In June 1994 the Ontario legislature passed An Act Respecting the Donation of Food 1 • Little or no publicity accompanied the passage of this short Act, which substantially alters the common law governing the liability of food banks and donors to food banks for the products distributed by the banks. Section (1)(1) relieves both the donor of food and the distributor of donated food from liability “for damages resulting from injuries or death caused by the consumption of the food”. Donors of food or organizations such as food banks will be liable only if the food is “adulterated, rotten or otherwise unfit for human consumption” and if “in donating or distributing the food”, the donor or the food bank “intended to injure or cause the death of the recipient of the food” or “acted with reckless disregard for the safety of others”. In other words, this subsection gives immunity from the ordinary liability for negligence which generally governs the law of product liability. Subsection 2 of section I deals with the personal liability of directors, agents, employees or volunteers of corporations that donate food or that distribute donated food. Again, there is no liability unless the food was rotten etc. and the person “did not act in good faith”, or acted beyond the scope of his or her role, and, as in subsection I, intended to injure or showed reckless disregard for the safety of others.
Before commenting on the Act, it might be useful to make clear precisely what it achieves. In order to do this, I will construct what I will call a “food chain”. The last link in the chain is the food bank-the distributor of food to the needy public. As far as the food bank is concerned, the statute creates an immunity for ordinary negligence, although not the deliberate intent to injure or reckless disregard for safety. While the existing law serves principally to hold manufacturers liable in negligence for food and other products,2 and while most cases involve, as plaintiffs, the purchasers of such products, the law does place distributors under a duty to act with reasonable care and does not discriminate against an injured recipient merely because the product has been received gratuitously.3 Thus one important change brought about by the statute is substantially to relieve distributors of the need to take reasonable care in relation to food distributed free of charge. In truth, this is a change that will probably have little practical effect. Provided that the food bank did not interfere with the products being distributed, for which they would probably still be liable even under the statute, it is likely that in any litigation involving harm caused by the consumption of free food some other person would be liable, if indeed liability were found.
Moving back along the “food chain”, we find the next link to be donors to the food bank. Frequently these are individuals who have bought food and who simply pass it on. Like the food banks themselves, these people are very unlikely to be held liable under current law because they had nothing to do with the manufacture or the real “supply” of the product. That is, if I bought a jar of peanut butter from the supermarket, placed it in the food bank box as I left, and it turned out to cause injury to someone, I could not be liable. I had no role in the manufacture of the product and no real control over it. Despite this, an individual donor who does what I have outlined is given the same substantial immunity from liability by virtue of the statute as the food bank itself.
It is when we move along one more link that we find the most radical alteration to the common law. Here we arrive at the place where the food originates, be it the manufacturer who sells to the wholesaler, the wholesaler, or perhaps the supermarket which sells both prepackaged and store-made food. Although there are obviously differences between these three, they are functionally the same for current purposes, and I will refer to them collectively as “primary suppliers”. In the above example of my buying and donating peanut butter, the primary supplier of that peanut butter does at common law owe a duty to its consumer, a duty to take reasonable care that the product will not cause harm. But under the statute, if the primary supplier, rather than relying on my intervention and generosity, donates the peanut butter itself, it is no longer liable in negligence. By becoming a donor it acquires the right to be negligent.
Although the Ontario statute provides no guidance as to why this has been done, the debates in the legislature are revealing. As the bill’s sponsor, MPP Dalton McGuinty, succinctly stated on introducing it, the purpose “is to protect the supply of existing donations to food banks and to encourage further donations”.4 In the second reading debate he elaborated on what he saw as the more important of these two purposes: the encouragement of further donations. Food banks could not meet the demands on them, he stated, yet “there are several large corporate food retailers, manufacturers, processors, distributors, … who are throwing good food into the garbage on a daily basis, food that couldn’t be sold in stores or in restaurants but was still good food, healthy food, nutritious food”.5 He went on to elaborate on the kind of food he meant. This included products that were close to, but had not yet reached, their “best before” date. “It’s unlikely”, he stated, that a store would “be able to sell that to your average consumer”. He also gave the example of “dented cans” which “you simply can’t sell…to a consumer in your store”, and of “frozen turkeys with fingernail-size holes in the wrapping and which have been subject to some amount of freezer burn”.6 Such food was simply thrown away, not donated to food banks because of fear of liability if someone became sick, and thus the Bill was merely “Good Samaritan” legislation, 7 made necessary by the legal advice received by primary suppliers that there might be liability.s All speakers in the legislature, from all three parties, supported the Bill, as apparently did many of the province’s food banks and, of course, many representatives of “primary suppliers”.9
While many will obviously sympathize with any measure that will serve to increase supplies to food banks, there are a number of aspects of this issue that will, in equal measure, trouble others. First, there are problems with the way in which the legislation was characterized during the legislative debates over it. In introducing the Bill McGuinty stated that its purpose was “to relieve people who donate food to our food banks from liability in the event that, by accident alone, that food makes a food bank user sick”.10 The key word here is “accident”. The common law does not hold people responsible simply for “accidents”; indeed that term has no legal meaning. It holds persons responsible when they fail to act with reasonable care where it might reasonably be foreseen that that failure could cause damage to some person, or some class of persons. That is, in this context, primary suppliers of food have a duty to its ultimate consumers to take reasonable care to ensure that the food they supply will not cause injury. It is an immunity from this duty which primary supplier donors have obtained, not an immunity from some unforeseeable “accident”. Precisely what will constitute “reckless disregard for the safety of others” under the statute is a matter that the courts will have to decide but it is certain that it will go far beyond ordinary negligence.
Second, one has to question whether, on the facts presented to the Legislature, the Act was really necessary. As noted above, the argument presented was that there was absolutely nothing wrong with the food that will now be made available but primary suppliers were concerned about lawsuits, none of which had ever happened; it was the spectre of such suits which discouraged donations. So we have an immunity to protect primary suppliers from liability for actions which they have never undertaken and never would undertake. This does not seem logical. The impetus for this legislation can perhaps be traced to a prior, and equally unnecessary, immunity against negligence passed by the Ontario Government.IIMore likely, it was motivated by similar statutes passed elsewhere-in Nova Scotia, New Brunswick, and Quebec, and particularly in all the American states.12 But it makes little sense to create a Canadian immunity based on American tort law. For one thing, in the United States liability for defective products is strict, outside the negligence standard. For another, some American courts have indeed often interpreted negligence law in absurd ways in order to hold deep-pocket defendants liable. But Canadian tort law does meaningfully require plaintiffs to show negligence. Given this, and given the lack of claims against primary suppliers in the past and their avowed intention never to act negligently anyway, better legal advice might be the answer.13 Yet the legislators seemed convinced that there was a real danger of “a massive lawsuit”, of “ill-founded” claims by people “saying they got sick”. 14
Third, even if we are prepared to accept that fears of liability are genuine and that this Act will increase donations by primary suppliers, the question remains whether this Act is good policy. Those whose interest is with the social role of tort law will point out that the Act shifts the risk from those best able to guard against injury and/or to insure against it to those least able to do either. In particular, in this context, the Act puts almost all the risk on the poor. It effectively says to the users of food banks-the poorest members of our society-that the price of augmenting their food supply is that they must accept the risks of negligent behaviour by primary suppliers or food banks themselves. Perhaps remarkably, given its NDP majority, this point does not seem to have occurred to anyone in the Legislature. Indeed the tone of the debate is remarkably self-congratulatory on all sides. 1 5 It is unclear why primary suppliers should be able to donate potentially harmful food, or why food banks themselves should not be under an obligation to store food properly, to ensure, for example, that food is kept at the right temperature or that packaging is not tampered with. The poor may now be faced with the choice of an insufficient quantity or inadequate quality of food, although of course few of those who use food banks have a real choice in this matter.16
There are, of course, many who will defend this legislation, including the operators of food banks, those on the “front line” of the fight against poverty.17
And one can understand their willingness to do what is necessary to encourage donations. But even conceding the need to placate primary suppliers’ concerns, one has to ask if it is correct to characterize the policy alternatives as “food supply with a small risk” versus “no food supply”. The legislature could have chosen not to grant primary suppliers an immunity but rather to indemnify them so that, in the event of a finding of liability, the government would pay damages to those injured. If indeed there is no other way to encourage donations than by ensuring that primary suppliers would not face damages claims, this would both achieve that objective and that of not depriving the poor of legal rights enjoyed by those who can purchase all their food. Perhaps unwittingly Mr. McGuinty made a telling point: “It’s not a big deal”, he informed his fellow legislators, “[i]t doesn’t cost the government a cent”. IS Indeed.
This is not the place to discuss how an indemnification process would workinsurance or a compensation fund are the obvious choices. But to those who ask where the money could be found in these difficult times I would simply note that it is very likely that corporate donors who, we are told, used to throw food they could not sell into the garbage, now receive charitable donation receipts for it, which in turn will lower their tax liability. Thus not only are they relieved of any potential liability, they are actually better off as a result of this legislation.
I. S.O. 1994, c. 19.
2. For a general overview of Canadian products liability law see S.M. Waddams, Products Liability (Toronto, 3rd edn. 1991 ).
3. Hawkins v. Coulsdon and Purley U.D.C.,  I Q.B. 319 at 333 (C.A.); Pack v. Warner County (1964), 44 D.L.R. (2d) 215 (Alta C.A.); Waddams, Products Liability, pp. 13-15, 23, 97-99.
4. Ontario Hansard, I June 1994, p. 6571.
5. Ontario Hansard, 23 June 1994, p. 7383.
6. Ontario Hansard, 23 June 1994, p. 7383.
7. The phrase, a misnomer, appears frequently in the debate. See, for example, Ontario Hansard 23 June 1994, pp. 7383 (McGuinty), 7385 (Witmer, quoting a food bank director), 7385 (Mills), 7368 (O’Neill, quoting from a letter received), and 7389 (Jackson). For what is properly meant by “Good Samaritan” legislation seeN. Austin, “The Liability of Good Samaritans and Charities and their Volunteers”, (1989), 8 Philanthrop No.3, pp. 3-15.
8. Ontario Hansard, 23 June 1994, pp. 7383-7390, passim.
9. Ontario Hansard, 23 June 1994, pp. 7383-7390, 7398-7399. I 0. Ontario Hansard, I June 1994, p. 6571.
11. See the Firefighters’ Protection Act, S.O. 1993, c. 17.
12. These examples were noted in the debates: see Ontario Hansard, 23 June 1994, p.
7383. Nova Scotia’s Act to Amend…the Volunteer Services Act, S.N.S. 1992, c. 34, is broader than Ontario’s, as it removes liability for negligence from suppliers of donated food and of other donated goods. New Brunswick’s Charitable Donation of Food Act, S.N.B. 1992, c. C-2.002, includes donors of “items relating to personal hygiene”.
13. See the Law Reform Commission Reports cited in Austin, supra footnote 7 at p. 11, to the effect that “legislation…to protect charities and volunteers from liability would be a redundant Canadian solution to what is essentially a United States problem”.
14. Ontario Hansard, 23 June 1994, p. 7385.
15. This is a very rare occasion in this Legislature. It’s an occasion where we have all agreed to put aside partisan differences…and to cooperate together [sic] to try to make something worthwhile happen”: Ontario Hansard, 23 June 1994, p. 7385 (Poole).
16. Here the irony of one MPP’s comments might be noted. She argued that the poor needed not just tangible assistance, but also “some of the intangibles” such as “self-esteem” and “respect from other people”. Denial of legal rights given to others does not seem to accord with this. See Ontario Hansard, 23 June 1994, p.
17. See “Corporate Donations to Food Banks Made Easier”, Front and Centre, September 1994, p. 5.
18. Ontario Hansard, 23 June 1994, p. 7384.
Faculty of Law, University of Toronto