Dec 27, 2018

BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 17 – 21, 2018)

Das v. George Weston Limited, 2018 ONCA 1053 (CanLII)

[Doherty and Feldman JJ.A. and Gray J. (ad hoc)]

COUNSEL:

J. P. Rochon, P. R. Jervis and G. Nayerahmadi, for the appellants

C. D. Bredt, M. F. Kremer and A. Fotheringham, for the respondents George Weston Limited, Loblaws Companies Limited, Loblaws Inc. and Joe Fresh Apparel Canada Inc.

M. A. Eizenga, R. K. Agarwal and G. G. Beaulne, for the respondents Bureau Veritas – Registre International de Classification de Navires et D’Aeronefs SA, Bureau Veritas Consumer Products Services, Inc. and Bureau Veritas Consumer Products Services (BD) Ltd

P. J. Pape and S. Chaudhury, for the Law Foundation of Ontario

Keywords: Torts, Negligence, Vicarious Liability, Breach of Fiduciary Duty, Civil Procedure, Class Proceedings, Striking Pleadings, No Reasonable Cause of Action, Expert Evidence, Foreign Law, Lex Loci Delicti, Standard of Review, Rules of Civil Procedure, Rule 21.01(1)(a), r. 21.01(1)(b), Lister v. McAnulty, [1944] S.C.R. 317, General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, Motion to Strike, Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, Reasonable Prospect of Success, Tolofson v. Jensen, [1994] 3 S.C.R. 1022

FACTS:

Loblaws is Canada’s largest food, clothing, and pharmacy retailer. For many years, Loblaws purchased clothes from Pearl Global Limited (“Pearl Global”), which in turn outsourced some of the work to New Wave Style Limited and New Wave Bottoms Limited (collectively, “New Wave”). New Wave Bottoms operated on the third floor of the Rana Plaza building in Savar, Bangladesh (“Rana Plaza”), while New Wave Style operated on the sixth and seventh floors of Rana Plaza. At the time of the infamous collapse of the Rana Plaza, Loblaws purchased about 50% of the garments New Wave produced. Bureau Veritas is a consulting services enterprise that Loblaws retained to perform auditing and inspection services of its offshore supplier factories.

Rana Plaza was a nine-floor mixed commercial and industrial building. It was originally constructed as a six-floor commercial complex in 2006, without proper approvals. It was subsequently expanded by two additional floors and, just before the collapse, construction of a ninth floor was nearing completion.

On April 23, 2013, cracks were discovered in three pillars of the structure of Rana Plaza. Local police evacuated the site and workers were sent home. Later that day, however, managers at New Wave ordered New Wave employees to return to work the following day. The next morning, April 24, 2013, New Wave advised workers that the building was safe and threatened to terminate their employment if they did not return to work.

That same morning, as a result of a power outage, the large back-up generators on the upper floors of Rana Plaza began to operate, causing substantial vibration. Around 9 a.m., Rana Plaza collapsed, killing 1,130 people and injuring 2,520 others. Those injured or killed included employees of New Wave, employees of other garment businesses operating out of Rana Plaza, and other people who happened to be in or around the building at the time of the collapse.

On April 22, 2015, just before the second anniversary of the collapse, the appellants commenced an action in Ontario against Loblaws for 1) negligence, 2) vicarious liability for the negligence of Pearl Global and New Wave, and 3) breach of fiduciary duty. The appellants also alleged that Bureau Veritas was liable for negligence. The appellants sought $2 billion in damages, as well as other relief, including punitive damages. They brought the action not only on behalf of employees of New Wave and their survivors, but on behalf of all persons who were in Rana Plaza at the time of the collapse and survived, the estates of all persons who died as a result of the collapse, and the family members and dependents of those who died or were injured.

The appellants brought a motion to have their action certified as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6. The respondents contested the certification motion, and brought their own motions for an order under Rule 21.01(1)(a) of the Rules of Civil Procedure, declaring that: 1) the action was statute-barred under Bangladeshi law, which law applied to the claims; and 2) it was plain and obvious that the causes of action could not succeed under Bangladeshi law.

ISSUES:

(1) What is the appropriate standard of review on appeal from a Rule 21 motion?

(2) Did the motion judge err in principle by failing to properly apply Rule 21 evidentiary principles, and the plain and obvious test?

(3)(a) Is the law of Bangladesh the lex loci delicti of the claims?

(3)(b) Did the motion judge err by failing to exercise his discretion to decline to apply Bangladeshi law under the injustice exception?

(4)(a) Is the limitation period one year under Articles 21 and 22, or six years under Article 120 of the Limitation Act, 1908?

(4)(b) Was the one-year limitation period tolled against Loblaws by s. 13 of the Limitation Act, 1908?

(5)(a) Is the claim in negligence against Loblaws bound to fail under Bangladeshi law?

(5)(b) Is the claim in vicarious liability against Loblaws bound to fail under Bangladeshi law?

HOLDING:

Appeal dismissed.

REASONING:

(1) The correctness standard.

Courts require expert evidence to decide issues involving the content of foreign law. Judges are entitled to accept or reject the expert evidence and make findings on foreign law based on that evidence. As established in Lister v. McAnulty, [1944] S.C.R. 317, a judge is also entitled to review the sources relied on by the experts and come to his or her own conclusions based on that examination. Judges’ findings are therefore findings of fact, which would normally be accorded deference on appeal. However, the court in General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, 2007 ONCA 904, 88 O.R. (3d) 666 (“General Motors”) held that questions of foreign law should be reviewed on a correctness standard.

The respondents submitted that the Court should apply the deferential standard to its review of the motion judge’s findings of foreign law in the face of competing expert opinions, and that General Motors should be distinguished on its facts. In that case, the trial judge ignored the expert evidence and interpreted Quebec civil law himself. Rather than find that this resulted in a palpable and overriding error, the court held that it was as well-positioned as the trial judge to determine questions of foreign law and therefore approached the issue de novo, applying the correctness standard of review. To that end, the Court in this case was also satisfied that the motion judge was correct in his findings on Bangladeshi law.

(2) No. The appellants’ position was that the motion judge made a fundamental error in his approach to their pleading in the Fourth Amended Statement of Claim. They said that he did not read the pleading generously, he did not accept the pleaded facts as true, and he should not have used the content of the pleaded documents to refute pleaded allegations. They also submitted that he instead treated the motion as a Rule 20 summary judgment motion, and effectively found that the appellants had not proved their case.

The proper approach to a Rule 21 motion to strike a claim as disclosing no reasonable cause of action is that the motion judge must accept the facts pleaded in the statement of claim as true to determine whether it is plain and obvious, based on the current state of the law, including how it may be open to development, that the claim discloses no reasonable cause of action. While material facts that are pleaded in a statement of claim are assumed to be true for the purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not.

The leading case on the power to strike out a claim is R. v. Imperial Tobacco, 2011 SCC 42. In that case, McLachlin C.J. confirmed that a claim will not be struck simply because it is novel. If, however, it is plain and obvious that the pleading discloses no reasonable cause of action, it cannot proceed.

There was no error in the motion judge’s approach. The motion judge thoroughly reviewed all of the material, which included a 261-paragraph statement of claim and 73 volumes of evidence and compendia. His findings regarding what pleadings were facts, and what were legal conclusions or attempts to characterize facts to fit a legal theory, were fair and proper, and fell within his purview.

(3)(a) Yes. The framework for the choice of law analysis in tort was established in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 (“Tolofson”). In Tolofson, the court held that tort claims should be governed by the substantive law of the place where the activity or wrong occurred, except where doing so would give rise to an injustice.

In his analysis, the motion judge relied on the principle of tort law that there is no actionable wrong without injury. He reasoned that the alleged duty was owed to the people in Bangladesh who were killed or injured there. The impugned decisions, it was alleged, resulted in those deaths and injuries. The wrong occurred in Bangladesh, and the lex loci delicti is therefore the law of Bangladesh.

(3)(b) No. The motion judge fully considered and rejected the two prongs of this submission: that Sharia law mandates an unequal distribution of damages to men and women and would therefore discriminate against women claimants; and that the unavailability of punitive damages offends principles of essential justice.

On the Sharia law issue, the motion judge described how it could not affect the liability claim and could only have an impact on a very small subset of female claimants, namely female family class members who are daughters of a deceased in cases where they have a male sibling or siblings. He concluded that because Sharia law would not affect the rights of most of the claimants, there was no public policy reason not to apply Bangladeshi law to the claims of those claimants.

The motion judge also rejected the appellants’ argument that the unavailability of punitive damages under Bangladeshi law would result in an injustice. First, he was not convinced that punitive damages were unavailable in Bangladesh. Second, because of the nature of the claims, he concluded that if the appellants were awarded a $2 billion compensatory award based on breach of a novel duty of care, it was unlikely that punitive damages would also be awarded. Finally, he observed that the absence of the availability of punitive damages is not the type of issue that offends Canadian fundamental values.

(4)(a) One year. Section 21 of the Limitation Act, 1908, which is the applicable limitations statute in Bangladesh, lists the limitation period by executors, administrators or representatives of injured parties under the Fatal Accidents Act, 1855 is one year. Similarly, Section 22 of the Limitation Act, 1908 states that the limitation period for compensation for any other injury to an injured person is also one year. This was re-affirmed in Bangladesh Beverage Industries Ltd. v. Rowshan Akhter (2016), 69 Dhaka L.R. 196 (S.C. Bangladesh App. Div.) by the Appellate Division Court of Bangladesh.

The Court agreed with the motion judge’s decision to follow the clear language of Bangladesh’s Limitation Act, 1908. Any reading that finds an applicable six-year limitation period stems from a misreading of the Limitation Act, 1908.

(4)(b) No. The Court held that it was plain and obvious that under Bangladeshi law, the one-year limitation period was not tolled by s.13 of Bangladesh’s Limitation Act, 1908.

(5)(a) Yes. The parties agreed that the claims were novel, and that the courts of Bangladesh would be heavily influenced by the development of the law in England. As a result, the motion judge considered the experts’ opinions based on the English case law, and found that he preferred and accepted the opinion of the respondents’ expert, Dr. Goudkamp, and did not accept the opinion of the appellants’ expert, Dr. Morgan.

The basis of the English courts’ current approach to the question whether a duty of care is owed in any particular situation was described by the House of Lords in Caparo Industries Plc v. Dickman, [1990] 2 A.C. 605 (H.L. (Eng.)) as requiring consideration of three factors: foreseeability of harm, a relationship of proximity, and whether it is “fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”.

With respect to Loblaws’ liability, the Court found that it was plain and obvious that a negligence claim against Loblaws would fail under Bangladeshi law. The facts did not amount to the type of relationship or control over New Wave’s operations by Loblaws that has been found in English law to be sufficient to establish proximity or assumption of responsibility, and to thereby impose a duty of care to protect against harm by third parties. Loblaws was not directly involved in the management of New Wave, nor in the process of manufacturing the products. Loblaws did not have control over where the manufacturing operation took place. Loblaws’ only means of controlling New Wave was through cancellation of its product orders from Pearl Global for non-compliance with the CSR Standards. Nor is there any pleaded history of Loblaws using that lever to enforce any change in New Wave’s operations.

Similarly, the Court held that the motion judge correctly held that it was plain and obvious that the appellants’ pleaded claim in negligence against Bureau Veritas would fail under Bangladeshi law. The appellants did not point to any precedent from any country in which a court has imposed a duty of care on a service provider to a third party to perform an activity outside the scope of its limited retainer.

(5)(b) Yes. The Court held that Loblaws could not be held vicariously liable for the actions of New Wave and Pearl Global under Bangladeshi law. Garment manufacturing is not an inherently dangerous or hazardous activity. New Wave and Pearl Global were not on the staff of Loblaws, as either employees or independent contractors. Nor was it pleaded that New Wave was acting as agent for, or on behalf of, Loblaws in conducting its operations. The Court held that, even if a Bangladeshi court looked to the Indian jurisprudence to expand the established test for vicarious liability set out by the High Court Division, it is plain and obvious the claim against Loblaws would fail.

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