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Duty of care must be scrutinized, says OCA

The full extent or scope of any duty of care that is owed by a defendant must be carefully scrutinized when deciding what types of damages may apply to this duty, the Ontario Court of Appeal has stressed in a class action case related to the 2008 listeriosis outbreak.

The decision in 1688782 Ontario Inc. v. Maple Leaf Foods Inc. is also the first appellate court ruling since the Supreme Court of Canada clarified the approach to identifying a duty of care last December in Deloitte & Touche v. Livent Inc.

In its decision, issued April 30, the Court of Appeal overturned the motions judge and found that any duty Maple Leaf had in supplying safe “ready-to-eat” meats to Mr. Sub franchises did not extend to economic losses suffered as a result of publicity from the recall of certain products at the time of the outbreak.

Peter Kryworuk, lead counsel for the franchisees at the Court of Appeal, says the ruling is being reviewed to decide whether to seek leave to appeal to the Supreme Court.

“This decision is significant with respect to the duty of care. It takes a very narrow and restrictive approach to the proximity analysis,” says Kryworuk, a partner at Lerners LLP in London, Ont.