The trial judge found all of the defendants to be joint tortfeasors. He also found some who were joint tortfeasors where also involved enough to be at fault and liable based on their own conduct. Once the judge held all the defendants to be joint tortfeasors because they had the requisite unlawful common purpose or common design, the conduct of one was the conduct of all. It wasn't just a matter of all being liable for the conduct of those who actually committed the acts which injured.
The trial judge also erred in stating that the joint and several liability produced by joint tortfeasor status extends to punitive damages liability for those liable only as joint tortfeasors and not because of their own conduct. First, that's inconsistent with the Canadian requirement that punitive damages requires that the person held liable have committed the impugned conduct. Secondly, there's case law; albeit it's (from the BC perspective, the nefarious province of) Ontario law: Townsview Properties Ltd. v. Sun Construction and Equipment Co. (1974), 7 O.R. (2d) 666 at 669 where, in respect of what should be characterised as either a joint tort (joint venture) situation or a principal-agent relationship the court states: "the trial judge erred in failing to consider the evidence against each of these defendants separately". See, also, Ontario Law Reform Commission, Report On Exemplary Damages (1991), at 58-59. There's similar case law (I recall) in Australia. Curiously, the trial judge spotted this issue - or, I'm guessing the trial judge had an inkling of it - when dealing with the union's liability for punitive damages. The judge held that its liability was based on its own misconduct. Yet, the judge missed the point a few paragraphs later when dealing with the individual defendants [para 320-21].
For much the same reasons, this one and a case that's due to be argued on appeal very soon (Fullowka et al v. Royal Oak Ventures Inc. 2004 NWTSC 66 (CanLII) - another case arising out of strike related violence but with far more tragic results) may end up providing Canadian judges with the beginning of a useful road-map for the Resurfice material-contribution test in cases that don't involve scientific (evidence) uncertainty issues. Or not.
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From: David Cheifetz
Sent: October 2, 2007 8:24 PM
Subject: RE: Resurfice - Scraping the ...
Dear Colleagues:
There is a very recent BC case worth mentioning that didn't make it into the current iteration of “Scraping” that Canadian practitioners and academics lawyers need to be aware of. I assume it will be appealed.
You'll see the use of Resurfice material-contribution in a case that doesn't involve any gap in evidence due to science issues.
You'll see the use of Cook v. Lewis in a completely new way - the Resurfice way, whatever that is, not the Cook v. Lewis meaning.
You'll see a judge apportioning fault between where all of the causative conduct (there were some joint tortfeasors so not all of the impugned acts were done by everybody and there's some vicarious liability) without, apparently, realizing that Resurfice material-contribution does not identify conduct that caused the harm.
I suggest the case shows just how broadly some Canadian trial judges will read Resurfice's material-contribution declarations. Not surprisingly, it's from British Columbia. I'll set out the salient portions. It walks into a host of the problems I've outlined in “Scraping”.
Mainland Sawmills Ltd. v. USW Union Local – 1-3567, 2007 BCSC 1433 - Sept 26/07 (also pdf)
[1] This action stems from an incident that took place at Mainland Sawmills in Vancouver on the evening of December 16, 2003. The plaintiffs were employees of Mainland and members of Local Union 2171 of what was then the IWA Canada. Local 2171 was one of five locals of the IWA, along with Local 1-3567, which worked under the terms of the Coast Master Agreement, a collective agreement with Forest Industrial Relations Limited (FIR). The IWA later merged with the defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), which became its successor union for the purpose of collective bargaining.
[5] The plaintiffs claim that the defendants trespassed on the Mainland premises and shut down the mill operation by means of violence, physical force, intimidation and threats. The principal causes of action are assault and assault with battery. The plaintiffs each claim general, aggravated and punitive damages against all defendants. They claim that the personal defendants are joint tortfeasors and that the IWA Local 1-3567, the USW Local 1-3567 (the Union) and the USW Local 1-3567 Society (the Society) are vicariously liable for the torts of the personal defendants.
[186] Ms. Young submitted that there must be a specific finding of fault against a defendant in order to find liability – in other words, to find that a specific defendant committed a specific assault. In my opinion, this is not necessary. First, all of the personal defendants were at Mainland on December 16, 2003, and the plaintiffs were assaulted by persons who attended. If the defendants are joint tortfeasors, they are jointly responsibility for the torts that were committed. Individual responsibility need not be proven for each of them for what was done. Second, with few exceptions, the plaintiffs were not able to identify or link each of their injuries with the defendant who caused that specific injury. This is through no fault of their own. The very nature of the incident, including the number of people attending, made it impossible for a plaintiff to say definitively which defendant pushed or struck him. I find the principles expressed in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333 at ¶27 regarding the exceptions to the “but for” test of causation to be pertinent and analogous here:
One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, 1951 CanLII 1 (S.C.C.), [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.
[187] In this case, the defendants created an unreasonable risk of the type of injuries that the plaintiffs suffered by participating in an unlawful common enterprise. The assaults that took place may have been spontaneous, but they arose from and were related to the concerted action of picketing, trespassing, threatening and forcing Mainland employees to shut down the mill.
[188] Having made this determination, I do not consider that all of the defendants should share equal responsibility. Some are clearly more responsible than others, particularly those who were active in organizing the event and those who trespassed on Mainland property.
[191] To apportion liability among the personal defendants, the Court must look at the causative conduct in terms of relative or comparative blameworthiness or culpability to see in what degrees the parties departed from the norm of reasonable conduct: Anderson v. Stevens.
The apportionment and contribution as between the wrongdoers was under BC Negligence Act, s. 4: "to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault." There's nothing in the discussion of the apportionment to indicate the trial judge realized that Resurfice material contribution isn't based on causative conduct. Or how Resurfice-based liability fit into the Act.
I guess this means nobody involved in the case was reading along.
