A class action lawsuit brought by a Subway roast chicken sandwich lover who accuses the company of not serving “real chicken” in its sandwiches was finally authorized by the Court of Appeal.
In February 2017, a controversy erupted after the publication of a CBC article citing a university analysis revealing that the chicken of the Subways contained only “50% of chicken DNA, the rest being made up of soybeans”.
A resident of the Montreal area, Stéphane Durand, who claimed to be a regular consumer of roast chicken sandwiches had therefore launched a collective action criticizing “the false representation” of Subway which did not offer “real chicken”.
For its part, the company defended itself by saying that “Subway’s recipes contain less than 1% soy protein” and contesting “the low probative value” of the study. However, the success of such a class action could have serious consequences for the fast food chain since it targets all Quebec consumers of roast chicken submarine and Teriyaki with sweet onions between 2014 and 2017.
Dalhousie University professor Sylvain Charlebois, who recalls that the CBC won its case against Subway in court following the report, argues that companies must “be transparent otherwise it is a case of food fraud” . Beyond a financial motivation for food companies, the professor speaks of a public health issue.
“10% of the population has some food allergy, you can sell something deadly without the customer knowing”, he illustrates. Mr. Charlebois adds that “Subway is not a franchise that is going well” with a fragile business model, affected by the pandemic.
The trial judge had however cut short this process in February 2019 by refusing the class action considering in particular that Subway franchise systems of Canada and Doctor’s associates inc “are not those who sell or manufacture the sandwich”, but the franchisees. . The judge saw it as a “major obstacle”, but the Court of Appeal overturned this decision.
She considers that appellant Stéphane Durand’s argument “is not frivolous”. According to him, “the general impression which emerges from this representation is that these sandwiches are made of ‘real chicken’ whereas the DNA analysis report shows that this is not the case.”
The Court of Appeal did not rule on the merits of the case since its role at this stage was to authorize or refuse the class action. However, she considers that Mr. Durand has an “arguable case” which will have to be decided by a judge who will take cognizance of all the evidence.