In the recent decision of Los Angeles Salad Co. v. Canadian
Food Inspection Agency, 2013 BCCA 34, the British Columbia
Court of Appeal addressed the issue of liability — or lack
thereof — on the part of a Canadian government regulator for
damages arising out of negligent performance of its duties where
the performance of those duties led to a recall of the
The plaintiff, Los Angeles Salad Co., supplied carrots to Costco
outlets in the United States and Canada. According to the statement
of claim, in 2007, the Canadian Food Inspection Agency (CFIA), the
Canadian government regulator empowered to enforce food safety
legislation in Canada, received reports from four consumers of the
carrots who had contracted shigellosis, a potentially fatal illness
caused by consumption of food contaminated with Shigella bacteria.
The CFIA, assisted by the Public Health Agency of Canada and Health
Canada, inspected the carrots. The inspection was allegedly
conducted negligently, and the CFIA informed Los Angeles Salad,
Costco, the U.S. Food and Drug Administration and the public that
the carrots might be contaminated with Shigella bacteria, and
advised the public not to consume them. As a result of this
information, Costco recalled the carrots from its retail stores in
Canada, and Los Angeles Salad voluntarily recalled its carrots from
retail stores in the United States. The recalled carrots were
destroyed, along with carrots in inventory and "in the
ground." It was ultimately determined that the carrots were in
fact not contaminated with Shigella bacteria and had not been the
source of the shigellosis outbreak.
Los Angeles Salad sued the CFIA, alleging that the CFIA's
negligence in identifying its products as the source of the
shigellosis outbreak was the proximate cause of economic losses
suffered as a result of the recall and destruction of its carrots.
The CFIA brought an application to strike out the action on the
basis that the CFIA owed no private law duty of care to the
The trial-level British Columbia court agreed with the CFIA and
dismissed the action. Los Angeles Salad appealed the decision to
the British Columbia Court of Appeal. In a decision released
January 29, 2013, the Court of Appeal upheld the trial-level
ruling, finding that under Canadian law there exists no private law
duty of care owed by the CFIA to food sellers and similarly placed
entities, as if such a duty were to be recognized, it would put the
CFIA and other government regulatory bodies in the untenable
position of having to balance public interests — ensuring
food and product safety in the Canadian marketplace — with
the private interests of commercial actors, which could produce a
chilling effect on the proper performance of governmental
The Court agreed with the views of the judge at first instance
that to recognize a duty of care on the part of the CFIA would
expose regulators to potentially indeterminate liability, with
claims capable of being advanced by retailers, wholesalers,
suppliers, food processors, distributors, farmers, and employees of
each of them. It also found that there was no generally recognized
tort of "negligent inspection/investigation by a government
entity" under Canadian law, and although it was possible for a
regulator to be liable to a member of the public in certain
circumstances, it would not arise in circumstances where the
regulator was simply discharging his or her statutory
responsibilities in the public interest, even if they otherwise
Lastly, the Court of Appeal noted that although their decision
essentially meant that a food seller who suffered a loss as a
result of the negligence of a government authority had no recourse,
as a policy matter where the defendant is a public body, inferring
a private duty of care resulting from discharge of statutory duties
would be rare due to the constitutional role of those institutions
and the overarching concern of potentially unlimited exposure of
the government to private claims that would tax public resources
and chill government intervention.
This decision is in keeping with the general trend in Canadian
jurisprudence to the effect that government regulators owe no
private legal duties to the public when discharging a statutory
role. Although arising in relation to a food supplier, the
principles set out in this case will likely continue to be applied
by Canadian courts in the broader product liability context.
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