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Bugged Out

Many American companies doing business north of the border had hoped Canadian litigation might reverse its recent tendency to mimic its U.S. counterpart, particularly with the advent of class actions in Canada. To them, Mustapha v. Culligan of Canada Ltd.--a case about a fly in the water--looked a bit too much like the fly in the ointment.

Fortunately, a fly in the water does not a fly in the ointment make--at least not after the Supreme Court of Canada's May 2008 decision in Mustapha.

Insect Negligence
On appeal, Culligan did not deny that the fly in the bottle contributed to Mustapha's illness. But David argued that Brockenshire had erred by failing to consider the objective question of whether the effects of the incident were reasonably foreseeable in a person of "reasonable fortitude and robustness."

The Ontario Court of Appeal agreed with David and dismissed Mustapha's suit. However, a three-judge panel of the Supreme Court granted leave to appeal, indicating a belief that there was merit and national importance to the issues raised.


Julius Melnitzer

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