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2010 ONSC 4992 (CanLII)

CITATION: Crozier v. A & P et al, 2010 ONSC 4992 OSHAWA COURT FILE NO.: 56659A/08 DATE: 2010/10/21

ONTARIO

SUPERIOR COURT OF JUSTICE

 

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E T W E E N:

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Adeline Crozier and Wesley Crozier

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Michael Head, for the Plaintiffs

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Plaintiff

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& P Canada Inc.

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Timothy Lowman and Patrick Cotter, for

 

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A & P Canada Inc. and Kraft Canada Inc.

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Defendant

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and -

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Kraft Canada Inc.

 

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Third Party

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HEARD: September 10, 2010

EDWARDS J.

OVERVIEW

REASONS FOR JUDGMENT

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[1] There are few amongst our population who likely have not packed a lunch of peanut butter and jam sandwiches for themselves or their children. A common ingredient in the diet of many Canadians unfortunately resulted in very tragic circumstances for the plaintiff. As counsel for the defendant notes in his factum, this case is unique.

[2] This matter came before me as a motion for summary judgment. The defendant in this case, for the purposes of this motion only, accepts that it sold the plaintiff peanut butter manufactured by the Third Party Kraft at a grocery store operated by a predecessor of the defendant A & P Canada Inc.

[3] Clostridium botulism (“CB”) is a ubiquitous spore forming bacterium which occurs naturally in the environment and is found in soil, water, animals and raw agricultural products. The plaintiff asserts that the peanut butter which she purchased at A & P contained CB spores and that as a result of consuming the peanut butter, the plaintiff contracted botulism resulting in almost tragic circumstances that could have lead to her death.

THE FACTS

[4] It is an accepted fact that the ingestion of CB spores by human beings occurs frequently given their wide spread occurrence. There are many non food sources of CB spores which are also ingested by human beings including dust, soil, building construction and water. CB spores are found in many foods and in the case of peanut butter, the food processing does not include steps that would eliminate the CB spores, as the evidence would suggest that to do so would ultimately render the peanut butter inedible.

[5] Botulism is a neuroparalitic condition which is caused by a nerve toxin which can only be produced after CB spores have germinated as a result of being exposed to very specific and favourable conditions. These conditions are noted to be generally pH, water activity, salt and temperature.

[6] There are four forms of botulism, three of which it is accepted, occur naturally and they are food borne botulism, wound botulism and infant botulism. The fourth type of botulism is known as adult colonization botulism or ACB. It is accepted by the parties that we are not dealing with food borne botulism, wound botulism or infant botulism. It is accepted by the parties that ACB is an extremely rare form of botulism which involves the in vivo production of botulinum neurotoxin which arises after the ingestion of non toxin CB spores as would have appeared to occur in this case.

[7] While it is not accepted as a fact by the plaintiff, the evidence would in my opinion lead to the conclusion that prior to this case there was a dearth of data and uncertainty which persisted in the scientific community as to the nature and causes of ACB. It is an accepted fact that as of 2007, i.e. prior to the plaintiff’s purchase and ingestion of the Kraft peanut butter, that the Public Health Agency of Canada, a Canadian authority in public health issues including botulism, did not even consider ACB to be a recognized form of botulism.

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[8] The Centre for Disease Control (the CDC) a well known and pre-eminent world centre for the study of prevention and control of human disease in the United States, published a handbook in 1998 in which the CDC noted the existence of the general condition now known as ACB as having been “suspected” since the 1920’s. In the time period 1978 to 1996 the CDC classified ACB as of “undetermined origin”. The handbook went on to provide:

“Careful investigation has now demonstrated that some of those cases are caused by colonization of the gastrointestinal tract by C. Botulinum or C. baratti with in vivo production of toxin, analogous to the pathogenesis of infant botulism.”

[9] While the CDC handbook noted that some cases of botulism were the result of the colonization of the gastrointestinal tract by C. botulinum or C. baratti, the handbook does not appear to have made any link between the colonization and the ingestion of food. It is noteworthy in this case that the plaintiff had a long standing history of Crohn’s disease and short bowel syndrome. The plaintiff had a major resection of her bowel in 1987 and prior to her consumption of the peanut butter, had been taking prescription antibiotic medication.

[10] Crohn’s disease is often referred to as one of the inflammatory bowel diseases that are not uncommon in Canada.

[11] As noted above, this case is a unique case. Prior to this case, the evidence would seem to suggest that there had only been 10 previous cases of ACB worldwide. While the plaintiff does not accept that prior to this case there were no documented cases of ACB being linked to food, even the plaintiff’s own expert, in his cross-examination would appear to have conceded that the case at Bar was in fact the first case linking ACB to the consumption of food. Health Canada issued an advisory in June 2007 which confirmed that this was the first documented report “anywhere in the world” of a link between a food and CB. It is an accepted fact that prior to this case there were no reported cases of either food borne botulism or ACB alleged to be associated with peanut butter products. It is an accepted fact that peanut butter is a food product known to have a very low water activity level, which thus precludes CB spores from germinating.

[12] The parties accept that the plaintiff in this case did consume peanut butter which contained CB spores. CB spores are quite different from pre-formed botulinum neurotoxin which is found in contaminated food. The parties are in agreement that there was no pre-formed neurotoxin in the peanut butter which the plaintiff consumed.

[13] The evidence in this case, in my opinion, ultimately leads one to the inescapable conclusion that for the Kraft peanut butter to be the cause of the plaintiff’s near demise that it could only have been caused by ACB from CB spores that would have been harmless, but for some unknown and undisclosed susceptibility relating to the plaintiff’s pre-existing condition, specifically her Crohn’s disease.

[14] One of the plaintiff’s experts, Dr. John Howard, was cross-examined and I reproduce below a part of his cross-examination that in my opinion makes quite clear that even the

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plaintiff’s evidence taken at its highest, leads to the conclusion that even today, after the plaintiff’s case, there is uncertainty as to what ultimately caused the plaintiff’s toxic reaction.

Q. Also from Exhibit E, Doctor, I take it that you understood from the

review of this document that conditions in the normal human intestine are not conducive to germination and vegetation of botulinum spores?

A.

In the adult, yes.

Q.

And that they’re routinely ingested by, and excreted by humans.

A.

Yes.

Q.

But without any germination or toxin production and without any

harm to the person.

A. Yes.

Q. And when you reviewed these three articles, Exhibits C, D and E you

accepted the science as far as botulism is concerned, that’s contained in them?

A.

Yes.

Q.

Because you considered them to be authoritative.

A.

Yes.

Q.

And you’re not an expert in botulism so you needed some source of

information for the purposes of your affidavit.

A.

That is correct.

Q.

Now, the condition of adult intestinal toxaemia botulism that’s

referred in these papers you understood that to be an extraordinarily rare

infectious disease.

A.

Yes.

Q.

And that only a very small handful of people world wide have

suffered from that disease since the time that the statistics relating to it were developed for the purposes of these articles that you refer to.

A. Yes.

Q. And that that small handful of people would be far less than the number of people who have abnormal bowel anatomy.

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A. Yes.

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Q. So you’d agree with me then, Doctor, that something more than merely abnormal bowel anatomy is necessary for the development of adult intestinal toxaemia botulism.

A. Yes.

Q. And that is, whatever is needed in addition to merely abnormal bowel

anatomy is not something that is determined by any of these three

articles.

A.

That is correct.

Q.

It’s still an unknown.

A.

Unknown.

[15] It will come as no surprise to anyone that when the plaintiff purchased the Kraft peanut butter from A & P, she did not disclose her pre-existing health condition or the fact that she might be susceptible to a potentially toxic reaction to the consumption of CB spores. Given the fact that this was the first documented case by Health Canada anywhere in the world of such a reaction, it is perfectly understandable that the plaintiff made no mention of her Crohn’s disease to anyone at A & P when she purchased the peanut butter.

[16] The defendant in this matter asserts that it was not aware of any risk of ACB from the ingestion of food products specifically peanut butter products containing CB spores, whether such sale was made to the general public or those like the plaintiff with pre-existing abnormalities of the gastrointestinal system. The defendant further asserts that any risk to the public of ACB from the consumption of food products containing CB spores simply was not known to manufacturers and retailers of food products and as such, there was no basis for imputing knowledge of any such risk to those manufacturers and retailers. The defendant further asserts that there is no way that the defendant could know or should have known of such susceptibility, even by someone with a pre-existing abnormality of the gastrointestinal system.

[17] The experts retained by the plaintiffs in this matter are pre-eminent experts in their field of expertise. Dr. John Howard is a professor of medicine and paediatrics at the Schulich School of Medicine at the University of Western Ontario, and maintains a practice which includes the care of approximately 400 patients with inflammatory bowel disease. Dr. David Colby has a specialty designation in microbiology from the Royal College of Physicians and Surgeons and since November 2003 has been the Acting Medical Officer of Health for the Chatham-Kent Health Unit in western Ontario. Both Dr. Howard and Dr. Colby conducted a review of the medical literature that may have addressed in the past, issues with respect to ACB. Dr. Colby in his report refers to various research papers as well as the CDC handbook referenced above. One of the research papers reviewed by Dr. Colby reported on findings in four cases of adult botulism that suggested colonization of the intestinal tract. What is in my opinion particularly noteworthy

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from a review of the reports of both Dr. Howard and Dr. Colby and their cross-examination is the fact that neither Dr. Howard nor Dr. Colby prior to this case had ever warned, let alone advised, other patients or members of the public prior to this case, of any risk of ACB from the ingestion of food. It was further acknowledged by the plaintiffs’ experts that they had never received any communication from any public health authority prior to this case, which would have advised of any risk of ingestion of CB spores by adults. A review of the evidence in this matter leads me to the conclusion that there was almost a complete lack of any data as well as uncertainty which persisted in the scientific community as to the nature and cause of ACB. One may therefore question if the plaintiffs’ own experts were unaware of the causes of ACB in the link between the ingestion of CB spores, how then could the defendant and third party have known of any risk.

Issues and the Law

[18]

of Goods Act can be invoked by the plaintiff. The relevant parts of section 15 provide:

The case as presented to me requires the determination of whether section 15 of the Sale

“There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows:

1. Where the buyer, expressly or by implication, makes known to

the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of the description that it is in the course of the seller’s business to supply, whether the seller is the manufacturer or not, there is an implied condition that the goods will be reasonably fit for such purpose.”

[19] It was submitted to me by counsel for the defendant that the law in Ontario and in the United Kingdom is clear and well settled: that there can be no breach of the implied warranty where the failure of the goods to meet the intended purpose arises from an abnormal feature or idiosyncrasy in the buyer, or in the circumstances of use by the buyer not made known to the seller. I was referred to a number of authorities that I will review below that support this proposition, albeit cases that for the most part date back many years.

[20] It was suggested to me in argument by plaintiffs’ counsel that I should not follow old case law that stands for the proposition that there can be no breach of the implied warranty where the failure of the goods to meet the intended purpose arises from an abnormal feature or idiosyncrasy in the buyer. It was suggested that in this day and age, liability is not only strict but bordering on the absolute. It was argued by plaintiffs’ counsel that liability in 2010 should, for social reasons, rest against those who make a profit and that the law can, and should change. In my opinion, those arguments may apply in a higher court, but do not apply on a motion for summary judgment.

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[21] A review of the law with respect to section 15 of the Sale of Goods Act and the implied warranty can be found in Professor Freidman’s “Sale of Goods in Canada”, 5 th Edition, where at page 193 the learned author states:

“On the other hand, as is shown by the decision in Griffiths v. Peter Conway Ltd., the seller will not be liable for breach of the implied condition if the injury to the buyer, or the unfitness of the article for its intended purpose, was the result of some abnormality on the buyer’s part which was not disclosed to the seller and it was unforeseeable by him. Hence, there is no liability under the English equivalent of this subsection in that case where a Harris tweed coat gave the buyer dermatitis because the buyer possessed an abnormally sensitive skin, since there was nothing in the cloth that would have affected the skin of a normal person.”

[22]

page 94 with respect to the issue of strict liability:

Professor Waddams in his book “Products Liability”, makes the following observation at

“As mentioned above, liability for breach of the implied warranties is strict liability in the sense that it is no defence for the seller to show that he exercised reasonable care or that the defect in the goods was undiscoverable…but the liability, though strict, is not absolute. As in the negligence cases, the buyer must prove that there was a defect in the goods, that is that they were “unfit” or “un merchantable”, and that the defect has caused the injuries. The seller does not warrant that the goods will be perfect, nor that they will be harmless to the buyer. In Griffiths v. Peter Conway Ltd., the plaintiff contracted dermatitis from clothing sold by the defendant. The plaintiff argued that the goods were unfit for her purpose, but liability was denied because it was found as a fact that the plaintiff was unusually sensitive and that no ordinary user would have been harmed. Just as in the negligence cases there must be something wrong with the product, so in the implied warranty cases the court will not impose liability unless the goods are defective, though it might well be argued that on a literal reading of section 15.1 the plaintiff in Griffiths v. Peter Conway Ltd. should have been entitled to recover since the goods were in fact unfit for her particular purpose. It is submitted however, that the denial of liability is sound. It would be going beyond strict liability to turn the seller’s warranty into a guarantee of harmlessness.”

[23]

case law notes as follows:

Dean Edgell in his book “Product Liability Law in Canada”, after reviewing the relevant

“However, where the use is not one that the seller could reasonably anticipate, or where the particular use requires the product to make an unusual and unforeseen requirement or idiosyncrasy of the user, the court will not imply knowledge of that particular use to the seller. In that case,

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failure to expressly make known the requirements of a particular use can allow the seller to escape liability under the implied condition.”

[24] While it is apparent that there has been no appellate authority in Canada that adopts the abnormality or idiosyncrasy reasoning referenced above, in my opinion, I see no reason not to follow the English cases. I note that McKinnon J. in Innovative Automation Inc. v. Candia Inc., [1998] O.J. No. 878 followed the earlier English authorities and held as follows:

“As in the case of Slater v. Finning Ltd., a decision of the British House of Lords of July 1996 reported at 199 N.R. 203, I hold where a buyer purchases goods from a seller who deals in goods of that description, there is no breach of an implied condition of fitness where the failure of the goods to meet the intended purpose arises from an abnormal feature or idiosyncrasy not made known to the seller, in the buyer, or in the circumstances of the use of the goods by the buyer. That is the case whether or not the buyer is himself aware of the abnormal feature or idiosyncrasy. The buyer’s purpose is insufficiently communicated. The buyer cannot reasonably rely on the seller’s skill or judgment to ensure the goods answer that purpose.

[25] I was referred to various American authorities and in my opinion a review of those American authorities would seem to confirm that they are consistent with the English and Canadian cases that adopt the abnormality and idiosyncrasy reasoning referenced above.

[26] While the recent decision of the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., [2008] S.C.J. No. 27 does not address the Sale of Goods Act issues presented in this case, it does in my opinion, assist in confirming my conclusion that there can be no breach of an implied warranty where the failure of the goods to met the intended purpose arises from an abnormal feature or idiosyncrasy in the buyer. Mustapha, amongst other things, addressed the issue of reasonable foreseeability and in that regard held:

“…. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damage, not at perfection, but at a reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast the defendant must take the plaintiff as it finds him for purposes of damage. As stated in White, at page 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability, “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty, the damage inflicted proves to be more serious than expected”. Rather it is a threshold test for establishing compensability of damages at law.”

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[27] In my opinion on the facts of this particular case, given that it is the first and only case drawing a link between the ingestion of food and CB spores and the contraction of ACB it would have been impossible for the defendants to have known of the plaintiff’s abnormal feature or idiosyncrasy, especially in a situation where the plaintiff herself was not aware of that idiosyncrasy. The plaintiff’s own experts were not even aware of the risk factors. Health Canada in a Health Professional Advisory dated August 27, 2007, confirmed that the plaintiff’s case was the “first documented report anywhere in the world of a link between a food colonization and botulism”. Neither Health Canada nor any of the other health agencies in Ontario or elsewhere in Canada have recommended that anything be done with respect to the production, sale, and/or marketing of peanut butter, whether they are made by Kraft or any other manufacturer.

Summary Judgment

[28] This matter came before me by way of a motion for summary judgment. The court must be satisfied that there is no genuine issue for trial with respect to the plaintiff’s claims. In order to make that determination it is accepted that the court must embark upon an assessment and analysis of the evidence that was presented before me. While the evidence initially may have appeared complicated, ultimately it came down to evidence that, in my opinion, resulted in uncontradicted evidence that the plaintiff in fact did have an abnormality; that the CB spores were in fact harmless to the plaintiff, but for her abnormality; that the plaintiff did not, nor could she disclose her abnormality to the defendants; and that at all material times the defendant did not know, nor could it have suspected that anyone with the abnormality that the plaintiff presented with, could be at risk for contracting ACB from the ingestion of the Kraft Peanut Butter with CB spores.

[29] On the evidentiary record before me, I am satisfied that there is in fact no genuine issue for trial. This is one of those very tragic cases where the plaintiff clearly has suffered some tragic circumstances as a result of a completely unforeseeable risk. This is one of those tragic cases where the law provides no remedy. The defendants’ motion for summary judgment dismissing the plaintiff’s action is therefore granted.

COSTS

[30] The parties did not have an opportunity to provide submissions with respect to costs. If the defendant and third party are intent on seeking their costs, submissions may be made in writing, limited to five pages in length and filed with the court. This may be one of those tragic cases where the defence may not be seeking their costs.

Justice M. Edwards

2010 ONSC 4992 (CanLII)

Released:

October 21, 2010

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