Canada: Sandoff V. Loblaw Companies Ltd.: Class Action Considerations For Canadian Food And Beverage Manufacturers

Canadian food and beverage manufacturers should take note of Sandoff v. Loblaw Companies Ltd., ("Sandoff") a recent Saskatchewan Court of Queen's Bench ("SKQB") class action case concerning allegedly deceptive food labelling practices.

In Sandoff, the representative plaintiffs (the "Plaintiff") issued a claim under Saskatchewan's Class Actions Act, seeking to recover damages on behalf of "all persons in Canada who, on or after the [relevant date] purchased Diet Cola, Low Sodium, Caffeine Free or PC Club Soda, Low Sodium (collectively the "Low Sodium Beverages") from Loblaws in Canada."1

The Plaintiff argued that Loblaws application of a "low sodium" label to the Low Sodium Beverages was deceptive and misleading because the sodium content of the Low Sodium Beverages is "similar to, if not greater than, the sodium content of other regularly packaged products [which] do not include a low sodium label."2  The Plaintiff  alleged, among other things, that the "low sodium" label therefore constituted a breach of section 5(1) of the Food and Drugs Act ("Section 5.1") which states that:

No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.3

The Sandoff case mimics the growing trend of "food labelling" class actions in the United States.4 More than 102 of these cases were brought in U.S. federal court in 2012 alone,5  and several of these have proven expensive to the defendants. For example, in January of 2012 Nutella paid $3 million to settle a class action suit alleging that consumers were misled by Nutella's claim that the spread is "an example of a tasty yet balanced breakfast." The plaintiffs argued that Nutella's claim was deceptive because it omits that a "balanced breakfast" is derived from the other food or drink depicted on the Nutella label, and not from the Nutella itself.6

Similarly, in 2011 the Campbell Soup Company ("Campbell's") paid $1.05 million to settle a lawsuit respecting its "25% less sodium" tomato soup (the "Low Sodium Soup"). Campbell's sold the Low Sodium Soup at a premium price despite the fact that it contained the same amount of sodium per serving as Campbell's regular tomato soup. In response to the Plaintiff's claims, Campbell's argued that the 25% claim was not based on a comparison between the Low Sodium Soup and Campbell's regular tomato soup, but rather with a range of its regular soups.  U.S. District Judge Jerome Simandle denied a motion to dismiss the case, saying that reasonable consumers could be expected to find Campbell's claims misleading.7

In Sandoff, there were two applications at issue, namely Loblaws application for summary judgement and the Plaintiff's application for certification of the proposed class action. Loblaws submitted that the case was suitable for summary judgment prior to certification because the materials facts were not in dispute between the parties and Justice Keene's determination of a single legal issue would decide whether the Plaintiff had a "tenable" cause of action.8 Agreeing with Loblaws that "the only issue in the action was whether a reasonable customer would be misled by a "low sodium" beverage label,9 Justice Keene focused on the question of whether it was appropriate to grant summary judgment prior to certification.

After noting that it is very unusual for summary judgment to be appropriate in the class action context, Justice Keene concluded that Loblaws' motion constituted an exception to that rule and granted its application for summary judgment. Justice Keene confirmed that the test of summary judgment in Canada is: (i) whether a genuine issue exists; and (ii) if a genuine issue does exist, whether its resolution requires a conventional trial.10 In Sandoff, the "genuine issue" for trial was whether or not it is misleading to label identical products differently. Its resolution did not require a conventional trial because:

(i) the Plaintiff failed to show a genuine ability to prove one or more factual elements to a legal cause of action;
(ii) the Plaintiff's claim against Loblaws lacked legal merit; and
(iii) Loblaws had an obvious defence to the Plaintiff's claim.11

Applying an objective reasonable person test,12 Justice Keene found that the Loblaws' "low-sodium" labelling was not false, misleading, or deceptive because the Low Sodium Beverages, were, as a factual matter, low in sodium.13 Therefore, Loblaws had an obvious defence (truth) to the Plaintiff's claim. Moreover, Justice Keene found that a reasonable consumer "could have checked the nutritional read the sodium levels and [use] their own common sense to make informed decisions."14 Justice Keene also noted that the Plaintiff had failed to present evidence that it, or any member of the proposed class, suffered any damages as a result of purchasing the Low Sodium Beverages. Justice Keene concluded that the Plaintiff had failed to show a genuine ability to prove one or more factual elements of a breach of Section 5.1 by Loblaws. Justice Keene therefore granted Loblaws' application for summary judgment.15

Defendants should note that Justice Keene's decision to grant Loblaws' application for summary judgment prior to hearing the Plaintiff's certification application meant that only the representative plaintiffs are bound by the dismissal. Any other member of the proposed class could theoretically bring the same suit against Loblaws in the future. Defendants should consider this in deciding whether to seek summary judgment prior to certification.


1. Sandoff v. Loblaw Companies Ltd., 2015 SKQB 345 at para 6.

2. Ibid.

3. Food and Drugs Act, R.S.C. 1985 c. F-27 at s. 5(1).

4. Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA's Resources and Regulatory Authority, Brookings Institution Governance Studies June 2014, available at (

5. Ibid.

6. Class Action Settlement Agreement, In Re: Nutella Marketing and Sales Practices Litigation No. 3.11-cv-01086-FLW-DEA (Jan 10, 2012).

7. Rosa Smajlaj, et al. v. Campbell Soup Co., et al, Case No. 10-1332, U.S. District Court, District of New Jersey

8. Sandoff at paras 23 and 24.

9. Ibid at para 39.

10. Ibid at para 26.

11. Ibid at para 25.

12. Ibid at para 39.

13. Ibid. at paras 37 and 38.

14. Ibid. at para 41.

15. Ibid. at para 51.

To view original article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.