On May 29, 2016 Simon-Pierre Canuel walked into Tapageur Bistro in Sherbrooke, Quebec with his partner and ordered beef tartare. He told the waiter, Julien Vézina, that he had a seafood allergy and not to bring him any fish.
Canuel was brought a dish that allegedly looked like beef in the restaurant’s poor lighting and began to eat it. The dish he ate was actually salmon, and Canuel went into anaphylactic shock. He was brought to the hospital where he fell into a two day coma after suffering a heart attack as a result of his allergic reaction.
In the aftermath of the event, Canuel’s waiter was arrested for criminal negligence. Quebec’s Director of Criminal and Penal Prosecutions opted not to press charges, having decided that the evidence indicated it was not criminal negligence on the part of the waiter. On December 16, 2016 the CBC reported that Simon-Pierre Canuel intends to sue the waiters and owners of Tapageur Bistro for $415 000 for the physical and psychological damage he suffered as a result of the incident.
According to his lawyer, the incident made Canuel’s heart so weak he couldn’t exercise until July. He claims that he suffers from anxiety and sleeping problems and has developed a food phobia. The damages Canuel is claiming consists of $390 000 for himself and $25 000 for his partner who was present when the incident occurred.
In order to understand how this lawsuit will play out, we need to talk a little about how civil liability and lawsuits work in Quebec.
Civil liability is covered under the Quebec Civil Code. As per the Code, every person has to abide by the rules and practices of conduct so as not to cause injury to another person. Where the person fails to do so and causes injury to another by such a fault, they are bound to make reparations for the injury, be it physical, moral (psychological) or material.
In order to successfully sue someone, the plaintiff in a civil case has to prove a direct link between the damages they suffered and the fault, if any, of the person(s) they are suing. The burden of proof is not as severe in civil suits as it is in criminal cases.
In criminal cases, guilt must be proven beyond a reasonable doubt. In civil cases, liability must be proven based on a balance of probabilities, meaning the court does not have to believe liability beyond a reasonable doubt, only that liability is more likely than not.
In order to get out of liability, the defendant has a few options. First, if the incident was a case of “force majeure”, meaning an unforeseeable inevitable or irresistible event like a lightning strike, the person is not liable. The defendant can also evade liability by proving they are not at fault or proving the plaintiff did not suffer any damages or greatly exaggerated the damages they did suffer.
The way the court decides on the defendant’s arguments is via the reasonable person test. The test is the asking of what precautions an average, reasonable person would have done in the same situation to avoid the damages.
Public opinion about Simon-Pierre Canuel’s case is divided and it’s easy to understand why.
The day Simon-Pierre Canuel walked into Tapageur Bistro with his partner he, by his own admission, left his EpiPen – the first line of defense against a potentially fatal allergic reaction – in his car. Food Allergy Canada, an organization that educates, supports and advocates for the needs of people with potentially fatal food allergies said in an op ed piece in August 2016 that mistakes can happen and that leaving his EpiPen in the car was one such mistake. They push the classic guilt trip helicopter parent argument:
“What if it was you or your child?”
This argument does not work because Simon-Pierre Canuel is NOT a child. He is a 34 year old adult who has presumably lived with a potentially fatal food allergy for many years. A reasonable person would suspect any food he did not prepare or supervise the preparation of. A reasonable person with a potentially fatal food allergy would have kept their EpiPen on them at all times.
Canuel claims he could not tell the dish he was served was fish due to the restaurant’s poor lighting. Being unable to see a food item does not necessarily mean you cannot tell it’s something you’re allergic to.
Salmon and beef have very different textures and very different smells. All it would take to tell one from the other is to move the food around with a fork and/or smell it. A reasonable person would not have blindly tasted his food, and could have had his dinner guest taste it for him just to make sure it was safe.
Simon-Pierre Canuel by all accounts did none of those things and a reasonable adult would know that restaurants screw up orders all the time. The only thing Tapageur Bistro is guilty of is screwing up his order.
If the restaurant is indeed at fault for serving Canuel a dish that almost killed him, Canuel is equally responsible for not taking the reasonable precautions an individual with severe food allergies would have taken when dining out. Fortunately, civil liability law in Quebec allows liability to be shared with several people including the victim.
The fact that prosecutors chose not to go after the waiter suggests that there was no liability here, just another restaurant employee that accidentally messed up an order. If someone with severe allergies is allowed to make a mistake of this magnitude, restaurants should be given some leeway too.
Does Canuel have a chance of winning his lawsuit? Maybe, but he’s unlikely to get all the money he asked for.
That’s just unreasonable.
* Featured image: estrieplus.com