Date: Thu, 11 Sep 2008 21:58

From: Lewis Klar

Subject: Maple Leafs, listeria and strict liability

As far as I am aware there is little support for a strict liability claim in Canadian common law for contaminated food products. Linden in his text notes some earlier Ontario authorities which are supportive of this, but he concedes that it has gone nowhere. Of course I agree that contaminated food may raise a strong inference of negligence (as you suggest) but this is of course not strictly strict liability.

I do not know whether it is common usage to plead it; I suppose if one sees a crack in the common law there is no harm in trying to go there in your pleadings, but there are others far better placed than me to comment on the strategy that goes into pleadings.

Lewis

>>> Geneviève Saumier, Prof. 9/10/2008 2:34 PM >>>

I’ve just read over one of the class action claims filed in Ontario regarding the contaminated Maple Leafs products (how useful that firms put these online!). The claim states that the defendant is liable in negligence and in strict liability for manufacturing contaminated food products. Is it common usage for a claim of this kind to be stated as a strict liability claim or is this just res ipsa loquitur in disguise? Given that a strict liability regime is provided for this type of case by the Civil Code in Quebec, where a class action has also been filed, I’m interested in the potential implications of the diverse substantive laws, particularly in the context of the national class sought to be certified in several of the claims filed in Canadian jurisdictions.

Any insight on the strict liability nomenclature used in the Ontario claim would be appreciated!

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