During a family dinner in a restaurant, you choose a dish and explain to the waiter that you have a food allergy. You start eating and you feel bad: you have an allergic reaction.

The reasons can be varied – an oversight of the waiter, a misunderstanding on the part of the cook, a lack of mechanisms to avoid this type of situation, etc. – and the consequences, serious. Are you entitled to compensation? If so, under what circumstances?

Mr. Lambert explains the law in this regard using examples from real cases tried by the courts.

Civil liability

If you are a regular reader of our legal capsules, you surely know the three elements that must be established to be entitled to a civil liability claim: fault, damage and causation. You can refresh your memory by reading this article. In the cases described below, this liability is of a contractual nature, as there is a contract (oral or written) between you and the bar, restaurant, hotel, caterer, etc.

In addition, the obligation is of result. This means that it is not enough to take all reasonable measures to avoid contamination of the food by the allergenic ingredient (which would be an obligation of means, like that of doctors). Indeed, the merchant who provides you with the food guarantees that the meal will not be contaminated and must serve you a dish without the allergen indicated by you.

Jurisprudence

Fault of the hotel

In a case analyzed by the Court of Québec, Ms. Corbeil went to the Holiday Inn Laval for a Christmas Eve. She informs the hostess of the party about her allergies to peanuts, nuts, seeds and sunflower oil. The hostess, in turn, warns the hotel’s banquet coordinator and they include allergies in their contract.

During the organization of the evening and during it, Mrs. Corbeil and the hostess relay information and inquire with the hotel staff about allergies. They are assured that there are no allergens. However, Ms. Corbeil had an allergic reaction during the evening and had to go to the emergency room. The next day, it was discovered that one of the appetizers contained peanut butter.

Ms. Corbeil is trying to reach an agreement with the hotel to obtain compensation without going through the courts. Several exchanges of messages and a formal notice followed. The hotel offered to reimburse her meal and that of her husband, but this did not satisfy her and she filed a file with the Court of Quebec.

The Court held that the hotel had undertaken to provide a meal without the allergens indicated by Ms Corbeil and had not fulfilled its obligation of result in that regard.

As to the hotel’s allegations that Ms. Corbeil should have checked what she was eating, the Court decided that all reasonable precautions had been taken by the plaintiff and awarded her an amount of $5,577.82 for the damages suffered (loss of enjoyment of life and other disturbances and inconveniences) as well as $1,500.00 in punitive damages.

Fault of the waitress of a restaurant

In another case, Mr. Daigle, who is allergic to eggs, nuts and peanuts, goes to a restaurant in Montreal. He informs the waitress about his allergies and asks if the dish he wants to order contains allergenic ingredients. The waitress moves around and, returning to the table, informs the applicant that there is no problem. Mr. Daigle eats the dish and has an allergic reaction. He suffers from vomiting, cramps and difficulty breathing and goes to the emergency room.

The Court found that the waitress committed a fault that caused the harm described above. However, since the waitress is an attendant of the restaurant, the latter is responsible for it under article 1463 of the Civil Code of Québec. This is because you can sue the restaurant, bar, caterer, etc. and not just the person who made the mistake.

Limitations on Liability

The fact that this is an obligation of result means that the restaurant can only release itself from its liability to you by proving that the damage was caused by force majeure or by you as a victim.

Being the author of one’s own misfortune

If you have not taken reasonable precautions to avoid or minimize the allergic reaction, you may be held liable – in whole or in part – for the harm suffered.

This is the case, for example, of a person who, knowing that he has a severe allergy, does not bring his Epipen or does not use it when it would be necessary. Or someone who forgets to inform the waiter of an allergy or who, after being informed of the possibility of contamination, still decides to eat the food.

Obtaining compensation

Before you go to court, you can try to fix the problem on your own. However, if a simple conversation or exchange of messages is not enough, you can also send a formal notice by registered mail or bailiff.

If this does not work, you can choose to have your case heard by the Court of Quebec, since the amount claimed will likely be less than $15,000 (the maximum accepted by this division of the Court). To read more about preparing for a small claims hearing, click here.

Each case is a case in point. The facts and circumstances of yours can have a great impact on the Court’s decision. In order to maximize your chances of success, it is important to keep any evidence demonstrating the harm you have suffered: photos, medication bills, medical documents and reports, exchanges between you and the caterer detailing your allergies, etc.

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