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.
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