1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35

The plaintiffs in this class action are Mr. Sub franchisees. At the material time they were bound through a chain of indirect contracts to purchase meat product exclusively from the defendant Maple Leaf Foods (although there was no contractual privity between Maple Leaf and the franchisees). After a recall of Maple Leaf meat products due to listeria, the plaintiffs sued Maple Leaf Foods for economic loss and reputational injury. Maple Leaf brought an unsuccessful motion for summary judgment dismissing the action. The motion judge held that Maple Leaf owed the franchisees a duty to supply a product fit for human consumption and that the contaminated products posed a real and substantial danger, which grounded a duty of care. The Court of Appeal allowed Maple Leaf’s appeal, and found that the motion judge’s decision to allow the claim to proceed could not stand in light of the SCC’s 2017 decision in Deloitte & Touche v Livent Inc. (which was decided following the disposition of the motion for summary judgment). The SCC upheld the Court of Appeal’s decision, holding that Maple Leaf did not owe a duty of care to the franchisees. It reasoned that while common law readily imposes liability for negligent interference with and injury to bodily integrity, mental health, and property, there is no general right in tort protecting against the negligent or intentional infliction of pure economic loss. The SCC applied the Anns/Cooper analysis for duty of care. After confirming that proximity remains the controlling concept, it found that proximity could not be established in this case by reference to a recognized category, nor by conducting a full proximity analysis. As such, no duty of care could be established.

Florence v. Benzaquen, 2020 ONSC 1534

The plaintiff gave birth to triplets prematurely, who were diagnosed with cerebral palsy. The plaintiff and the triplets sued her OBGYN in relation to prescription of a certain fertility drug prescribed prior to conception of the triplets. The defendant OBGYN brought a motion to strike the claims of the triplets, arguing that a person cannot owe a duty of care to a future child where the alleged negligence occurred prior to conception. The claim as framed in the pleading was that the OBGYN was negligent in prescribing the fertility drug to the plaintiff and that but for that negligence, the triplets would not have been born. Justice Wilson reviewed the Canadian and English jurisprudence on wrongful life / wrongful birth claims and held that Ontario law did not recognize such claims. While the claims of the plaintiff mother could proceed, the claims by the triplets were struck without leave to amend.

Stewart v. The Corporation of the Township of Douro-Dummer, 2018 ONSC 4009

Justice Ricchetti concluded that a taxi driver has no positive duty to ensure that adult passengers are or remain seat-belted.

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19

The minor Plaintiffs entered an unsecured garage property and stole a vehicle. The vehicle was subsequently involved in an accident and Plaintiff J suffered a catastrophic brain injury. At trial, it was found that the garage owed a duty of care to J. This finding was upheld by the Ontario Court of Appeal. However, the Supreme Court of Canada overturned the decision in a 7-2 split. The Supreme Court held that the risk of theft did not automatically include the risk of theft by minors and that there was insufficient evidence to suggest that it was foreseeable that minors would frequent the garage premises at night or be involved in vehicle theft. The Supreme Court also held that the garage did not have a positive duty to guard against the risk of theft by minors.