Das v. George Weston Limited, 2017 ONSC 4129

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, MOHAMED ALAUDDIN, and KASHEM ALI

Plaintiffs

– and –

GEORGE WESTON LIMITED, LOBLAWS COMPANIES LIMITED, LOBLAWS INC., JOE FRESH APPAREL CANADA INC., 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.

Defendants

Joel P. Rochon, Peter R. Jervis, Lisa M. Fenech and Golnaz Nayerahmadi for the Plaintiffs

Christopher D. Bredt, Markus Kremer, and Alannah Fotheringham for the Defendants George Weston Limited, Loblaws Companies Limited, Loblaws Inc., Joe Fresh Apparel Canada Inc.

Michael A. Eizenga, Ranjan K. Agarwal, and Gannon G. Beaulne for the Defendants 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.

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 test, saying, “Teacher, what shall I do to inherit eternal life?” ^26 He said to him, “What is written in the Law? How do you read it?” ^27 And he answered, “You shall love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind, and your neighbour as yourself.” ^28 And he said to him, “You have answered correctly; do this, and you will live.” ^29 But he, desiring to justify himself, said to Jesus, “And who is my neighbour?” ^30 Jesus replied, “A man was going down from Jerusalem to Jericho, and he fell among robbers, who stripped him and beat him and departed, leaving him half dead. ^31 Now by chance a priest was going down that road, and when he saw him he passed by on the other side. ^32 So likewise a Levite, when he came to the place and saw him, passed by on the other side. ^33 But a Samaritan, as he journeyed, came to where he was, and when he saw him, he had compassion. ^34 He went to him and bound up his wounds, pouring on oil and wine. Then he set him on his own animal and brought him to an inn and took care of him. ^35 And the next day he took out two denarii and gave them to the innkeeper, saying, “Take care of him, and whatever more you spend, I will repay you when I come back.” ^36 Which of these three, do you think, proved to be a neighbour to the man who fell among the robbers?” ^37 He said, “The one who showed him mercy.” And Jesus said to him, “You go, and do likewise.”

[Luke 10:25-37]

At present, I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in the other systems as a species of 'culpa', is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

[Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] AC 562 at p. 580]

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:

• 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?
  • In this regard, is Bangladesh law ousted because it is uncertain, nascent, or underdeveloped?
  • In this regard, is Bangladesh law ousted on grounds of public policy because it includes Sharia law that discriminate between male and female heirs of a wrongful death claimant?
  • 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?
  • 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?
  • 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?
  • 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?
  • 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?
• 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.
  • 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. v. Van Breda, 2012 SCC 17; and, (c) an opt-in definition for class membership.
  • In this regard, it is not necessary to decide whether the putative Class Members who signed consent forms before the certification motion attorned to this court’s jurisdiction. This is not necessary because they would attorn by opting into the action.
  • In this last regard, had the court certified the proposed class action, it would not have been necessary for the putative Class Members to have formally attorned before the certification motion and their attornment would have been achieved post-certification by a court supervised opt-in notice program.
• There are no Absent Foreign Claimants, and Loblaws’ constitutional challenge motion is moot and is dismissed.
• The law of Bangladesh applies to the putative Class Members’ claims.
• Under the law of Bangladesh, with an exception for putative Class Members who were born on or after April 22, 1996 (hence minors at the time of the collapse of Rana Plaza), any tort claims are statute-barred under the Limitation Act, 1908 and, therefore, the tort claims should be dismissed, except for the putative Class Members who were minors at the time of the collapse of Rana Plaza.
• Under either the law of Bangladesh or under the law of Ontario, it is plain and obvious that the putative Class Members have no legally viable tort claims or breach of fiduciary duty claims against either Defendant, and, therefore, the Plaintiffs’ action should be dismissed.
• Since there are no legally viable claims, the Plaintiffs’ action cannot be certified as a class action.
• However, if these cause of action conclusions are wrong and there were legally viable claims, then with some qualifications or adjustments, the Plaintiffs’ proposed class action satisfies the criteria for certification.
• Had the class action been certified, then the impugned paragraphs in the Statement of Claim should be struck out.

B. Witness and Evidentiary Background

[6] In addition to the Defendants, the corporate actors in the tragic events at Rana Plaza were Pearl Global Limited (“Pearl Global”) and New Wave Style Limited and New Wave Bottoms Limited (collectively “New Wave”).

[7] Before the building collapse, Loblaws hired Pearl Global to produce garments for Loblaws’ "Joe Fresh" line of clothing, and Pearl Global, in turn, out-sourced some of the work to New Wave. New Wave manufactured garments in leased premises at Rana Plaza in Savar, Bangladesh. New Wave Bottoms was on the third floor. New Wave Style was on the sixth and seventh floors. There were plans to expand New Waves’ operations to a ninth floor that was under construction at Rana Plaza.

[8] For the motions now before the court, the Plaintiffs proffered the following evidence:

• Affidavit of Bashir Ahmed dated February 25, 2016. Mr. Ahmed, of Dhaka, Bangladesh, was New Wave’s Factory Manager. He suffered trauma and a fractured left leg in the collapse of Rana Plaza. Mr. Ahmed was cross-examined.
• Affidavit of the Plaintiff Mohamed Alauddin dated January 12, 2016. Mr. Alauddin, of Joydeupur, Bangladesh, worked at New Wave Style. He suffered a head trauma in the collapse and was in a coma for two weeks. Mr. Alauddin can read Bangla, but cannot read or speak English.
• Affidavit of the Plaintiff Kashem Ali dated January 18, 2016. Mr. Ali, of Savar, Bangladesh, had two sons Ujjal (27 years old) and Afzal (18 years old) and a daughter-in-law, Khadiza Begum (Ujjal’s wife), who died in the collapse. All three worked at New Wave Bottoms. Mr. Ali claims that he and his wife were financially and emotionally dependent upon their relatives for income and support. Mr. Ali cannot read or speak English and cannot read Bangla.
• Affidavits of Garrett D. Brown dated February 26, 2016 and October 8, 2016. Mr. Brown, of El Cerrito, California, has a M.A. in public health (University of California at Berkeley) and is a Certified Industrial Hygienist in Comprehensive Practice. Mr. Brown was cross-examined.
• Affidavit of the Plaintiff Arati Rani Das dated January 13, 2016. Ms. Das, of Savar, Bangladesh, began work for New Wave Style on April 1, 2013. Her mother died in the collapse of Rana Plaza, and Ms. Das suffered serious injuries. Her right leg was amputated, and she remained hospitalized for many months. Ms. Das can read Bangla, but she cannot read or speak English. Ms. Das was cross-examined.
• Affidavit of Richard Fentiman dated October 5, 2016. Mr. Fentiman, of Cambridge, England, is Dean of Law and Professor of Private International Law at Cambridge University. He formerly practiced as a solicitor in the courts of England and Wales with Clifford Chance, a leading English law firm.
• Affidavit of Obaidul Hoque dated February 29, 2016. Mr. Hoque, of the City of Toronto, is an associate at the law firm of Rochon Genova LLP, lawyers for the Plaintiffs. He was born in Bangladesh.
• Affidavits of Ajmalul Hossain, Q.C. sworn on March 2, October 14, and December 15, 2016. Mr. Hossain, of Dhaka, Bangladesh, is Senior Advocate of the Appellate Division of the Supreme Court of Bangladesh and a lawyer practicing international arbitration and corporate law in Bangladesh, England, Wales, and Singapore. He has a law degree from Dhaka University and bachelor and master of laws degrees from King’s College of the University of London. He was called to the bar in Bangladesh in 1977. He was appointed Queen’s Counsel in England and Wales in 1998. Mr. Hossain was cross-examined.
• Affidavit of Chief Justice (ret.) Tafazzul Islam dated December 9, 2016. Chief Justice Islam, of Dhaka, Bangladesh, was a judge of the Supreme Court of Bangladesh and the Appellate Division of the Supreme Court until 2010, when he was appointed to the Permanent Court of Arbitration in The Hague, Netherlands. He was appointed to the High Court Division of the Supreme Court of Bangladesh in 1994 and elevated to the Appellate Division in 2003 and became Chief Justice in 2009. He formerly practiced law in England and in what was then East Pakistan. He was cross-examined.
• Affidavit of the Plaintiff Rehana Khatun sworn January 13, 2016. Ms. Khatun is a resident of Savar, Bangladesh. She began work for New Wave Style on March 10, 2013. She was seriously injured in the collapse. Both legs were amputated, and she will never be able to return to work. Ms. Khatun cannot read or speak English and has only limited proficiency in reading Bangla. Ms. Khatun was cross-examined.
• Affidavit of Md. Sekender Ali Mina dated February 15, 2016. Ms. Mina, of Dhaka Bangladesh, was hired by the Rana Plaza Claims Administration, which administered the Rana Plaza Donors Trust Fund.
• Affidavits of Jonathan Morgan dated October 6 and December 15, 2016. Dr. Morgan, of Cambridge, England, is Senior Lecturer of tort law at Cambridge University and formerly a lecturer in law at Oxford University. He has a B.A. and a M.A. from Oxford University and a Ph.D. from Cambridge University. He is a much-published author in tort and contract law. He was cross-examined.
• Affidavit of Mahatab U. Shawn dated February 25, 2016. Mr. Shawn, of Dhaka, Bangladesh, is a lawyer and a member of the Bangladesh Bar Council and practices before the Judges’ Court of Dhaka and the Supreme Court of Bangladesh. He translated into English the affidavits of Mr. Alauddin, Mr. Ahmed, Mr. Ali, Ms. Das, and Ms. Khatun.

[9] Loblaws and Bureau Veritas delivered the following evidence:

• Affidavit of Salahuddin Ahmad dated November 8, 2016. Mr. Ahmad, of Dhaka, Bangladesh, has a 30-year career as an advocate of the Bangladesh Supreme Court. He formerly was the Attorney General for Bangladesh. He holds a B.Sc. (Econ.) from the London School of Economics and an LL.M. from Columbia University. Mr. Ahmad was cross-examined.
• Affidavit of Adrian Briggs, Q.C. dated March 11, 2016. Professor Briggs, of Oxford, England, is a professor of private international law at Oxford University. He was one of the authors of Dicey, Morris & Collins, The Conflict of Law (15^th^ ed.) (London: Sweet and Maxwell, 2016). He practices from chambers in the Middle Temple. He was cross-examined.
• Affidavits of Jonathan Chen dated March 9, August 4, and August 7, 2016. Mr. Chen is an associate lawyer with Borden Ladner Gervais, lawyers for Loblaws.
• Affidavits of James Goudkamp dated July 13, November 4, and November 11, 2016. Dr. Goudkamp, of London, England, is an Associate Professor of Law at Oxford University. He has a doctorate in law and is the author of Tort Law Defences and the co-author of Winfield & Jolowicz on Tort (19th ed.). He has held visiting appointments at universities around the world, including Harvard Law School. He is also a practicing barrister and maintains chambers in Temple, London. He clerked for Justice Kirby, a judge of Australia’s highest appellate court. He was cross-examined.
• Affidavit of Jason Hill dated August 15, 2016. Mr. Hill, of Portland, Oregon, is the Manager, Social Accountability of Bureau Veritas Consumer Products Services, Inc., the United States subsidiary of Bureau Veritas. Mr. Hill was cross-examined.
• Affidavits of Nihid Kabir dated August 8, November 5, November 17, and November 19, 2016. Ms. Kabir, of Dhaka, Bangladesh, is an Advocate of the Bangladesh Bar practicing before the Supreme Court of Bangladesh and is the Senior Partner of Syed Ishtiaq & Associates. She was cross-examined.
• Affidavit of Rokanuddin Mahmud dated November 3, 2016. Mr. Mahmud, of Dhaka, Bangladesh has an over 40-year career as an advocate of the Bangladesh Bar and is a Senior Advocate of the Appellate Division of the Supreme Court of Bangladesh. He is a former Vice-Chairman of the Bangladesh Bar Council (its highest elected post). He holds an LL.M. from the Free University of Brussels in Belgium, and is a former member of the International Court of Arbitration of the International Chamber of Commerce in Paris. Mr. Mahmud was cross-examined.
• Affidavit of Chief Justice (ret.) Latifur Rahman dated January 9, 2017. Chief Justice Rahman, of Dhaka, Bangladesh, practiced law in Bangladesh and Pakistan for almost 20 years before becoming a judge. He served as a judge for over 20 years, first on the High Court Division of the Supreme Court of Bangladesh and then on the Appellate Division of that Court (which is the highest court in Bangladesh). From January 1, 2000 until his retirement in 2001, he served as the Chief Justice of Bangladesh. He was cross-examined.

[10] It is convenient here to note that during Ms. Das’ cross-examination, she said for the first time that she was 17 years old at the time of the collapse. This evidence is inconsistent with her evidence in her affidavit delivered for the motions. Loblaws says that the contradiction calls into question the reliability of Ms. Das' evidence generally and raises the prospect that other Plaintiffs may not have understood their affidavits. I regard the inconsistency as simply a mistake upon which nothing turns.

C. Factual Background

1. Introduction

[11] In the description of the factual background that follows and for the motions now before the court, I shall make findings of fact based on the allegations contained in the Plaintiffs’ Statement of Claim and based on a humongous evidentiary record of affidavits, experts’ reports, transcripts, and documents.

[12] Before the court are the Plaintiffs’ certification motion and the Defendants’ multi-branched motions. Insofar as the certification motion is concerned, the Plaintiffs must show “some-basis-in-fact” for each of the certification criteria other than the requirement that the pleadings disclose a cause of action: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at paras. 16-26.

[13] As will become overbearingly apparent, much of the Defendants’ motions concerned the questions of jurisdiction, foreign law, and whether the Plaintiffs had disclosed a legally viable cause of action, and at the heart of the Defendants’ motions was Rule 21, and for those motions, there was affidavit and cross-examination evidence from all the parties and also facts from the Statement of Claim deemed as proven under Rule 21.

[14] On a Rule 21 motion, the court is entitled to consider any documents specifically referred to and relied on in a pleading: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 at paras. 160-162, aff’d 2013 ONSC 1169 (Div. Ct.); Re*Collections Inc. v. Toronto-Dominion Bank, 2010 ONSC 6560; Web Offset Publications Ltd. v. Vickery (1999), 1999 CanLII 4462 (ON CA), 43 O.R. (3d) 802 (C.A.), leave to appeal dismissed, [1999] SCCA No. 460; Corktown Films Inc. v. Ontario, [1996] O.J. No. 3886 (Gen. Div.).

[15] A statement of claim is deemed to include any statement or documents incorporated in it by reference and which form an integral part of a plaintiff's claim: Montreal Trust Co. of Canada v. Toronto-Dominion Bank, [1992] O.J. No. 1274 (Gen. Div.); Weninger Farms Ltd. v. Canada (Minister of National Revenue), 2012 ONSC 4544 at paras. 11-12; McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 32.

[16] With respect to the statement of Claim, under rule 21.01(1), the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof: A-G. Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735; Canada v. Operation Dismantle Inc., 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441; Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (CA); Folland v. Ontario (2003), 2003 CanLII 52139 (ON CA), 64 OR (3d) 89 (C.A.); Canadian Pacific International Freight Services Ltd. v. Starber International Inc. (1992), 1992 CanLII 15412 (ON SC), 44 CPR (3d) 17 (Ont. Gen. Div.) at para. 9.

[17] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion under Rule 21: Losier v. Mackay, Mackay & Peters Ltd., 2009 CanLII 43651 (ON SC), [2009] O.J. No. 3463 (SCJ) at paras. 39-40, aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438; Deluca v. Canada (AG), 2016 ONSC 3865; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34; Grenon v. Canada Revenue Agency, 2016 ABQB 260 at para. 32.

[18] Pleadings that are irrelevant, argumentative, inflammatory, inserted only for colour, inserted only to disconcert or humiliate, or that constitute bare unfounded allegations should be struck out as scandalous: Sequin v. Van Dyke, 2011 ONSC 2566 (Master); Dugal v. Manulife Financial Corp., 2011 ONSC 387; Gardner v. Toronto Police Services Board, [2006] O.J. No. 3320 (S.C.J.), var’d 2007 ONCA 489; Williams v. Wai-Ping, [2005] O.J. No. 1940 (S.C.J.), aff’d, [2005] O.J. No. 6186 (Div. Ct.); Hodson v. Canadian Imperial Bank of Commerce, [2001] O.J. No. 4378 (Div. Ct.).

[19] The court may strike a pleading even where it was relevant, if its marginal probative value is outweighed by its prejudicial effect: Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd. (2008), 2008 ONCA 644, 92 OR (3d) 347 (CA); Asper v. Lantos (2000), 2000 CanLII 29038 (ON SCDC), 51 OR (3d) 215 (Div. Ct.).

[20] Unfortunately, the Plaintiffs’ Statement of Claim (and their factums) are bloated with conclusory statements that simply allege a cause of action as if it was a material fact or that provide opinions and speculations as if they were proven material facts. For example, the Plaintiffs baldly plead that Bureau Veritas owed a duty of care to the putative Class Members because Bureau Veritas’ conduct gave rise to reasonably foreseeable harm to the garment workers and to the putative Class Members.

[21] However, for the purposes of a motion under Rule 21, the court is not obliged to accept as a proven material fact the conclusion that there is a cause of action or a duty of care. Rather, the court must examine whether the genuine material facts, which are not argument or conclusory statements, disclose a reasonable cause of action.

[22] There are numerous examples where the Plaintiffs plead conclusions or beg a question that the court must decide. To illustrate, the Plaintiffs plead the conclusion that Loblaws had control over Pearl Global and New Wave’s workplace because Loblaws could take remedial steps under the agreements it had with them, which agreements required compliance with Loblaws’ CSR standards. Thus, in their factum, the Plaintiffs submit that the court is obliged to decide this motion on the basis that if Loblaws and Bureau Veritas had taken action within their control, then the disaster at Rana Plaza would never have occurred. I disagree that I am obliged to decide a motion based on a tautological assertion.

[23] A nice example of conclusory, argumentative, rhetorical, tautological, inflammatory, and question-begging pleading is para. 16 from the Statement of Claim. In this paragraph, the Plaintiffs plead that Loblaws was negligent, incompetent, and deliberately white-washing its misdeeds. Paragraph 16 states:

16. The need for accurate and effective auditing and monitoring of building structural safety as part of both corporate social responsibility and facility health and safety audits and inspections in Bangladesh was well-known and frequently discussed by all stakeholders in global garment supply chains in the period of 2005 to 2013. The failure of Loblaws to conduct, or have conducted on its behalf, structural safety audits and inspections of the Rana Plaza building was negligent on behalf of Loblaws and demonstrated sheer incompetence, and as part of a corporate policy to present a comforting picture of workplace safety with all of its suppliers which was deliberately incomplete, misleading and inaccurate. The limited, inadequate and negligent audit and inspection which was performed by Bureau Veritas in the circumstances of Rana Plaza and which failed to inspect, monitor and audit for building structural safely amounted to nothing more than a “white wash”.

[24] Another example of begging the question that the court must decide, and an important one because it begs an important factor in the case against the Defendants, the Plaintiffs argue that I am obliged to interpret the contract between Loblaws and Bureau Veritas and the duty of care of a social auditor as necessarily including an obligation on Bureau Veritas to investigate the structural safety of Rana Plaza because the contracts included determining whether factory licenses and permits were posted at a factory’s premises. This is an argument not a material fact, and I shall not accept allegations of this conclusory sort as a found fact for the purposes of the motions now before the court.

[25] Similarly, I also shall not accept as proven factual allegations that are argument. To illustrate, in the Statement of Claim, the Plaintiffs plead that the putative Class Members reasonably expected the social audits requisitioned by Loblaws to reduce risks to their safety because that was the expressly stated objective of the audits. Apart from the fact that this argument makes no sense because: around 60% of the putative Class Members are not employees of New Wave; a large portion of the putative Class Members are illiterate in English or of modest literacy in Bangla; and 100% of the putative Class Members never had an opportunity to read the CSR standards to determine what were the stated objectives of the social audits, this pleading of argument is not something I can or should assume to be true.

[26] In a similar vein, the Plaintiffs plead that the putative Class Members did not expect their own employers to ensure their safety but did expect that the auditors (Bureau Veritas) and the Western corporations who employed them (Loblaws) would ensure their safety through the audits and inspections conducted at New Wave. The expectations or absence of expectations of over 4,000 putative Class Members is a matter of argument and not a matter that I am obliged to take as a true material fact.

[27] In making findings of fact and in applying the law to those facts, I shall not accept as necessarily true allegations of fact that are rhetorical conclusions or that are inconsistent with common sense, the documents incorporated by reference, or incontrovertible evidence proffered by both sides for the purpose of the motions.

[28] As a further illustration, I shall not take as a proven fact the bald assertion that Loblaws adopted its CSR standards because of what it learned in Ontario about factories in Bangladesh. The evidence establishes that the CSR standards were adopted for Loblaws’ domestic and international business dealings, which happened to include doing business in Bangladesh, among many other countries, some of whom like Bangladesh had manufacturing sectors that sold goods at cheap prices because of low salaries paid the workforce.

[29] However, this rejection of the Plaintiffs’ factual allegation about why Loblaws developed and promulgated its CSR standards is not to say that Loblaws’ adoption of CSR standards and its knowledge that workplaces in Bangladesh and other third or fourth world countries are dangerous and poorly regulated, which are undoubtable materials facts, are not relevant to determining whether Loblaws or Bureau Veritas had a duty of care to the putative Class Members. Sometimes buried in the Plaintiffs’ arguments are relevant material facts, and I will base my analysis on pleaded facts that are genuine material facts as opposed to legal conclusions and opinions.

[30] In particular, in making findings of fact and in applying the law to those facts, I shall examine whether there are genuine material facts that have been pleaded that justify the conclusion that Loblaws and Bureau Veritas had a duty of care to the putative Class Members.

2. Bangladesh

[31] The People's Republic of Bangladesh is a country in South Asia that borders on India and Myanmar. In land size, Bangladesh is approximately twice as large as New Brunswick, but it is densely populated and is the world's eighth most populous country, approximately 170 million citizens. Muslims, who comprise 87% of the population, make the nation the world's third largest Muslim-majority country. Hindus comprise 12% of the population.

[32] Dhaka is Bangladesh’s capital and its largest city, with a population of approximately seven million.

[33] Bangladesh was part of British India until India was partitioned in August 1947. With partition, Bangladesh was named East Pakistan, and it was part of the Dominion of Pakistan. What is now Bangladesh declared independence from Pakistan on March 26, 1971, and after the Bangladesh Liberation War of 1971, on December 16, 1971, it was recognized as a sovereign nation.

[34] Bangladesh is the world's second-largest manufacturer and exporter of garments. Its clothing industry employs four million workers, 80 percent of whom are women. Bangladesh’s garment workers are amongst the lowest paid employees in the world, earning on average between 25 cents to 33 cents per hour. Approximately 13% of the population of Bangladesh lives below the poverty line with a daily income of $3.

[35] The age of majority is 18 years old in Bangladesh, but under Bangladesh’s Factories Act, 1965 (No. 4 of 1965), children can begin to work in factories at age 14.

[36] The World Justice Project ranked Bangladesh 90^th^ out of 97 countries for regulatory enforcement. Bangladesh has an abysmal record of enforcing workplace safety standards and has allowed residential apartment buildings to be used for commercial and industrial purposes for which they are not suited.

[37] In the Statement of Claim, the Plaintiffs plead a long list of factory fires and collapses. Bangladesh has a sorry history of factory disasters resulting from poor structural design, expansion of buildings without the required permits, and the conversion of buildings built for residential or commercial use into industrial factories.

[38] The Plaintiffs plead that the Bangladesh government lacks the political will to enforce health and safety standards due to concerns that this would discourage foreign investment.

3. Loblaws and its Suppliers, Loblaws’ Social Responsibility Standards, the Master Services Agreements, and the Social Audits

[39] Loblaws purchases merchandise from around the world. It developed, and has for some time promulgated and implemented, Corporate Social Responsibility Standards (CSR standards). The CSR standards were designed to oversee the operations of Loblaws suppliers and to protect the safety of employees in Canada and around the world that produce goods for Loblaws.

[40] The CSR standards were not developed specifically for the circumstances of Bangladesh, which was just one of the countries from which Loblaws purchased goods. The CSR standards set general standards and mandated that the suppliers comply with national and local laws and adhere to best practices for their industry.

[41] Although the CSR standards speak about workplace health and safety, Loblaws’ CSR standards do not expressly address the structural integrity of buildings in which the suppliers may operate.

[42] Loblaws is the owner of the clothing brand Joe Fresh. Since 2006, Loblaws has been purchasing garments from manufacturers in Bangladesh. From 2007 to 2013, Loblaws imported approximately 13.5 million garments from 73 Bangladesh factories. Pearl Global was one of the leading suppliers.

[43] Loblaws retained Pearl Global to produce articles for the Joe Fresh line of clothing. Pearl Global, in turn, out-sourced some of work to New Wave, which was operating two factories on several floors of the Rana Plaza in Savar, Bangladesh. Loblaws does not own or manage Rana Plaza.

[44] Over the years, New Wave had expanded its operations at Rana Plaza, and the owner of Rana Plaza added additional floors to the building to accommodate the expansion of New Wave’s business. At the time of the collapse, Rana Plaza was under construction. A ninth floor was being built to be occupied as expansion space for New Wave.

[45] The Vendor Buyer Agreement between Loblaws and Pearl Global dated February 23, 2009 designates New Wave Style as a supplier for Loblaws. Only Loblaws and Pearl Global are parties to the Vendor Buyer Agreement. The Vendor Buyer Agreement incorporates Loblaws’ Supplier Agreement, which includes a Supplier Code of Conduct, which was derived from Loblaws’ CSR standards.

[46] New Wave is not a party to the Supplier Agreement and did not sign the Vendor Buyer Agreement. Loblaws has no employer-employee relationship with the employees of Pearl Global or of New Wave. The Plaintiffs describe Pearl Global and New Wave as having an independent contractor relationship with Loblaws. Loblaws describes Pearl Global as a supplier and New Wave as a sub-supplier of goods.

[47] Loblaws began acquiring garments manufactured by New Wave in 2007, and the volume of business had grown to US$ 6 million annually. Yolanda Morrell, Vice President of Sourcing at Joe Fresh, visited Rana Plaza on multiple occasions, and Loblaws personnel regularly spoke with the owners of New Wave and New Wave regularly shipped clothing to Loblaws in Brampton, Ontario. It is alleged that Loblaws was New Wave’s primary and predominant customer, but this is disputed.

[48] It is a hotly contested factual and legal issue between the parties whether Loblaws exercised control over New Wave and over the conditions in which New Wave’s employees worked.

[49] The Vendor Buyer Agreement and CSR standards permitted Loblaws to perform site inspections of its suppliers' factories, but did not require Loblaws to do so. The Vendor Buyer Agreement and the CSR standards permitted Loblaws to end their business relationship with Pearl Global if it failed to comply with the CSR standards. However, Loblaws had no contractual right to control the supplier’s operations or to order a supplier or sub-supplier to shut down. Loblaws had no rights to hire, supervise, or fire their supplier’s or sub-supplier’s employees. Loblaws had no control over access to the workplace. Loblaws was not the owner or occupier of Rana Plaza. Loblaws had no contractual rights with respect to the business of New Wave, a sub-supplier. Loblaws’ source of power or influence came from its purchasing power and the carrot and stick of making or not-making purchase orders.

[50] Turning to the relationship between Loblaws and Bureau Veritas, Bureau Veritas SA is a limited liability company. It is incorporated under the laws of France. Bureau Veritas offers testing, inspection, and certification services. It is headquartered in Neuilly-sur-Seine, France. It carries on business in Ontario, where it has 13 facilities, offices, and laboratories. Bureau Veritas Consumer Products Services Inc. is a subsidiary in the United States, and Bureau Veritas Consumer Products Services Ltd. is a subsidiary in Bangladesh that was incorporated under the laws of Bangladesh and which is headquartered in Dhaka, Bangladesh.

[51] The various Bureau Veritas corporations are in law separate legal entities but they were treated as a single legal entity for the purposes of the motions now before the court.

[52] Pursuant to a written contract, Loblaws retained Bureau Veritas to audit factories, including the New Wave factories to ensure compliance with Loblaws’ CSR standard. More precisely, pursuant to a Master Services Agreement effective January 1, 2011, which was signed in Ontario and which is governed by Ontario law, Loblaws engaged Bureau Veritas’ Bangladesh subsidiary, which had offices in Dhaka and Chittagong Bangladesh, to conduct “social audits.”

[53] The term “social audit” refers to the practice of independently auditing an organization’s compliance-related processes and controls, measured against self-imposed or external standards. In a social audit, Bureau Veritas evaluated a supplier's social compliance as against: (a) the client's code of conduct; (b) a code of conduct containing standard industry standards developed by Bureau Veritas to address specific hazards of an industry; (c) local laws and regulations related to employment practices and workplace health and safety; and (d) industry standards established by organizations such as the International Labour Organization.

[54] Bureau Veritas does offer other services beyond the scope of a basic social audit. For an additional cost of $1,200 (USD), a client may obtain Social Compliance Audit Services. For an additional cost of $2,000 (USD), a client may obtain a Safety Risk Assessment, which is a high-level assessment of electrical system, building construction and structural integrity. For a further additional cost of $2,000 (USD), a client may obtain an Electrical, Fire and Building Safety Assessment, which is a professional engineer’s evaluation of facilities for compliance with applicable local laws and selected international standards and which evaluation includes a review of building permits and compliance with building codes. For a further additional cost of $0.30 (USD) per square foot, a client may obtain a Building Structural Integrity Assessment, which is a professional engineer’s assessment of the structural integrity of a facility and includes a physical inspection of the building, comparison of the approved building design with existing building construction, structural analysis, plate load testing, and testing of structural elements.

[55] Loblaws’ retainer of Bureau Veritas was a limited retainer for a basic social audit. The scope of the social audit for which Bureau Veritas was retained to perform for Loblaws was identical to the scope of Loblaws’ CSR standards, which were incorporated into the Master Services Agreement between Loblaws and Bureau Veritas. Under the Services Agreement, the “services” were the “collection and analysis of facts, inspection, and issuance of reports regarding the factory’s compliance with Loblaws’ Standards for Suppliers.”

[56] Pertinent provisions of the 2011 Master Services Agreement, with my emphasis added, are set out below:

MASTER SERVICES AGREEMENT

This master services agreement is made as of January 3, 2011 (“Effective Date”) between Bureau Veritas Consumer Products Services, Inc., a Massachusetts corporation with its principal office at 100 Northpointe Parkway, Buffalo, New York, 14228 (“BV”) and Loblaw Inc. an Ontario Company located at 1 President’s Choice Circle, Brampton, Ontario LGY 5S5 (“Loblaw”)

1.0 AGREEMENT STRUCTURE

1.1 This agreement merges all prior discussions, both oral and written, between the parties. Unless otherwise provided herein, this agreement constitutes the only terms and conditions under which Loblaw will procure from BV product testing, inspection, factory audit, and related services (the “Services”), as further described in the applicable statement of work (SOW). The terms and conditions of this agreement shall apply to the procurement by Loblaw, and performance by BV, with respect to any and all Services contemplated hereunder.

2.0 TERM AND TERMINATION

2.1 This agreement shall commence on the Effective Date and continue for a period of three (3) years (the “Initial Term”). …

3.0 PRICE, PAYMENT AND DELIVERY

3.1 Prices for the Services and additional payment items shall be set out in the applicable SOW.

4.0 PRODUCT REPORTS

4.5 Reports will reflect the findings of BV at the time of performance of the Services only, and BV will have no obligation to update a Report after its issuance unless a Report is found materially inaccurate or deficient as determined by Loblaw in consultation with BV, acting reasonably.

4.6 Reports will set forth the results of the Services performed by BV based upon the Protocols. Reports relate solely to the facts and circumstances received from Loblaw, and BV is under no obligation to refer to, or report upon, any facts or circumstances which are outside the specific scope of its assignment or the Services requested.

5.0 REPRESENTATIONS AND WARRANTIES

5.1 BV represents and warrants that: …

(g) BV, its employees, agents, Subcontractors and representatives will comply with the provisions of this agreement, the terms of the applicable SOW, and Loblaw’s regulations, policies and procedures in effect from time to time, including, but not limited to Loblaw’s Code of Conduct attached hereto as “Exhibit A”;

7.0 LIMITATION OF LIABILITY AND DISCLAIMER

BV Disclaimer

7.5 Loblaw acknowledges and agrees that: (a) BV is neither an Insurer nor a guarantor of the Products, the Suppliers or their factory operations that BV may be assigned to test, audit or inspect; (b) except as otherwise expressly provided for in this agreement or a SOW, BV does not undertake the obligations and responsibilities of Loblaw or its Subcontractors, including Loblaw’s authorized agents and Suppliers; and (c) except to the extent BV acts in contradiction of the foregoing without Loblaw’s express authorization, BV disclaims any and all liability to the extent such liability is attributed to the foregoing.

12.0 GOVERNING LAW

12.12 Governing Law: This agreement is governed by and construed in accordance with the applicable law of the Province of Ontario and the federal laws of Canada (excluding any conflict of law rules or principle which might refer such construction to the laws of another jurisdiction) and is treated in all respects as an Ontario contract. The parties consent to the non-exclusive jurisdiction of the courts of the Province of Ontario for the purpose of any action or proceeding brought by either of them in connection with or arising out of this agreement. …

EXHIBIT A

CODE OF CONDUCT

[Loblaws] are committed to doing business in a legal, ethical and socially responsible manner. Reflecting this commitment, all directors, officers and employees are expected to comply with the Loblaw Code of Business Conduct in conducting their business relationships. To maintain these standards, Loblaw desires to do business with those suppliers, vendors and contractors (for the purposes of this Exhibit, collectively “Suppliers”) whose practice are consistent with Loblaw’s ethics and principles of business conduct. This Supplier Code of Conduct (as amended or modified from time to time, the “Code”) sets forth the types of standards and practices that Loblaw expects of its Suppliers.

Compliance with laws. Suppliers are expected to abide by all applicable laws and regulations including all federal, provincial and local laws regarding environmental matters, occupational health and safety, labour and employment practices, human rights, immigration, product safety, shipping and product labelling. Loblaw also expects that their Suppliers will comply with applicable guidelines and practices for their industry.

No Child Labour or Forced Labour ….

Employment Practices of Suppliers. The procedures and policies of Suppliers should reflect the commitment of Loblaw to fair and reasonable labour and employment practices as well as diversity in the workplace. Suppliers are expected to comply with all local and applicable labour laws and employment standards, such as compensating workers in compliance with all applicable wage, benefit, and employment standards laws and maintaining reasonable employee work hours and a safe and healthy workplace. Suppliers are also expected to take reasonable efforts to promote and achieve diversity in the workplace. Loblaw expects that Suppliers shall not inflict, threaten to inflict or permit corporal punishment or other forms of physical, sexual, psychological or verbal abuse or harassment on any employee.

Food and Product Safety ….

Application of Supplier Code of Conduct. This Code applies to all Loblaw Suppliers and should not be read in lieu of but in addition to the Supplier’s obligations as set out in any agreements between Loblaw and/or its affiliates and the Supplier. …. Loblaw reserves the right to take appropriate action in the event a Supplier violates the Code.

[57] It should be noted that under the Agreement between Loblaws and Bureau Veritas, Bureau Veritas was not expressly required to investigate and report on the structural integrity of the premises in which it was conducting a social audit. The Plaintiffs allege, however, that the inspection of the structural integrity of the supplier’s premises was a categorically necessary part of the audit to be performed by Bureau Veritas. This allegation is strenuously and persistently denied by the Defendants.

[58] Somewhat inconsistently, the Plaintiffs also allege that Loblaws was negligent in not contracting for a more comprehensive audit that would include an engineering inspection for the allegedly notoriously dangerous workplaces in Bangladesh. The allegations are somewhat inconsistent because the Plaintiffs allege both that Loblaws and Bureau Veritas were negligent for not doing the engineering investigations categorically required by the social audit and that Loblaws was negligent in not contracting for a social audit that did include the engineering investigations required to protect the workers at Rana Plaza.

[59] I find as a fact that Bureau Veritas had what the English legal expert’s described as a “limited remit” or what I would describe as a “limited retainer” that did not include a Safety Risk Assessment, an Electrical, Fire and Building Safety Assessment, or a Building Structural Integrity Assessment.

[60] The 2011 Master Services Agreement between Loblaws and Bureau Veritas, which had a three-year term, replaced a 2008 Master Services Agreement. Under the 2008 Agreement, the services were the collection and analysis of facts, inspection, and issuance of reports regarding the factory’s compliance with Loblaws Standards for Suppliers. The Agreements provided that audit reports relate solely to the facts and circumstances as observed and recorded by Bureau Veritas within the limits of instructions received from Loblaws, and, Bureau Veritas was under no obligation to refer to or report upon any facts or circumstances which are outside the specific scope of its assignments or the audits requested.

[61] Under the statements of work in the 2011 Master Services Agreement: (a) Bureau Veritas would perform services at third party factories that may produce products for sale by Loblaws; (b) the services included the collection and analysis of facts, inspections, and the issuance of reports regarding a factory’s compliance with Loblaws’ Standards for Suppliers; and (c) Bureau Veritas had to submit: a social audit report with scoring metrics, a signed corrective action plan factory acknowledgment, a corrective action plan, a factory assessment checklist, and a photo image report.

[62] The price for Bureau Veritas’s services was US$1200 for an audit by either one person over two days or by two people over one day and US$700 for a one-day follow-up audit, exclusive of travel expenses if requested by Loblaws. Bureau Veritas would directly invoice Loblaws’ supplier for payment for the services. In other words, the social audits were charged to Loblaws’ suppliers.

[63] Mr. Hill of Bureau Veritas deposed that Bureau Veritas was retained to audit occupational health and safety issues and employment practices, such as forced labour, child labour, wages and benefits, hours of work, harassment, and workers’ rights. He said it was not hired to inspect the building’s structural integrity. He said that social auditors are not trained engineers and do not investigate the structural integrity of buildings, or any other matters that require special qualifications and that are outside the scope of a social audit, even though those matters may affect workplace concerns.

[64] Between 2008 and 2013, Bureau Veritas completed 138 audits at 77 different factories in Bangladesh for Loblaws. Mr. Hill deposed that Bureau Veritas was never asked to audit and it never audited New Wave Bottoms, which operated on the third floor of Rana Plaza.

[65] Bureau Veritas did perform a social audit at the New Wave Style factory premises. Bureau Veritas’s employees resident in Bangladesh conducted "social audits" of New Wave Style on February 28, 2011 and on April 12, 2012.

[66] At the time of the first audit, New Wave Style was on the sixth floor of Rana Plaza. The social auditors found 21 instances of noncompliance, including 11 instances related to health and safety issues. The health and safety issues audited by Bureau Veritas were matters such as machinery safety and use, clean drinking water, safety equipment training, chemical and hazardous materials training, fire alarm systems, emergency lighting and exits, first aid training, and food preparation and eating areas. There was no engineering audit and no mention of the structural integrity of the New Way Style premises in Rana Plaza.

[67] At the time of the second social audit in 2012, New Wave Style was on the sixth and seventh floors of Rana Plaza, and the social auditors found nine instances of non-compliance relating to safety equipment and job training, emergency exits, and eyewash facilities. Under the heading “Monitoring and Documentation” – i.e. not as a health and safety issue - the 2010 and the 2012 social audits noted that the factory licence was missing, which was a failure to comply with Chapter IV of the Bangladesh Factories Rules, 1979, which requires that the building permit be posted. Again, for the 2012 social audit, there was no engineering audit and no mention of the structural integrity of the New Way Style premises in Rana Plaza.

[68] The remediation of the deficiencies noted in the social audits was not followed up on by either Loblaws or Bureau Veritas. Bureau Veritas argues that it had no ability to schedule a follow-up audit because scheduling was within the sole discretion of Loblaws.

[69] Mr. Brown, who was retained by the Plaintiffs to provide an expert opinion about social audits, deposed that a reasonable audit of garment factories in Bangladesh, which has a history of factory fires and collapses from poor structural design or construction, should have taken this deplorable history into account in defining the scope of the audit. He opined that Loblaws should have commissioned an audit that would take into account the structural deficiencies that could cause factory collapses.

[70] I pause here to say that I was not much impressed with Mr. Brown’s opinion. Mr. Brown had no experience doing social audits (either in Bangladesh or elsewhere) and no familiarity with Bureau Veritas’s social audit process. He was not qualified from a legal perspective to interpret the meaning of the Master Services Agreement between Loblaws and Bureau Veritas. He conceded that an engineer would have to be retained if an audit included an investigation of the structural integrity of a building.

[71] Further, Mr. Brown expressed views that revealed that he had lost his expert’s objectivity, and he had become a shill for the advocacy of the Plaintiffs. In this regard, there was no justification for him opining that Loblaws’ social audits were no more than “a window dressing, don't ask-don't tell-arrangement between Loblaws and Bureau Veritas.” There was no justification for his opining that cost was not a factor in Loblaws’ decision as to the scope of the audits and rather it is more likely that "... neither Loblaws nor Bureau Veritas wanted to know the results of that more detailed audit given the cost implications associated with either halting production and moving to a structurally stable building, or repairing the structural weakness of the Rana Plaza building itself.”

[72] However, I also pause to say that for present purposes, not much turns on Mr. Brown’s evidence or his opinion. In the main, his evidence would be relevant to the issue of whether Bureau Veritas met the standard of care or was negligent in performing a social audit. Mr. Brown’s evidence offers no assistance in addressing the legal issues of interpreting the scope of the social audit that Bureau Veritas was actually retained to perform, the implications of Loblaws having CSR standards, whether Loblaws had assumed a duty of care to the putative Class Members, or whether Loblaws and Bureau Veritas had a duty of care to the employees of its sub-sub-supplier and a duty of care to everybody else who happened to be at Rana Plaza on the day that it collapsed. Those are legal issues for this court to decide.

[73] Returning to the factual background, in January 2013, Loblaws terminated its contract with Bureau Veritas. Loblaws instead retained Intertek Group plc, another inspection and auditing firm, to perform social audits in Bangladesh.

[74] Intertek never inspected Rana Plaza. Intertek was scheduled to conduct its first audit on April 24, 2013, the day that Rana Plaza collapsed.

4. Loblaws’ and Bureau Veritas’ Control over the Workplace at Rana Plaza

[75] Pausing here in the description of the factual background, it is helpful to flag an important issue of mixed fact and law that will feature prominently in the discussion later about the legal theory of the Plaintiffs’ and the putative Class Members’ claims against the Defendants. It is the issue of Loblaws’ and Bureau Veritas’ control over Loblaws’ suppliers and sub-suppliers, over the employees and others in the vicinity of Rana Plaza, and over the workplace at Rana Plaza.

[76] As will appear, control is a critical ingredient of the legal theory of the Plaintiffs’ and the putative Class Members’ claims against the Defendants. In this regard, it should be noted that the Plaintiffs accept that Loblaws and Bureau Veritas were not the cause of the collapse of Rana Plaza, (described in next part of these Reasons), and thus to make the Defendants liable, the Plaintiffs accept that they need to establish a duty of care or a fiduciary duty, a breach of that duty, and causation of harm from the breach of duty all connecting the Defendants to the tragedy that occurred on April 24, 2013. The theory of the Plaintiffs’ case posits that the Defendants’ breaches of duty caused harm to the Plaintiffs and to the putative Class Members, which include not only the New Wave employees but also all the others, frequent or transient, who happened to be at Rana Plaza on the day of the tragedy. The matter of control is an important ingredient of the Plaintiffs’ theory as to why the Defendants owned them a duty of care.

[77] To establish a duty of care, it is the legal theory of the Plaintiffs’ case that Loblaws adopted its CSR standards because of: (a) the notoriety of the dangerous workplaces in Bangladesh; and (b) the dependence and vulnerability of the workers in Bangladesh, whom Loblaws as a responsible corporate citizen did not wish to be seen to be exploiting. It is the Plaintiffs’ legal theory that Loblaws breached its duty because although it had the ways and means to control the suppliers manufacturing goods at Rana Plaza through ensuring compliance with its CSR standards, it failed to protect the putative Class Members from an avoidable harm. Thus, as will appear more fulsomely in the discussion later in these Reasons for Decision, it is a critical part of the Plaintiffs’ and putative Class Members’ claims, and an essential ingredient to establishing a duty of care, that Loblaws and Bureau Veritas had some element of control over Pearl Global and New Wave and an ability to protect the Plaintiffs and the putative Class Members from the dangers of their notoriously unsafe workplace.

[78] As will appear from the evidence of the Plaintiffs’ experts about the law of Bangladesh and from the Plaintiffs’ argument about the law of Ontario, the Plaintiffs were acutely aware that as a matter of mixed fact and law, they must establish this control element. The Defendants were just as acutely aware of how critical the control element was to their exposure to liability. Thus, a great deal of argument and evidence was focused on attacking or defending the numerous allegations made in the Plaintiffs’ Statement of Claim that Loblaws and Bureau Veritas could and should have exercised their control to do more than they did to protect the putative Class Members. There was also considerable controversy about the relationship between the vulnerability and dependency of the putative Class Members to the formulation of a duty of care.

[79] As already noted earlier in these Reasons for Decision, the Plaintiffs argued that the court was absolutely obliged to accept the allegations of control in the Statement of Claim as true. The Defendants’ counterargument was to submit that to accept the Plaintiffs’ submissions in respect of the degree of control that the Defendants exerted would be to ignore the contractual arrangements, which were incorporated as material facts in the Statement of Claim. Further, the Defendants submitted that to ignore these factors and others was to be blind to the reality of the situation and to conjure up a cause of action where none existed or could exist.

[80] I will return to the matters of control and vulnerability in the discussion of the law below, but for the present purposes of describing the factual background and for the later purpose of determining whether or not the Plaintiffs’ have pleaded a reasonable cause of action, i.e., one known to law, I simply note that I do not accept as true bald allegations that Loblaws had control over the suppliers and sub-suppliers at Rana Plaza and over the Plaintiffs’ workplace. Rather, I will examine whether the material facts that are not argument could constitute the direct or indirect control sufficient to establish a duty of care or a fiduciary relationship.

5. The Collapse of Rana Plaza

[81] Rana Plaza, named after its owner, Sohel Rana, was a nine-floor mixed commercial and industrial building in Savar, Bangladesh, which is an area with a population of approximately 1.4 million approximately 20 kilometers from Dhaka.

[82] Rana Plaza was constructed in 2006 as a six-floor commercial complex of four floors or retail and two floors of offices. It was built without proper approvals on a former pond. It was not designed for industrial use. As built, the building was not capable of supporting industrial uses. The structure was not strong enough to bear the vibration and weight of generators and industrial machinery used in garment factories.

[83] Rana Plaza was expanded by two additional floors, and in 2013, just before the collapse, construction of a ninth floor was nearing completion. The Plaintiffs allege that the three additional floors were constructed without a building permit and that the whole building was built with shoddy materials, contrary to the building codes, and was not structurally capable of supporting industrial equipment.

[84] Rana Plaza’s occupants included a bank, a shopping mall, and five garment manufacturers, including New Wave. The garment production in Rana Plaza was contrary to the zoning permit.

[85] New Wave Style and New Wave Bottoms operated the two largest factories with the most workers in Rana Plaza. At the time of the collapse, the 2,761 garment workers at Rana Plaza were distributed between the five factories as follows: 1,167 at New Wave Style; 452 at New Wave Bottoms; 438 at Phantom Apparels Ltd.; 254 at Phantom Tac Ltd.; and 450 at Ether Textile Ltd.

[86] New Wave Bottoms came to the building in 2007 to occupy premises on the third floor. New Wave Style already occupied space on the sixth and seventh floors, and, as already mentioned, it planned to occupy more space on the ninth floor.

[87] In April 2013, Mr. Alauddin, Ms. Das, and Ms. Khatun were employees of New Wave Style. Ms. Das and Ms. Khatun started work at Rana Plaza after the termination of Bureau Veritas agreement with Loblaws. Ujjal Ali, Afzal Ali, and Khadiza Begum were employees of New Wave Bottoms.

[88] In April 2013, approximately 50% of the work that New Wave was performing was for Loblaws and there was a large order under production for Loblaws at the time of the collapse.

[89] On April 23, 2013, cracks were discovered in three pillars of the structure of Rana Plaza. The Industrial Police, the City of Savar’s Executive Officer, and a local engineer all attended at Rana Plaza. The site was ordered evacuated at 10:00 a.m., and the employees were sent home for the day. However, in the afternoon, New Wave’s managers ordered the employees to return to work the following day.

[90] The discovery of the cracks in Rana Plaza and the police-enforced evacuation were publicized in the Bangladeshi Ekushey TV broadcast that aired in the early evening of April 23, 2013. The Plaintiffs allege that local agents of Loblaws or Bureau Veritas had ample time (approximately eight working hours) to relay the information of the imperiled building to representatives or employees of Loblaws in Ontario. The Plaintiffs allege that Bureau Veritas failed to relay to representatives or employees of Loblaws in Ontario that cracks were found in Rana Plaza, after becoming aware of the cracks from TV broadcasts.

[91] On April 24, 2013, Mr. Rana assured the media that his building was safe. He said that this had been confirmed by the engineer who had inspected the building.

[92] Mr. Alauddin, Ms. Das, and Ms. Khatun returned to work, and despite knowledge of the cracks in the structure, they re-entered the building. Mr. Alauddin said he re-entered out of fear of being fired. Ms. Das and Ms. Khatun respectively said that they re-entered because they had been ordered to return to work.

[93] In the morning of April 24, 2013, there was a power outage and the large back-up diesel engines on the upper floors of Rana Plaza became operational. There were substantial vibrations, and at around 9:00 a.m., the Rana Plaza collapsed. 1,130 people died and 2,520 were injured including Mr. Alauddin, Ms. Das, and Ms. Khatun. Among the dead were Ujjal and Afzal Ali, and Khadiza Begum.

[94] As noted above, at the time of the collapse, 1,167 people were employed by New Wave Style in the Rana Plaza building. The balance of the injured and dead are the 452 employees at New Wave Bottoms, the 1,142 employees of other garment businesses operating out of Rana Plaza and 439 persons who unfortunately just happened to be in or around the building at the time of the collapse.

[95] The collapse of Rana Plaza is the deadliest accidental structural failure in world history.

[96] After the collapse of the building, criminal prosecutions were brought against Mr. Rana, the owners of the garment factories that operated in Rana Plaza, officials of the Department of Inspection for Factories, other public officials, municipal engineers, and certain construction contractors. Those proceedings are pending in Bangladesh.

[97] After the collapse of the building, two legal aid organizations brought public interest litigation against the Bangladesh Government, the Secretary, Ministry of Housing and Public Works, the Chief Inspector of Factories, other public officials, Mr. Rana, the garment factory owners, the Bangladesh Garment Manufacturers and Exporters Association and others. In the public interest litigation, it is alleged that the Bangladesh Government and the other defendants failed to ensure effective enforcement of applicable laws on building construction and workplace safety at Rana Plaza. The lawsuit seeks payment of compensation to the victims and their families as well as rehabilitation and medical treatment for the injured. The public interest litigation is pending in Bangladesh.

[98] After the collapse of the building, the High Court Division of the Bangladesh Supreme Court issued a show cause summons against the secretaries of the Ministry of Works and Housing, Ministry of Local Government and Rural Development, other local officials, officials of the police, the Bangladesh Garment Manufacturers and Exporters Association, the owner of the Rana Plaza building, and the factory owners. The respondents are to show cause as to why they should not be held liable for the collapse and be directed to pay compensation to victims and their families. Those proceedings are also pending in Bangladesh.

6. Victim Relief and the Rana Plaza Donors Trust Fund

[99] After the Rana Plaza tragedy, the Government of Bangladesh made available up to a total of 230 million Bangladesh Taka ($3.75 million, Cdn.) in compensation, plus additional assistance of 25 million Taka ($0.4 million) for funeral and other expenses.

[100] After the collapse, the Bangladesh Garment Manufacturers and Exporters Association paid out approximately 145 million Taka ($2.4 million) to victims of the collapse.

[101] After the collapse, Primark, another retailer that sourced products from New Wave paid nine months' wages to all injured workers and dependents of deceased or missing workers and also set up a separate claims program for New Wave workers.

[102] After the collapse, Loblaws paid three months’ salary to employees of New Wave Style and contributed $1 million to Save the Children Bangladesh and the Centre for Rehabilitation of the Paralyzed.

[103] The International Labour Organization, a United Nations agency, established the Rana Plaza Donors Trust Fund to provide compensation to the victims and their families. While denying any legal liability with respect to the collapse, Loblaws donated $3.5 million to the Fund.

[104] By June 2015, the Rana Plaza Donors Trust Fund had collected US $30 million in donations. Compensation was based upon the claimant’s income at the time of the collapse. Totally disabled workers received 60% of their lifetime wages. The Fund provided payment of medical expenses.

[105] The Rana Plaza Donors Trust Fund is administered by a committee formed by various representatives from the Government of Bangladesh, the garment industry, trade unions, brands (including Loblaws), and non-governmental organizations, with the support of the International Labour Organization.

[106] The Plaintiffs submit that the amount of compensation received by the claimants was inadequate. For present purposes, I need not decide the point. I simply note that the Plaintiffs are claiming around $2 billion for the putative Class Members in the proposed Ontario class action.

[107] To receive compensation from the Rana Plaza Donors Trust Fund, a claimant signed a release discharging his or her rights to compensation for the heads of losses from the collapse. The release stated:

I understand that by submitting this claim to the Rana Plaza Claims Administration, I consent to the review of my claim here; and that the award that will be issued and the payment(s) that may be made to me and members of my family in this regard will constitute a final decision on our claim and a full settlement of our rights to claim for compensation concerning the heads of losses claimed here.

[108] The Plaintiffs submit that for a variety of reasons, including illiteracy and the absence of independent legal advice, the releases are not enforceable. For present purposes, I need not decide whether the releases are enforceable.

[109] As of April 2015, the Rana Plaza Donors Trust Fund had authorized 2,839 claims for payment and disbursed approximately US $9.84 million to the victims and their families. The Plaintiffs submit that the Rana Plaza Donors Trust Fund falls well short of providing a valid procedural and substantive alternative to this class action in which they estimate that there are 8,000 putative Class Members.

[110] The Rana Plaza Donors Trust Fund paid Mr. Alauddin approximately four years' wages.

[111] Mr. Ali received charitable donations, but he does not know the amount.

[112] Anonymous donors provided Ms. Das with funds worth approximately two to three years' wages. The Rana Plaza Donors Trust Fund provided Ms. Das with funds worth approximately one to two years' wages. The Bangladesh Government paid her a monthly salary in excess of her prior salary. After a five year period, this monthly payment will mature into a principal amount equal to 15 to 20 years' wages.

[113] Ms. Khatun has received from the Rana Plaza Donors Trust Fund an amount equal to approximately 18 months' wages.

[114] Mr. Alauddin received one month’s salary from a fund known as the Prime Minister's Fund. He received approximately four months’ wages from Primark. He received almost four years' wages from the Rana Plaza Donors Trust Fund.

7. The Plaintiffs’ Statement of Claim

[115] On April 22, 2015, the Plaintiffs commenced an action against Loblaws and Bureau Veritas.

[116] On October 2016, the Plaintiffs delivered their Fourth Amended Statement of Claim.

[117] In their Statement of Claim, the Plaintiffs plead that Loblaws is liable for negligence, and vicariously liable for the negligence of its suppliers and sub-suppliers. The Plaintiffs also allege that Loblaws is liable for breach of fiduciary duty. The Plaintiffs allege that Bureau Veritas is liable for negligence.

[118] The Plaintiffs claim general damages of $1.85 billion, punitive damages of $150 million, special damages, pre and post-judgment interest, costs on a substantial indemnity basis, and an order for disgorgement of all profits earned by the Loblaws from the sale of Joe Fresh apparel from 2006 to 2013.

[119] The Plaintiffs allege that the causes of action in negligence arise from the context in which Loblaws decided to have its garment products manufactured. The context is a decision by a major retailer to obtain goods for resale from manufacturers in a developing country notorious for highly unsafe factory conditions and the absence of legal and regulatory compliance. In this context, the Plaintiffs plead that Loblaws exposed garment factory workers to the risk of serious bodily harm and death.

[120] The Plaintiffs plead that the Defendants knew of the deplorable history of factory disasters in Bangladesh and that garment workers were exposed to serious workplace safety issues and needed protection. In this regard, the Statement of Claim particularizes 17 factory fire accidents occurring as far back as 2000 and two building collapses that the Plaintiffs allege that Loblaws would have been aware of. None of these accidents involved the Defendants, and Loblaws, with the support of Bureau Veritas, moves to have these paragraphs struck from the Statement of Claim.

[121] The essential legal theory of the Plaintiffs’ tort case is that Loblaws, knowing of the notoriously dangerous workplaces in Bangladesh, voluntarily undertook the responsibility of ensuring that the buildings in which Joe Fresh garments were being manufactured by vulnerable employees, were safe and structurally sound. This theory is set out in paras. 12, 184, and 194-196 of the Statement of Claim, which state:

12. By adopting Corporate Social Responsibility Standards in Ontario, by visiting the New Wave factories and by directly or indirectly controlling the scope of audits and inspections performed by Bureau Veritas through its head offices in Ontario, Loblaws voluntarily undertook the responsibility to ensure that the buildings in which Joe Fresh garments were manufactured were structurally sound and met Loblaws’ own publicly adopted minimum standards for worker and building safety. The vulnerable garment workers at New Wave Style and New Wave Bottoms had witnessed Loblaws’ agents attend at New Wave factories, purportedly to assess safety and worker conditions and witnessed visits by Loblaws at the New Wave factories. These factors led the garment workers to reasonably rely on Loblaws to ensure that the buildings in which they produced Joe Fresh garments would be properly audited and inspected to prevent unreasonable risk of injury.

13. By adopting Corporate Social Responsibility Standards that delineate minimum safety standards for garment workers and factory buildings, and by directly or indirectly engaging Bureau Veritas to perform audits and inspections of the New Wave factories through Loblaws’ employees and agents in Ontario, Loblaws undertook the responsibility to ensure that the Plaintiffs would not be exposed to an unreasonable risk of harm or death while working in Rana Plaza. Further, by directly or indirectly setting the parameters for the audits and inspections conducted by Bureau Veritas through Loblaws’ employees and agents in Ontario, Loblaws represented to the industry, the public, and more importantly, to the garment workers at New Wave that it had the information and means necessary to ensure that New Wave and Rana Plaza were structurally sound and met the minimum safety standards that Loblaws itself voluntarily and publicly adopted.

14. The Loblaws Defendants had a commercial interest in the operations of Pearl Global and New Wave and in maintaining low cost contracts with them. The Loblaws Defendants were at all times, intent on maximizing profits by reducing the cost of production of its garments produced in Bangladesh. Given the objective of aggressively reducing costs, the Loblaws Defendants knew or ought to have known that in order to meet its costing targets, Pearl Global and/or New Wave would be forced to use sub-standard dangerous factories which fell far below any reasonable safety standard.

15. Loblaws owed a duty to ensure the safety of Class Members since they were vulnerable, had little or no education and, had very little money or employment alternatives. The vulnerability of the Class Members, the known Bangladeshi legal and regulatory vacuum described above and the vast power imbalance between the parties was such that the Loblaws Defendants had an enhanced responsibility to safeguard Class Members against injury and death while working on garments for Loblaws’ Joe Fresh brand.

16. The harm caused to Class Members was reasonably foreseeable and a direct consequence of Loblaws’ actions and omissions as described herein. Loblaws knew or ought to have known of the dangerous work and safety conditions in the New Wave factories and/or Rana Plaza and failed to take adequate steps to prevent a reasonably foreseeable building collapse that would cause foreseeable injuries to the Class Members.

[122] The Plaintiffs allege that Loblaws was careless and in breach of its own CSR standards and industry and international standards, when it failed to provide reasonable and adequate instructions to Bureau Veritas to ensure that the audits performed at New Wave were sufficient in scope to address the particular safety concerns that prevailed at the relevant time in Bangladesh.

[123] Further, the Plaintiffs plead that the Defendants knew about the history of serious industrial accidents, including garment factory fires and collapses and Loblaws was aware of the particular hazards at Rana Plaza given the ongoing construction of additional floors at the Rana Plaza to house factories to fulfill large orders placed by Loblaws.

[124] The Plaintiffs plead that Loblaws failed to promptly and adequately follow up on the Corrective Action Plans that identified major non-compliances by New Wave with health and safety issues.

[125] The Plaintiffs plead that Loblaws is vicariously liable for any negligence on the part of Pearl Global and New Wave because Loblaws exercised considerable direct and indirect control over New Wave's operations at the Rana Plaza, including reserving a right to terminate its commercial relationship with New Wave for non-compliance with both Loblaws' Supplier Code of Conduct and applicable local laws and regulations, which New Wave was required to observe.

[126] The theory of the vicarious liability cause of action is set out in paras. 232-239 of the Statement of Claim, which state:

232. Loblaws controlled and benefitted financially from New Wave and Pearl Global to produce Joe Fresh clothing. Loblaws sub-contracted its garment work to Pearl Global and/or New Wave to benefit from the cheap low labour costs in Bangladesh. Through the use of the inexpensive garment labour, Loblaws significantly reduced its cost of garment production and increased its profit through the sale of Joe Fresh garments. By subcontracting its garments to New Wave, Loblaws created a risk which resulted in the injuries and deaths of Class Members.

233. Loblaws knew or ought to have known that Pearl Global and/or New Wave would fail to ensure worker safety and would further fail to provide environments that do not present risks of injury and death to garment workers. The risk of injury and death to the garment workers was obvious and foreseeable given that Loblaws chose to subcontract its garment production to a sub-contractor that had operated for years in factories housed in a multi-level building which was illegally constructed. Loblaws knew, or ought to have known, that neither Pearl Global nor New Wave would abide by applicable standards, codes, regulations and laws of worker safety. Loblaws failed to appropriately select manufacturers who would abide by applicable standards, codes, regulations and/or laws.

234. Loblaws is vicariously liable for the negligence of Pearl Global and/or New Wave because in these unique circumstances, Loblaws had a non-delegable duty to ensure the safety of the Class Members including the garment workers of New Wave at Rana Plaza.

235. Loblaws’ own standards and Corporate Social Responsibility Standards, including its Supplier Terms and Conditions detailed Loblaws’ duty to garment workers who produce Joe Fresh garments, to take reasonable care to ensure the health, safety and adequate working conditions of these garment workers. Such a duty is not discharged by delegating the work to Pearl Global or New Wave. This was a non-delegable duty which survived and remained the responsibility of Loblaws. Further, Class Members had a reasonable expectation that the duty to ensure their health and safety remained with the Loblaws Defendants and could not be delegated to New Wave or otherwise. The vulnerability of the Class Members underscored this principle.

236. The Loblaws Defendants were in control of the garment production by New Wave, in that Loblaws sub-contracted garment production to be performed by New Wave through Pearl Global. Loblaws was under a duty to ensure that any sub-contractor exercised reasonable care to ensure the garment workers’ health and safety.

237. Further, Loblaws is vicariously liable for the negligence of Pearl Global and/or New Wave given the inherently dangerous risks which called for special precautions to be taken by Loblaws to ensure that reasonable measures were taken to ensure garment worker safety. Given the previous history of fires and collapses of garment factories in Bangladesh, it was evident that the garment industry was and is an inherently dangerous activity in that country.

238. Engaging Pearl Global and/or New Wave to produce the garments in no way relieved Loblaws from its duty to ensure worker safety to Pearl Global and/or New Wave. New Wave became the necessary means of carrying out such hazardous garment work and Loblaws cannot be relieved from its duty of care simply because it engaged Pearl Global and/or New Wave to produce garments for the Joe Fresh line.

239. It was patently obvious that had the Plaintiffs been Loblaws’ employees, Loblaws would have had a duty to take all reasonable precautions to avoid such unusual and inherently dangerous risks to its employees. Loblaws should not be permitted to relieve itself of responsibility by the introduction of an intermediary.

[127] The Plaintiffs plead that Loblaws owed a fiduciary duty to them and the putative Class Members to ensure that it exercised its discretion to control and direct the scope of audits performed by Bureau Veritas reasonably and in the best interest of the Plaintiffs. The theory of the Plaintiffs’ breach of fiduciary duty claim is set out in paras. 225-230 of the Statement of Claim, which state:

225. Loblaws also had a fiduciary duty to the Class Members to ensure that the audits and inspections performed at the New Wave factories were sufficiently comprehensive to identify, address and remedy structural defects, so as to protect the garment workers from foreseeable bodily harm and death. Loblaws had discretion to affect the safety interests of the vulnerable garment workers who produced its Joe Fresh brand apparel.

226. Loblaws leveraged the low labour costs and wages of garment workers in Bangladesh to increase profit margins to reap the benefits of the legal and regulatory vacuum on worker protection and enforcement of safety standards. Loblaws knew, or ought to have known, that the dearth of legal and practical protections, including the inadequate enforcement of applicable laws, standards and regulations, exacerbated the vulnerability of the garment workers who produced its Joe Fresh brand apparel in Bangladesh. The Class Members were forced to operate in hazardous conditions that would never be tolerated in Canada, as is evident from the tragedies in garment factories noted above.

227. Within the context of this exploitative relationship, Loblaws initiated, undertook and voluntarily adopted Corporate Social Responsibility Standards and devised minimum safety requirements that would apply to all of its suppliers. The purpose of these minimum standards was ostensibly to protect garment workers from foreseeable and avoidable injuries and death that would result from the notoriously hazardous working conditions at New Wave and Rana Plaza. This purpose was confirmed by Loblaws’ direct or indirect engagement of Bureau Veritas, Loblaws’ onsite visits at the New Wave factories and constant communication with the garment workers as described herein.

228. Through this conduct, Loblaws represented to the garment workers, both expressly and impliedly, that it was acting in their best interest. The garment workers were particularly vulnerable to Loblaws’ unilateral exercise of its discretion to determine the scope of the audits and inspections. They enjoyed little, if any, protection domestically when it came to their safety and work conditions. At the same time, they had substantial interests – their lives and personal security —that could have been, and that ultimately were, adversely affected by Loblaws’ exercise of its discretion to direct and to limit the scope of the audits and inspections performed by Bureau Veritas.

229. Loblaws was in a position of power and had the means and authority to unilaterally determine the scope of the audits and inspections performed by Bureau Veritas. Loblaws knew or ought to have known that the garment workers reasonably relied on it to exercise its discretion for their best interest.

230. Loblaws violated the trust reposed in it by the garment workers by exercising its discretion to the detriment of the Class Members. Loblaws adopted minimum safety standards through its Corporate Social Responsibility Standards. It knew, or ought to have known, that those minimum safety standards could not be ensured and enforced without proper comprehensive audits. Loblaws circumvented and breached its own Corporate Social Responsibility Standards by directing Bureau Veritas to perform “white wash” audits that failed to include even the most basic structural audits of Rana Plaza. By doing so, it breached its fiduciary duty to the garment workers with respect to the audits and inspections of the factory buildings and the protection of their safety.

[128] In paras. 22 and 203, the Plaintiffs’ plead that Loblaws has accepted responsibility for the collapse and that Loblaws admitted its responsibility for failing to protect putative Class Members from the deaths and injuries sustained in the Rana Plaza collapse. Paragraphs 22 and 203 state:

22. Despite these longstanding warnings and even when cracks developed in the structure of the building the day before the collapse, the garment workers were nonetheless forced to re-enter the building and resume work on April 24, 2013. In the words of the Executive Chairman of GWL, Galen Weston (Sr.), although the collapse was tragic it was “inevitable”. The Executive Chairman of Loblaws Companies Inc., Galen Weston (Jr.), publicly accepted responsibility on behalf of Loblaws and stated that: “workers were exposed to unacceptable risk”.

23. The Loblaws Defendants have publicly admitted their responsibility for failing to protect Class Members from the deaths and injuries sustained in the Rana Plaza collapse. In particular, at Loblaws Company’s 57th annual general meeting, on May 2, 2013 in Ontario, the Executive Chairman of Loblaws Companies Inc., Galen Weston (Jr.), stated that Loblaws should have done more to ensure a safe working environment in Rana Plaza. Loblaws acknowledged that it adhered to a social responsibility regime that regularly inspected factories that produced and supplied Joe Fresh apparel:

This was a senseless tragedy and it should not have happened. Based on what we know, the top floors of the building should never have been built. Reports from the ground suggest that garment workers never should have been allowed back in the building after an evacuation was ordered. And we are asking ourselves what more should we have done to ensure a safe working environment in this facility?

Over the last number of days, I’ve reviewed the available information in some detail and I have reflected at length. And I must tell you I am troubled. I’m deeply troubled. I’m troubled that despite a clear commitment to the highest standards of ethical sourcing, our company can still be part of such an unspeakable tragedy.

Our Joe Fresh apparel business adheres to a robust social responsibility regime that regularly inspects factories. And I have reviewed several audits for the facility. And while nothing in those reports suggested a problem, the fact remains that the scope of the audits that we undertake do not cover structural integrity. And on this, workers were exposed to unacceptable risk. [Emphasis added in Statement of Claim]

[129] As part of its pleadings motion, Loblaws moves to have paras. 22 and 203 struck from the Statement of Claim as improper pleadings and as contravening the Apology Act, 2009.

[130] In a matter at the heart of the choice of law analysis below, the Plaintiffs plead and argue that the place of Loblaws’ tortious and fiduciary misconduct is Ontario. This argument is set out in paras. 76-78 of the Plaintiffs’ factum, which state:

76. The Plaintiffs do not dispute that Bangladesh is the place most significantly affected by the Defendants' wrongful conduct - 1,130 people died and at least another 2,520 people sustained serious injuries when the Rana Plaza collapsed in Bangladesh. However, the determination of lex loci requires a contextual analysis of the element that constitute the tort, particularly the acts and omissions that constitute breach of the standard of care, most of which occurred in Ontario. In the recent decision of this Court in Thorne v. Hudson Estate, 2016 ONSC 5507 at para. 30, Morgan J. observed that "just as 'there is no actionable wrong without the injury' ... there is no recoverable injury without the wrongful act". While the Plaintiffs' damages were suffered exclusively in Bangladesh, the pleadings allege that Loblaws had a duty of care and breached the applicable standard of care in Ontario. In particular, it is alleged that Loblaws:

(a) voluntarily adopted rigorous Corporate Social Responsibility Standards in Ontario

(b) devised the Master Service Agreement, Loblaws' Supplier Agreement, including the Supplier Code of Conduct, and other policies with respect to its global suppliers including New Wave, in Ontario;

(c) established minimum health and safety standards for its global suppliers from its offices in Ontario;

(d) gained knowledge about the history of Bangladesh garment factory disasters, including collapses and fires, in Ontario;

(e) gained knowledge about the regulatory and legal vacuum in Bangladesh with respect to worker health and safety from its offices in Ontario;

(f) contracted out its garment production to Pearl Global/ New Wave from its offices in Ontario;

(g) undertook a duty of care toward the Plaintiffs and the putative class members from Ontario;

(h) controlled New Wave's production of its garments from its offices in Ontario;

(i) engaged Bureau Veritas to conduct audits of New Wave from its offices in Ontario;

(j) entered into the Master Service Agreement with Bureau Veritas in Ontario, which agreement is governed by the law of Ontario;

(k) determined the nature and scope of the audits that were conducted by Bureau Veritas from its offices in Ontario;

(1) arranged onsite visits of the New Wave factories from its offices in Ontario;

(m) provided directions and instructions to Bureau Veritas from its offices in Ontario;

(n) received and reviewed audit reports and Corrective Action Plans prepared by Bureau Veritas in Ontario;

(o) gained knowledge about New Wave's non-compliance with applicable Bangladesh laws and regulations in Ontario;

(p) decided not to suspend or terminate its contractual relationship with New Wave from its offices in Ontario;

(q) represented that it had the information and means necessary to ensure that New Wave complied with its Supplier Code of Conduct and met minimum safety standards required by Loblaws of its suppliers from its offices in Ontario;

(r) gained knowledge about the regulatory and legal deficiencies in its extensive manufacturing presence in Bangladesh from its offices in Ontario; and

(s) failed to require that New Wave comply with the Corrective Action Plans from its offices in Ontario.

77. There is no Canadian precedent for determining lex loci in a multi-jurisdictional mass tort claim where negligent conduct that occurred in Ontario resulted in large scale, grievous bodily injuries and death outside of the jurisdiction. While the basis for determining the place of wrongful conduct varies from tort to tort, the factors set out above demonstrate that the Plaintiffs' injuries and damages were the culmination of a complex series of negligent actions and omissions by Loblaws in Ontario.

78. The alleged negligence of the Defendants in the present case raises the sort of "thorny issues" alluded to by La Forest J. in Tolofson and by the Court of Appeal for Ontario in Leonard v. Houle that the lex loci analysis should heavily weigh in favour of the place where the Defendants' wrongful activity took place. As illustrated by the pleadings, the nature of the alleged tort is such that the breach of duty of care will almost always take place in Ontario, or other developed jurisdictions, where corporations that source from developing countries are located. In a global economy, an approach based on the place of damages shields corporations such as Loblaws from the laws of the place where their businesses are located and their profits are made. This risks exposing plaintiffs who reside in developing countries to a grossly asymmetrical and unjust application of tort law principle.

[131] With respect to Bureau Veritas, the Plaintiffs allege in the Statement of Claim that Bureau Veritas was negligent in failing to conduct proper and reasonable audits and inspections of the New Wave factories in accordance with industry and international standards and Bangladesh codes, laws and regulations.

[132] The Plaintiffs plead that Bureau Veritas failed to recommend that the structural safety of the New Wave factories and Rana Plaza be included as an integral part of the audits, and failed to report findings to Loblaws that the New Wave factories did not comply with the laws and regulations of Bangladesh and that Rana Plaza was structurally deficient to a dangerous degree.

[133] The essential theory of the Plaintiffs’ case against Bureau Veritas is set out in paras. 24-25, 213-214, 220-222 of the Statement of Claim, which state:

24. The Bureau Veritas Defendants had a duty to the Plaintiffs and Class Members to ensure that reasonable audits and inspections were conducted and that any issues of non-compliance with applicable codes, standards, laws and regulations were addressed and reported back to Loblaws so as to ensure that any safety violations were quickly remedied.

25. Bureau Veritas breached its duty to the Plaintiffs and Class Members by failing to ensure the safety of the garment workers in the Rana Plaza and in particular by failing to conduct audits and inspections in accordance with Bureau Veritas’ own Code of Ethics, and failing to ensure that the New Wave factories and Rana Plaza were compliant with Loblaws’ Corporate Social Responsibility Standards and, Bangladeshi laws and regulations. Considering the disproportionately high safety risk to workers at New Wave, and knowing of the well documented industry history of factory safety issues, collapses and fires, Bureau Veritas breached its duty to the class by failing to conduct adequate audits and inspections for structural issues at the New Wave factories and Rana Plaza.

26. Bureau Veritas knew or ought to have known that the garment workers in Rana Plaza would be in danger of injury and death if it failed to conduct the audit process in a reasonable and thorough fashion and if Bureau Veritas failed to take steps to include the structural safety of the building as part of the audit process. Despite this, Bureau Veritas failed to take any reasonable steps to keep these garment workers safe.

27. Bureau Veritas understood and reasonably foresaw that if they did not conduct proper audits and inspections, and report to Loblaws structural concerns and non-compliance with applicable standards, codes, laws and regulations, the lives and safety of the garment workers (and Class Members) who produced Joe Fresh apparel would be put at risk.

28. The Bureau Veritas Defendants owed a duty of care to the Class Members in that their conduct gave rise to reasonably foreseeable harm to the garment workers and Class Members. This duty arose from:

(a) the internal company standards adopted and made public by the Bureau Veritas Defendants as referenced herein;

(b) the context in which Bureau Veritas audited and inspected companies such as New Wave in Bangladesh. This context included Bureau Veritas’ extensive knowledge of the history of previous serious factory collapses and knowledge of the extremely unsafe working conditions for workers in the garment factories throughout Bangladesh and in particular, their extraordinary risk to Class Members working at garment factories such as New Wave which was constructed entirely illegally atop of a retail/commercial building;

(c) the international and industry standards applicable to inspections and audits of industrial facilities to ensure workplace safety;

(d) the international standards articulated by the United Nations Guiding Principles, the OECD Guidelines, the MNE Declaration and the ISO 26000; and

(e) WRAP’s [Worldwide Responsible Accredited Production] Production Principles and standards established in WRAP’s certification process which indicated that structural audits and inspections were required pre-collapse.

221. The Plaintiffs allege that the Bureau Veritas Defendants breached their duty to take reasonable steps to protect the Class Members from the risk of physical injury and death by:

(a) failing to conduct a structural audit and inspections or alternatively, any reasonable audits, assessments and/or inspections in accordance with the standards of the Loblaws Defendants and the Bureau Veritas Defendants, applicable industry standards and international standards, as referenced herein;

(b) failing to take adequate steps to report to Loblaws any non-compliance of the New Wave factories and Rana Plaza with applicable standards, regulations, codes and/or laws, and specifically, failing to report any structural defects of the New Wave factories and Rana Plaza;

(c) using inadequate policies and procedures to determine the factors that audits, inspections and assessments of factories should include; and

(d) failing to ensure that the audits and inspections dealt with all aspects of worker safety including structural safety of the building and applicable standards, codes, laws and regulations.

222. Bureau Veritas was to audit New Wave for the purpose of ensuring safe working conditions at the New Wave factories. The Plaintiffs and Class Members witnessed Bureau Veritas inspecting their factories, were interviewed by Bureau Veritas regarding their safety, witnessed New Wave taking various corrective measures to prepare for the audits and inspections, to comply with the action plan of the audits and inspections, and through these actions created an overall expectation with the Class Members that the purpose of the audits and inspections was to ensure their safety. The Plaintiffs and Class Members reasonably expected the auditors of Bureau Veritas to take reasonable precautions to reduce risks to their safety and lives because that was the stated objective of the audits and inspections.

D. The Delaware Litigation

[134] In July 2015, a person injured in the Rana Plaza collapse and an estate representative of one of the persons who had died in the collapse brought a proposed class action in the Superior Court of the State of Delaware against J.C. Penney Corporation Inc., The Children's Place and Wal-Mart Stores, Inc., which were purchasers of goods manufactured by suppliers with factories in the building. The style of cause of the action was: Abdur Rahaman as personal representative of Sharifa Belgum and Mahamudul Hasan Hridoy v. JCPenney Corporation, Inc., The Children's Place, and Wal-Mart Stores, Inc.

[135] The defendants in the Delaware litigation are well-known U.S. retailers that were in the same position as Loblaws in the sense that J.C. Penney and Wal-Mart were major purchasers of goods from manufacturers operating out of Rana Plaza.

[136] The plaintiffs in the Delaware action alleged that the defendants failed to implement standards and oversight mechanisms, failed to monitor the construction of Rana Plaza, failed to properly inspect the building to ensure compliance with local code; and failed to take reasonable steps to implement policies, audits, or other oversight to ensure that workers were safe and healthy. Further, the plaintiffs alleged that: (a) the defendants knew or ought to have known of the safety risks occurring in Bangladesh garment factories; (b) the conditions present in the garment factories from which defendants sourced clothing presented a peculiar risk; (c) the defendants knew or ought to have known of the structural issues plaguing Rana Plaza; and (d) as a result, the defendants owed the plaintiffs a duty of care to ensure a safe workplace.

[137] Under a procedural rule (similar to Ontario’s Rule 21), the defendants in the Delaware action successfully moved to have the action dismissed. Judge Johnson held that the limitations law of Bangladesh applied and that the claim was statute-barred for failure to meet the one-year limitation period under the Limitation Act, 1908 for commencing an action.

[138] Judge Johnson also concluded that there was no duty of care under the “peculiar risk” doctrine of the Restatement (Second) of Torts, because the plaintiffs were not employees of the defendants and because there was no “peculiar risk,” Judge Johnson concluded that the inadequacies in the construction of Rana Plaza were not peculiar to the business in which the US defendants engaged and, accordingly, the defendants could not reasonably be expected to take precautions against a building collapse when deciding to source garments from factories in Bangladesh. And Judge Johnson concluded that the defendants’ ethical sourcing statements did not by themselves create a duty to another’s employees.

[139] In the Delaware action, there was no allegation that the defendants had assumed responsibility to the plaintiffs by the adoption of CSR standards. That allegation, however, was made in Jane Doe v. v. Wal-Mart, 572 F.3d 677 (9th Cir. 2009) a decision of the 9th Circuit of the United States Court of Appeal that refused to impose a duty of care on Wal-Mart to its suppliers' employees.

[140] The plaintiffs in Jane Doe v. Wal-Mart were employees of Wal-Mart's suppliers in third world countries, including Bangladesh. The plaintiffs alleged, among other things, that Wal-Mart owed them a duty of care in tort because: (a) Wal-Mart had CSR standards that specified basic labour standards that its suppliers were required to meet; (b) the standards were incorporated into Wal-Mart's supply contracts with foreign suppliers; (c) every supplier was required in the supply contracts to acknowledge that failure to comply with Wal-Mart's standards could result in cancellation of orders and termination of its business relationship with Wal-Mart; (d) under the supply contracts, Wal-Mart had a right to conduct on-site factory inspections to insure compliance with its standards; (e) Wal-Mart represented to the public that it improved the lives of its suppliers' employees and that it did not condone any violation of its standards; (f) Wal-Mart knew that its suppliers often violated the standards; and (g) the short deadline and low prices in Wal-Mart's supply contracts forced suppliers to violate Wal-Mart’s standards to satisfy the terms of the contracts.

[141] There was a great deal of argument in the case at bar, in the factums and at the hearing of the motions, about the precedential value of the American case law to determine the issues in the case at bar.

[142] I see no purpose in engaging in the debate; for the purposes of the motions now before the court, I simply give no significance to the decisions in the United States.

E. Jurisdiction Simpliciter, the Attornment Program, and the Opt-in Class Definition

[143] The Plaintiffs and the Defendants have engaged in a battle about whether this court has jurisdiction simpliciter with respect to the so-called Absent Foreign Claimants. There never was any doubt that Ontario’s Superior Court of Justice has jurisdiction simpliciter over the named Plaintiffs and the named Defendants, and the matter of controversy was whether the court had jurisdiction over the so-called Absent Foreign Claimants; i.e., the putative Class Members who are defined but not individually named parties to the litigation.

[144] Newly developing case law fueled the debate between the parties. After the Plaintiffs commenced this action as an opt-out global class action, Justice Leitch released her decision in Airia Brands v. Air Canada, 2015 ONSC 5332. In that decision, Justice Leitch held that insofar as a proposed class action had foreign claimants, then for the court to have jurisdiction simpliciter over them, the foreign claimants had to have attorned.

[145] In other words, Justice Leitch concluded that jurisdiction simpliciter over foreign claimants could not be established just by the court having a real and substantial connection to the subject matter of the litigation, but she observed that jurisdiction could, nevertheless, be established by a formal act of attornment by the foreign claimant.

[146] In light of the Airia Brands decision and relying on it, the Defendants responded with their motions to challenge this court’s jurisdiction simpliciter, and Loblaws also raised a constitutional issue.

[147] It was Loblaws’ position that as a matter of constitutional law, it was ultra vires for an Ontario court to assert jurisdiction based on the real and substantial connection test set out in Club Resorts Ltd. v. Van Breda. To back up its position, it brought a constitutional challenge as a branch of the motions now before the court. In response to that part of the motions, it was Ontario's position (and the Plaintiffs’ position) that a real and substantial connection with the dispute is sufficient for an Ontario court to assume jurisdiction over a global class action and over the claims of the Absent Foreign Claimants from Bangladesh, even if the court lacks personal jurisdiction over them.

[148] In turn, because in Airia Brands, Justice Leitch had suggested that the court would have jurisdiction simpliciter for a global class action if the foreign claimants attorned or consented to this court’s jurisdiction, the Plaintiffs went ahead unilaterally to undertake and to implement an attornment program in Bangladesh. Put shortly, the Plaintiffs’ lawyers and proposed Class Counsel, Rochon Genova LLP, went to Bangladesh to recruit putative Class Members.

[149] The process of obtaining signatures was supervised by Mr. Hoque, an associate lawyer with Rochon Genova LLP, who went to Bangladesh and procured 3,850 signatures allegedly from putative Class Members. Mr. Hoque, who was originally from Bangladesh, testified that those who signed the form told him that they were either injured at the Rana Plaza or they had family members who died in the tragedy. The form had been translated into Bangla, and the signers were given a fact sheet, a copy of the notice of action, and a copy of the Statement of Claim, all translated to Bangla.

[150] The consent forms collected by Mr. Hoque specify that the signatory wants to join the action in Toronto, Canada and consents to the claim going forward on his or her behalf and that he or she has not started any actions in Bangladesh against any of the companies being sued in Canada. The form indicates that the signatory hopes that the Ontario proceeding will provide a possibility to recover fair compensation from Loblaws.

[151] Loblaws, however, submitted that the attornment forms were obtained from many persons who were not New Wave employees and that the forms do not explain the consequences of attornment; i.e., that the claimants will be bound by the Ontario court’s decision. Further, it submitted that the forms do not explain that putative class counsel will be extracting a contingency fee. Further still, Loblaws says that given the levels of illiteracy in Bangladesh, it is doubtful that the signatories knew what they were signing and that there is no evidence that the signatories were adequately advised about the legal consequences of attorning. Loblaws says that the reliability of the forms is suspect because: over 1,000 of the forms do not include a copy of the signatory's national ID, making it impossible to confirm the signatory's identity; over 300 of the forms are missing a photograph to confirm that the signatory is the same person as on the National ID card; and over 250 of the forms are missing a signature from a witness.

[152] With Loblaws challenging the propriety of the recruitment process in Bangladesh and with Airia Brands v. Air Canada under appeal, the Plaintiffs undertook a second maneuver. They decided to change the class definition to transform the class definition from an opt-out class to an opt-in class.

[153] This maneuver by the Plaintiffs to switch to an opt-in class action was successful insofar as Loblaws agreed that opting-in would work to empower the court with jurisdiction simpliciter over foreign claimants. There was a consensus among the parties and their experts that Ontario’s Superior Court of Justice has jurisdiction simpliciter over foreign claimants that opt-into an Ontario class proceeding.

[154] In Harrington v. Dow Corning Corp., 2000 BCCA 605 at para. 74, leave to appeal to SCC ref'd. [2001] SCCA No. 21, the Court of Appeal for British Columbia held that through an opt-in process, non-residents can indicate that they accept the jurisdiction of the court such that they would be precluded by the doctrine of res judicata from later suing or benefitting from a suit brought in another jurisdiction.

[155] I agree with this consensus, which is no more than to recognize that Ontario courts have always had the jurisdiction to provide access to justice to foreigners in representative or joinder proceedings, especially in cases where the defendants reside or have a presence in Ontario or have attorned to the Ontario court’s substantive jurisdiction, as is the situation in the case at bar.

[156] The parties being on common ground on the attornment point, the jurisdiction of the court and the constitutionality of the opt-out approach rejected in Airia Brands v. Air Canada became a moot point. The Defendants could not object that the Plaintiffs were attempting to certify a class that included the so-called Absent Foreign Claimants.

[157] Moreover, while the appeal in Airia Brands v. Air Canada, supra, was still pending, the Ontario Court of Appeal decided Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916, leave to appeal to the SCC ref’d [2017] SCCA No. 54. The Excalibur Special Opportunities LP case supports the proposition that an Ontario court can have jurisdiction simpliciter in a global opt-out class action in which the class members are non-residents and not present in Ontario.

[158] The Excalibur case is authority that the test to determine an Ontario court has jurisdiction simpliciter is based on the connecting factors from Club Resorts Ltd. v. Van Breda, supra. In Excalibur Special Opportunities LP, the Court of Appeal concluded that the Van Breda presumptive connecting factors applied to the claims of all putative class members, including those resident outside Ontario, and the court had jurisdiction simpliciter over the subject matter of the claim. In Excalibur Special Opportunities LP, the Court of Appeal certified a global class without any requirement that the foreign class members attorn prior to certification, relying on the principles established in Van Breda.

[159] However, Loblaws did not agree that an external attornment program was an alternative to an opt-in class action. Loblaws’ position, rather, was that there was no longer any need for this court to decide whether or not to follow Airia Brands v. Air Canada and that the only issues were to decide when and how Class Members could properly attorn to this court’s jurisdiction. The focus of the controversy was now Loblaws’ submission that attornment must be established before certification and that the forms in this case that Mr. Hoque had collected did not establish attornment.

[160] Loblaws insisted that a formal; i.e., court-approved pre-certification attornment process was required for a global class action. Thus, the attornment issue continued to fester.

[161] Loblaws filed expert evidence in respect of the jurisdiction simpliciter issue. It retained Professor Briggs, whose evidence was accepted in Airia Brands v. Air Canada, and it retained Ms. Kabir, whose evidence was accepted in the Delaware litigation, described above. Professor Briggs is a leading academic in private international law and a practicing lawyer, and Ms. Kabir is a practicing lawyer in Bangladesh. Taken together, it was Professor Briggs’ and Ms. Kabir’s opinion that under the principles of private international law, an Ontario judgment about the Rana Plaza tragedy would not be recognized in Bangladesh as binding against the putative Class Members, unless they were present in Ontario when the proceeding was commenced, had consented to the court’s jurisdiction, or properly attorned (submitted) to the court’s jurisdiction. Loblaws submitted that attornment had to come before the certification motion.

[162] Professor Fentiman, a renowned English academic and former practicing lawyer, provided expert evidence for the Plaintiffs. He agreed that for a court’s jurisdiction over class members to be recognized in a foreign court, the class members would have to be persons who have submitted to the jurisdiction of the Ontario court either by agreement or conduct. He did not opine as to whether the attornment process in the immediate case that had been orchestrated by Mr. Hoque was satisfactory.

[163] Mr. Hossain, another expert witness for the Plaintiffs, testified that: (a) under Bangladesh law, a consent to jurisdiction will be recognized only if the consent is informed; (b) whether or not consent is informed is an individual question of fact; and (c) to determine whether any particular proposed class member has given informed consent to jurisdiction, someone would have to examine that person.

[164] As I view the matter, for this proposed class action, the Ontario court has jurisdiction simpliciter based on a combination of: (a) the traditional attornment factors for jurisdiction; (b) the connecting factors from Club Resorts Ltd. v. Van Breda, supra; and, (c) an opt-in definition for class membership.

[165] In my opinion, it is not necessary to decide whether the putative Class Members in Bangladesh who signed consent forms before the certification motion did attorn to this court’s jurisdiction because they will be able to attorn by opting into the action in Ontario.

[166] In other words, had I certified the proposed class action, it would not have been necessary for the putative Class Members to have formally attorned before the certification motion and their attornment would have been achieved post-certification by a court supervised opt-in notice program. Thus, I see no purpose in conducting a procedural post-mortem of what occurred in Bangladesh. I will, nevertheless, address Loblaws’ argument about the necessity or utility of Absent Foreign Claimants attorning pre-certification.

[167] Loblaws contends that the putative class members in an opt-in class action must attorn to the Ontario court’s jurisdiction before the court decides whether or not to certify an opt-in action that would provide them with the opt-in choice. Loblaws’ explanation for its position is that a court cannot affect the rights of the putative class members without their having already attorned to the court’s jurisdiction.

[168] I disagree. The logical fallacy with Loblaws’ argument is that pre-certification, the putative class members have no substantive rights that are being affected. They only have putative procedural rights and those rights are rather being created or augmented than affected by the class proceeding. A court order certifying an opt-in or an opt-out class action creates the right to opt-in or to opt-out and does not affect any pre-existing procedural rights of the putative class members, which do not yet exist. What is being determined by the certification process is whether the putative class members will have a right to participate in a class action. A class action certified in Ontario that includes Absent Foreign Claimants would merely serve as a procedural vehicle through which the common issues of many claimants could be adjudicated - if they wish to participate.

[169] Further, it should be noted that the Class Proceedings Act, 1992 is a procedural statute which does not, by itself, create or modify substantive rights or confer or alter jurisdiction: Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666 at paras. 17-19; Union des consommateurs v. Dell Computer Corp., 2007 SCC 34, [2007] 2 S.C.R. 801 at para. 108; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 at paras. 50-51.

[170] Just as there is no reason or purpose in giving domestic putative class members notice of the possible formation of a class, no purpose would be achieved by giving foreign claimants prior notice of the possible formation of a class.

[171] In the case at bar, the recruitment process for Ontario attornments in Bangladesh was well intentioned, but it should not be repeated in other cases of global class actions whatever the outcome of the pending appeal in Airia Brands v. Air Canada, supra. As it turns out, this class action will not be certified, and thus the time and effort, regardless of its efficacy or propriety, was wasted. If the class action had been certified, then the effort in Bangladesh would still have been wasted, because there would have been a court approved and court supervised opt-in program making what occurred in Bangladesh redundant.

[172] Thus, as explained above, as matters developed in the run up to the certification motion, there will be no Absent Foreign Claimants. Therefore, Loblaws’ constitutional challenge motion is moot and should be dismissed without any ruling on its merits.

[173] If the Attorney General seeks costs, it may make submissions in writing within 20 days of the release of these Reasons for Decision. Loblaws shall have 20 days to provide responding submissions.

F. Procedural Background

[174] In this part of my Reasons for Decision, I shall describe the procedural background and the principles that are engaged in deciding the multi-faceted motions before the court.

[175] Because the motions involved expert opinion evidence about foreign law, how the court should treat this evidence was a very contentious issue that I shall discuss in this part. The parties also hotly debated what it means to prove the content of foreign law. How to integrate factual evidence that was proffered about the events in Bangladesh with the pleaded allegations of fact and foreign law was also much debated and thus the court’s jurisdiction and the manner of its exercise will also be described in this part.

[176] The procedural background begins on April 22, 2015, when the Plaintiffs commenced a proposed class action against Loblaws and Bureau Veritas. As already noted above, the Plaintiffs plead causes of action in negligence, vicarious liability, and breach of fiduciary duty against Loblaws. They plead a negligence action against Bureau Veritas.

[177] The Plaintiffs’ action is brought on behalf of:

All persons who were in Rana Plaza at the time of the Rana Plaza collapse and survived, and who attorn to the jurisdiction of the Ontario Superior Court of Justice by opting-in to this proceeding ("the Surviving Class Members").

The estates of all persons who died as a result of the Rana Plaza collapse and all spouses, children, parents, brothers, sisters, grandparents, grandchildren or other dependants of persons who died or were injured as a result of the Rana Plaza collapse (the "Wrongful Death and Family Class Members"), provided that the Wrongful Death and Family Class Members attorn to the jurisdiction of the Ontario Superior Court of Justice by opting in to this proceeding

[178] Now before the court is the Plaintiffs’ motion to have their action certified as a class action. The Defendants resist the Plaintiffs’ certification motion, and the Defendants submit that none of the five criteria for certification have been satisfied. I will defer the discussion about the test for certification under s. 5 of the Class Proceedings Act, 1992 until later in these Reasons for Decision.

[179] Also now before the court are motions by the Defendants. I parenthetically note but make no determination that depending on the outcome of these motions and any appeals, Loblaws purports to reserve the right to bring a forum non-conveniens motion in the future.

[180] There are four branches to the Defendants’ motions. The first branch of the Defendants’ motions, which is brought pursuant to rules 21.01(1)(a) and 21.01(3)(c) of the Rules of Civil Procedure, raises jurisdictional and constitutional issues because of the foreign elements of the litigation. However, as already noted in the immediately previous part of these Reasons for Decision, the first branch of the Defendants’ preliminary motion has morphed from its original purpose.

[181] In its original form, Loblaws sought a declaration that this court does not have jurisdiction over the putative Class Members because they were “Absent Foreign Claimants;” i.e., persons who: (i) are resident outside of Ontario; and (ii) have not formally submitted or consented to the jurisdiction of the Ontario court. In its initial iteration, the Defendants submitted that a unilateral consent process that had been initiated in Bangladesh by the Plaintiffs’ lawyers, who went there to collect signed consents from putative Class Members, did not count as a proper attornment, and then Loblaws sought a declaration that the common law’s real and substantial connection test and ss. 27(3), 28(1) and 29(3) of the Class Proceedings Act, 1992 are constitutionally inapplicable to Absent Foreign Claimants.

[182] As noted above, the constitutional aspects of the motion prompted the Government of Ontario (the Attorney General of Ontario) to intervene pursuant to s. 109(4) of the Courts of Justice Act, R.S.O. 1990, c. 43. However, as explained above, developments after the motion was launched made the constitutional point about Absent Foreign Claimants moot, and the only matter to decide is the manner of how and when the putative Class Members may attorn to this court’s jurisdiction. This branch of the motion has been resolved above.

[183] The second branch of the Defendants’ motion, pursuant to rule 21.01(1)(a), raises the issue of the choice of law for the determination of the Plaintiffs’ claims against the Defendants. The Plaintiffs plead that Ontario law applies to the tort and breach of fiduciary duty claims. Because the Defendants rely on a Bangladesh limitations statute, they submit that the applicable law is the law of Bangladesh. For the second branch of their motions, the Defendants move for a ruling on a point of law and for an order dismissing the action on the grounds that it is governed by the law of Bangladesh and is subject to the Bangladesh Limitation Act 1908 and is, therefore, statute-barred.

[184] The third branch of the Defendants’ motion, also pursuant to rule 21.01(1)(a), raises substantive issues about whether the Plaintiffs’ causes of action under Bangladesh or Ontario law are legally viable. Practically speaking, for the third branch, the Defendants also move under rule 21.01(1)(b), which overlaps with the cause of action criterion of the test for certification, because the Defendants submit that the Plaintiffs have not pleaded a reasonable cause of action under the law of either Ontario or Bangladesh.

[185] Loblaws submits that the law of Bangladesh governs and that it has no duty of care to the putative Class Members under Bangladesh law, under English law, which may be persuasive in Bangladesh, or under Ontario law.

[186] Bureau Veritas submits that the law of Bangladesh governs and that it has no duty of care to the putative Class Members under Bangladesh law, under English law, which may be persuasive in Bangladesh, or under Ontario law. Bureau Veritas submits that if there is a duty of care, the duty of care is restricted to the New Wave employees before the termination of Bureau Veritas’ contract.

[187] The fourth branch of the Defendants’ motion, pursuant to rules 25.06(1) and (2) and 25.11 of the Rules of Civil Procedure challenges certain paragraphs of the Plaintiffs’ Statement of Claim as improper pleadings, including the paragraphs that plead an apology.

[188] Turning to the court’s jurisdiction to decide the various branches of the Defendants’ motions, the rules that are engaged on the Defendants’ four-branched preliminary motion are rules 21.01(1)(a), 21.01(1)(b), 21.01(3)(a), 25.06(1), 25.06(2) and 25.11, which state:

WHERE AVAILABLE

To any Party on Question of Law

21.01(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs;

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties;

(b) under clause (1)(b).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

RULES OF PLEADING — APPLICABLE TO ALL PLEADINGS

Material Facts

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Pleading Law

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

STRIKING OUT A PLEADING OR OTHER DOCUMENT

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[189] Under rule 21.01(1)(a), evidence is not admissible except with leave of a judge or on consent of the parties. The issue of what is foreign law is a question of fact, and the parties filed 20 expert reports on the content of foreign law. There were ten witnesses that testified about foreign law; namely: (1) Chief Justice (ret.) Islam; (2) Chief Justice (ret.) Rahman; (3) Mr. Ahmad; (4) Professor Briggs; (5) Dean Fentiman; (6) Dr. Goudkamp; (7) Mr. Hossain; (8) Ms. Kabir; (9) Mr. Mahmud; and (10) Dr. Morgan.

[190] The decision to grant leave to admit evidence on a Rule 21 motion is discretionary and is exercised in the interests of justice, and the court may consider documents other than those incorporated into the pleading if the documents provide essential factual context: Sheridan v. Ontario, 2015 ONCA 303 at paras. 16-18, aff’g 2014 ONSC 4970 at paras. 10-13, 244; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.) at para. 34.

[191] In an instance that it is better to ask forgiveness than to ask permission, in their factums, the Defendants sought the court’s leave to admit the experts’ evidence. As it turned out, the Plaintiffs consented to the admission of the evidence, but in any event, I granted the request.

[192] The admission of evidence in the immediate case was obviously necessary to determine the content of the foreign law, which is a question of fact to be proven, and the admission of evidence was also necessary to understand and to assess certain lynchpin allegations upon which rested the theory of the Plaintiffs’ novel tort claims; namely, the allegations that: (a) the Defendants assumed responsibility for the Plaintiffs’ and the putative Class Members’ safety; (b) the putative Class Members relied on the Plaintiffs’ protection of them; and (c) the Defendants had the ways and means (control) to prevent or to protect the Plaintiffs from harm. As already noted above, much will turn on the allegations that the putative Class Members relied on the Defendants to safeguard them from harm in the workplace and that the Defendants had the ways and means to prevent the putative Class Members from harm.

[193] With some adjustments when evidence is admitted, a rule 21.01(1)(a) motion uses the same test as under a motion under rule 21.01(1)(b), where the court may strike out a pleading on the ground that it discloses no reasonable cause of action: R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778 (C.A.) at pp. 781-82; Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 O.R. (3d) 417 (Gen. Div.); MacDonald v. Ontario Hydro (1994), 1994 CanLII 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), aff’d 1995 CanLII 10628 (ON SC), 26 O.R. (3d) 401 (C.A.).

[194] Where a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4^th^) 257 (Ont. C.A.); Hunt v. Carey Canada Inc. (1990), 1990 CanLII 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.).

[195] Matters of law that are not fully settled should not be disposed of on a motion to strike: Dawson v. Rexcraft Storage & Warehouse Inc., supra, and the court's power to strike a claim is exercised only in the clearest cases: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).

[196] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17-25, the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.

[197] On motions brought under the procedure to strike a claim or defence as untenable in law, leave to amend the pleading may and usually will be given, and leave to amend will only be denied in the clearest cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment: Mitchell v. Lewis, 2016 ONCA 903 at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72 at para. 16; Fournier Leasing Co. v. Mercedes-Benz Canada Inc., 2012 ONSC 2752 at para. 46; Hostmann-Steinberg Ltd. v. 2049669 Ontario Inc., 2010 ONSC 2441 at paras. 21-22; Holdings Ltd. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust)), 2007 ONCA 456, [2007] O.J. No. 2445 (C.A.) at para. 6; Miguna v. Ontario (Attorney General), 2005 CanLII 46385 (ON CA), [2005] O.J. No. 5346 (C.A.); AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 1993 CanLII 8682 (ON SC), 14 O.R. (3d) 161 (Gen. Div.) at p. 173.

[198] A rule 21.01(1)(a) motion may be used to determine a question of law raised by a pleading where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. A rule 21.01(1)(a) motion is a means to determine the choice of law to be applied by a court. The case of Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, much discussed below, is an example of Rule 21 being used for this purpose. For another example, in Craig v. Allstate Insurance Co. of Canada (2002), 2002 CanLII 44956 (ON CA), 59 O.R. (3d) 590 (C.A.), the Court construed a statute of the State of Florida and concluded that it did not affect the cause of action that had been pleaded.

[199] In the context of a Rule 21 motion, a foreign law analysis proceeds in three stages: (1) the court decides under domestic choice of law principles which jurisdiction governs the claim; (2) if the substantive law of a foreign jurisdiction governs, the court determines the content of foreign law as a question of fact (on the usual balance of probabilities standard for fact-finding); and (3) the court considers the effect of the proven facts on the rights of the parties as a question of law; i.e., whether it is plain and obvious that the claim cannot succeed under established foreign law. See: Craig v. Allstate Insurance Co. of Canada, supra; Foresight Shipping Co. v. Union of India, 2004 FC 231 at para. 12, aff’d 2004 FC 1501 (C.A.).

[200] The content of foreign law is treated as an issue of fact that is proved by expert evidence: Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289 at p. 308; Callpro Canada Inc. v. Prima Telematique Inc., [2001] O.J. No. 1474 (S.C.J.). A judge may not independently research the substance of foreign law and must rather determine its content based on evidence, typically expert evidence: Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (C.A.).

[201] However, that is not to say that a judge is precluded from examining the foreign law that is presented to him or her; if the evidence of the expert witnesses conflicts as to the effect of foreign law, the court may examine the sources itself and where the expert witness puts in materials as part of his or her evidence, the court is entitled to examine these materials, and where there is conflicting evidence as to the interpretation to be placed upon the materials, the court must scrutinize them and form its own conclusion on them. See: Lyon v. Lyon, 1959 CanLII 122 (ON CA), [1959] O.R. 305 (C.A.); Bausch and Lomb Optical Co. Ltd. v. Maislin Transport Ltd. (1975), 1975 CanLII 651 (ON SC), 10 O.R. (2d) 533 (H.C.J.); Callpro Canada Inc. v. Prima Telematique Inc., supra, paras. 70-74.

[202] When the experts on foreign law differ, the court is obliged to apply its own mind, fortified by the opinion of the witnesses and giving what weight it thinks ought to be given to it, to make up its mind on the question of foreign law and resolve the difference: General Motors Acceptance Corp. of Canada v. Town and Country Chrysler Ltd., 2007 ONCA 904 at paras. 36-38; Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis, supra, at p. 368; Zapsibinvest Russian-American Joint Venture v. Raanani Estate, [2003] O.J. No. 2244 (S.C.J.) at para. 48; Rouyer Guillet v. Rouyer Guillet & Co., [1949] 1 All ER 244 (C.A.).

[203] The court is entitled to examine the authorities upon which the experts rely. In Allen v. Hay (1922), 1922 CanLII 25 (SCC), 64 S.C.R. 76 at para. 24, Justice Duff, as he then was, explained the intellectual process by which a court can determine a legal issue as an issue of fact. He stated:

It is therefore incumbent upon him to prove the law of the State of Washington. This he must prove as matter of fact by the evidence of persons who are expert in that law. These experts may, however, refer to codes and precedents in support of their evidence and the passages and references cited by them will be treated as part of their testimony; and it is settled law that if the evidence of such witnesses is conflicting or obscure the Court may go a step further and examine and construe the passages cited for itself in order to arrive at a satisfactory conclusion.

[204] Because the content of foreign law is an issue of fact, a party seeking to have an issue resolved by foreign law must plead the material facts of his or her foreign law claim or defence and the onus of proof is on the party pleading the foreign law: Yordanes v. Bank of Nova Scotia (2006), 2006 CanLII 1777 (ON SC), 78 O.R. (3d) 590 (S.C.J.); Bank of Nova Scotia v. Wassef, 2002 CanLII 37032 (ON CA), [2002] O.J. No. 4883 (S.C.J.) at para. 17; Guarantee Co. of North America v. Mercedes-Benz Canada Inc. (2005), 2005 CanLII 79671 (ON SC), 83 O.R. (3d) 316 (S.C.J.), aff’d (2006), 2006 CanLII 81797 (ON CA), 86 O.R. (3d) 479 (C.A.); Triathlon Leasing Inc. v. Juniberry Corp. (1995), 1995 CanLII 6225 (NB CA), 157 NBR (2d) 217 (C.A.); Ontario Stone Corp. v. R.E. Law Crush Stone Ltd., 1964 CanLII 266 (ON SC), [1964] 1 O.R. 303 (H.C.J.); Bryant Press Ltd. v. Acme Fast Freight Inc., [1951] OWN 665 (H.C.J.).

[205] While proof of foreign law is a question of fact in the sense that the applicable law must be ascertained from the evidence of the witnesses, the effect and application of that law is a finding of law, and an appellate court will not defer to a trial judge’s findings in respect of questions of foreign law, and it will make its own assessment of the merits of the legal arguments and the trial judge’s findings about the content of foreign law: General Motors Acceptance Corp. of Canada v. Town and Country Chrysler Ltd., supra, at paras. 28-35; Bank of Nova Scotia v. Wassef, supra, at para. 20.

[206] In the immediate case, that evidence is admissible on the rule 21.01(1)(a) branches of the motion is significant because it modifies the extent to which I must accept the allegations in the Plaintiffs’ Statement of Claim about foreign law as true facts for the purposes of the motion. Although I must accept the pleaded facts to which the foreign law will be applied, I do not have to accept as true the Plaintiffs’ pleaded articulation of the substantive content of the foreign law. Rather, applying the normal civil standard of proof on the balance of probabilities, I must determine the substantive content of the foreign law and then I should apply that law to the material facts to determine whether a reasonable cause of action under the foreign law has been pleaded: Yordanes v. Bank of Nova Scotia, supra, at paras. 14-19.

G. Choice of Law

1. Introduction

[207] Above, I conclude that the Ontario court has jurisdiction simpliciter to decide the Plaintiffs’ and the putative Class Members’ tort and breach of fiduciary duty claims. The next question to address is what is the choice of law for those claims. The Plaintiffs submit that the claims are governed by Ontario law, but as an aspect of their Rule 21 motion, the Defendants submit that the Plaintiffs’ claims are governed by Bangladesh law.

[208] It is no secret that the Defendants’ motivation for seeking a ruling that the action is governed by Bangladesh law is not driven by any great difference in the tort law in Ontario and in Bangladesh but rather is motivated by the circumstance that the Plaintiffs commenced their action more than one year after the tragic events at Rana Plaza. The Defendants argue that under Bangladesh law, the Plaintiffs’ action comes too late and is statute-barred under Bangladesh’s Limitation Act, 1908.

[209] The Plaintiffs’ position is that their claims are timely under Ontario law, which is undoubtedly correct, and thus not surprisingly, the Plaintiffs’ assert that the choice of law to resolve the tort and fiduciary duty claims is Ontario law.

[210] In this part of my Reasons for Decision, I shall examine the choice of law issues in the case at bar. I shall: (a) describe the law that governs how an Ontario court decides the choice of law question; (b) analyze the parties’ competing arguments about the choice of law issues; (c) and determine the choice of law for the Plaintiffs’ causes of action. I shall also address the Plaintiffs’ arguments that there are reasons to oust Bangladesh law and to choose Ontario law instead. To foreshadow the result of this part, I agree with the Defendants’ submissions that the Plaintiffs’ tort and breach of fiduciary duty causes of action are governed by the law of Bangladesh.

[211] In the next major section of these Reasons, I shall address the question of whether the Plaintiffs’ claims are statute-barred under Bangladesh’s Limitation Act, 1908. In later sections of these Reasons for Decision, I shall examine the legal viability of the Plaintiffs’ causes of action under both Bangladesh and Ontario law on the assumption that their claims are not statute-barred.

2. Preliminary Points about the Choice of Law Issues

[212] I shall begin the discussion in this part of my Reasons for Decision, which will discuss determining the choice of law for tort cases, by making four preliminary points that affect how an Ontario court decides what law to apply in a lawsuit involving foreign parties, events in a foreign country, foreign law, or foreign court judgments.

[213] The first preliminary point is a matter of both terminology and substantive law. The domestic court (in the immediate case, Ontario’s Superior Court of Justice) is known as the lex fori. A domestic court will always apply its own procedural law: Tolofson v. Jensen, supra, at para. 41. The substantive rights of the parties to an action may be governed by a foreign law, but all matters appertaining to procedure are governed exclusively by the law of the forum, the lex fori: Somers v. Fournier (2002), 2002 CanLII 45001 (ON CA), 60 O.R. (3d) 225 (C.A.).

[214] There is sometimes an issue of what counts for procedural versus substantive law. Limitation periods and statute-bars are matters of substantive law: Tolofson v. Jensen, supra. Pre-judgment interest is a matter of substantive law: Somers v. Fournier, supra. Remoteness of damages and heads of damage are questions of substantive law, whereas the quantification or measurement of damages is a question of procedure governed by the lex fori: Somers v. Fournier, supra; Wong v. Wei, 1999 CanLII 6635 (BC SC), [1999] BCJ No. 768 (BCSC); Metaxas v. Galaxias, 1990 CanLII 13044 (FC), [1990] 2 FC 400 (TD). The cap on non-pecuniary general damages (Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Thornton v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267; and Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287) is a procedural matter. Costs are a procedural matter governed by the lex fori: Somers v. Fournier, supra.

[215] The second preliminary point is that a domestic court will apply its domestic law for both procedural and substantive law matters, unless the parties make an issue of the choice of law. The choice of law question does not arise unless one of the party raises the issue; if neither party makes an allegation about the choice of law, the domestic court resolves the dispute using domestic law, the lex fori: Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 at pp. 853-54. It is presumed that the foreign law is the same as the domestic law unless the content of foreign law is proven as a factual matter.

[216] The third preliminary point is that the choice of law issue is an aspect of the body of law known as conflicts of law or private international law, and although this body of law addresses several related problems, care must be taken not to conflate the discrete rules of conflict of laws.

[217] Thus, conflict of laws addresses the jurisdiction simpliciter issue, the forum conveniens issue, the choice of law issue, and the enforcement of foreign judgments issue, and although the law for resolving these issues is rooted in common principles, values, and policies, historically there has been no consensus about the doctrinal theory to explain conflict of laws. Over the centuries, around the world, there are many different theories and many different rules to respond to the conflict of laws issues, but the answers tend to involve discrete, but not necessarily doctrinally consistent rules, for determining jurisdiction simpliciter, forum conveniens, choice of law, and the enforcement of foreign judgments. Thus, in Club Resorts Ltd. v. Van Breda, supra, Justice LeBel stated at para. 16:

16. …. [T]he framework established for the purpose of determining whether a court has jurisdiction may have an impact on the choice of law and on the recognition of judgments, and vice versa. Judicial decisions on choice of law and the recognition of judgments have played a central role in the evolution of the rules related to jurisdiction. None of the divisions of private international law can be safely analysed and applied in isolation from the others.

[218] However, because there is no consensus about the doctrinal theory that underlies the different branches of conflicts of law, while one can learn from a rule in one area of conflicts of law, one should not jump to the conclusion that the answers will be consistent or uniform. As will appear in the discussion below, in the case at bar, the location of the wrongdoing for the purposes of the choice of law rule was a source of confusion because the arguments conflated the location of wrongdoing for the purposes of determining whether a court has jurisdiction simpliciter from the location of the wrongdoing for the purpose of the choice of law rules.

[219] In Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393 at para. 7, Justice Dickson noted that it was a mistake not to distinguish between a court’s jurisdiction and choice of law, and he held that the rules for determining the place of a wrongdoing for jurisdictional purposes need not be those which are used to identify the legal system under which the rights and liabilities of the parties are to be determined. Thus, for jurisdictional purposes, a wrongdoing may have more than one single situs (which explains why there may have to be a forum conveniens analysis), but there can only be one choice of law for the wrongdoing. In her text, Castel & Walker Canadian Conflict of Laws (6th ed.), (Toronto: LexisNexis Canada Inc., 2005) (loose-leaf, 2016), Professor Janet Walker at para. 35.8 points out that in a jurisdictional determination, there is no need to make an exclusive determination, but for a choice of law determination, there can only be one applicable law. In Moran v. Pyle National (Canada) Ltd., Justice Dickson concluded that a manufacturer of a defective product could reasonably be expected to be sued in all of the jurisdictions in which its goods were distributed through normal channels of distribution, but Justice Dickson did not address the choice of law question in Moran.

[220] In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077 at p. 109, an enforcement of foreign judgments case, Justice La Forest stated: "it is simply anachronistic to uphold a ... single situs for torts or contracts for the proper exercise of jurisdiction." In Club Resorts Ltd. v. Van Breda, supra at para. 34, Justice LeBel stated that satisfying the real and substantial connection test does not require that the connections with the province taking jurisdiction must be the strongest ones possible or that they must all point in the same direction.

[221] The fact that there may be a real and substantial connection such as to satisfy the test for jurisdiction simpliciter does not determine the choice of law to be applied because the power of a court to exercise jurisdiction does not automatically include the authority to apply the law of its own jurisdiction, the lex fori: Leonard v. Houle (1997), 1997 CanLII 1218 (ON CA), 36 O.R. (3d) 357 (C.A.) at para. 12, leave to appeal to SCC refused, [1998] S.C.C.A. No. 19.

[222] The fourth preliminary point is that international private law and conflict of laws are largely a pragmatic and rule-oriented regime designed to provide certainty and to avoid ad hoc, case-by-case decision-making based on what is fair and just for a particular case. In Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, the Supreme Court held that comity, order, and fairness are, at best, vaguely defined principles that inspire the interpretation of private international law rules, but are not themselves binding rules of law. In Club Resorts Ltd. v. Van Breda, supra, at para. 13, Justice LeBel stated:

13. …. Justice and fairness are undoubtedly essential purposes of a sound system of private international law. But they cannot be attained without a system of principles and rules that ensures security and predictability in the law governing the assumption of jurisdiction by a court. ....

3. The Choice of Law for Tort Claims

[223] If a choice of law issue is raised, as it is in the immediate case, the domestic court undertakes a rules-based process to determine what law to apply. The choice of law rule will have an operative ingredient known as a connecting factor that will determine or designate the choice of law for the particular type of dispute. There are several different types of connecting factors such as the residence of the parties, the domicile of the parties, where the plaintiffs’ claim is actionable (actionability); or the place where the wrongdoing occurred (lex loci delicti commissi or lex loci). Based on the connecting factor, the choice of law rule for the particular type of dispute might designate the lex fori (the law of the domestic court) or it might designate the law of a foreign jurisdiction.

[224] The rules-based choice of law process involves characterizing the dispute or disputes that are before the court and then applying the rule that applies to the type of dispute. Thus, there is a choice of law rule for: contract law, property law, matrimonial law, unjust enrichment, etc. It is a matter for the domestic court to characterize the dispute and then apply the associated rule for that kind of dispute.

[225] One of the features of the choice of law process is that the domestic court chooses the applicable law without determining the content of the law or the result. As already noted earlier in these Reasons for Decision, proving the content of foreign law is an evidence-based process, but, in contrast, the choice of law process is based on characterizing the dispute from the pleadings and then applying the domestic court’s choice of law rule for the characterized type of case.

[226] The fact that different laws might apply to different defendants because of the differences in characterization of their disputes with the plaintiff does not, in and of itself, create sufficient reason to depart from the rule regarding choice of law for a characterized dispute: Roy v. North American Leisure Group Inc. (2004), 2004 CanLII 43078 (ON CA), 73 O.R. (3d) 561 (C.A.) at para. 13.

[227] In the immediate case, the choice of law issue has been raised by the parties, and thus the disputes between the parties must be characterized. This first step of the choice of law process, the characterization step, can be contentious, but it is not a matter of debate in the immediate case. The parties agree that the case at bar can be characterized as a tort case and as a breach of fiduciary duty case.

[228] Up until 1994 and the Supreme Court of Canada’s decision in Tolofson v. Jensen, supra, which included its decision in the companion appeal of Lucas (Litigation Guardian of Tina Lucas and Justin Gagnon ) v. Gagnon, Canada’s common law provinces employed a choice of law rule for tort based on English cases that involved double actionability connecting factors. For present purposes, I need not discuss the former choice of law rule for tort disputes. See: Phillips v. Eyre (1870), L.R. 6 Q.B. 1; Machado v. Fontes, [1897] 2 Q.B. 231 (C.A.); McLean v. Pettigrew, 1944 CanLII 69 (SCC), [1945] S.C.R. 62; Boys v. Chaplin, [1971] A.C. 356 (H.L.).

[229] In Tolofson v. Jensen, the Supreme Court of Canada replaced the connecting factors of double actionability, which, generally speaking, privileged the lex fori as the choice of law with the connecting factor of lex loci which, generally speaking, privileges the law of the foreign jurisdiction. As will be noted in the passages from the judgment set out below, in Tolofson, the Supreme Court also discussed the prospect of exceptions to the lex loci rule that would redirect the choice of tort law back to the domestic court (the lex fori).

[230] The facts of the Tolofson case were that the plaintiffs were British Columbia residents who were injured in a car accident that occurred in Saskatchewan. They sued in British Columbia, where their negligence claim was timely, but the Supreme Court of Canada held that Saskatchewan law, the lex loci, the place of the wrongdoing, applied and thus the plaintiffs’ claim was statute-barred under the law of Saskatchewan.

[231] The facts of Lucas (Litigation Guardian of Tina Lucas and Justin Gagnon) v. Gagnon were that the Gagnons were all residents of Ontario, and Mrs. Gagnon and her children Tina and Justin were passengers of a car driven by Mr. Gagnon that was involved in a car accident in Québec. Mrs. Gagnon and the children sued Mr. Gagnon in tort in Ontario, but the Supreme Court held that Québec’s no-fault liability law applied and the plaintiffs’ tort claim was statute-barred by the Québec law.

[232] In the immediate case, the parties fundamentally disagree about the application of Tolofson v. Jensen and its general rule - the lex loci rule - about the choice of law for tort cases, and thus it is necessary to examine precisely what Justice La Forest, who wrote the main judgment about the general rule (Justices Gonthier, Cory, McLachlin and Iacobucci, concurring) said about why the Court decided to establish a new Canadian approach for the choice of law in tort cases. Justice Major (Justice Sopinka concurring) wrote a concurring judgment in which he agreed about the general rule, but he was more liberal than Justice La Forest about occasions in which a court could depart from the general rule.

[233] Justice La Forest’s judgment applies the lex loci rule strictly. For present purposes, the critical passages from Justice La Forest’s judgment are paras. 35-36, 39-43, 45-46, 49, 55-56, which state, with my emphasis added:

35. What strikes me about the Anglo-Canadian choice of law rules as developed over the past century is that they appear to have been applied with insufficient reference to the underlying reality in which they operate and to general principles that should apply in responding to that reality. Often the rules are mechanistically applied. At other times, they seem to be based on the expectations of the parties, a somewhat fictional concept, or a sense of "fairness" about the specific case, a reaction that is not subjected to analysis, but which seems to be born of a disapproval of the rule adopted by a particular jurisdiction. The truth is that a system of law built on what a particular court considers to be the expectations of the parties or what it thinks is fair, without engaging in further probing about what it means by this, does not bear the hallmarks of a rational system of law. Indeed, in the present context it wholly obscures the nature of the problem. In dealing with legal issues having an impact in more than one legal jurisdiction, we are not really engaged in that kind of interest balancing. We are engaged in a structural problem. While that structural problem arises here in a federal setting, it is instructive to consider the matter first from an international perspective since it is, of course, on the international level that private international law emerged.

36. On the international plane, the relevant underlying reality is the territorial limits of law under the international legal order. The underlying postulate of public international law is that generally each state has jurisdiction to make and apply law within its territorial limit. Absent a breach of some overriding norm, other states as a matter of "comity" will ordinarily respect such actions and are hesitant to interfere with what another state chooses to do within those limits. Moreover, to accommodate the movement of people, wealth and skills across state lines, a byproduct of modern civilization, they will in great measure recognize the determination of legal issues in other states. And to promote the same values, they will open their national forums for the resolution of specific legal disputes arising in other jurisdictions consistent with the interests and internal values of the forum state. These are the realities that must be reflected and accommodated in private international law.

37. As Morguard and Hunt also indicate, the courts in the various states will, in certain circumstances, exercise jurisdiction over matters that may have originated in other states. And that will be so as well where a particular transaction may not be limited to a single jurisdiction. Consequently, individuals need not in enforcing a legal right be tied to the courts of the jurisdiction where the right arose, but may choose one to meet their convenience. This fosters mobility and a world economy.

38. To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions. In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" (a term not yet fully defined) with the subject matter of the litigation; see Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 SCR 393; Morguard, supra; and Hunt, supra. This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem, supra (see esp. at pp. 921, 922, 923), there is a more convenient or appropriate forum elsewhere.

39. The major issue that arises in this case is this: once a court has properly taken jurisdiction (and this was conceded in both the cases in these appeals), what law should it apply? Obviously the court must follow its own rules of procedure; it could not function otherwise; see Chaplin v. Boys, supra. …. I will here turn to the more common "choice of law" problem, and the principal issue in these appeals, namely, what is the substantive law that should be applied in considering the present cases?

40. From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti. There are situations, of course, notably where an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues. In such a case, it may well be that the consequences would be held to constitute the wrong. Difficulties may also arise where the wrong directly arises out of some transnational or interprovincial activity. There territorial considerations may become muted; they may conflict and other considerations may play a determining role. But that is not this case. Though the parties may, before and after the wrong was suffered, have travelled from one province to another, the defining activity that constitutes the wrong took place wholly within the territorial limits of one province, in one case, Quebec, in the other Saskatchewan, and the resulting injury occurred there as well. That being so it seems to me, barring some recognized exception, to which possibility I will turn later, that as Willes J. pointed out in Phillips v. Eyre, supra, at p. 28, "civil liability arising out of a wrong derives its birth from the law of the place [where it occurred], and its character is determined by that law". In short, the wrong is governed by that law. It is in that law that we must seek its defining character; it is that law, too, that defines its legal consequences.

41. I have thus far framed the arguments favouring the lex loci delicti in theoretical terms. But the approach responds to a number of sound practical considerations. The rule has the advantage of certainty, ease of application and predictability. Moreover, it would seem to meet normal expectations. Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs. If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected. Stability of transactions and well-grounded legal expectations must be respected. Many activities within one state necessarily have impact in another, but a multiplicity of competing exercises of state power in respect of such activities must be avoided.

42. There may be room for exceptions but they would need to be very carefully defined. It seems to me self-evident, for example, that State A has no business in defining the legal rights and liabilities of citizens of State B in respect of acts in their own country, or for that matter the actions in State B of citizens of State C, and it would lead to unfair and unjust results if it did. The same considerations apply as between the Canadian provinces. What is really debatable is whether State A, or for that matter Province A, should be able to do so in respect of transactions in other states or provinces between its own citizens or residents.

43. It will be obvious from what I have just said that I do not accept the former British rule, adopted in McLean v. Pettigrew, that in adjudicating on wrongs committed in another country our courts should apply our own law, subject to the wrong being "unjustifiable" in the other country. As I see it, this involves a court's defining the nature and consequences of an act done in another country. This, barring some principled justification, seems to me to fly against the territoriality principle. As well, if this approach were generally adopted, it would, in practice, mean that the courts of different countries would follow different rules in respect of the same wrong, and invite forum shopping by litigants in search of the most beneficial place to litigate an issue. Applying the same approach to the units of a federal state like Canada would be even worse. Given the constant mobility between the provinces as well as similar legal regimes and other factors, forum shopping would be much easier.

44. What then can be said of the double actionability rule along the lines adopted in England in Chaplin v. Boys? I have already indicated, of course, that I view the lex loci delicti rule as the governing law. However, because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary.

45. The imputed injustice of applying the lex loci delicti in the seminal choice of law cases to which I have just referred arose from some aspect of the law of the locus delicti that the court considered contrary to the public policy of the forum, i.e., unfair. …

46. I remain unconvinced by these arguments. These "public policy" arguments simply mean that the court does not approve of the law that the legislature having power to enact it within its territory has chosen to adopt. These laws are usually enacted on the basis of what are often perceived by those who make them as reasonable, though they may turn out to be unwise. The residents of the jurisdiction must put up with them until they are modified, and one does not ordinarily ignore the law of the land in favour of those who visit. True, it may be unfortunate for a plaintiff that he or she was the victim of a tort in one jurisdiction rather than another and so be unable to claim as much compensation as if it had occurred in another jurisdiction. But such differences are a concomitant of the territoriality principle. While, no doubt, as was observed in Morguard, the underlying principles of private international law are order and fairness, order comes first. Order is a precondition to justice. ….

[234] In the case at bar, the Plaintiffs' submit that their claims in negligence and in vicarious liability are governed by the law of Ontario because although Bangladesh was the place most significantly affected by the alleged misconduct, the Defendants' wrongful conduct took place primarily “in Ontario”, such that pursuant to the principle of lex loci delicti, the causes of action in negligence and vicarious liability are governed by the law of Ontario. In other words, in this proposed class action, the Plaintiffs argue that the wrongdoing occurred in Ontario notwithstanding that the collapse of the Rana Plaza with the attendant injuries and loss of life took place in Bangladesh and thus applying the lex loci delicti connecting factor from Tolofson, Ontario law governs the dispute.

[235] Indeed, as the Plaintiffs plead their tort action, all the wrongful activity took place in Ontario, where Loblaws assumed the responsibilities attendant on carrying on a commercial enterprise with an international supply chain and with knowledge that the employees of the suppliers from Bangladesh worked in dangerous factories and with the ability to control the employer and protect the imperiled workers from Ontario where Loblaws formulated its CSR standards.

[236] As the Plaintiffs would have Tolofson v. v. Jensen applied, the pleaded wrongdoing occurring in Ontario, then under the lex loci delicti rule, Ontario is the choice of law for the wrongdoing. However, I am not convinced by the Plaintiffs’ argument. They have by a pleading artifice placed Loblaws’ wrongdoing in Ontario, but as the genuine material facts of their Statement of Claim and as the discussion below will reveal, the formulation of any duty of care occurred in Bangladesh and Loblaws’ wrongdoing was failing to protect the putative Class Members - who are located in Bangladesh, which is also the place where the consequences of Loblaws’ wrongdoing occurred.

[237] The artificiality of connecting Loblaws’ wrongdoing to Ontario is revealed by a close reading of the pleaded examples of the connection. The factors connecting their cause of action to Ontario include such activities as gaining knowledge about the history of Bangladesh factory disasters in Ontario, gaining knowledge about New Wave’s non-compliance with Bangladesh regulations in Ontario and arranging visits to Bangladesh from Ontario. The fact that various contracts involving Loblaws’ activities concerning Bangladesh were signed in Ontario is an inherently very thin connecting factor, and a pleading that Loblaws undertook a duty of care to the Plaintiffs and the putative Class Members - in Ontario - is just an another example of a purported material fact that is in reality a conclusion to a question-begging argument that is highly contentious and also inconsistent with the genuine material facts that indicate that the duty and the breach of it are more connected to Bangladesh than to Ontario.

[238] In the immediate case, Class Counsel have purposefully designed the Plaintiffs’ proposed tort claims to make them look like they are within the general rule from Tolofson, or if that argument does not work, then the Plaintiffs submit that the case at bar falls within the “thorny situations exception” to the rule from Tolofson. Thus, the Plaintiffs, inconsistently or in the alternative, argue that if Ontario is not the lex loci delicti, the place of the wrongdoing, then the case at bar is one of those “thorny situations” where the wrongful activity occurs in one place (Ontario) but the consequences are directly felt elsewhere (Bangladesh) and in such a case it would not be appropriate to apply the lex loci delicti. In a further alternative discussed below, the Plaintiffs argue that public policy factors should negate Bangladesh law as the choice of law.

[239] In my opinion, none of the Plaintiffs’ arguments work, and the Defendants are correct in asserting that Bangladesh law is the choice of law.

[240] The conclusion that the choice of law for the tort claims against Bureau Veritas is the law of Bangladesh is even stronger. The fundamental allegation against Bureau Veritas is that the audits of the Rana Plaza performed by Bureau Veritas were inadequate for their purposes and also negligently performed. It is alleged that Bureau Veritas breached a duty of care to protect the putative Class Members. It is very difficult - even by clever pleading - to place Bureau Veritas’ wrongdoing in Ontario. The social audit took place at a building in Bangladesh where a Bangladesh manufacturer was producing goods for export. The social auditors were residents of Bangladesh. The Plaintiffs rely on worker interviews that took place in Bangladesh. The persons injured by the collapse of Rana Plaza were and are in Bangladesh. The injuries and deaths occurred in Bangladesh. As will be seen later in the discussion about the cause of action against Bureau Veritas, the establishment of a duty of care very much depends upon the vulnerability and the expectations of the putative Class Members, who of course, all live in Bangladesh. No alleged act or omission by Bureau Veritas, apart from being retained by Loblaws, occurred in Ontario. The place of Bureau Veritas’ wrongdoing is Bangladesh and under the choice of law rules, Bangladesh law governs.

[241] The jurisprudence stands against the Plaintiffs’ argument that the torts in this case occurred in Ontario. In Leonard v. Houle, supra, a police vehicular chase began in Ontario but ended with a crash in Québec, and Justice Charron held at paras. 19-20 that the tort occurred in Québec for choice of law purposes; she stated:

19. In this case, it is uncontroverted that the car accident which resulted in Leonard's injuries occurred in the Province of Québec. In so far as the Hull Police Force is concerned, any tortious conduct on their part also occurred wholly in the Province of Québec. It is conceded that if the action involved no other defendants, the law of Québec would govern. Does the fact that the alleged tortious conduct of some of the defendants, the Ottawa police, commenced in Ontario change the loci delicti from Québec to Ontario?

20. In my view, it does not. While there may be situations where the issue of where the tort takes place will raise "thorny issues", and perhaps also raise issues of public policy, this is not such a case. It seems clear to me that the wrong occurred in the Province of Quebec because the injury occurred there. The plaintiffs are not suing because the Ottawa police breached their duty when they commenced a chase while they were in the Province of Ontario, nor are they suing because the Ottawa police failed to adequately warn the Québec police authorities of the ongoing chase. They are suing because Leonard was injured in the resulting car accident in the Province of Québec. The activity which took place in the Province of Ontario, even if found to constitute a breach of duty on the part of the Ottawa police, does not amount to an actionable wrong. There is no actionable wrong without the injury. The place where "the activity took place" which gives rise to the action is in the Province of Québec.

[242] In Lilydale Cooperative Ltd. v. Meyn Canada Inc., 2013 ONSC 5313, the plaintiff alleged the defendant supplied a defective fryer, which caused a fire at the plaintiff’s poultry processing plant in Alberta. The plaintiff argued Ontario law applied, because the defendant resided in Ontario, the contract for supply of the fryer was made in Ontario, and the defendant developed, assembled, tested, inspected, warehoused, and shipped the fryer from Ontario. Applying Leonard v