Court File No. 60680 CP ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : 1688782 ONTARIO INC. Plaintiff - and - MAPLE LEAF FOODS INC. and MAPLE LEAF CONSUMER FOODS INC. Defendants Proceeding under the Class Proceedings Act, 1992 NOTICE OF MOTION FOR CERTIFICATION The Plaintiff will make a motion to the Case Management Judge on a date and time to be fixed by him/her at the courthouse, 80 Dundas Street, London, Ontario. PROPOSED METHOD OF HEARING: The motion is to be heard: X in writing under subrule 37.12.1(1) because it is on consent or unopposed or made without notice; in writing as an opposed motion under subrule 37.12.1(4); orally. THE MOTION IS FOR: 1. An Order: (a) (b) certifying this action as a class proceeding; defining the Class as: All persons, whether natural or corporate, who, in August 2008 were franchisees of the restaurant franchise of which Mr. Submarine Limited ( Mr. Sub ) was the franchisor
- 2 - (c) (d) (e) (f) (g) (h) (j) appointing 1688782 Ontario Inc. as the representative plaintiff of the Class; stating the nature of the claims asserted on behalf of the Class as set out in paragraphs 13 to 24 and 30 to 32 of the Amended Statement of Claim; stating the nature of the relief sought by the Class to be as set out in paragraphs 1 and 33 of the Amended Statement of Claim; setting out the common issues; approving the plaintiff s proposed Litigation Plan as a workable method of advancing the proceeding on behalf of the Class; settling the form and content of the notice of certification (the Notice ); directing distribution and publication of the Notice to proceed as particularized in the Litigation Plan (the Notice Program ); specifying that: a Class member may opt out of this class proceeding by sending a written election in accordance with the Notice Program, before a date to be fixed by the Court, to: Nicholson, Smith & Partners LLP Barristers & Solicitors 295 Central Avenue London, Ontario N6B 2C9 Attention: Mr. Sub Franchisee Class Action (ii) (iii) no Class member may opt out of the class proceeding after the date fixed; and by a further fixed date, Nicholson, Smith & Partners LLP, shall report to the Court the names of the Class members who have opted out of this class proceeding; (k) that the defendants shall pay the costs of the Notice Program as specified in the Litigation Plan;
- 3 - (l) (m) costs of this motion; and such further and other relief as counsel may request and this Honourable Court may deem just and appropriate. THE GROUNDS FOR THE MOTION ARE: BACKGROUND (a) (b) (c) (d) (e) (f) On August 19, 2008, the defendants (together or separately, Maple Leaf Foods ) announced a recall of processed meat products as a result of an outbreak of listeria, determined to have been caused by the contamination in its processing and distribution facilities of certain Maple Leaf meat products with the listeria monocytogenes bacteria. The Class, including the plaintiff, operated Mr. Sub sandwich franchise stores as of August 2008. Maple Leaf Foods had agreed to provide certain Maple Leaf meat products to the Mr. Sub franchisor, and Maple Leaf Foods was aware that the Class was obliged to sell those Maple Leaf meat products in their franchise stores. Indeed, Maple Leaf Foods prepared certain meat products specifically for distribution to Mr. Sub franchisees, for sale at Mr. Sub franchise stores. Maple Leaf Foods was also aware that the Maple Leaf franchisor and the Class specifically identified and advertised the Maple Leaf Foods brand in association with Mr. Sub product offerings sold at the franchise stores. It was widely advertised that among the Maple Leaf Foods meat products affected by the recall and the contamination were meat products sold exclusively at Mr. Sub stores. The listeria outbreak, the recall, and the associated negative publicity relating to the Maple Leaf products and their association with Mr. Sub all resulted in decreased sales, revenues, market share and profits for the Class. For some, the disruption resulted in permanent business losses and ultimate business failure.
- 4 - (g) (h) The plaintiff is a corporation who, as of August 2008, operated a Mr. Sub franchise store. The Amended Statement of Claim alleges that the defendants owed the Class a duty of care, and breached the standard of care of a producer and distributor of ready-to-eat ( RTE ) meats, by allowing certain of its RTE meats to become contaminated with the listeria monocytogenes bacteria, and by failing to take remedial measures to treat the contamination and prevent the growth of the bacteria in distributed RTE meat products, rendering them unfit for human consumption and leading to the recall and associated public-relations catastrophe for the Class. The plaintiff has claimed that the negligence of the defendants - resulting in the contamination and recall - caused the plaintiff and the Class damages, including business losses. CERTIFICATION: (j) The criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 are met: (ii) (iii) (iv) (v) the Amended Statement of Claim discloses a cause of action; there is an identifiable Class of Mr. Sub franchisees in Canada who will be represented by the proposed representative plaintiff to this proceeding; the claims of the Class members raise common issues of fact and law that will materially advance the litigation; a class proceeding is the preferable procedure for resolution of the common issues; the proposed representative plaintiff: (A) will fairly and adequately represent the interests of the Class;
- 5 - (B) (C) has a workable plan for advancing the proceeding on behalf of the Class, and of notifying Class members of the proceeding, and does not have a conflict of interest with other class members in respect of the common issues; (k) A class action will provide access to justice for the Class, will create judicial economy and will promote behaviour modification. NOTICE (l) (m) (n) Mr. Sub has provided the last known addresses of the Class as at August 2008; Some Class members may no longer be operational or franchisees, may have moved or changed ownership, and, as a result, are no longer at the last known address; The Notice Program proposes: (ii) (iii) (iv) (v) (vi) (vii) emailing a copy to those Class members who have been in contact with Class counsel and who have provided email addresses; mailing a copy of the Notice to the last known address of each Class member who has not been emailed; posting the Notice on the website for this class proceeding; updating the toll-free telephone line for the class proceeding; publishing a copy of the Notice in the Globe and Mail and the National Post; posting the Notice on the defendants websites; and providing a copy of the Notice to Mr. Sub, a non-party, for posting on their website;
- 6 - (o) (p) (q) (r) (s) (t) The Notice Program is a reasonable method of notifying the Class; It is fair, just and reasonable that the defendants shall pay the costs of the Notice Program; The directions as to the conduct of this class proceeding are sought to ensure a fair and expeditious determination of this action; Sections 1, 2, 5, 6, 8(1), 9, 12, 17, 20, 22, 34(1), and 35 of the Class Proceedings Act, 1992, S.O. 1992, c.6, as amended; The Rules of Civil Procedure, RRO 1990 Reg. 194, as amended, including Rules 1, 2, and 12; and Such further and other grounds as counsel may submit and this Honourable Court may accept. motion: THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the (a) (b) (c) (d) (e) (f) the Amended Statement of Claim dated December 30, 2008 and amended December 4, 2014; the Affidavit of George Mitropoulos, President of the plaintiff, 1688782 Ontario Inc., sworn December 10, 2014, and exhibits thereto; the Affidavit of Dr. James Marsden, Ph.D. Professor of Food Safety and Security at Kansas State University sworn December 12, 2014, and exhibits thereto; the Affidavit of L. Scott Smith, sworn December 10, 2014, and exhibits thereto; the pleadings and proceedings herein; and such further and other material as counsel may submit and this Honourable Court may accept.
- 7 - December 18, 2014 LERNERS LLP Lawyers 85 Dufferin Avenue London, Ontario N6A 4G4 Kevin L. Ross LSUC#: 24549R John A. Nicholson LSUC#: 52132V Tel: 519.672.4510 Fax: 519.672.2044 NICHOLSON, SMITH & PARTNERS LLP Barristers & Solicitors 295 Central Avenue London, Ontario N6B 2C9 L. Scott Smith, LSUC#: 21459L Tel: 519.679.3366 Fax: 519.679.0958 Lawyers for the Plaintiff TO: STIEBER BERLACH LLP 130 Adelaide Street West Suite 1800 Toronto, Ontario M5H 3P5 Steven Stieber LSUC#: 13317W Tel: 416.366.1400 Fax: 416.366.1466 Lawyers for the Defendants
1688782 Ontario Inc. Plaintiff and Maple Leaf Foods Inc. et al. Defendants Court File No: 60680 CP ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at London NOTICE OF MOTION FOR CERTIFICATION LERNERS LLP Lawyers 85 Dufferin Avenue London, Ontario N6A 4G4 Kevin L. Ross LSUC#: 24549R John A. Nicholson LSUC#: 52132V Tel: 519.672.4510 Fax: 519.672.2044 NICHOLSON, SMITH & PARTNERS LLP Barristers & Solicitors 295 Central Avenue London, Ontario N6B 2C9 L. Scott Smith, LSUC#: 21459L Tel: 519.679.3366 Fax: 519.679.0958 4968640.1 Lawyers for the Plaintiff