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There’s an unusual case that’s been all over the media recently about a Quebec waiter who served the wrong food to someone with a food allergy. Police have recommended a charge of criminal negligence be brought forth against the waiter. Is simply making a mistake when serving food enough to get one into trouble with the law? Let’s look at the case more carefully.

The incident happened at a Sherbrooke restaurant where a waiter accidentally served salmon tartare to a customer who was allergic to both seafood and salmon. The customer had ordered beef tartare and told the waiter numerous times about his food allergy. When the salmon tartare came to his table, the customer took a bite. He was unaware of what he was about to bite into because the restaurant’s lighting was dim.

Due to the food mixup, the customer eventually was hospitalized for several weeks and fell into a coma for two days. He also suffered from cardiac arrest.

Did the Waiter Break the Law?

Quebec police are recommending the charge of criminal negligence be brought against the waiter because the Criminal Code allows for an arrest where there is “wanton or reckless disregard of the lives or safety of other persons.” Criminal negligence is used when bodily harm or death is caused to someone under this legal definition in the Criminal Code.

In the case, one half of the charge could be argued as warranted because the customer fell into a coma, which would constitute bodily harm. Under that definition, the waiter – if found guilty of criminal negligence – could be sentenced for to up to 10 years in prison. (If the customer had died, the sentence would be a maximum of life imprisonment.)

But did the waiter show wanton or reckless disregard to his customer?

On one hand, the waiter – if he was the person who brought the food to the customer — could be found not guilty because chances are that if the customer didn’t know he was being served fish due to the lighting, the waiter perhaps reasonably didn’t know it as well for the same reason. However, if the waiter had been aware that it was fish being served and served it anyway while knowing about the customer’s food allergy, he then might be found guilty if the case made it to court.

What is also problematic for the waiter is that he allegedly didn’t take any notes. The customer told the waiter time and time again about the allergy to make sure there wouldn’t be any food cross-contamination in the kitchen. It is quite possible that the waiter didn’t take these warnings seriously, or forgot about them, which could again lead to legal problems for him.

Why? It could be argued that the waiter showed wanton or reckless disregard for his customer’s safety and life by not taking notes or the appropriate measures to ensure the food order wouldn’t be presumably mixed up. The Criminal Code says criminal negligence happens when someone has “omit[ted] to do anything that it is his duty to do.”

But What If the Wrong Order Was Placed?

This case hasn’t gone before the courts, so a lot of this might be conjecture, but there are other factors to consider in this scenario – ones that could completely exonerate the waiter. For instance, it could be possible that the customer placed the wrong order to begin with. What we also don’t know is if the waiter informed the kitchen staff of the food allergy. If he did, did the kitchen take appropriate measures to ensure the right order was placed? Also to his defence, the waiter might be able to claim that he didn’t receive proper training in dealing with customers with food allergies. So there’s a lot we don’t know that could leave the waiter off the hook.

Plus, the customer alas has to claim some responsibility for his medical condition. He had left his EpiPen in his car before entering a restaurant with seafood on the menu. It could be argued that he would have never slipped into a coma or had heart trouble if he had his EpiPen on him before going into a restaurant, which would be a risky endeavour to begin with, knowing his food allergy.

It’ll be interesting to see if the case makes it to court. However, most legal observers think it won’t, simply because the customer had to be in a completely vulnerable position for someone to be criminally negligent against him. It would be criminal negligence if he was a patient in need of a leg amputation and a doctor amputated the wrong leg while being completely helpless to the treatment. Directly walking into a restaurant that had food on the menu that he was allergic to for a bite to eat? Perhaps not so much.

If your legal problem is just as fishy as this one, we can help with your criminal defence. Contact Armoured Suits by phone at 613-233-0008 or e-mail at yourteam@armouredsuits.ca for a free, confidential consultation.


UPDATE: September 13, 2016 – Waiter’s Actions Did Not Meet Legal Requirement for Criminal Negligence

The 22-year-old Québec waiter who served salmon tartare to a customer with a severe food allergy will not be charged with criminal negligence.

In speaking with the media, René Verret, spokesman for Québec’s Crown prosecutors’ office, said “There was no criminal offence in what the young man did”.

The case, which drew worldwide media attention, highlights the challenges and seriousness of food allergies and the associated risk of anaphylaxis shock. Food allergy organizations are pointing to this case as an opportunity to review food handling protocols in the service industry.