Food Service & Nutrition - Summer 2018 - 19

and accountably about each party's rights
and obligations when providing for the
nutritional needs of diners can be the difference between keeping your organization
focused on fulfilling its mandate and having to respond to the courts, federal and
provincial regulatory investigators, the
media, the public and the people you serve.
LEGAL PROCEDURES
Consider the flow of liabilities from a
foodborne illness: civil actions relating
to foodborne illness typically arise from
either the tort of negligence or a breach of
contractual duties. For torts, a plaintiff's
claim of negligence must be followed by
proving that a food service agent owed
a duty of care to the plaintiff and then
breached whatever standard of care the
plaintiff was owed. That is followed by a
demonstration of the plaintiff's damages
and an establishment of the causal relationship between the damages and the
negligent act.
Lawyers call this the Anns-Cooper test,
and all of this is done on a balance of probabilities to determine liability. Historically,
in the context of food, meeting the AnnsCooper test has been tough to do and,
frankly, not overly worthwhile for the
aggrieved: short of an immediate allergic
reaction or mass outbreak, it has been difficult to pinpoint the causation of illness.
Furthermore, when calculating damages,
Canada's health care and employment laws
mean that plaintiffs aren't generally outof-pocket for doctors and missed work the
same way their American counterparts
might be.
The increased prevalence of food allergies has changed this causation problem
with plaintiffs experiencing immediate and severe reactions. A 2011 case
in Saskatchewan, Martin v. Interbrooks
Ltd., awarded $25,000 and legal costs
to Mr. Martin, who had a severe allergic
reaction after being served a triggering
piece of cheesecake that he was assured
by his server did not contain nuts. It's
well-established law that a food service
establishment owes a duty of care to its
customers, and in this instance the server
failed to meet her standard of care, which
was likely going into the kitchen to read

the ingredients, or by asking a manager or
head cook (which she failed to do). Martin's
damages stemmed from an immediate anaphylactic reaction, nearly resulting in death,
and the restaurant's role in causing the damages is plain on the facts of the case.
RISKS AND RAMIFICATIONS
Since this landmark case in food safety
negligence, negligence claims against food
service establishments have risen, and cases
often settle before trial but not without
damages and costs. When a food service
establishment serves any food item, it's critical to remember that it is entering into an
oral contract with the person being served.
In law, any contract typically comes with
a mix of implied and express warranties. An
implied warranty in this case would be that
the food is fit to eat and not spoiled; and an
express warranty would be a representation
from a server that your cheesecake doesn't
have nuts in it. At contract, an establishment can be sued for breach of contract and
negligent misrepresentation, a tort stemming from the existence of the contract.
So, what does this mean for a kitchen?
Well, simple errors can result in lawsuits,
for one: raw or undercooked food, foreign
objects and allergens can all result in some
nasty consequences. Is it fair? Of course
not: kitchens can be exposed to the will of
a sick employee, a lapse in judgment or a
sanitizer not working correctly. But fair or
not, the liability is created. Lawyers first
think of court awards for damages and
costs, but more often than not it isn't the
civil lawsuit that causes problems: it's the
news headlines and regulatory responses
that accompany an ambulance ride to the
hospital that pose the most significant
threat to an establishment.
Public goodwill is increasingly fickle
in the face of food safety: ask anyone
what they think about Chipotle, and you'll
conjure images of a food safety nightmare.
The company's 2015 salmonella, E. coli
and norovirus outbreaks have resulted in
a three-year public relations battle that
the company appears to be losing. Once
your reputation is tarnished in the public
mind, it's hard to return to form. The same
is true for hospitals, long-term care facilities, meal halls and prisons: the public will

go to remarkable steps to avoid perceived
risks relating to food.
Once the public is concerned, Canada's
reactionary regulatory bodies will spring
into action, and it's often a blend of different agencies: the Canadian Food Inspection
Agency and provincial and municipal public
health teams have a wide range of powers to
enforce compliance where food safety practices have been ignored. A business can be
shut down, operations can be suspended or
placed on probation, directors can be fined
and people can be criminally charged for
their actions.
PROTECTING AND PREPARING
Food service establishments are now recognizing these increased risks and finding ways
to improve risk management by building
it into their institutional culture: medical
inventory apps are being marketed to the
food service industry to ensure proper food
storage techniques; staff are being trained
on what allergic reactions look like, with one
staff member being trained to be the floor
expert on food allergies and ingredients;
sick day policies are being written with an
assumption that norovirus is the norm, not
the exception; and kitchens are playing with
products like Glo Germ to understand crosscontamination. There are lots of opportunities to manage liabilities inherent in food
service.
The legal liabilities relating to food safety
can be scary. Food can kill if improperly
handled and served, so a harsh legal and
regulatory regime is in the public interest.
Thus, it's in your interest to think critically
about the risks faced by your institution
and to find ways to create a culture built
around food safety and best practices. If
someone falls ill at the hands of your kitchen,
won't you want to be able to demonstrate
to the courts, regulators and public that
best-in-class standards of food safety were
in place?
Glenford Jameson is a food lawyer at G. S.
Jameson & Company, a Canadian law firm
dedicated to navigating and innovating through
corporate-commercial and regulatory problems
faced by its clients, who produce, process, distribute, or sell food in Ontario and Canada. Find
out more at food.gsjameson.com.

CA N A D I A N S O C I E T Y O F N U T R I T I O N M A N AG E M E N T N E W S - S U M M E R 2 0 1 8

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http://food.gsjameson.com

Table of Contents for the Digital Edition of Food Service & Nutrition - Summer 2018

President’s Message
The ABCs of Medical Cannabis
Press Pause…Press On: Sustaining Energy and Wellness in the Workplace and Beyond
Holding the Planet on Your Plate: Ideas for Promoting Sustainable Menus
Ask an Expert
Management Notebook
CSNM Corporate Member Profile
Industry News & CSNM News
Continuing Education Quizzes
Food Service & Nutrition - Summer 2018 - Intro
Food Service & Nutrition - Summer 2018 - cover1
Food Service & Nutrition - Summer 2018 - cover2
Food Service & Nutrition - Summer 2018 - 3
Food Service & Nutrition - Summer 2018 - President’s Message
Food Service & Nutrition - Summer 2018 - 5
Food Service & Nutrition - Summer 2018 - The ABCs of Medical Cannabis
Food Service & Nutrition - Summer 2018 - 7
Food Service & Nutrition - Summer 2018 - 8
Food Service & Nutrition - Summer 2018 - 9
Food Service & Nutrition - Summer 2018 - Press Pause…Press On: Sustaining Energy and Wellness in the Workplace and Beyond
Food Service & Nutrition - Summer 2018 - 11
Food Service & Nutrition - Summer 2018 - 12
Food Service & Nutrition - Summer 2018 - 13
Food Service & Nutrition - Summer 2018 - Holding the Planet on Your Plate: Ideas for Promoting Sustainable Menus
Food Service & Nutrition - Summer 2018 - 15
Food Service & Nutrition - Summer 2018 - 16
Food Service & Nutrition - Summer 2018 - 17
Food Service & Nutrition - Summer 2018 - Ask an Expert
Food Service & Nutrition - Summer 2018 - 19
Food Service & Nutrition - Summer 2018 - Management Notebook
Food Service & Nutrition - Summer 2018 - CSNM Corporate Member Profile
Food Service & Nutrition - Summer 2018 - Industry News & CSNM News
Food Service & Nutrition - Summer 2018 - 23
Food Service & Nutrition - Summer 2018 - 24
Food Service & Nutrition - Summer 2018 - Continuing Education Quizzes
Food Service & Nutrition - Summer 2018 - 26
Food Service & Nutrition - Summer 2018 - cover3
Food Service & Nutrition - Summer 2018 - cover4
http://www.nxtbook.com/naylor/CSNQ/CSNQ0418
http://www.nxtbook.com/naylor/CSNQ/CSNQ0318
http://www.nxtbook.com/naylor/CSNQ/CSNQ0218
http://www.nxtbook.com/naylor/CSNQ/CSNQ0118
http://www.nxtbook.com/naylor/CSNQ/CSNQ0417
http://www.nxtbook.com/naylor/CSNQ/CSNQ0317
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http://www.nxtbook.com/naylor/CSNQ/CSNQ0416
http://www.nxtbook.com/naylor/CSNQ/CSNQ0316
http://www.nxtbook.com/naylor/CSNQ/CSNQ0216
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