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CITATION: Das v. George Weston Limited, 2017 ONSC 4129 COURT FILE NO.: CV-15-526628CP DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) ARATI RANI DAS, REHANA KHATUN, ) Joel P. Rochon, Peter R. Jervis, Lisa M. MOHAMED ALAUDDIN, and KASHEM ) Fenech and Golnaz Nayerahmadi for the ALI ) Plaintiffs ) 2017 ONSC 4129 (CanLII) Plaintiffs ) – and – ) ) GEORGE WESTON LIMITED, ) Christopher D. Bredt, Markus Kremer, and LOBLAWS COMPANIES LIMITED, ) Alannah Fotheringham for the Defendants LOBLAWS INC., JOE FRESH APPAREL ) George Weston Limited, Loblaws CANADA INC., BUREAU VERITAS – ) Companies Limited, Loblaws Inc., Joe Fresh REGISTRE INTERNATIONAL DE ) Apparel Canada Inc. CLASSIFICATION DE NAVIRES ET D’AERONEFS SA, BUREAU VERITAS ) Michael A. Eizenga, Ranjan K. Agarwal, and CONSUMER PRODUCT SERVICES, ) Gannon G. Beaulne for the Defendants INC. and BUREAU VERITAS ) Bureau Veritas – Registre International de CONSUMER PRODUCTS SERVICES ) Classification de Navires et d’Aeronefs SA, (BD) LTD. ) Bureau Veritas Consumer Product Services ) Inc. and Bureau Veritas Consumer Products Defendants Services (BD) Ltd. ) ) Brent Kettles and Lisa La Horey for the ) Attorney General of Ontario, Intervenor ) Proceeding under the Class Proceedings Act, 1992 ) HEARD: April 3-7, 10-13, 2017 PERELL, J. REASONS FOR DECISION 25 And behold, a lawyer stood up to put him to the At present, I content myself with pointing out that test, saying, “Teacher, what shall I do to inherit in English law there must be, and is, some general eternal life?” 26 He said to him, “What is written in conception of relations giving rise to a duty of the Law? How do you read it?” 27 And he answered, care, of which the particular cases found in the “You shall love the Lord your God with all your books are but instances. The liability for heart and with all your soul and with all your strength negligence, whether you style it such or treat it as 2 and with all your mind, and your neighbour as in the other systems as a species of 'culpa', is no yourself.” 28 And he said to him, “You have answered doubt based upon a general public sentiment of correctly; do this, and you will live.” 29 But he, moral wrongdoing for which the offender must desiring to justify himself, said to Jesus, “And who is pay. But acts or omissions which any moral code my neighbour?” 30 Jesus replied, “A man was going would censure cannot in a practical world be down from Jerusalem to Jericho, and he fell among treated so as to give a right to every person injured robbers, who stripped him and beat him and by them to demand relief. In this way rules of law departed, leaving him half dead. 31 Now by chance a arise which limit the range of complainants and the priest was going down that road, and when he saw extent of their remedy. The rule that you are to him he passed by on the other side. 32 So likewise a love your neighbour becomes in law, you must not Levite, when he came to the place and saw him, injure your neighbour; and the lawyer's question, passed by on the other side. 33 But a Samaritan, as he who is my neighbour? receives a restricted reply. journeyed, came to where he was, and when he saw You must take reasonable care to avoid acts or him, he had compassion. 34 He went to him and omissions which you can reasonably foresee would bound up his wounds, pouring on oil and wine. Then be likely to injure your neighbour. Who, then, in he set him on his own animal and brought him to an law is my neighbour? The answer seems to be -- 35 inn and took care of him. And the next day he took persons who are so closely and directly affected by 2017 ONSC 4129 (CanLII) out two denarii and gave them to the innkeeper, my act that I ought reasonably to have them in saying, “Take care of him, and whatever more you contemplation as being so affected when I am spend, I will repay you when I come back.” 36 Which directing my mind to the acts or omissions which of these three, do you think, proved to be a neighbour are called in question. to the man who fell among the robbers?” 37 He said, [Donoghue v. Stevenson, [1932] AC 562 at p. 580] “The one who showed him mercy.” And Jesus said to him, “You go, and do likewise.” [Luke 10:25-37] A. Introduction and Overview [1] For many years, Loblaws, Canada’s largest retailer, purchased clothes from a manufacturer whose factory was in the Rana Plaza, a building in Bangladesh. On April 24, 2013, the Rana Plaza collapsed. 1,130 people died, and 2,520 people were seriously injured. On April 22, 2015, just before the second anniversary of the tragedy, four citizens of Bangladesh commenced a proposed class action in Ontario against Loblaws. [2] The Plaintiffs are Mohamed Alauddin, Arati Rani Das, and Rehana Khatun, who were among the injured garment workers, and Kashem Ali, whose two sons and a daughter-in-law were garment workers that died in the collapse. [3] The Plaintiffs’ action is brought pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6. It is against George Weston Limited, Loblaws Companies Limited, Loblaws Inc., and Joe Fresh Apparel Canada Inc. (collectively, “Loblaws”). It is also against Bureau Veritas - Registre International de Classification de Navires et d’Aeronefs SA, Bureau Veritas Consumer Product Services Inc., and Bureau Veritas Consumer Products Services (BD) Ltd. (collectively “Bureau Veritas”). Bureau Veritas is a consulting services enterprise that Loblaws had retained to conduct what is known as a “social audit” of factories in Bangladesh, including one of the factories in Rana Plaza. [4] There are now multi-faceted motions before the court; the Plaintiffs’ motion for certification of their action as a class proceeding, and the Defendants’ motions to have the proposed class action dismissed. The opposing motions raise numerous issues including: 3 Does an Ontario court have jurisdiction simpliciter (territorial and subject-matter jurisdiction) for the proposed class action? Would it be unconstitutional for an Ontario court to assume jurisdiction simpliciter over putative Class Members who are “Absent Foreign Claimants;” i.e., persons: (a) who are resident outside of Ontario; and (b) who have not formally attorned to the jurisdiction of the court? If the Ontario court has jurisdiction simpliciter, how is choice of law determined and what is the choice of law to determine liability? If Bangladesh tort law applies, is it ousted to be replaced by Ontario law? o In this regard, is Bangladesh law ousted because it is uncertain, nascent, or underdeveloped? o In this regard, is Bangladesh law ousted on grounds of public policy because it 2017 ONSC 4129 (CanLII) includes Sharia law that discriminate between male and female heirs of a wrongful death claimant? o In this regard, is Bangladesh law ousted because it has not recognized the remedy of punitive damages? If Bangladesh law applies, then are the tort claims and the breach of fiduciary duty claims statute-barred in whole or in part under Bangladesh’s Limitation Act 1908 (Act No. IX of 1908)? If Bangladesh or if Ontario tort law applies, then is it plain and obvious that it does not include a legally viable tort claim against Loblaws? o In this regard, did Loblaws have a duty of care to the Plaintiffs and the putative Class Members because it adopted Corporate Social Responsibility Standards (“CSR standards”) under which Loblaws would not purchase goods from suppliers who did not have and comply with appropriate workplace safety standards? o In this regard, did Loblaws have a duty of care to the Plaintiffs and the putative Class Members who were working to manufacturer goods for Loblaws because Loblaws had control of their workplace through its substantial purchasing power and its CSR standards and because it knew that the workplace was hazardous and that Bangladesh’s public authorities were incompetent in keeping it safe? o In this regard, was Loblaws vicariously liable for the negligence of the employer because Loblaws knew that the employees were working in notoriously dangerous buildings and Loblaws had a non-delegable duty to protect the employees? If Bangladesh or if Ontario tort law applies, is it plain and obvious that it does not include a legally viable tort claim against Bureau Veritas? o In this regard, did Bureau Veritas have a duty of care to the Plaintiffs and the putative Class Members to conduct the social audit to ensure that Rana Plaza was structurally safe? 4 If Bangladesh or if Ontario law applies, is it plain and obvious that it does not include a legally viable breach of fiduciary duty claim against Loblaws? If the Ontario court has jurisdiction simpliciter and if there are viable causes of action, do the Plaintiffs satisfy the certification criteria for a class action? If the certification criteria are satisfied, should the paragraphs of the Statement of Claim that plead: (a) an apology; or (b) allege other factory accidents in Bangladesh be struck out as improper pleadings contrary to the Apology Act, 2009, S.O. 2009, c. 3 and rule 25.11 of the Rules of Civil Procedure? [5] For the reasons that follow, the ultimate answer to these questions is that the Plaintiffs’ action should be dismissed. A synopsis of my major conclusions is: An Ontario court has jurisdiction simpliciter for the Plaintiffs’ proposed class action against Loblaws and Bureau Veritas. 2017 ONSC 4129 (CanLII) o In this regard, the court has a constitutionally infra vires jurisdiction simpliciter based on a combination of: (a) the traditional attornment factors for jurisdiction; (b) the connecting factors from Club Resorts Ltd.

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