No duty of care on service provider to third party to perform activity outside scope of limited retainer

Ontario civil | Civil Practice and Procedure | Class and representative proceedings | Representative or class proceedings under class proceedings legislation

Defendant retailer purchased clothes from manufacturer whose factory was in building in Bangladesh. Building collapsed, 1,130 people died, and 2,520 people were seriously injured. Retailer had retained defendant consulting services enterprise to conduct what was known as “social audit” of factories in Bangladesh, including one of factories in building in issue. Plaintiffs, four citizens of Bangladesh, commenced proposed class action in Ontario pleading causes of action in negligence, vicarious liability, and breach of fiduciary duty against retailer, and pleaded negligence action against consulting services enterprise. Defendants were successful in their motions to have proposed class action dismissed as it was held laws of Bangladesh governed plaintiffs’ claim, claim was limitations-barred for all class members other than minors at time of collapse, and defendants did not owe class members duty of care. Plaintiffs appealed. Appeal dismissed. Essence of claim was based on injuries and since injuries occurred in Bangladesh, governing law was that of Bangladesh. Motion judge’s determination that Bangladesh’s one-year limitation period applied to claims in wrongful death and personal injury was correct. Plaintiffs’ submission that limitation period did not run respecting retailer under s. 13 of Bangladesh’s Limitation Act, 1908, which tolled limitation period while defendant was absent from country was not accepted. With reference to Indian case law, provision did not apply because plaintiffs pleaded that retailer was engaged in garment manufacturing activities in Bangladesh, and retailer’s representatives visited Bangladesh. With respect to claim against retailer, alleged duty of care was not analogous to those found in English authorities that held parent companies liable for actions of subsidiaries. Among other things, English cases were distinguished in that retailer had little control over factories; was not in same business as factories, did not have superior knowledge or expertise about issues of structural safety; and did not undertake to audit building for structural safety. Similarly, respecting claim against consulting services, it was plain and obvious that no duty of care was owed to plaintiffs since consulting services had not undertaken to inspect for structural integrity. No precedent case law imposed duty of care on service provider to third party to perform activity outside scope of its limited retainer. Possibility was acknowledged that defendants could owe duties of care to third parties, including class members, however, scope of that duty was limited by defendants’ undertakings.

Das v. George Weston Limited (2018), 2018 CarswellOnt 21598, 2018 ONCA 1053, Doherty J.A., K. Feldman J.A., and D.K. Gray J. (ad hoc) (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 10590, 2017 ONSC 4129, Perell J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 14604, 2017 ONSC 5583, Perell J. (Ont. S.C.J.).

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