1688782 Ontario Ltd. v. Maple Leaf Foods Inc. et. al.
Posted November 19, 2018UPDATED MAY 5, 2021
On November 6, 2020, the Supreme Court of Canada in a 5-4 decision dismissed the appeal in this matter the court ruled that there was no direct contractual relationship between the franchisees and Maple Leaf. In the decision, the majority of the court ruled that Maple Leaf only duty to consumers and not to commercial intermediaries such as the franchisees. This decision was released more than a year after it was heard in the courts in the fall of 2019.
As a result of the Supreme Court of Canada’s decision, the parties have agreed to settle this class action on the basis of a dismissal without costs. The proposed settlement is subject to court approval, and if approved settlement will resolve the class action in its entirety. A copy of the Notice of Certification and Settlement Approval Hearing with Opt Out Form can be accessed here.
The approval hearing will be held on June 28, 2021 at 10 a.m. by Zoom videoconference. The call in details are as follows:
ZOOM – https://ca01web.zoom.us/j/64451782752?pwd=dlJKUW5QYVc1VkpFWW5kRzdIbmRFUT09
Alternate Method of Connecting: 1-855 703 8985 Canada Toll-free
Meeting ID: 644 5178 2752 | Passcode: 009391
Class members who intend to participate in the hearing should contact Scott Smith:
L. Scott Smith.
Nicholson, Smith & Partners LLP
Barristers & Solicitors
295 Central Avenue
London, Ontario N6B 2C9
Tel: 1 (519).679.3366
Fax: 1 (519).679.0958
mrsubfranchiseeclassaction@nicholsonsmith.com
Updated February 11, 2020
This proposed class action is brought on behalf of all those who, on August 17, 2008, were franchisees operating in Canada of the restaurant chain of which Mr. Submarine Limited (“Mr. Sub”) was the franchisor. Mr. Sub franchisees were required to purchase certain Ready-To-Eat meats (“RTE Meats”) manufactured by Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. (jointly “Maple Leaf”). In August 2008, some of the RTE Meats were recalled due to possible contamination with the bacteria Listeria monocytogenes. It was reported in the news that Maple Leaf supplied RTE Meats to Mr. Sub.
The allegations are that Maple Leaf owed a duty of care to the franchisees in relation to the production, processing, sale and distribution of the RTE Meats and that it breached its duty of care. The action seeks damages including damages for economic loss of past and future sales and profits. Lerners LLP is co-counsel with Nicholson Smith & Partners LLP.
Attention Class Members
The plaintiff’s motion for leave to proceed with certification was heard on April 26, 2016 and was immediately followed by the plaintiff’s motion for certification. The motion for certification was heard on April 26 and 27, 2016. The defendants’ motion for summary judgment was also heard on April 27, 2016. By reasons dated October 31, 2016 the plaintiff’s motion for leave to proceed with certification was granted and this action was certified as a class action. By reasons dated November 18, 2016 the defendants’ motion for summary judgment was dismissed and summary judgment was granted in favour of the Class with respect to two common issues regarding the duty of care. The defendants are appealing these orders and seek summary judgment in their favour on the basis that no duty of care was owed and that the claim for economic loss is untenable.
The appeal was heard on October 31, 2017.
The Court of Appeal released its decision on the issues under appeal on April 30, 2018 allowing the Maple Leaf defendants’ appeal regarding whether they owed a duty of care to the Mr. Sub Franchisees. The Court of Appeal reasons for decision conclude that the Maple Leaf defendants did not owe a duty of care to the Mr. Sub Franchisees to protect the franchisees from the economic losses and reputational harm that followed the 2008 Recall. The Court of Appeal also concluded that the scope of the Maple Leaf defendants’ representations or undertakings that the product was fit for human consumption did not extend to provide liability for the reputational damage and economic losses suffered by the Mr. Sub franchisees.
Given the Court’s conclusions on those two questions, the Court of Appeal did not address whether the franchisees’ pure economic loss claims were recoverable. The Court of Appeal’s decision expressly does not effect the Mr. Sub Franchisees’ ability to recover damages for clean-up costs and other costs related to disposal, destruction and replacement of RTE meats.
Class counsel has brought an application for leave to appeal this decision to the Supreme Court of Canada. Written submissions on an application for leave to appeal have been exchanged, and the application now rests with the Supreme Court to consider and determine whether Class counsel will be permitted to bring an appeal of the Court of Appeal’s decision to the Supreme Court on behalf of the Mr. Sub franchisees. In a Judgment released on February 7, 2019, the Supreme Court of Canada granted leave to appeal. The appeal was heard on October 15, 2019 and Judgment was reserved. A decision is anticipated in the Spring of 2020.
The class is defined as: All persons, whether natural or corporate, who, on August 17, 2008 were franchisees of the restaurant franchise operating in Canada of which Mr. Submarine Limited was the franchisor.
If you think that you are a potential class member, please provide your contact information to Scott Smith at Nicholson Smith & Partners LLP.
If you have already provided your contact information and have since moved, please ensure that your contact information is kept up to date.
This website provides only general information about this class action. While it is not always current, it is updated from time to time as information becomes available.
This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice.
Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.