24 Nov The Case of the Defective Sandwich
In the case of Chow v. Subway Franchise Restaurants of Canada Ltd., 2017 BCSC 1034, the Plaintiff alleged that as she began to eat a sandwich purchased from a Subway restaurant in Victoria, she found blood on the bun and wrapping paper. She claimed the Defendants were negligent in their preparation of her sandwich and she sought damages for personal injury including mental distress, shock, and similar claims caused by the defective sandwich. The Defendants applied to the Court to have the claim against them dismissed.
Subway Franchise Systems of Canada Limited (“SFS”) and SFR denied either of them owned, operated or occupied a restaurant in Victoria, so they were not the correct entity to be sued. Rather, they sold franchises to individuals and entities to operate restaurants in Canada using the Subway trademark. They claimed that Exmac Holdings Ltd. was the British Columbia corporation assigned to use the “Subway” trademark to operate the restaurant in question.
The Defendants filed several affidavits in support of their application to have the claim dismissed against them. This included an affidavit from the r. Doyle, the owner and operator of the restaurant at the time in question. He had entered into a franchise agreement and sublease of the restaurant. He had purchased Exmac Holdings Ltd. from the former owner and was assigned the rights to operate the restaurant. His evidence was that all employees of the restaurant, including management, were employed directly through Exmac Holdings Ltd. The Plaintiff did not contest any of the facts contained in Mr. Doyle’s affidavit.
The affidavit of Angie Holm of the Director of Field Operations at World Headquarters of Subway described SFS as a seller of franchises and SFR as a lease negotiator/manager with Subway restaurants in Canada. Ms. Holm confirmed that Mr. Doyle entered into an assignment of the franchise agreement for the restaurant, and that neither SFS nor SFR had direct control of the day to day operations of the restaurant. The landlord of the restaurant was a BC company not named in this proceeding. The Plaintiff did not contest any of the facts stated in Ms. Holm’s affidavit.
The Plaintiff filed the affidavit of Ms. White, which mistakenly contained a letter written by Defendants’ counsel which said (1) that the Defendants did not own or operate the premises where the incident was alleged to have taken place; (2) the Subway location was operated by Exmac Holdings Ltd.; (3) any employees working at that location were employees of Exmac Holdings Ltd.; and (4) that subsequently Exmac Holdings Ltd. has been amalgamated with 0968169 BC Ltd. The letter also noted that the Plaintiff had named “Subway” and “Subway Restaurant” as the two other defendants in the action, but neither of those were companies or legal entities against which an action could be maintained. The Court referred to this letter to show that the Plaintiff had been aware of the problems with her claim against the Defendants for some time.
The Court held that the Defendant “Subway” was a trademark, not a legal person, so could not be sued. Likewise “Subway Restaurant” was not a legal person and could not be sued.
The Court noted that the Plaintiff had not called evidence to support the claim that SFS and SFR had any involvement whatsoever in the ownership, occupation or operation of the restaurant during the period in question. Therefore, the Plaintiff was bound to lose. The Court also noted that the Plaintiff’s pleadings were woefully inadequate and did not assert a claim properly brought against the Defendants.
The Court concluded that the Plaintiff did not sue the right person or entity. She should have sued the worker in the restaurant or the employer of that worker, Exmac Holdings Ltd. As a result, the Court dismissed the claims against the Defendants SFS and SFR, and the Plaintiff was ordered to pay them costs.