Date: Fri, 12 Sep 2008 05:01

From: Neil Foster

Subject: Maple Leafs, listeria and strict liability

Dear Lewis and colleagues

Yes, that is quite right of course. I was just interested - for example cl 93(1)(b) or cl 104(1)(b) of the Food Safety and Quality Act, 2001 - O. Reg. 31/05 regs -

104.  (1)  The operator of a meat plant shall ensure that every meat product produced, processed, packaged, labelled, handled or stored at the meat plant ... (b) is not contaminated.

The word "ensure" looks like strict liability to me. Of course even where a BSD action was possible there would still have to be a preliminary determination as to whether the relevant statute was "intended" to provide civil liability, and there may be some exclusion provision I'm not aware of. But that would have been an interesting discussion.

In Canada, of course, such an analysis is not supposed to be possible since Saskatchewan Wheat Pool. But it will be interesting to see whether, if the claims proceed, at least part of some decision in favour of the plaintiffs isn't based on the statutes.

Of course, realistically, it might be better for the companies to just settle up quickly.

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 1:47 >>>

I would have to check legislation but generally Sale of Goods applies as between seller and buyer; not manufacturer and buyer. I assume that the defendant here is primarily manufacturer. Also the legislation David mentions - I do not think it creates a liability provision but I just skimmed it. It is a regulatory, quasi-penal statute - do not see how it assists consumers against producers. But this opens up the breach of statute argument. But we know where that goes in Canada.

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