Date: Fri, 12 Sep 2008 00:16

From: Neil Foster

Subject: Maple Leafs, listeria and strict liability

Dear Lewis and Genevieve

I'm interested - I assume there is some sort of food safety legislation in Ontario. Can either of you (or an Ontario colleague?) tell me what it is? It will be interesting to see if the claims here try to rely on breach of the legislation, if there has been such, in support of the claim for negligence. I see from a brief google of the topic that the company is now claiming that the contamination may have occurred deep down in the bowels of the machines where their normal cleaning would not reach- hence (as I think someone else on the web said), preparing for a claim for at least contribution from the manufacturers of the machines if the civil suits proceed.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building  
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Lewis KLAR 12/09/08 6:58 >>>

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.

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