Generally speaking, if a customer ingests a dangerous substance found in a food item and suffers medical injury from it, a personal injury claim could be brought.
What if they did not ingest it or the substance was harmless to that person? Certainly, finding insects or pills or a foreign substance or object of any kind in a meal would cause upset and a certain level of distress to the average person. However, without proof that one has suffered provable psychological or psychiatric injury (assuming there is no physical injury as in the first scenario), a negligence claim cannot succeed. If there was such injury, another hurdle must be overcome to justify compensation – the harm must be found to be reasonably forseeable to the average person.
These requirements were laid out in Mustapha v. Culligan Canada Ltd., a 2008 Supreme Court of Canada decision. In that case, Mr. Mustapha discovered a fly in a water bottle. As a result, he developed a psychiatric illness - major depressive disorder with associated phobia and anxiety.
The Court upheld the trial judge’s finding of psychiatric injury, but dismissed the claim on the basis that Mr. Mustapha was not able to show that “it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install.”
Essentially, the harm Mr. Mustapha had suffered was found to be too remote from the defendant’s conduct to hold it legally liable.
The principles in Mustapha v. Culligan Canada Ltd. may well apply to the situation that allegedly occurred at the Tim Horton’s, but as with all injury claims, you should consult an experienced personal injury lawyer to evaluate your case without delay.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of personal injury matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.