Harrison v XL Foods Inc, 2014 ABQB 720

Court of Queen ’ s Bench of Alberta Citation: Harrison v XL Foods Inc, 2014 ABQB 720 Date: 20141125 Docket: 1203 14727 Registry: Edmonton Between: Matthew Harrison, as Plaintiff Representative Plaintiff - and - XL Foods Inc. and Nilsson Bros. Inc. Defendants - and - Canadian Food Inspection Agency Third Party Defendant A Class Proceeding Pursuant to the Class Proceedings Act , R.S.A. 2000, c. C-16 .5 _ ________________________________________ ______________ Memorandum of Decision and Reasons

of the Honourable Mr. Justice J.D. Rooke _________________________________________ ______________ I. Introduction [ 1 ] On September 5, 2013, I issued a Memorandum of Decision in this case ( Harrison v XL Foods Inc. , 2013 ABQB 502 ) [the “ Strike/Stay Decision ”], wherein I denied the application of the Canadian Food Inspection Agency [CFIA] to strike the third party proceedings brought against it by the Defendants, and denied the application of the Representative Plaintiff to stay the third party proceeding, with reasons to follow. On July 17, 2014, I issued the Reasons for Decision ( Harrison v.

XL Foods Inc. , 2014 ABQB 431 [the “ Strike/Stay Reasons ”]. [ 2 ] In the Strike/Stay Reasons, I described the nature of the action, the substance of which I repeat here. Matthew Harrison sued as the Representative Plaintiff [“Representative Plaintiff” or “Harrison”] in relation to alleged injury suffered as a consequence of him and the class members consuming bacterially contaminated meat products, or class members suffering injury during the distribution and sale of these products.

The meat products and the alleged bacterial contamination originated from a meat processing facility located in Brooks, Alberta operated by XL Foods Inc. and Nilsson Bros. Inc. [the “Defendants” or “XL”] [1] . The Representative Plaintiff claimed the Defendants’ negligence led to this contamination. The Defendants, in turn, on April 24, 2013, third partied the CFIA, arguing that, if the Defendants are liable, then so is the CFIA, and the Defendants sought contribution.

The Defendants claim the CFIA and its food inspection processes were tightly associated and integrated with the Defendants operation. [ 3 ] The certification application was heard on October 7-8, 2013.

Prior to, at, and subsequent to those hearings, many of the potential issues in the certification were resolved by my decisions, directions or “guidance” and resulting order, or consent, such that there is now in place three proposed partial Orders on an evidentiary issue relating to the certification hearing (the Striking Harrison Affidavit #2 issue – XL’s Strike Order, Appendix “A”) and on the certification (attached as Appendices “B” and “C”, respectively being XL’s and Harrison’s draft Certification Orders).

In relation to some parts of those Orders the parties have asked me to provide reasons for my decisions, and to provide further decisions and reasons on matters not yet decided.

Such is my task in this Memorandum of Decision and Reasons [“Certification Decision/Reasons”] [ 4 ] In September 2014, there was a settlement, subject to Court approval, of the economic loss claims only, and a hearing to consider same (and other issues) is scheduled before me, as Case Management Justice, for November 25, 2004. [ 5 ] Throughout the time since October 6, 2013, the “playing field” has changed considerably and a final Certification Order has been a “moving target” as there were: (1) resolutions due to some settlement of issues by the parties themselves or following “guidance” and advice by the Court, and (2) further resolutions by the parties since.

The Court has written to the parties (June 25, 2014) and they have replied over the last few months to try to set out what must be decided by the Court and what reasons are sought from the Court by the parties. Even as late as October 14, 2014, Counsel for the Defendants wrote “[i]t may be possible for the parties to resolve or at least know their differences concerning the Certification Order . . .”. Even later Counsel for the Plaintiff, on October 20, 2014, wrote that “the parties . . . have made substantial progress towards agreeing on the certification order . . . .

It is the Plaintiff’s view that Reasons for Judgment are not required to finalize . . . the certification order . . .”. (Emphasis added) [ 6 ] This Certification Decision/Reasons is to attempt to meet the parties’ expectations of the court in this regard. To the extent that further decision and/or reasons are required, the parties can advise. II.

Striking Harrison Affidavit #2/Independent Review Report [ 7 ] At its most basic, the issue here devolves to the required level of proof to establish a cause of action and/or a sub-class at this stage of the certification process – formal and admissible evidence providing clear proof vs. evidence of a lesser quality leading to a conclusion of “some basis in fact”.

I have held that the latter is sufficient at this stage. [ 8 ] On June 12, 2013, Harrison filed a second affidavit in support of certification, sworn June 11, 2013 [Harrison Affidavit #2], in which he attached a copy of a report dated May 2013, entitled “Independent Review of XL Foods Inc. Beef Recall 2012” [“Independent Review Report” or just “Report”], authored by Messrs. Andre Corriveau MC (Chair), Ronald John Lewis and W. Ronald Usborne [“Review Panel”].

He represented that the Independent Review Report indicated that the Review Panel was appointed by the Government of Canada to undertake an independent review of the beef recall in issue in this action and to submit a report to the Federal Minister of Agriculture and Agri-Food. [ 9 ] On July 23, 2013, XL made an application to declare the Harrison Affidavit #2 “inadmissible and be struck from the record entirely and for all purposes”, or alternatively “inadmissible at the Certification application and ... be struck in its entirety from the Certification record”.

The grounds advanced were that the Harrison Affidavit #2 “consists entirely of hearsay and inadmissible opinion evidence which has no probative value to the determination of the issues on the certification hearing”. [ 10 ] After receiving written briefs and hearing oral submissions (Transcript of October 7 and 8, 2013 hearing, page 39 – 40, hereinafter expressed as (TR 39 – 40)) of the parties, on October 7, 2013, I ordered [the Strike Order – draft of XL, subject to the further reasons provided here, is attached as Appendix “A”] that the Harrison Affidavit #2 be “excluded from the admission into evidence in these proceedings except as to pages 1, 27 and 28 [2] solely for the purpose of the application for certification proceeding” and that it

otherwise be “sealed by the Clerk of the Court and not disclosed in these proceedings except upon further Order of this Court”. [11] The parties have asked me to supply reasons for the Strike Order, and these are the reasons. [12] In arguments subsequent to the grounds listed in its application, XL argued that the conclusions of, and the evidence before,the Review Panel “are not admissible in an ensuing civil proceeding and its relevance when viewed in relation to its prejudicial effectmilitates against its admission into evidence”. [13] It is clear that no part of the Independent Review Report will be directly admissible in the common issues trial (TR 4/39 – 40).If any of the subject matter of the Report (and the Report itself) is to become evidence at the common issues trial, it will have to beadmissible in its own right, as determined by the presiding justice. [14] The essence of the reason why the Represented Plaintiff wanted at least pages 1, 27 and 28 of the Report admissible in thecertification process, as I have understood it (TR 4/40 – 5/3; 6/2 - 4), is to provide “some basis in fact” that the breach of duty of care canbe determined on a class-wide basis without reference to the individual circumstances of the putative class members.

Additionally,Counsel for the Representative Plaintiff indicated (TR 5/10 – 17) that it also goes to the “issue about unidentifiable beef”, relative toclass definition, impacted by alleged delay by XL in providing certain distribution information and identifying products, such that beefproduct consumers weren’t clear whether they were affected or not, and, in taking safety first, destroyed beef that allegedly made them amember of the class, or a sub-class.

Counsel for the Representative Plaintiff explained this in oral argument (TR 12/22 - 13/9 et seq), asthe Report “connecting the dots”, i.e. tying together (TR 17/34 – 37) the substantially unchallenged facts relating to the recall and thenature of its timing and recommended advice therein, and the consequences that flowed therefrom, namely the destruction of beef, thesource of which may have been lost by the parties destroying it in the intervening period. [15] The general reason that XL argued for its exclusion is that a Review Panel is not to make the decision that the Court has tomake (TR 6/24 – 5), and that a report, based on hearsay in whole or in part, does not present the same quality of evidence and formalproof by affidavit evidence based on specific knowledge. [16] However, I have concluded that credible information contained in the Report on notice, recall, and the timing maydemonstrate that there is “some basis in fact” for certification and the establishment of a class or sub-class of claimants.

That is, credibleinformation (even if partially based on hearsay) indicating alleged delay may, on a low threshold basis, “connect the dots” between recallnotice, timing and the consequences thereof, including the destruction of unidentified beef and the resulting identification of potentialclass or sub-class members. [17] Returning to the arguments, in XL’s Brief, Counsel argued for a declaration of inadmissibility of the Representative Plaintiff’saffidavit of June 13, 2013 (the “Second Affidavit”) on the basis, inter alia, that: • it was irrelevant and unnecessary to certification as XL had consented to certification of four common issues that deal with muchof the contents of the Report; • courts have “often refused” to admit third party reports in class proceedings: Robb Estate v.

St. Joseph’s Health Centre [1998]O.J. No. 5394 (S.C.), at para. 19; L.R. v.

British Columbia (“Rumley”) 2003 BCSC 234, at para. 30; • even it relevant to some extent, its low (“negligible”) probative value (due to hearsay and inadmissible expert opinions) isoutweighed by unfair prejudice to XL because: (1) there is no opportunity for XL to cross-examine; (2) it usurps the role of the Court;and (3) somewhat like the first, incorporates information from CFIA that has not been tested (examples in para. 40 of the XL Brief):Robb, at paras. 23 – 4, referencing that “[a] commission of inquiry cannot have the collateral purpose of providing evidence in a civilproceeding.”; Rumley, at paras. 51 -2; both cited in Ernewein v.

General Motors of Canada Ltd. 2005 BCCA 540, at paras. 31 – 2,which Counsel argued held that the certification justice “could not rely upon inadmissible hearsay or opinion evidence to prove theexistence of a common issue”; Slack, at para. 63, finding an absence of “the minimal evidentiary threshold”; Schick v. BoehringerIngelheim (Canada) Ltd. 2011 ONSC 63, at para. 29; and Pollack v.

Advanced Medical Optics, Inc. 2011 ONSC 850 ,2011ONSC 850, at paras. 33 - 8 and 49; • at least some legally admissible evidence is required “even for the purpose of satisfying the unusually low standard of proof” forcertification criteria: Windsor. v. Canadian Pacific Railway Ltd., 2006 ABQB 348, at paras. 54 – 6; Slark v.

Ontario,2010 ONSC 1726,at para. 58; and • the Report has no probative value because: it was not a judicial or quasi-judicial process – and, at p. 2, it acknowledges that itspurpose is not to “address civil ... liability; the standards that we are applying are not legal ones.”; it too relies on hearsay not under oath. [18] Before going on, in considering some of these arguments, I believe it is important to remember that: • as the oral arguments progressed, Counsel for the Representative Plaintiff limited his arguments on admissibility to pages 1, 27(and 28) of the Report, dealing with arguments as to delay in notice, and therefore I will not address the arguments related to the parts tobe excluded (e.g. none of the expert opinions identified at para. 37 of the XL Brief are contained in the part of the Report that I haveadmitted for the limited purposes set out herein) • the Second Affidavit, as I understand it, relates not to a new common issue, but rather to a new potential class or sub-class ofplaintiffs who disposed of beef of unknown origin due to the recall and its timing • certification is not a matter of substantive law, but rather procedural law as to the preferable procedure, wherein a lesser standardof proof, including some hearsay and opinion, may be admissible on this low standard of proof to determine this preferable procedure,the identifiable class(es), etc.

In this regard, there is no substantive prejudice, because such evidence, to the extent admitted, does not“inform”, for example, the “causal ... responsibility” or “applicable standard of care” (para. 42 of the XL Brief) for substantive purposes;moreover, in answer to the XL Brief, paras. 43 – 5, it will not be evidence for which CFIA can rely upon for any substantive purpose

• the passages from Robb (para. 19) and Rumley (para. 30) dealt with substance – not procedure, including the “standards of proofof evidence ... applicable to the conduct of a civil trial”, whereas this is not the trial of the merits, but the determination of the procedureto be used for trial [19] In the Representative Plaintiff’s Brief, Counsel argued that the Report was admissible on, and relevant to, certification, butthen agreed to limit it to pages 1, 27 and 28 of the Report.

With that limitation, the written submissions included, inter alia, that: • specifically, the argument was (para. 2 of the Representative Plaintiff’s Brief, relying on Windsor (QB) at paras, 2 – 3), that theReport, together with other evidence (my emphasis) provides “some basis in fact” (required by Hollick v.

Toronto, 2001 SCC 68, atpara. 25) that a “breach of the duty of care can be determined on a class wide basis and without reference to the individual circumstancesof putative class members”, which, as I understand it was to allow for inclusion of a class (sub-class) of persons with unidentified beef; • Rule 13.18, which distinguishes between determinative (merits or substance) and procedural (form) applications, permits hearsayevidence properly deposed (see, on this point: Baker v.

Budget Rent-A-Car of Edmonton Ltd., 2011 ABQB 123, at paras. 17 – 8 andElwin, at para. 52) to be admissible on the latter (procedure and form) at the procedural certification stage, because there is no formalfinding of fact, but rather merely the recognition of alleged facts that provide some basis for continuing. This promotes efficiency: Elwinv. Nova Scotia Home for Coloured Children, 2013 NSSC 196, at para. 50. In addition to Windsor (QB), as referenced above, see also:Hollick, at paras. 15 – 6, and, especially at 26; Rumley, at paras. 2 and 31 -3; Condominium Plan No. 0020701 v.

Investplan PropertiesInc., 2006 ABQB 224, at para. 29; Andriuk v. Merrill Lynch Canada Inc., 2013 ABQB 422, at para. 32; and Hoffman v. MonsantoCanada Inc., 2003 SKQB 174, at paras. 55 – 6; • consent to certification does not render the Report irrelevant or negate the need to establish some basis in fact: Markle v. Toronto,[2004] O.J. No. 3024 (S.C.), and the Report can provide background and context for certification: Windsor (QB), at paras. 2 – 3; • third party reports can be admissible in “support of the certification criteria and proposed common issues, without prejudice to thedefendants”: Sauer v.

Canada (Min. of Agriculture), 2008] O.J. No. 3429 (S.C.), at para. 33; and • Robb and Rumley, as relied upon by XL, are distinguishable (as recognized in Gay v. Regional Health Authority 7, 2010 NBQB128, at paras. 15 and 21 -2) because they relate, as I indicated supra, to evidence at trial. See also: Elwin, at paras. 10 – 12 and 46; Fieldv. GlaxoSmithKline Inc., 2011 SKQB 16, at paras. 6 – 11; Hoffman, at para. 52; and Smith v. National Money Mart, (ON SC), [2007] O.J.

No 1507 (SC), at paras. 50 – 67. [20] In the XL Reply Brief, Counsel for XL argued that: • the breach of duty of care to be determined using common evidence without reference to the circumstances of individual classmembers, as argued by the Representative Plaintiff, was not in dispute on the certification motion, because XL agreed that such questionsare appropriate for certification, with “some basis in fact” in the Representative Plaintiff’s initial affidavit; • that evidence is inadmissible if it goes to the merits, as XL argued, the Second Affidavit does: Hoffman, paras. 78 -83; • the limits on the admissibility of hearsay and opinion on certification motions are clear even on the Representative Plaintiff’scases: Elwin, paras. 31 – 4, and 66 – 73: Field, at para. 66; Hoffmann, at paras. 84 – 8; and • the basis for admission of evidence in the cases relied upon by the Representative Plaintiff are distinguishable based on the factsthere, not present here (with some comments by the Court): Hollick, admissible as to the existence of the class (I say, similar to here) andthe geographic scope of the class; Sauer, where admissibility was allegedly not in issue, and it pertained to an issue of whetherindividual issue predominating and would overwhelm common issues (I observe this to be a certification issue); Smith related to postcertification issues of opt-out and notice procedures; and Gay, admissible under the a provision of Evidence Act of New Brunswick, butnot present in the Alberta Evidence Act: the decision in Rumley was misinterpreted by Counsel for the Representative Plaintiff, and was,in fact, declared inadmissible on a motion to decertify: L.R. v.

British Columbia, 2003 BCSC 234, at paras 25 – 9, and 48 – 53, asdiscussed in Slark, at paras. 59 – 60. [21] In oral argument, Counsel for XL took issue with any finding, based on the Independent Review Report, that XL had beenguilty of delay. I find this argument is focused, not on the allegation of delay (which is what the Representative Plaintiff seeks toestablish), but on the proof of the allegation (which is for a later time).

It is clear that, even in the certification hearing, the statements inthe Report don’t become fact by their assertion. [22] Further, in oral argument, Counsel for XL repeated the written arguments that inquiry investigations and reports, by theirnature, are not legally admissible evidence, even in a certification hearing.

Moreover, Counsel for XL argued (TR 24/14 – 17) that notonly were they were not relevant and had low probative value, but were prejudicial, citing, inter alia, Slack and Robb. [23] However, I have found that they may be relevant as “some basis in fact” that delay is an issue, and that, if established at thecommon issues trial, could impact on the class definition. [24] In oral argument, I postulated (TR 20/ 4 – 15 – see also TR 21/6 – 9) that “documents that are hearsay can be provided, notfor the truth of their contents, but in a procedural process such as certification to demonstrate that there is an argument.

And that is what Ibelieve ...is the test of the words ‘some basis in fact’, that it is not spurious, it is not off the wall, it is not unrelated, that when youconnect the dots ... it does provide a link to pull these pieces together ... [that] creates some basis in fact for a claim that would involvethe ... unidentified beef issue”.

I continue to believe, and thus to hold, that is the case. [Emphasis added.] [25] It is to be remembered that the test for certification is “some basis in fact”, not proof of fact, and that certification is at anearly stage before the merits are determined (Hollick) and substantive facts are to be proven. Indeed, if, during proceedings that followcertification, the opposite is proven, then an application can be made to de-certify (Rumely #2).

In the result, I believe some leewayshould be given to class proceeding plaintiffs at the initial, certification stage of the proceedings to establish “some basis in fact” by less

than absolute proof going to the merits. [ 26 ] In my oral reasons (TR32/27 – 33/28) allowing those 3 pages of the Independent Review Report into the record, I repeated the same conclusion that the material was: ... admissible not as the truth of its contents, [as] I do not intend to find facts in the certification. I need to find whether there is some basis procedurally for a matter to go forward.

Hearsay evidence is available in procedural application when it is not relied upon as truth of its contents, but rather, it is relied upon as I am understanding it to take pieces of evidence that are in existence and are true ... to pull that together ... to help identify that there is some [arguable] basis in fact for including purchasers of ... unidentified beef as part of a class or subclass.... ... this [Report] merely ties together those pieces [of externally proven facts] and demonstrates that there is some reality to the claim....

Its probative value is irrelevant because no one is relying upon it as fact, and I am not admitting it as fact.... I do not find it to be unfairly prejudicial to the Defendants....” [ 27 ] I then make a distinction between the use of the report at a common issues trial and certification (TR 33/24 – 6). Finally, I directed (TR 34/27 – 37) that a redacted affidavit be filed and the original be sealed (yet to be done).

The reason that the remaining pages of the Independent Review Report are to be sealed is that, certification now being a matter of consent (except for the resolution of the issues below), that Report should not be evidence before, or available to, the common issues trial justice, unless s/he so orders. [ 28 ] The above are my Reasons for this direction.

With my direction, and prior to these Reasons, the parties have agreed to all of the terms of the Strike Order (to be dated October 7, 2013), except for costs, discussed in the next paragraph, with XL’s draft in Appendix A to be amended to start with the words “Subject to further Order of the Court, the Affidavit of Matthew Harrison #2...”. [ 29 ] As to costs flowing from the Strike Order, to the extent that the Representative Plaintiff attempted to put in the whole of the Report, but before the hearing, the parties agreed that all of the Report, except pages 1, 27 and 28, would be removed, the costs will be in the cause, for that consent result.

However, the parties did not agree with respect to pages 1, 27 and 28, and I held, as the Representative Plaintiff argued, for the Reasons set out above, that those pages were admissible. Therefore, the Representative Plaintiff being successful, he is entitled to costs, in any event of the cause, payable forth with (or set off) in such amount as Counsel may agree, or as may be set by the Assessment Officer. This is consistent with my oral reasons articulated at TR 114/21 – 115/8, and more specifically at TR151/4 – 8. III.

Certification Order [ 30 ] The parties provided the Court in August 2014, with competing Certification Orders – the drafts of XL and the Representative are attached respectively as Appendix “B” and Appendix “C”. The drafts reflect that: the substance and wording of some parts are agreed; the substance of other parts are agreed, but the wording was not; and, in some parts, even the substance was not agreed. I will try to deal with these issues individually. A. Nature of the Claims & Relief Sought by Class [ 31 ] XL agrees to the inclusion of paras. 3 and 4 of Appendix “C”, and those issues are thus resolved. B.

The Class Definition [ 32 ] The parties have indicated that this must await this Decision/Certification Reasons, and thereafter the parties will agree, or seek further direction from the Court. That is permitted. C. The Common Issues [ 33 ] XL agrees with the “red lined” revisions proposed by the Representative Plaintiff to paras. 7 to 9 of Appendix “C”, and those issues are thus resolved. D. Dismissal of Certain Claims [ 34 ] It appears that the area of dispute is whether all of para. 83 of the Amended Amended Statement of Claim (as stated in para. 6(

d) of Appendix

B) was agreed to be dismissed by the Plaintiff, or only paras. 83(

b) and (d) (as stated at para. 11(

d) of Appendix C). There seems to be no disagreement with respect to matters agreed to before the hearing (para. 5 of Appendix B), but only with those argued to be dismissed at the oral hearing (para. 6 of Appendix 6 of Appendix B and para. 11 of Appendix C).

Unless I have misunderstood the references to materials discussed during the hearing, without reference being made by the parties to the portion of the oral hearing where these matters were discussed (and tracking them to material provided for the hearing), and without a searchable transcript (I am not going to re-read it line by line to find the places), absent further references, I accept the position of the Representative Plaintiff as to what was agreed to be dismissed, and therefore the substance of para. 11(

d) of Appendix C, such that only dismissing the claims in para. 83(

b) and (

d) is approved. If I have misunderstood some aspect of this, the parties can advise.

[ 35 ] The next matter is rather trite and really unworthy of the Court’s time in resolving it. The parties agree to the substance, but a dispute arose regarding the wording of paragraph 22 of Appendix C, as to whether the claims for which notice was not required are claims that were “abandoned” or “dismissed”. Para. 22 refers back to para. 10, which refers to “common issues which were abandoned by the Plaintiff and are hereby dismissed”. The action of abandonment resulted, by agreement, in their dismissal, and thus the word to be used in para. 22 is the result, namely “dismissed”, not “abandoned”. E.

Further Amendments of the Statement of Claim [ 36 ] It is common place and not in dispute that the Representative Plaintiff should amend his Amended Amended Statement of Claim to remove the dismissed claims. However, the Representative Plaintiff instead wishes (para. 23 of Appendix

C) to file a “fresh as amended statement of claim”, to which the Defendants object on the basis that the Representative Plaintiff proposes to change the facts and appears to amend or create new causes of action. In the result, the Defendants say that such a comprehensive amendment should be the subject of a separate application. I agree with the Defendants. Thus, the Representative Plaintiff has leave only to amend to delete causes of action and other claims dismissed (and associated wording as may be agreed), but not to issue a whole new pleading.

If it wishes to do the latter, it will need to do so by agreement or on separate application. If it wishes to withhold the amendments permitted here until any new application may be heard and determined, the Representative Plaintiff may do so. F. Notice of Certification and Costs Thereof [ 37 ] While the wording of paras. 12 in each of Appendix B and C are a little different, they are not objectionable in substance. The parties can work out any differences and approve some combination of either or both. [ 38 ] What is in dispute is the costs of Notice.

There appears to be no final agreement on that, and that would have to be determined by the Court on further argument, if it cannot be agreed. Without such further argument, however, by way of “guidance”, XL (and/or CFIA) might consider consenting to paying some or all of the cost of the Notice, in the first instance, for a number of reasons, some of which I will articulate.

While XL has denied liability (and third partied CFIA to contribute if it is liable, which CFIA has denied), the losses to the Representative Plaintiff and the plaintiff class, to the extent that they have occurred (whether or not XL and CFIA are proven liable), arose out of XL’s Brooks Plant, monitored by CFIA. Moreover, certification of these claims has been substantially agreed. The Representative Plaintiff and the plaintiff class may not succeed in proving liability against XL, but he/they are in no way responsible for any such losses.

If the Representative does not succeed, then the costs of Notice shall be a matter of costs for consideration in the final instance. If the Representative Plaintiff does succeed in whole or part, the cost of the Notice of the substantially agreed certification would fall to XL. There may be other reasons in support of this result, and undoubtedly some against. Nevertheless, if this “guidance” does not result in agreement on the issue, the parties can address these (and any other) issues and argue their position, with their “costs cheque book firmly in hand”. G.

Process of Opting Out [ 39 ] XL agrees to the inclusion of paras. 14 to 17 of Appendix “C”, and those issues are thus resolved. H. The Litigation Plan [ 40 ] XL agrees that the “Amended Litigation Plan ought to be approved as it was before the Court on the hearing of the matter”. Thus, that Amended Litigation Plan, with any further agreements to which the parties arrive before the Certification Order is filed, should be so included in that Order – to be identified as the “Amended Litigation Plan” as attached to the Order. I.

Costs of Certification [ 41 ] Absent further considerations, to which the parties have agreed to present, if necessary, I will again provide some “guidance”. As certification has been agreed to or ordered following extensive submissions in writing and orally, although much of it was ultimately by consent, it follows that the Representative Plaintiff has been, in the result, successful in obtaining certification, and thus would normally be entitled to costs in an amount as agreed or as assessed by the Assessment Officer, set off (if necessary) by any specific awards during the process.

If further considerations are necessary, the parties can bring them before the Court in the manner and at a time agreed to by the Court. J. Class

Definitions [ 42 ] While class definition is a much more substantive issue than some of the procedural matters addressed above, it is not completely clear what decisions the Court is now being asked to make. [ 43 ] I will deal with the “’Who Claims’ Qualifier”, referencing the Representative Plaintiffs Brief which addressed Justice Cullity’s concern in Ragoonanan Estate v. Imperial Tobacco Canada Ltd. , 2005 CarswellOnt 5992 (SC), at paras 39 – 40 and Tiboni v.

Merck Frosst Canada Ltd. , 2008 CarswellOnt 4523 (SC), at para 75 , that the criteria for class definition of someone “who claims” was not objective and was contrary to merely being part of the class who had an alleged loss - the latter is the more appropriate in my view. Thus, this relates to my suggestion that it was not sufficient to merely “claim” or to wait for a claim following trial, but rather to include the class of Plaintiffs who allege a loss.

It appears to me now that, in each of the wordings of the class definition in the proposed Orders in Appendix B and C, this is covered by reference to words such as “suffered physical illness” (XL), or “suffered a physical illness or injury” (Representative Plaintiff). To the extent that there is a difference, the latter is broader, and more inclusive, in that it would appear

to include a hurt or discomfort that does not result in a specific or identified illness, and is thus approved. 1. Identified Beef [44] The parties define the class in paras. 2 of their respective Appendices. The wording is different. Moreover, the issue ofeconomic loss (in both – part of para. 2(

a) of XL and a separate para. 2(

b) of the Representative Plaintiff), can come out as a result of theproposed settlement of that issue. [45] As to the remainder of the definition, the Defendants provide more detail in their para. 2(

a) than does the RepresentativePlaintiff does in his para. 2(a). To the extent that the detail clarifies the class and is more specific that the general, the former shouldnormally apply, subject to any further agreement. The Defendant included a definition in its Appendix that was broader and moredetailed than identified in their letter submissions of August 12, 2014, which they say they are prepared to agree that would result in a“more limited ‘Class’”, as therein enumerated.

The Representative Plaintiff has a different wording than the Defendants, with some lessdetailed difference in substance, but does not address the issue, other than having different wording. In the result, it is difficult for theCourt to determine the substance of the difference and why one would be more appropriate than the other. Thus, subject to my commentsabove regarding the more specific, rather than general, absent further submissions, or agreement in lieu, the Court cannot now resolvethis issue. The parties need to resolve it, or make further submissions to the Court. 2.

Unidentified Beef [46] The parties have different wording (para. 2(

b) for XL, and 2(

c) for the Representative Plaintiff), that apparently follows some“guidance” I gave at the hearing (TR 92/36 – 41). There does not appear to be substantive difference.

My conclusion as to Identified Beefabove also applies – the parties should consent to one, or make further submissions to the Court as to why one (or parts of one) is moreappropriate than the other. [47] The Defendants seek further reasons from me than contained in the transcript as to why I ordered that this class be included. [48] This issue was not specifically identified in the initial Certification Brief of the Representative Plaintiff, other than to note(paras. 18 – 22), that the recall alerts did not refer to specific “UPC codes” that would allow consumers to determine whether theypurchased recalled products, or included unlabelled or unbranded products, all of which advised consumers if they were “uncertain” to,ultimately “throw out” the unidentified product – “When in doubt, throw it out!”. [49] However, it was raised by the XL’s Response Brief (paras. 37 – 44, and 55 – 8).

XL argued that the purchasers ofUnidentified Beef cannot have a cause of action against the Defendants, because there is no rational connection, no proximity, betweenXL and such a class, in that the class cannot establish that they purchased and consumed XL beef (such persons who can already being inthe proposed and agreed class), and XL could have not foreseen their harm from XL beef, nor were they harmed by XL beef. They relyupon my decision in Eaton v.

HMS Financial Inc., 2008 ABQB 631, at paras. 44 and 54. [50] In his Reply Brief, Counsel for the Representive Plaintiff argued that the Unidentified Beef class was “entirely appropriate”,referring to his discussion in his original Brief, and argued more pointedly that the “alerts ... made it impossible in many circumstancesfor persons to positively confirm that the beef products they purchased were not part of the recall”, because there was not a“comprehensive list of products”.

Acknowledging that it was a “novel issue”, Counsel for the Representative Plaintiff argued that thisdid not make the class “unnecessarily” over-inclusive, as prohibited by Hollick, at para. 21, see also Lambert v. Guidant Corp., (ON SC), [2009] O.J. No. 1910, at paras. 94, 102, and 112 -3 – especially so, when, as in Lambert, the “conduct of thedefendants with respect to the advisories ‘is very much in issue in this litigation’”.

Moreover he argued that the issue should be“determined as part of the common issue trial”, where there is a “full evidentiary record”, not at the “pleadings stage”: Williams v.Toronto (City), 2011 ONSC 6987 , 2011ONSC 6987 (Div. Ct.), at paras. 47 – 50. See also: Trillium Motor World Ltd. V.General Motors of Canada Ltd., 2011 ONSC 1300, at para. 92; Kherani v. Bank of Montreal, 2012 ONSC 2230, and Eaton, at para.233.

I agreed. [51] At the hearing, I observed (TR 72/ 17 – 31, and 73/15 – 26), as Counsel for the Representative Plaintiff admitted, that whilethis was a “novel”, it was not an unreasonable cause of action, if properly defined and limited, because it is “a potential consequence of[the] alleged breach”. I referred to it as” collateral damage”, in that it was not related to those who were the primary area of loss, butrather secondary.

Without intending to be precise as to the dates and times (that is for the wording), it arises in the circumstances wheremeat products are purchased by a claimant within the time of recall of XL products, but labels or other identification had been removed(by the consumer or in an intermediate processing), such that the source of the product was not clear, and that, rather than take the healthrisk, the claimant followed the advice of the recall that, “if in doubt, throw it out”, which apparently some potential claimants did.

Onecould consider other analogies – e.g. loss due to moving out beyond the immediately affected area of an explosion, where there was analleged risk of further explosion from a leaking pipeline or rail car, rather than take the risk, when the defendant was the cause of thealarm in the first instance. There are undoubtedly other examples. In the result, while it may be a novel cause of action, it is, as I said,surely not unreasonable.

Indeed, it is in this way, where common sense recognizes a potential for loss that the law should respond tomeet it. [52] The Defendants, argued firstly, that there was no “legally admissible evidence to constitute ‘some evidence in fact’”.

Well, tothe extent that I did not strike pages 1, 27 and 28 of the Report, as discussed above, I have found that is “some evidence in fact’ that isadmissible for certification purposes, at this stage, where there has not yet been a full examination of the applicable facts. [53] The Defendants also argued that “the claim did not disclose a cause of action known to law in terms of a duty of care inrelation to competitors’ products, foreseeability and principles of remoteness...”.

I respond that the duty of care alleged is not in relationto competitors’ products, but rather to consumers who, facing a risk, might reasonably not know whether or not the product they have isincluded within the recall or not. Such a circumstance would seem to be reasonably foreseeable, but it and remoteness would have to be

further investigated as the case proceeds and the evidence and claims are received. [ 54 ] The Representative Plaintiff did not address this issue again subsequent to the oral hearing. [ 55 ] The bottom line is that there is a clear reality to the potential of such loss arising from some combination of the XL alleged breaches vis-à-vis its products alleged, negligence in regards to notice and recall in time and procedures, or otherwise. In fact, it is not unforeseeable, although remoteness will be assisted by proper limits on the class definition and diligence during the common issues and the claims process. IV.

Conclusion [ 56 ] This Certification Decision/Reasons provides decisions on matters which the parties could not agree, and provides reasons (or further reasons) for previous decisions that I have made. [ 57 ] To the extent that this Certification Decision/Reasons do not address all the issues that the parties seek the Court to address in this “moving target” of litigation, they can raise them with me in my role as Case Management Justice of this action. Heard on the 7 th and 8 th of October 2013, with further submissions between the 12 th and 25 th of August 2014, and on the 14 th and 20 th of October 2014.

Dated at the City of Edmonton, Alberta this 25 th day of November 2014. J.D. Rooke J.C.Q.B.A. Appearances: Richard Mallet Clinton G. Docken, Q.C. Linda Visser (Siskinds LLP, London ON) for the Plaintiff Eric Dolden and Diana Dorey Dolden Wallace Follick LLP for the Defendants Bruce Hughson and Kerry Boyd Department of Justice Canada for the Third Party Defendant Only first pages of the Appendices are attached to the unofficial electronic version of the judgment. Complete copies of the Appendices

are available from the Court file.