By Jamie Davison, Associate, and Cassandra De Marco, Articling Student
Before Ontario’s listeria outbreak became national news, the last thing that I thought about when buying milk was, “is this safe?”. However, in the midst of the spread of food-borne illness across Canada, the safety of my entire grocery haul is at the forefront of my mind. This article aims to address the concerns of Canadians surrounding the spread of the foodborne illness, listeriosis, by breaking down our rights and options for remedy when faced with defective products.
The Listeria Outbreak in Ontario
Between June and July of 2024 there have been 20 identified cases of Listeria-based illness (listeriosis) spread across Canada, 13 of which have been in Ontario, caused by recalled plant-based milks. Of these 13 cases, three people have since died as a result of the illness.
The Mayo Clinic describes the Listeria infection as “a foodborne bacterial illness”. The Listeria bacteria can spread amongst Canadians when we eat raw vegetables grown in soil contaminated by listeria bacteria or when we eat certain processed foods, such as soft cheeses, that have been contaminated post-processing by unfiltered water, for example.
While the Mayo Clinic is clear that “healthy people rarely become ill from listeria infection”, the infection can spread to the nervous system and be fatal for babies, newborns, and those with weakened immune systems. Further, symptoms, indicating a Listeria infection, including fever, chills, muscle aches, and nausea, can take over 30 days to appear, making it difficult to distinguish between a flu and a listeria infection.
What is Product Liability Law?
In Ontario, designers, manufacturers, distributors, and suppliers who create and distribute products intended for public use may be held to owe a duty to produce a product which is reasonably safe. If the standard of care owed is not met, these producers and suppliers may be held responsible for injuries sustained as a result of the use of their products.
A producer or supplier may be held liable for injury caused by their products at any stage of the production process.
- Prior to manufacturing, a designer can be held liable for a defective product design.
- A manufacturer can be held liable for the defective manufacturing of the product.
- Those responsible for the marketing and labelling of a product can be held liable for the injuries suffered as a result of insufficient or defective product marketing (i.e. there are inadequate safety warnings that fail to protect the user from harm).
Due to the number of moving parts involved in a product liability case, the law surrounding product liability is complex. Based in both common law and legislation, such as the Sale of Goods Act, experienced counsel is necessary to parse out the elements of successfully arguing a product liability claim. At a very high level, the plaintiff is required to prove that the product is defective and that this defect caused them injury. Once established, the burden of proof will then shift to the manufacturer of the product to disprove that their negligence led to the defect.
A common misconception surrounding product liability law is that manufacturers can only be held liable for defective products if the user is using the product “properly” or as intended. Canadian courts have determined that manufacturers may still be held liable for defective products including those which have injured the user while they were acting negligently themselves.
For more information, see our previous articles explaining elements of a product liability claim:
- Store Liability: Sale of Goods Act and the Failure to Warn
- Defective Products: Who is Responsible?
- Smart Consumerism: Product Liability
How Product Liability Applies to the Listeria Outbreak
The present listeria outbreak has been connected to Great-Value (GV) and Silk plant-based milks. The contamination originated in Pickering, Ontario at one of Danone Canada’s third-party packaging facilities, Joriki.
As a result of the contamination, 15 products have been recalled across Canada. Stores were required to take all products off the shelf, and it was recommended that anyone who has purchased the contaminated products discard them.
The contamination of these plant-based milk products may result in a product liability action. The contamination by listeria bacterium would be considered a manufacturing defect tracing back to somewhere within the supply chain. In Canada, parent companies can be held liable for defects within the manufacturing process where it can be shown that the parent company was in a position to know that inspections carried out in the course of manufacturing were insufficient to reveal common latent defects.
In this case, Great Value or Silk could be found to be negligent if they failed to advise manufacturers or distributors that the plant-based milks had to be inspected for listeria post-processing. Once a plaintiff can prove that they were infected by listeria, suffered damage as a result, and that this infection was caused by a contaminated plant-based milk product, the burden will rest on the manufacturers to disprove their negligence. The recall of the products is a factor that leans in favour of the injured parties, as it is arguably an admission of the defect of the product.
The Role of a Personal Injury Lawyer in Product Liability Cases
Here at McLeish Orlando, you will be supported by an experienced team equipped with all the necessary resources to be successful.
When defending a product liability claim, we gather a team of experts who can provide insight regarding the defects in products and how manufacturers and distributors failed to meet their requisite standard of care in the process of production and supply.
If you or a loved one has sustained an injury caused to a product, contact our office for a free consultation to discuss your next steps.
