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Blue Label, Not Mislabelled: Door Left Ajar in Pre-Certification Dismissal of Loblaw Food Labelling Class Action

Published: 02/02/2016

By Kate Byers

A recent decision from the Saskatchewan Court of Queen’s Bench demonstrates a unique circumstance in which the Court granted summary judgment dismissing a proposed class action prior to certification, but only as against the individual proposed representative plaintiffs. In other words, the door was left ajar for another plaintiff to plead the same case differently and seek class certification.

Background to the Case

In Sandoff v. Loblaw Companies Ltd., the Saskatchewan Court of Queen’s Bench granted summary judgment to the defendants in a class action against the Loblaws grocery chain alleging a host of claims relating to the alleged misleading labelling of private label brand beverages as “low sodium.”1 The plaintiffs claimed negligence, breach of warranty, unjust enrichment, waiver of tort, exemplary and punitive damages and violations of the Food and Drugs Act and other statutes.

Evidence and Decision

The plaintiffs alleged that Loblaws’ use of the labels was false, misleading and deceptive. However, the plaintiffs’ affidavit evidence proved inadequate to support those claims. Importantly, the plaintiffs acknowledged that the products in question did in fact contain a minimal level of sodium, but maintained that the use of the labels amounted to a misrepresentation that they were lower in sodium than other comparable products.
In fact, the Court found that the plaintiffs fact and expert witnesses had not provided any evidence that Loblaws had made any such comparative claims. Further, the plaintiffs did not assert that any consumers, or the plaintiffs personally, were actually misled by the labels, nor did they claim that the plaintiffs had relied on the alleged “low sodium” representation when purchasing the products or that they had suffered any damages.

Justice Keene of the Saskatchewan court applied an objective test to determine that the labels were not false, misleading or deceptive. Ultimately, the products in question were found to be low in sodium (defined as containing approximately 14% of the sodium permitted), meaning that the labels were not actually inaccurate. The Court dismissed the argument that since other companies had not chosen to label their similar products this way, Loblaws’ decision to do so was misleading. He noted that consumers were free to check the nutritional label at any time and make a reasoned decision. Finally, he noted the lack of evidence of any damages suffered.

Interestingly, while Justice Keene awarded summary judgment to the defendants and denied certification to the particular plaintiffs in this case, he did not rule out the possibility of a future, differently pleaded action being launched by other members of the proposed class.

Key Take-Away Principles

This case reinforces the availability of summary judgment prior to certification, but also the potential that while a defendant may be successful on a summary judgment motion in a class action, that may not be enough to close the door on any future similar class actions.

This case also serves as a reminder to plaintiff class counsel that the availability of pre-certification summary judgment means that they must be prepared to substantiate their claims at an early stage, and should choose their affiants wisely.

Read the full decision here.


1 2015 SKQB 345