Appellants assert is actionable (mass murder by a lone assassin).85 In short, not only was the relationship between CAW-National and the Appellants not proximate in any accepted sense, but it distorts the very concept of proximity to suggest that there was any relationship at all. 86

49. The "common law is a jealous guardian of individual autonomy".87 As the Court of Appeal recognized throughout its proximity analysis, it is a fundamental premise of the common law that an individual is not liable for the conduct of a third party simply because the third party causes harm to someone else, even if that harm may have been reasonably foreseeable.ss To the contrary, for a legal duty of care to exist, the person sought to be held liable must have assumed control, have a specific statutory responsibility to protect, or be in a position where the harmed person has a legitimate reliance or expectation interest. None of this applies to CAW-National.

84 Odhavji ~71. 85 Odhavji, ~56. 86 Indeed, ~27 of the O'Neil factum concedes there is no special relationship of proximity between CAW­ National and the replacement workers, and Appellants' counsel made the same concession in closing argument at trial. Further, none of the factors relied upon in ~36-3 7 of the Fullowka factum in support of proximity in relation to GNWT or Pinkertons support such a finding in relation to CAW-National. 87 Childs, ~31. 88 MOJ, ~91-97 CAR: Vol. 3, Tab 6, pp. l32-l37). 21

Certainly, it did not assume or possess control over Warren's deliberate and surreptitious act, nor did the replacement workers have a reliance or expectation interest in that regard. 89

50. The Appellants submit that the requirement for proximity is met because the relationship between CAW-National and the replacement workers is one in which a defendant's act causes foreseeable physical hann to the plaintiff (~87 and O'Neil factum, ~29). But this category of proximity does not apply where the hann is caused by a third party; it only applies "where an overt act of the defendant has directly caused foreseeable physical hann to the plaintiff',.9o The hann in this case was directly caused by the overt acts of Warren, not CAW-National. As the Court of Appeal recognized, where a plaintiff seeks to hold a defendant responsible in negligence for an intentional tort committed by a third party, it is necessary to conduct an independent analysis of the relationship between the plaintiff and the ancillary tortfeasor (Le. the defendant) to detennine if there is a duty of care.91 Unless the defendant has knowledge of, controls or invites participation in inherently risky behaviour, or is being reasonably relied on to monitor and control the behaviour of autonomous third parties, the defendant will not be liable for deliberate hann (including personal injury) caused by third parties.92

51. Finally with respect to Local 4, even if CAW-National and Local 4 were a single legal entity, the existence of an adversarial relationship between Local 4 and the replacement workers would militate against finding the proximity necessary to found a duty of care. By filling the jobs of striking employees, the replacement workers were enabling the employer to operate; this was fundamentally inconsistent with Local4's interests. Local 4 and striking employees certainly had an obligation not to commit intentionally tortious or criminal acts, including damage and trespass to property and threatening or committing acts of violence to property or persons. However, the function of negligence law is to impose an additional legal duty to take care to one's neighbours, beyond the duties owed under other branches of civil and criminal law, but only where there is a proximate neighbourly relationship which justifies the imposition of such a duty. Far from being

89 See also Childs, ~31. 90 Childs, ~31; Cooper, ~36; Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737 at ~26. 9] MOJ, ~41 and 43-45 (AR: Vol. 3, Tab 6, pp. 99-101) 92 Childs, ~38. 22 grounded in reliance, expectation, representation, or property interests, the interests of striking members and replacement workers are inherently adverse and conflicting.

(c) Policy considerations militating against creation of duty of care

52. Even there were sufficient foreseeability and proximity to give rise to a duty of care, there are compelling policy reasons which militate against its recognition,93 particularly in the context of trade union advocacy and support in connection with collective bargaining activity. In addition to hamstringing trade unions in carrying out their representational and advocacy responsibilities, imposing a duty of care on CAW-National in the circumstances of this appeal would also give rise to indeterminate liability, require courts to speculate about matters that are not amenable of proof and undermine fundamental principles of individual responsibility.

53. As this Court held in Martel, commercial negotiations would be fatally distorted if inapposite legal principles are super-imposed on the bargaining process.94 Thus, one party to a commercial contract cannot sue the other for carelessness in conducting negotiations, and no duty of care arises. It would "defeat the essence of negotiation and hobble the marketplace to extend a duty of care to the conduct of negotiations" and thus "deter socially and economically useful conduct," if a party which is legitimately pursuing its own negotiating self-interest were obliged to simultaneously take care to protect the interests of the opposite party.95

54. Trial judges are ill-equipped to "scrutinize the minutiae" of bargaining and should not be drawn into a "regulatory function" insofar as the conduct of freely conducted negotiations are concemed.96 If a duty of care were to be superimposed on collective bargaining and trade union advocacy and support, it would thwart the parties' pursuit of their respective self interests which is a key part of the very activity allegedly giving rise to the potential harm. Indeed, if, as is clear, a union does not owe a negligence duty of care to the employer for the manner in which it

93 SylApps, ~49-50, 54-55; Edwards v. LSUC, [2001] 3 S.C.R. 562, ~10, 19; Cooper, ~52-55. 94 Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860. See also: RFJ, ~677 (AR: Vol. 2, p. 15). 95 Martel, ~62, 64, 67 and 69. See also Kamahap Enterprises Ltd. v. Chu's Central Market Ltd. (1989), 64 D.L.R. (4th) 167 (BCCA), at pp. 174-175. 96Martel, ~70. By contrast, the trial judge scrutinized the details of the bargaining conduct to determine whether the employer and union entities were negligent and somehow caused Warren to murder. 23 bargains, how could it owe a duty to third parties (in this case replacement workers) whose conduct (as understood by all concerned) undermines the union's position in the strike? 97

55. As the Court of Appeal observed, if anything CAW-National did amounted to a conspiracy with Warren or an active incitement that he commit murder, it would be jointly liable with Warren for his tortious criminal behaviour.98 That, however was not the case: see ~75 to 81 below. Rather, the court is being asked to speculate, under a negligence standard, about how the strike might have been conducted differently, or how the marginal participation of CAW­ National in that strike might have differed, in order that one out of the hundreds of striking employees (or, for that matter, any member of the public with misguided notions of vigilantism), might not hatch and carry through with a plan to commit mass murder.

56. Negotiations in general, and labour negotiations in particular, are complex, intricate and dynamic. One could argue that Warren's murders would have been avoided if Local 4 had acquiesced to management's demands at the outset, or voluntarily surrendered its bargaining rights, or if management had not used replacement workers, or simply never built the mine in the first place. However, given that the pursuit of legitimate goals is not actionable per se, it is impractical to scrutinize the parties' conduct during a highly complex and dynamic process and measure its impact on the psychological state and emergent criminal intentions of a lone and unknown individual. As the trial judgment illustrates, courts are not equipped to apply the law of negligence to regulate ex post facto every word uttered, every action taken and every position advocated in the course of the collective bargaining and strike process.

57. Even if the task being proposed for the courts was not impossible, it would be undesirable. Unions must be able to carry out their lawful and constitutionally recognized representational functions, and to communicate about labour issues and during labour disputes, including the use of forceful and even offensive rhetoric, without having to speculate about how one deranged individual might react. Naturally, if individuals resort to criminal behaviour, they must be held to account along with any joint tortfeasors who conspire with them or who actively

97 See MOJ ~164 (AR: Vol. 3, Tab 6, p. 166). 98 MOJ, ~39-41 (AR: Vol. 3, Tab 6, pp. 98-99). 24 incite such conduct. The web of responsibility should not be extended, however, to scrutinize, under a negligence standard, the conduct of collective bargaining, and certainly not the conduct of a national union that has engaged in advocacy and offered financial or personnel support in the pursuit of lawful and desirable goals. Rather, unions should be permitted to carry out their representational and advocacy functions without being inhibited by the imposition of a duty of care, particularly in respect of persons who are adverse in interest.

58. Furthermore, this Court has recognized that trade unions playa vital role in advancing the interests of workers and their families, benefitting both the immediate membership and society as a whole. 99 At the same time, this Court has recognized that collective bargaining disputes can have significant costs, both for the parties themselves, and for the general public. Nevertheless, "our society has come to see [these costs] as justified by the higher-goal of achieving resolution of employer-employee disputes and the maintenance of economic and social peace."IOO In this respect, it is an accepted and entirely legitimate goal in a strike for a union to attempt to prevent the employer from operating. It is a foregone conclusion that numerous third parties (e.g. the employer's customers and suppliers, the union's members' families, local businesses in a one industry town) might be adversely affected by the positions adopted by the protagonists to the dispute. Indeed, the realm of potential plaintiffs who might sustain losses because of so-called negligence in the collective bargaining process would be large and indeterminate. 101

59. Beyond these labour relations considerations, as the Court of Appeal recognized, holding third parties responsible for the deliberate, criminal acts of others undermines the fundamental principle of individual responsibility.lo2 Every member of society is exposed to a variety of influences, but is responsible for the choices he or she makes. To impose a duty of care for allegedly causing a serious criminal act, by contributing to the state of mind or motivation of the criminal actor, would extend the spectre of indeterminate liability to any potential contributing

99 Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 21; Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391. 100 R. w'D.S. u., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. [2002] 1 S.C.R. 156, ~ 25. 101 See Cooper, ~54, and Design Services Ltd., ~65. 102 MOJ, ~76-78 and cases cited in footnote 152 therein (AR: Vol. 3, Tab 6, pp. 122-125). 25 factor,103 but also distort longstanding principles of accountability and individual responsibility for the most serious of criminal acts.

(ii) CAW-National's conduct did not fall below any standard of care

60. In dealing with standard of care, the trial judge looked at the conduct of both Local 4 and CAW-National "cumulatively". As the Court of Appeal found,104 "[b]ecause the trial judge concluded that the Locals and the National Unions were one entity, he did not distinguish between those officers who were acting in their capacity as officers of the Locals, from those who were acting in their capacity as officers of the National Unions. Thus, generic findings of liability, such as those found in the Trial Reasons are not helpful." Whether CAW-National's acts were negligent must be determined by a separate assessment of its own conduct.

(a) CAW-National did not breach the standard of care

61. CAW-National submits that the conduct legally attributable to it does not fall below any standard of care. First, expert evidence established that advocating for legislative change on behalf of other unions is common among unions and union leadership.l05 This Court has repeatedly recognized the importance of the role of trade unions in social debate, as well as the fundamental freedom of trade unions to speak about matters that relate to working conditions. I 06 Second, CAW-National's $2,500 financial contribution to Local 4 was the kind of donation

103 For American cases reviewing this factor, see the Respondent Bettger's factum, discussing James v. Meow Media, Inc. 300 F. 3d 683 (C.A. 6th Cit. 2002) (QL), cert. denied 537 U.S. 1159 (2003) (QL) at pp. 693-694; Sanders v. Acclaim Entm't, Inc., 188 F. Supp. 2d 1264 (Colo. Dist. Ct. 2002). See also Davidson v. Time Warner Inc., 1997 U.S. Dist. LEXIS 21559 (Dist. Ct. for the Southern District of Texas) at QL p. 12 and Klar, Tort Law, at p. 184. 104 MOJ, ~168 (AR: Vol. 3, Tab 6, p. 168). 105 The trial judge largely accepted the evidence of CAW-National's expert: RFJ, ~473 CAR: Vol. 1, Tab 2, p. 157-8). Indeed, many others were advocating for anti-replacement worker legislation, including the Appellants' own witness, MLA Michael Ballantyne: CAW Record-Vol. II: Exhibit 760 (Tab 88, p. 310). See also: CAW Record-Vol. I: Code, 5079:1-34 (Tab 63, p. 171). Moreover, the trial judge found that Royal Oak was deemed to know that the use of replacement workers would inflame the dispute: RFJ, ~ 739 (AR: Vol. 2, Tab 2, p. 35). 106 Lavigne, per La Forest J. at pp. 333-338 and per Wilson J. at pp. 288-291; u.F.c.w., LocalI518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, ~ 25-27. 26 regularly made by national and local unions. I07 Indeed, CAW-National donates approximately $1,000,000 a year to striking unions and other causes. lOS

62. Third, CAW-National did not hold bargaining rights and had no right to represent Royal Oak employees and so could hardly have bargained in bad faith. Positions taken by David and Slezak at the bargaining table were determined by Local 4 and in any event the expert evidence established that the bargaining positions taken by Local 4 were not unusual - "the law permits parties to hard bargain".lo9 In holding that the "unions" bargained in bad faith, the trial judge relied on his view that "the Canada Labour Relations Board found that the union [Local 4] had 0 bargained in bad faith". 11 In fact, the CLRB found III that Royal Oak breached the duty to bargain in good faith based on its conduct after the murders. Not only was CAW-National not a party to the CLRB proceedings, but no finding of liability was ever made against Local 4.

63. Fourth, CAW-National did not condone or promote the illegal behaviour of striking Local 4 members. While the trial judge found that the payment of legal fees and fines, the failure to discipline and the content of strike bulletins fell below the standard of care, he did not separately consider CAW-National's acts. There was no evidence CAW-National paid any legal fees,112 nor did it pay any fines.1l3 Further, even the Appellants' expert confirmed that neither

107 CAW Record-Vol. I: Sims, 7799:30-7801:41 (Tab 55, pp. 145-147); Fisher, 3707:33-3708:10 (Tab 58, pp. 152-153). 108 CAW Record-Vol. I: Hargrove, 7894:37-7896:25 (Tab 32, pp. 80-81); 7908:33-7909:27 (Tab 34, pp. 87). 109 The Appellants' expert was aware of nothing anyone from CAW-National had done that could amount to bargaining in bad faith: CAW Record-Vol. I: Sims, 7795:22-7797:27 (Tab 53, p. 139-141); Fisher, 3722:44-3723:45 (Tab 60, pp. 158-159). 110 RFJ, ~886 (AR: Vol. 2, p. 82). 111 Royal Oak Mines Inc. (1993) 94 CLLC 16,026, at pp. 7-9, upheld Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369. 112 In any event, providing legal assistance does not breach of any standard of care. Legal aid societies pay for criminal lawyers, and they cannot be assumed to condone violence. The presumption of innocence and the right to due process may require such assistance. Indeed, as noted by Justice Cory, "[s]ome 151 charges were laid as a result of [the June 14th riot]. Yet by November 2, 1993 only eight convictions had been entered, 16 matters remained pending and 127 of the charges had been either stayed, or withdrawn, or the accused persons had been acquitted or had been discharged at the preliminary inquiry": Royal Oak Mines Inc. supra, ~10. 113 The only evidence any fines were ever paid was the evidence of striker, Terry Legge, who testified that Local 4 paid two fines for him (for a parking ticket and a mischief conviction) in March and November 27

CAW-National nor David had any authority to discipline Local 4 members or remove them from the picket line. 114 Indeed, the expert evidence established that unions do not use their internal disciplinary processes to address strike-related violence or misconduct. lIs Finally, the vetting of strike bulletins is not per se negligent and even if there were admissible evidence that David vetted any of the strike bulletins, there is no evidence that he was responsible for any content that is alleged to have fallen below any applicable standard of care (see ~19 and footnote 38 above).

64. Fifth, with respect to ~96-b of the Appellants' factum, Hargrove's 1993 statement made during a CAW-National Executive Board meeting is not evidence that CAW-National breached any standard of care in the events leading to Warren's deliberate act of murder in 1992. The two statements made by David concerning anti-replacement worker legislation and replacement workers, given the context in which they were made, cannot seriously or reasonably be regarded as advocating that replacement workers be murdered. Moreover, it is to be expected that, during the course of a strike, many individuals will say many things which, when viewed retrospectively, may appear intemperate or inappropriate. However the applicable standard of care must be sensitive to the reality of charged emotions and exaggerated and heated rhetoric in the context of a tense and difficult labour dispute. As Professor Weiler observed, "collective bargaining is not a process carried on in accordance with the Marquess of Queensbury rules, and that is especially the case when a lengthy strike is going on.,,116

65. Sixth, Slezak was in Yellowknife only once or twice during the strike. As the Court of Appeal recognized, the only two passages in the trial judgment that even suggesting Slezak committed any tortious conduct "[suffer] from the problem that the trial judge viewed all of the unions, all of their members, and all of their officers, as one entity for the purposes of determining liability" and "[do] not clearly identify what Slezak personally did that incited Warren. The suggestion that mere knowledge that tortious acts might occur leads to liability for

1993, long after Warren murdered the miners: CAW Record-Vol. I: Legge, 3541 :25-3542:41 (Tab 67, pp. 187-188); CAW Record-Vol. II: Exhibit 784 - Fine (Tab 89, p. 314); Exhibit 785 (Tab 90, p. 316). 114 CAW-Record-Vol. I: Fisher, 3723:47-3724:15 (Tab 60, pp. 159-160). 115 CAW-Record-Vol. I: Sims, 7791:33-7793:33 (Tab 52, pp. 134-136); Fisher, 3717:15-18 (Tab 59, p. 157). 116 Canadian Association of Industrial, Mechanical and Allied Workers v. Noranda Metal Industries Limited, [1974] B.C.L.R.B.D. No. 149 (Weiler), at p. 18 (QL). 28 those acts if they do occur, is erroneous in law". As the Court correctly held, "Slezak's comment that 'Witte could expect severe confrontation' cannot reasonably be read as an incitement to commit violent acts. There is nothing in this passage that would justify a finding of incitement or tortious conduct by Slezak". Thus, there is no basis to find that any of Slezak's conduct fell below any standard of care. 117

66. Finally, contrary to the Appellants' claim that David "took over the management of the strike", such that CAW-National should be held legally responsible for all of the Local's actions, David was in Yellowknife on only three occasions prior to the murders, and acted as Local 4's representative. CASAW-National did not accept David as a leader, and he was removed him from the strike until an agreement was reached regarding his subordinate role to the Local (see

~17-18 above). Indeed, as the Court of Appeal held, David "at all times acted as a representative of Local 4" (~174). More generally, as the Court of Appeal recognized, seconding an individual from one union to another to provide assistance during a strike cannot legally or factually amount to seizing management and control, and the trial judge palpably erred in so holding; as it stated, David operated "within the decision-making structure of Local 4 ... not in usurpation of its authority.,,1l8 Indeed, even the trial judge held that, from July on, the local union remained autonomous and independent from either national union. 119

(iii) CAW-National did not cause Warren's act of murder

67. The Court of Appeal correctly held that the trial judge committed a fundamental legal error by failing to apply the "but for" test and applying instead the material contribution test. The Court of Appeal also correctly held that he committed a fundamental error by failing to consider each defendant's negligent acts and omissions separately from the other defendants' .120 In addition to the Court of Appeal's reasons for finding that the trial judge committed fundamental legal errors in his causation analysis, and the submissions of the other Respondents, CAW­ National makes the following submissions.

117 MOJ, ~171-174 CAR: Vol. 3, Tab 6, pp. 169-172). 118 MOJ, ~158 (AR: Vol. 3, Tab 6, p. 163). 119 RFJ, ~189, 206, 212 and 277 (AR: Vol. 1, Tab 2, pp. 62, 67, 69 and 91). 120 MOJ, ~182-203 and 204-205 (AR: Vol. 3, Tab 6, pp. 176-185). 29

(a) Factual causation

68. The trial judge's assessment of causation respecting CAW-National is brief (five paragraphs) and devoid of any findings as to which CAW-National acts caused Warren to commit the act of murder or as to the evidence he relied on to conclude that CAW-National's allegedly negligent conduct caused Warren's act. l21 His reasons reflect his complete failure to appreciate the significance of, and to properly evaluate, this "lynchpin" of any negligence claim,122 particularly given the uniqueness of the claim that CAW -National was legally responsible for Warren's mindset causing him to commit the murders.

69. In considering whether causation was established, the trial judge did not limit his analysis to the actions of CAW-National. Rather, he concluded that all of the acts of negligence of all the defendants materially contributed to Warren's act. 123 Yet the acts of other defendants cannot be relied on to determine whether the acts of CAW-National caused Warren to commit murder. In concluding that everything that all the defendants did caused Warren to plant his bomb, the trial judge effectively circumvented the requirement that CAW-National could only be held liable if its own negligent acts caused Warren to commit murder. While the trial judgel24 referred to Warren being aware of the activities of other strikers and the role of CAW-National, this is hardly a basis for a finding causation against CA W -National on any test.

70. Throughout days of police interviews, a criminal trial, days of discoveries, pages of interrogatories and days of testimony in the trial, Warren never suggested that the acts of CAW­ National or any other union caused him to murder the miners. At trial, when asked whether any of the union actors had done influenced him to set the explosives that killed the miners, the most Warren was prepared to say was "there was a lot of things that probably influenced a lot of people and I am not going to say I wasn't influenced by something. 125 The trial judge found this

121 RFJ, ~897-90l (AR: Vol. 2, pp. 85-87). 122 Fleming, The Law o/Torts, at p. 218. 123 RFJ, ~901 (AR: Vol. 2, p. 86-87). 124 RFJ, ~899 (AR: Vol. 2, p. 86). 125 CAW Record-Vol. I: Warren, 7341 :29-36 (Tab 10, p. 22); Moreover, Warren's Rule 260 statement, which he confirmed was truthful at trial, stated that he was "infuriated" and "really pissed ... off' that he 30 to be "a truthful statement" and relied upon it. 126 This is hardly proof, on a balance of probabilities, that, but for the allegedly negligent conduct of CAW-National, Warren would not have committed murder or even that it materially contributed to Warren's act of murder. 127

71. Contrary to the Appellants' submissions, it defies common sense to suggest that CAW­ National's actions, even if negligent caused Warren to plant the lethal bomb. Indeed, had the trial judge specifically focussed on CAW-National's acts in considering whether it caused Warren's murder of the replacement workers, he would have been compelled to conclude that not only had but-for causation not been established, but also that CAW National's actual conduct did not materially contribute to Warren's decision to commit murder. For example, Warren did not have any specific knowledge of CAW-National's financial support (~14 above), he was not involved in collective bargaining and by his own admission "had no idea what was going on"; 128 he was not interested in the anti-replacement worker legislation which "was the last thing on his mind,,;129 he believed that David "exuded calmness", "never seemed to rant and rave" and was not inflammatory (see ~22 above). Indeed, even if Warren had testified that those things made him plant his bomb, which he did not, the ordinary person would unhesitatingly reject that claim.

72. Furthermore, with respect to Local 4's conduct, Warren testified that union rhetoric did not make an impression on him one way or the other at the time, that he was not listening to Slezak,130 that in his view Local4's leadership had limited capacity to control the members, that he heard Schram and Seeton say "don't do this or that," but no one was listening,l3J that the strike bulletins contained regular warnings that members should not engage in violence, threats, or drinking on the line, that Seeton told him and other members not to engage in any

had been fired for merely being on the property on June 14 and his motive for planting the explosives was "vengeance" for that termination: Warren, 7454: 1-35; 7458:46 -7459:20 (Tab 16, pp. 32-34). 126 RFJ, ~957 (AR: Vol. 2, p. 102). 127 B.M. v. British Columbia, [2004] B.C.J. No. 1506, ~ 148 (C.A.), leave to appeal denied, [2004] SCCA No. 428. 128 CAW Record-Vol. I: Warren, 7528:40-7529:6 (Tab 18, p. 38-39). 129 RFJ, ~654 (AR: Vol. 2, p. 8); CAW Record-Vol. I: Warren, 7532:28-7534:23 (Tab 20, p. 44-46). 130 CAW Record-Vol. I: Warren, 7417:29-35 (Tab 13, p. 28); 7536:45-7538:24 (Tab 21, pp. 49-51). 131 CAW Record-Vol. I: Warren, 7387:38-7388: 1 (Tab 12, pp. 26-27). 31 confrontation,132 that although he was aware that Shearing was involved in the graffiti run and "other incursions onto the property", that he viewed Shearing's actions as humorous and not serious and that "most people just thought that he was acting in his normal way which was usually doing comical things",133 and that he thought that it was "retarded" that explosives had been used in the vent shaft blast. 134

(b) Remoteness: The unions' actions were not the proximate cause of Warren's act of murder

73. Even if the but-for test were met, there is no liability in negligence if the plaintiffs injury is too remote a consequence of a defendant's negligent act. As the trial judge himself recognized,135 as a matter of law, the independent and intervening act of a third person will constitute a novus actus interveniens and break the chain of causation, unless the act committed was the very thing likely to occur. 136 The more deliberate, criminal and extreme the third party's action is, the more likely a court will be to view the harm caused as too remote to be attributed to the defendant's acts. This should particularly be the case where the defendant's negligence is alleged to have caused not only certain physical consequences, but also a particular criminal psychological mindset, recognized by the tortfeasor himself as "insane" (see ~11 above).

74. For the reasons set out above, the trial judge erred in holding that Warren's act was the very thing likely to happen, and erred in law by failing to restrict his remoteness inquiry to the acts of CAW. Had he done so, he would have been compelled to conclude that, when viewed against CAW-National's actions, the magnitude, deliberateness and abnormal nature of Warren's act was too uncommon and too disproportionate to meet the "very thing likely to happen" requirement. Lord Justice Watkins' comments in Lamb are apposite here: "We are here dealing with unreasonable conduct of an outrageous kind ... In my opinion this kind of antisocial and

132 CAW Record-Vol. I: Warren, 7534:45-7535:47; 7536:33-39 (Tab 21, pp. 47-49). 133 CAW Record-Vol. I: Warren, 7553:23-47 (Tab 23, p. 55). 134 CAW Record-Vol. I: Warren, 7554:39-7555:9 (Tab 23, p. 56-57). 135 RFJ, ~641, 644, 645 CAR: VoL 2, pp. 5-7). 136 Home Office v. Dorset Yacht Co., [1970] A.c. 1004 (H.L.), per Lord Reid at p. 26 (QL). More generally, see KIar, Tort Law, pp. 492-499. 32 criminal behaviour provides a glaring example of an act which inevitably, or almost so, is too remote to cause a defendant to pay damages for the consequences of it". 137

(iv) "Concerted action liability": CAW-National is not a joint tortfeasor with Warren in committing murder

75. In this Court, the Appellants seek to advance a new basis for CAW-National liability, namely that "CAW ... joined with Warren in concerted wrongful action" (see especially ~85 to 87), i.e. in murdering the replacement workers. There is no basis in law or fact for this claim. Warren and CAW-National were not in any way "jointly engage[d] in wrongful activity", or "jointly act[ing] to further a common wrongful goal." Warren alone planned, organized and murdered the replacement workers. No one else had any knowledge of Warren's plan to plant explosives. Only Warren knew and intended that his action would result in murder. It defies both common sense and established legal principles for the Appellants to suggest that CAW-National assisted Warren in committing murder, induced or incited him to do so, or participated together with him in committing his heinous act.

76. As to the so-called factual basis for the Appellants' claim (~86), trespass or damage to property cannot possibly be equated to murder, nor can "praise" for Bettger illegally entering

Akaitcho. Further, as noted in ~10 above, the claim that Bettger and others "convinced" Warren he could enter the mine through Akaitcho is not supported by the evidence, but even so, entering the mine is not tantamount to the commission of murder or an inducement or incitement to do so. Finally, the payment of strike pay cannot conceivably constitute an incitement to murder.

77. Indeed, the Appellants' own authorities illustrate just how far removed the facts of this case are from the circumstances in which joint liability for an intentional tort may be found. 138 The House of Lords' decision in Generale Bank Nederland confirms that, in order to be a joint tortfeasor (in that case, in committing the less serious tort of deceit), a defendant must be party to

137 Lamb, at p. 22 (QL). See also Lord Justice Oliver's reasons at pp. 17-18 and 19 (QL). 138 For Canadian cases illustrating the same point, see Bains v. Hots, 1992 CanUI 264 (BC S.C.), pp. 7- 12 and Newcastle (Town) v. Mattatall (1988), 52 D.L.R. (4th) 356 (N.B.C.A.) at pp. 365-68. The Appellants' reliance on the B.C. Court of Appeal's decision in ICBC v. Vancouver (City) is also misplaced. There, the court independently examined the actions of the two police officers and found that one had been negligent, but the other had not. 33 a common design to commit the specific intentional tort, which requires the "requisite knowledge" and "complicity" in committing that very tort. As the House of Lords also held, in order to be found to have induced or incited tortious conduct, an individual must "identifiably procure a particular" tortious act. 139 As the English Court of Appeal held in the same case, a finding of common design requires that there be common or concerted action, or at least agreement on concerted action, with the individual who actually commits the wrongful act. At the very least, absent knowing assistance in, specific procurement of, or physical presence at the commission of the wrongful act, there cannot be concerted action liability as a joint tortfeasor. 140

78. The Appellants also rely on The Koursk. There, the court found the defendants were not joint tortfeasors, precisely because the defendant did not commit the specific tort in question on behalf of, or in concert with, the primary tortfeasor. There was no concerted action to a common end. As Carty notes,141 in order for an agreement or conspiracy to give rise to a legal finding of joint tortfeasance, there must be "active complicity" on the part of the secondary tortfeasor, at the very least in the form of "acts in pursuance of the wrongful end", i.e. the primary tort.

79. There is no basis for holding that CAW-National undertook any acts in common with Warren, or had any common design with him to murder the replacement workers. CAW­ National had no knowledge of or complicity in the battery committed by Warren, did not engage in any concerted action with him, and did not participate in any actions in pursuance of Warren's murderous act. Contrary to the Appellants' claim that Warren committed murder to further a shared unlawful purpose with CAW-National, CAW-National simply did not participate in any common design or plan with Warren, much less in a common unlawful plan.

139 Generale Bank Nederland NV v. Export Credits Guarantee Department, [2000] HL 486 at p. 3 and 10 (Appellants' Authorities, Vol. 1, Tab 25) 140 In its reasons in Generale Bank Nederland v. Export Credits Guarantee Department [1997] EWCA Civ 2165, the English Court of Appeal also cited Unilever pis v. Gillette (holding that liability as a joint tortfeasor requires a joint act done in pursuit of a common purpose) and CBS Songs v. Armstrad,(holding that in order to found joint liability in tort, there must be a common design to perform the specific wrongful act, with at least one party acting in furtherance of that common design to carry out that act): see Appellants' Authorities, Vol. 2, Tab 42. 141 Carty, H., "Joint Tortfeasor and Assistance Liability" (1999) 19 Legal Stud 489, at p. 500. 34

80. In order to give rise to joint liability, the cause of action against both must be the same, and there must be one tort committed by one of them on behalf of or in concert with the other (as per Scrutton L.1. in The Koursk). Put another way, the wrongful act must be committed in common, such that the same evidence must support the same cause of action against each tortfeasor. 142 By contrast, the evidence led and relied upon by the Appellants to establish liability for Warren's tortious and criminal act is completely different than the evidence the Appellants led and relied upon in attempting to establish CAW-National's liability.

81. Finally, the Appellants rely on Martin and Mainland Sawmills. However, in Martin four brothers converged on the plaintiff s property with the common design of fighting with the plaintiff and, on this basis, all four brother were found to be joint torfeasors when one brother attacked and severely injured the plaintiff. Similarly, the court's ruling in Mainland Sawmills that the individual defendants who attended the mill were liable as joint tortfeasors was based on its finding that they did so with the common purpose of shutting down the mill by way of concerted action involving specifically agreed illegal acts, including trespassing, threatening and forcing Mainland employees to leave the mill. (~182-187). As the court found, "[0 ]nce they were at Mainland, the defendants formed a common purpose to force the workers out by trespassing on Mainland's property and using threats of force, if necessary, to accomplish their objective.

This was unlawful" (~182). Had a CAW National official or agent accompanied Warren to the mine with the intent of doing harm to the replacement workers, with Warren committing the murderous act, then those individuals and CAW-National may well be joint tortfeasors. However, this would be a very different case.

C. CAW-National is not vicariously liable for Warren's act of murder

82. As the Court of Appeal recognized, following this Court's guidance,143 "vicarious liability is a consequence of certain relationships". To impose vicarious liability outside of the recognized relationships of "employer and employee and of principal and agent", first it must be

142 Klar, L., et aI., Remedies in Tort, looseleaf (Toronto: Carswell, 1987), at p. 26 -26. 143 Bazley v. Curry [1999] 2 S.C.R. 534; Jacobi v. Griffiths [1999] 2 S.C.R. 570; KL.B. v. British Columbia, [2003] 2 S.C.R. 403; John Doe v. Bennett [2004] 1 S.C.R. 436; E.B. v. Order of the Oblates ofMary Immaculate in the Province ofBritish Columbia, [2005] 3 S.C.R. 45 ~ 25-28. 35 shown "that the relationship between the tortfeasor and the person against whom vicarious liability is alleged is sufficiently close to make vicarious liability appropriate" and, second, "the tort must be sufficiently connected to the tortfeasor's assigned tasks". 144

(i) Union-member relationship does not give rise to vicarious liability

83. Prior to the Court of Appeal's decision, no appellate court had considered whether the relationship between a union and a member (who, like Warren, is not an employee, official or agent), is sufficiently close so as to give rise to the possibility of vicarious liability.145 The trial judge did not consider this question at all, nor do the Appellants directly address this issue in their factum. In contrast, the Court of Appeal properly found that the "relationship between a member and his or her union is not characterized by the level of control, unity of purpose and proximity needed to generate vicarious liability.,,146

84. This Court has held that only a limited number of relationships are capable of attracting vicarious liability. This is because, in order for a relationship to be capable of giving rise to vicarious liability, the overriding factor, and pre-eminent consideration "is the extent of control the tortfeasor by the entity/person sought to be made vicariously liable".147 As the Court of Appeal observed, "the law starts, however, from the presumption that one legal entity is not vicariously liable for the torts of another". 148

85. Contrary to the Appellants' claim (~82), the relationship between union and member is not one of control and subordination. Indeed unlike employers and principals, unions do not choose or control who their members are. Moreover, given a union's core statutory function of representing the collectivity, its mandate requires it to reconcile the different interests among its

144 MOJ, ~146-147 (AR: Vol. 3, Tab 6, pp. 157). 145 In arguing that the case law already has determined that a union can be vicariously liable for the acts of a member, the Appellants rely in footnote 133 on Matusiak v. British Columbia and Yukon Building Trades Council and Mainland Sawmills Ltd. v. USW Union Local 1-3567. However, unlike the instant case, in which Warren acted entirely alone, officers or agents of the union entities in those cases were found to have participated in, planned, organized, or authorized the specific tortious conduct at issue. 146 MOJ, ~147-148 (AR: Vol. 3, Tab 6, pp. 157-158). 147 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, ~ 25,47,55; K.L.B., ~22. 148 MOJ, ~146 (AR: Vol. 3, Tab 6, p. 157). 36 membership. In this context, a member's acts cannot be reasonably regarded as being controlled by the union, or as the actions of the union. Indeed, in Berry (~60), this Court expressly recognized that, unlike the legal relationship between and employer-employee and principal­ agent, the relationship between a union and its members contains an inherent expectation that members will have, and are legally entitled to have, different aims and objects from the union. 149 The absence of control by unions of their members is particularly evident in this case, where many members crossed the picket line, against Local 4's wishes. In fact, the Plaintiff O'Neil, a member of Local 4, started a rival organization and campaigned to have Local 4 replaced, all while Local 4 had a statutory duty to represent him.

86. As then-Arbitrator Laskin held in a seminal arbitration award, a union member's acts cannot be considered to be the act of the union simply by virtue of union membership: 150

A union may contract ... to accept liability for the conduct of a member but if it does so its ensuing responsibility does not arise under any principle of vicarious liability but by virtue of a contractual obligation. A union normally has officers and employees who, under varying circumstances, may implicate it in vicarious liability for tort and in so-called personal liability in contract. But members of a union are not, as members only, either employees or servants of a union, or its agents, and their actions are not the actions of the union for which the latter must respond either in tort or in contract. A union member cannot, as such, bind the union in contract or make it liable vicariously for his tortious conduct merely by representing that he is acting for the union. Apart from principles of estoppel and kindred doctrines, upon which it is unnecessary to dilate here, his acts are no more the acts of his union than the acts of a mere shareholder in a corporation are the acts of the corporation. [emphasis added]

87. This approach to the scope of vicarious liability is also consistent with the legislative balance crafted by Parliament. Section 103(2)(b) of the Code provides that a union is liable only for acts carried out by its officers or agents acting in course of their duties, not for those of its members.

149 Similarly, in Lavigne, this Court held that a union member would not be identified with the actions of his union in contributing to particular causes, since a union acts in its own name and not in the name of all bargaining unit members. Conversely, the actions of a union member cannot be reasonably viewed as acts of the union. Certainly, there is no evidence that Warren held himself out as acting on behalf of Local 4. See also Syndicat Catholique des Employes de Magasins de Quebec Inc. v. Paquet Ltee, [1959] S.C.R. 206, at p. 214 (union is not an agent of individual members). 150 Polymer Corp v. Oil, Chemical & Atomic Workers (1958), 10 L.A.C. 31 at ~4. 37

88. Imposing vicarious liability on the member/union relationship for all the actions of individual members, irrespective of the union's fault, would seriously restrict the lawful operations of trade unions. It would make unions reluctant to exercise their statutory rights, including the right to organize and to engage in a lawful strike, out of concern that they would be liable for any act of a member irrespective of the conduct their officers or agents. Trade union advocacy and collective bargaining are beneficial activities to be promoted in our society, including the activities of national unions providing financial and other support to striking employees in their own locals or locals of another union. 151

89. Grounding vicarious liability in membership would have seriously adverse policy consequences for organizations as diverse as law societies, professional associations, advocacy groups, cultural and ethnic organizations, sports and recreational organizations, political parties and religious groups. Membership-based associations or organizations would be potentially responsible for all of the acts of their members. This would fundamentally alter the relationship between these associations and their members, unduly deter associations from engaging in various activities, impose potentially onerous liabilities and diminish member autonomy.

(ii) No close connection between any functions or powers assigned to Warren and Warren's deliberate act of murder

90. As the Court of Appeal recognized, even if control exercised by unions over their members was sufficient to justify making the relationship one of vicarious liability, it must then be determined "whether the member in question committed a tort in the scope of some specific duty assigned to that member on behalf of the union". 152 What is required is a "material increase in the risk as a consequence of the ... enterprise and the duties ... entrusted to the employee, mindful of the policies behind vicarious liability". 153

151 Reference re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 31, per Dickson C.J., pp. 334-335; Lavigne, per Wilson. J., p. 288-90; Pepsi-Cola, per McLachlin C.J.C., ~34-35, Dunmore v. Ontario (Attorney General) [2001] 3 S.C.R. 1016, per Bastarache J., ~38; Health Services, supra. 152 MOJ, ~148 (AR: Vol. 3, Tab 6, p. 158). Contrary to the Appellant's claim (~84), the Court of Appeal did not hold that the member had to be assigned "the specific wrongful act." 153 Bazley, ~42; Jacobi, ~21 and 84,' Order of Oblates, ~26-32; H. (S.G.) v. Gorsline, 2004 ABCA 186 (CanLII), ~20-27, leave to appeal denied, [2004] S.C.C.A. No. 385. 38

91. Thus, the test is not, as the Appellants assert, whether in the abstract, Warren's act was

"closely connected to the strike" (~83), but rather whether there was any specific power or function conferred on Warren by CAW-National, CASA W-National, or by Local 4. Nothing in Warren's receiving strike payor participating in picket line duty afforded Warren any additional or special opportunity to plant a bomb to commit murder against the deceased miners.

92. In Bazley v. Curry (~41), the Court identified a list of five factors for determining, in the case of intentional torts, whether there is a sufficient connection between the tortfeasor's wrongful conduct and the powers specifically assigned to him by the defendant. The first factor is whether the enterprise afforded the tortfeasor the opportunity to abuse his or her power. Nothing in CAW-National's or Local 4's enterprises afforded Warren any additional or special opportunity to commit murder. The unions provided Warren with no privileged access to the victims of his wrongful act. 154 Indeed a public highway through the mine property afforded everyone the same access.

93. The second factor is the extent to which the wrongful act may have furthered the enterprise's aims. Warren's criminal act did not further the aims of CAW-National, CASA W­ National or Local 4. The various unions' aims, as reflected in their constitutions and bylaws, were concerned with safeguarding the economic security and welfare of the workers they represented, improving their conditions of employment, and working with other unions for the same purposes. 155 Further, while Local4's goal was to exert economic pressure on the employer by seeking to limit production, it is unreasonable to assert, as do the Appellants (~83-84), that this objective would be advanced by, or that it extended to, a deliberate act of murder.

94. The third factor is the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the enterprise. Contrary to the Appellants' submissions

(~81), any friction or confrontation that is inherent in the statutory framework of our collective

154 Indeed, even where privileged access has been afforded, this Court has affirmed the historical reluctance of the courts to fix an organization with strict liability merely on this basis: Jacobi, ~45-51. 155 As this Court recognized in considering this factor in Jacobi, ~53, "an employer's aims [in that case, as reflected in its mission] .... provide some guidance as to what risks the employer reasonably believed it was introducing into the community, and thus the sort of broad risks it may reasonably have contemplated, and for which it may reasonably be held responsible". 39 bargaining system does not extend down a slippery slope to an aberrant and outrageous act of murder. 156 As stated by McLachlin 1. in Bazley, and reiterated by Justice Binnie in Jacobi, the focus must be on "the measure of risks that may fairly be regarded as typical of the enterprise in question" (~39, emphasis original). Tens of thousands of labour disputes have taken place under labour legislation in which criminal conduct was not involved, let alone acts of murder.

95. The fourth factor is the extent of power conferred on the torfeasor in relation to the victim. Neither the national unions, nor Local 4, had any power over the replacement workers, nor did they confer any such power on Warren. Rather, there were other entities with authority and responsibility interposed between Warren and the replacement workers (Jacobi, ~80 and 83- 84). Control and power over the replacement workers rested with the Royal Oak, which contracted for the replacement workers' services, controlled what they did and where they went, and controlled access to the mine site and the security measures taken. In this respect, holding unions vicariously liable for criminal acts committed by a striking employee, particularly away from the picket line or in the absence of any union assigned function, would penalize unions for conduct they cannot meaningfully control. It would also seriously risk deterring unions from engaging in socially valued activities. 157 As this Court recognized in Jacobi, "there may be little an employer can do in reality to deter [serious criminal] ... conduct if the possibility of ten years in jail is not sufficient" (~73). Similarly, there may be little a union can do where the possibility of life imprisonment for murder is not sufficient. 158

96. Finally, the fifth factor is the vulnerability of potential victims to wrongful exercise of the tortfeasor's power. Unlike the sexual abuse cases, in which the employer found to be vicariously liable had placed the victims in a position where they were entirely dependent upon and vulnerable to the wrongdoer, the unions in this case did nothing to create a dependence, reliance or vulnerability of the replacement workers on Warren. As Justice Binnie stated in Order of the

156 See Jacobi, ~82 (mentoring does not lead to a slippery slope to sexual abuse). 157 Order o/Oblates, ~54- 55; Jacobi, ~67 and H. (S.G.) v. Gorsline, ~ 28-29. 158 As this Court recognized in Jacobi, the policy considerations of compensation and deterrence, which may favour extending vicarious liability to deter for-profit enterprises, have more limited application in the context of not-for-profit enterprises (~67-77). 40

Oblates (~48, 51), to give rise to vicarious liability, any vulnerability must be related to the tasks assigned by the organization to the tortfeasor.

97. The trial judge relied on John Doe to conclude that authorization is not required to establish vicarious liability.159 In fact, John Doe emphasized that it was the extent of special power and "god-like" authority provided by the diocese to the tortfeasor Bennett, and the power imbalance this created and intensified, that made the diocese vicariously liable (see ~30-32). One need only contrast the Diocese's specific assignment and conferral of power and authority with the complete absence of any equivalent or analogous conferral of power from CAW -National or Local 4 in this case to recognize there is no ground to impose vicarious liability.

98. Finally, even if Local 4 could somehow be found to have assigned Warren a specific power or function in relation to the replacement workers, it cannot be plausibly suggested that CASAW-National did so. Warren was not a member of CAW-National. Thus, CAW-National's "vicarious liability", if any, can only result from its having assumed CASA W-National's liabilities following the 1994 merger; it did not assume Local 4' s liabilities. Thus, even if Local 4 were somehow vicariously liable, its liability would not extend to CAW-National.

PARTS IV and V - COSTS AND ORDER SOUGHT

99. CAW-National requests that the Court dismiss this appeal with costs in this Court together with the costs previously awarded on appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

April 8, 2009 Steven BarrettlEthan PoskanzerNanessa Payne SACK GOLDBLATT MITCHELL LLP

Pat Nugent CHIVERS CARPENTER

Counsel for the Respondent, CAW-National

159 RFJ, ~918 (AR: Vol. 2, p. 92). PART VI - TABLE OF AUTHORITIES

Case Paragraph number

671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 84 983

ATU v. ICTU [1997] AJ. No. 191 22

Bains v. Hoft, (1992), 76 B.C.L.R. (2d) 99; 1992 CanLIl 264 (BC S.C.) 77

Bazley v. Curry [1999] 2 S.C.R. 534 82,90,92,94

Berry v. Pulley, [2002] 2 S.C.R. 493 22,23,25,34,85

B.M v. British Columbia [2004] B.CJ. No. 1506 (C.A.), leave to 70 appeal denied: [2004] SCCA No. 428]

Canadian Association of Industrial, Mechanical and Allied Workers v. 64 Noranda Metal Industries Limited, [1974] B.C.L.R.B.D. No. 149 (Weiler)

Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 44 1 S.C.R. 1021

C. UP.E. v. Deveau, 19 N.S.R. (2d) 44 (S.C.T.D.); affd 19 N.S.R. (2d) 35 24 (C.A.)

Childs v. Desormeaux, [2006] 1 S.C.R. 643 43,4449,50

Cooper v. Hobart, [2001] 3 S.C.R. 537 36,43,44,50,52,58

Davidson v. Time Warner Inc., 1997 U.S. Dist. LEXIS 21559 (Dist. Ct. 59 for the Southern District of Texas)

Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737 50,58

E.B. v. Order of the Oblates of Mary Immaculate in the Province of 82,90,96,95 British Columbia, [2005] 3 S.C.R. 45

Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 52

Fullowka et al. v. Royal Oak Ventures Ltd., [2003] N.W.TJ. No. 66 22

Fullowka v. Slezak, 2002 NWTSC 13 (CanLIl) 2 2

Case Paragraph number

Generale Bank Nederland Nv v. Export Credits Guarantee Department 77 [1997] EWCA Civ 2165 (CA)

Generale Bank Nederland Nv v. Export Credits Guarantee Department 77 [2000] HL 486

Health Services and Support - Facilities Subsector Bargaining Assn. v. 58,88 British Columbia, [2007] 2 S.C.R. 391

Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 43 S.c.R. 129

Home Office v. Dorset Yacht Co., [1970] A.C. 1004 (H.L.) 73

H (S G.) v. Gorsline, 2004 ABCA 186, leave to appeal dismissed 90,95 [2004] S.C.C.A. No. 385

ICBC v. Vancouver (City), 2000 BCCA 12 (CanLII) 77

International Brotherhood of Teamsters, Chauffeurs Warehousemen & 24 Helpers, Building Material, Construction and Fuel Truck Drivers, Local No. 213 v. Therien, [1960] S.C.R. 265

International Brotherhood of Teamsters v. International 23,25 Longshoremen's Association, Local 273 v. Maritime Employers' Association [1979] 1 S.C.R. 120

Jacobi v. Griffiths, [1999] 2 S.C.R. 570 82,90,93,94,95

James v. Meow Media, Inc. 300 F. 3d 683 (C.A. 6th Cir. 2002), cert. 59 denied 537 U.S. 1159 (2003)

John Doe v. Bennett, [2004] 1 S.C.R. 436 82,97

Kamahap Enterprises Ltd v. Chu /s Central Market Ltd (1989), 64 53 D.L.R. (4th) 167 (BCCA)

K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 82,97

Lamb v. CLB, [1981] Q.B. 625 (C.A.) 37, 74

Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 58,61,85,88 211 3

Case Paragraph number

I.C U.C v. C u.P. W, Edmonton Local, [1994] 2 W.W.R. 450 35

MacKendrick v. National Union of Dock Labourers in Great Britain 35 and Ireland, 1910, Scots Law Times 215

Mainland Sawmills Ltd. v. USW Union Local 1-3567, 2007 BCSC 1343 81,83

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860 53,54

Martin v. Martin (1996), 176 N.B.R. (2d) 178 (C.A.) 81

Matusiak v. British Columbia and Yukon Building Trades Council, 83 [1999] B.C.J. No. 2416

New Brunswick Electric Power Commission v. IBEW Local 1733 33 (1976), 16 N.B.R. (2d) 361 (C.A.)

New South Wales v. Godfrey [2004] NSWCA 113 37

Newcastle (Town) v. Mattatall (1988), 52 D.L.R. (4th) 356 (N.B.C.A.) 77

Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 36,43,44,48

Penegal Trim and Supply Ltd., [1998] O.L.R.D. No. 3834 26

P. Perl (Exporters) Ltd. v. Camden London Borough Council, [1983] 3 37 All E.R. 161 (C.A.), leave to appeal refused [1983] 3 All ER at 172 (H.L.)

Polymer Corp v. Oil, Chemical, & Atomic Workers (1958), 10 I.A.C 86 31

Procor Ltd. v. USWA, (1989), 71 O.R. (2d) 410 (S.C.) 33

Professional Institute of the Public Service of Canada and Canada 25 (Attorney General), (2002),222 D.L.R. (4th) 438 (Ont. C.A.)

Reference re Public Service Employee Relations Act (Alta.), [1987] 1 88 S.C.R. 313

Repla Limited, [1990] O.L.R.B. Rep. May 612 26 4

Case Paragraph number

Robertson v. Adigbite, [2000] B.C.J. No. 1192 (S.C.) 37

Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 62,63 S.C.R. 369

Royal Oak Mines Inc. (1993) 94 CLLC 16,026 62

R. W.D.S. U, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd, 58,88 [2002] 1 S.C.R. 156

Sanders v. Acclaim Entm't, Inc., 188 F. Supp. 2d 1264 (Colo. Dist. Ct. 59 2002)

Smith v. Littlewoods Organisation Ltd., [1987] H.L.l No.3 37

Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83 43,52

Syndicat Catholique des Employes de Magasins de Quebec Inc. v. 85 Paquet Ltee, [1959] S.C.R. 206

The Koursk, [1924] All E.R. 168 (C.A.) 78,80

UF.c.w., Local 1518 v. KMartCanadaLtd., [1999] 2 S.C.R. 1083 61

United Association of Journeymen and Apprentices of the Plumbing 26 and Pipefitting Industry of the United States and Canada (UA), Local 772 v. Steen Contractors Ltd, [1991] N.B.I.R.D. No. 15

USWA v. Gaspe Copper Mines, [1970] S.C.R. 362 33

Vancouver Machinery Depot Ltd v. United Steelworkers of America 33 1948 CarswellBC 51

Books and Articles

Carty, H., "Joint Tortfeasor and Assistance Liability" (1999) 19 Legal 78 Stud 489

Carrothers et aI., Collective Bargaining Law in Canada (Toronto: 25,34 Butterworths, 1986) at pp. 737-738

Fleming, The Law of Torts, 9th ed. (North Ryde, LBC Information 44,68 5

Case Paragraph number

Services, 1998), at p. 218

KIar, L., Tort Law, 4th ed. (Toronto: Carswell, 2008) pp. 183-185, 37,59,73 203-216,491-99

KIar, L., et al., Remedies in Tort, looseleaf (Toronto: Carswell, 1987), 80 p. 26 -26

MacNeil et al., Trade Union Law in Canada (Aurora: Canada Law 22,29 Book, 2008), pp. 5-6, 5-7 PART VII - STATUTORY PROVISIONS

Canada Labour Code, R.S. 1985 ch L-2, s. 3(1), 103(b):

3. (1) In this Part,

"bargaining agent" means

(a) a trade union that has been certified by the Board as the bargaining agent for the employees in a bargaining unit and the certification of which has not been revoked, or

(b) any other trade union that has entered into a collective agreement on behalf of the employees in a bargaining unit

(i) the term of which has not expired, or

(ii) in respect of which the trade union has, by notice given pursuant to subsection 49(1), required the employer to commence collective bargaining;

"trade union" means any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees.

103. (1) A prosecution for an offence under this Part may be brought against and in the name of an employers' organization, a trade union or a council of trade unions.

(2) For the purpose of a prosecution under subsection (1),

(a) an employers' organization, trade union or council of trade unions shall be deemed to be a person; and

(b) any act or thing done or omitted to be done by an officer or agent of an employers' organization, trade union or council of trade unions within the scope of their authority to act on behalf of the employers' organization, trade union or council of trade unions shall be deemed to be an act or thing done or omitted to be done by the employers' organization, trade union or council of trade unions.

Code canadien du travail, L-2, S. 3(1):

3. (1) Les definitions qui suivent s'appliquent a la presente partie.

agent negociateur a) Syndicat accredite par Ie Conseil et representant a ce titre une unite de negociation, et dont l'accreditation n'a pas ete revoquee; ii b) tout autre syndicat ayant conclu, pour Ie compte des employes d'une unite de negociation, une convention collective:

(i) soit qui n'est pas expiree,

(ii) soit a l'egard de laquelle il a transmis a l'employeur, en application du paragraphe 49(1), un avis de negociation collective. syndicat » Association - y compris toute subdivision ou section locale de celle-ci - regroupant des employes en vue notamment de la reglementation des relations entre employeurs et employes.

103. (1) Les poursuites visant une infraction a la presente partie peuvent etre intentees contre une organisation patronale, un syndicat ou un regroupement de syndicats et en leur nom.

(2) Dans Ie cadre des poursuites prevues par Ie paragraphe (1) :

a) les organisations patronales, les syndicats ou les regroupements de syndicats sont reputes etre des personnes;

b) les actes ou omissions des dirigeants ou des mandataires de ces groupements dans la mesure ou ils ont Ie pouvoir d'agir en leur nom sont reputes etre Ie fait de ces groupements.

Rules of the Supreme Court of the Northwest Territories, R-OIO-96, Rules. 260 and 266:

260. (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf of, in place of or in addition to the party and the party subsequently discovers that the answer to a question on the examination was incorrect or incomplete when made or is no longer correct and complete, the party shall forthwith provide the information in writing to every other party.

(2) Where a party provides information under subrule (1), (a) the information shall be treated at a hearing as if it formed part of the original examination of the person examined; and (b) any party adverse in interest may require that the information be verified by affidavit by the party or be subject to further examination for discovery.

(3) Where a party has failed to comply with subrule (1) or a requirement under subrule (2)(b) and the information subsequently discovered III

(a) is favourable to the party's case, the party may not introduce the information at the trial, except with leave of the trial judge; or

(b) is not favourable to the party's case, the Court may make such order as it considers just.

266. (1) At the trial of an action, a party may read into evidence, as part of the party's case against a party adverse in interest, any part of the evidence given on an examination for discovery of the party adverse in interest or, unless the trial judge orders otherwise, a person examined for discovery on behalf of, in place of or in addition to the party adverse in interest, if the evidence is otherwise admissible, whether the party or person has already given evidence or not.

(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement of that witness.

(3) Where only part ofthe evidence given on an examination for discovery is read into or used in evidence, the trial judge, at the request of a party adverse in interest, may direct the introduction of any other part of the evidence that qualifies or explains the part first read or used.

(4) Where a party reads into evidence as part of the party's case evidence given on an examination for discovery of a party adverse in interest, or of a person examined for discovery on behalf of, in place of or in addition to a party adverse in interest, the party may rebut that evidence by introducing any other admissible evidence.

(5) Evidence given on an examination for discovery of a party under disability may be read into or used in evidence at the trial only with leave of the trial judge.

Regles de la Cour supreme des Territoires du Nord-Ouest, R-OI0-96, Regles 260 et 266:

260. (1) La partie interrogee au prealable, ou la personne qui l'est au nom, a la place ou en plus de cette partie, qui decouvre ulterieurement qu'une reponse a une question de l'interrogatoire etait inexacte ou incomplete ou n'est plus exacte ou complete, foumit immediatement par ecrit ce renseignement a toutes les autres parties.

(2) Les renseignements foumis par ecrit par une partie en application du paragraphe (1) sont traites lors d'une audience comme s'ils faisaient partie de l'interrogatoire initial de la personne interrogee et une partie ayant un interet oppose peut exiger que ces renseignements soient appuyes d'un affidavit de la partie ou qu'ils fassent l'objet d'un nouvel interrogatoire prealable.

(3) Lorsqu'une partie omet de se conformer au paragraphe (1) ou aune exigence prevue aalinea (2)b) et que les renseignements ulterieurement communiques sont, selon Ie cas: iv

a) favorables a sa cause, cette partie ne peut les presenter en preuve au proces qu'avec I' autorisation du juge qui preside;

b) defavorables a sa cause, Ie tribunal peut rendre l'ordonnance qui lui semble equitable.

266. (1) Dne partie peut, a I'instruction, consigner comme element de sa preuve contre une partie ayant un interet oppose, un extrait de l'interrogatoire prealable de la partie opposee ou, a moins d'ordonnance contraire dujuge qui preside, d'une personne interrogee en son nom, a Ia place ou en plus de la partie ayant un interet oppose, si la preuve est par ailleurs admissible et independamment du fait que cette partie ou que cette personne ait deja temoigne.

(2) Les depositions recueillies a l'interrogatoire prealable peuvent etre utilisees pour attaquer la credibilite du deposant a titre de temoin de Ia meme fa<;on qu'une declaration incompatible anterieure de ce temoin.

(3) Lorsqu'une partie seulement d'une deposition recueillie a l'interrogatoire prealable est consignee ou utilisee en preuve, Ie juge qui preside, a la demande de la partie ayant un interet oppose, peut ordonner Ia presentation d'autres extraits qui la nuancent ou l'expliquent.

(4) La partie qui consigne comme element de sa preuve un extrait d'une deposition recueillie a l'interrogatoire prealable d'une partie ayant un interet oppose ou d'une partie interrogee au prealable pour Ie compte, a la place ou en plus de la partie ayant un interet oppose, peut Ie refuter en presentant une autre preuve admissible.

(5) La deposition d'une partie incapable recueillie a l'interrogatoire prealable ne peut etre consignee ou utilisee en preuve a l'instruction qu'avec l'autorisation dujuge qui preside.