ONTARIO SUPERIOR COURT OF JUSTICE STATEMENT OF CLAIM

Transcription

1 ONTARIO SUPERIOR COURT OF JUSTICE Court File No. CV CP B E T W E E N: COLLEEN GENDRON Plaintiff and NESTLÉ CANADA INC. Defendant PROCEEDING UNDER THE CLASS PROCEEDINGS ACT, 1992 STATEMENT OF CLAIM Notice of Action issued on March 12, The Plaintiff claims: a. an order certifying this action as a class proceeding and appointing the Plaintiff as representative plaintiff on behalf of a proposed national class, pursuant to s. 5(1) of the Class Proceedings Act, 1992 (CPA); b. costs of publishing notice of certification of this action to the Class; c. damages in the amount of $60,000,000 or such other amount assessed by the court;

2 -2- d. in addition, or in the alternative to 1.b., restitution of the amounts paid by the Plaintiff and the Class for the purchase of Beneful Dry Dog Food (defined below) during the class period; e. in addition, or in the alternative to 1.b. and/or 1.d., disgorgement of all profits earned by the Defendant from the sale of all Beneful Dry Dog Food during the class period; f. punitive and exemplary damages in an amount to be fixed by the court; g. pre-judgment and post-judgment interest in accordance with the Courts of Justice Act; and, h. costs of this action fixed on a substantial indemnity basis including applicable taxes. A. The Parties The Plaintiff 2. Colleen Gendron resides in the City of Huntsville in the Province of Ontario. 3. Ms. Gendron brings this action pursuant to the CPA, on behalf of herself and all persons resident in Canada who bought or acquired dry dog food and/or dog treats manufactured, produced, marketed, distributed, supplied and/or sold by the Defendant under the brand name Beneful ( Beneful Dry Dog Food ) for the intended purpose of consumption by dogs (the Class ).

3 -3-4. Ms. Gendron is the owner of a mixed-breed rescue dog, Bullit, age approximately 10. Ms. Gendron was the owner of a husky rescue dog, Buddy, age approximately 11, until his untimely death on March 3, Buddy was euthanized on Tuesday, March 3, 2015, after suffering from acute and severe kidney and liver failure and internal bleeding after and because he was fed Beneful Dry Dog Food. While Bullit was also fed Beneful Dry Dog Food, he did not sustain such severe injuries, as he consistently threw up immediately after being fed this product. However, Bullit did suffer from generalized gastrointestinal illness after ingesting Beneful Dry Dog Food. 6. Ms. Gendron purchased Beneful Dry Dog Food commencing in or about September 2014, after she and her husband Paul Gendron were solicited to do so by a representative of the Defendant who was distributing discount coupons for the product at a local retail store. At no time prior to September 2014 were Buddy or Bullit fed Beneful Dry Dog Food. 7. Ms. Gendron has incurred expenses for medicine, testing and veterinary bills as well as other out of pocket expenses directly related to the care and treatment of Bullit s illness and to the care, treatment and ultimate euthanization of Buddy, all arising as a direct result of the dogs ingestion of Beneful Dry Dog Food.

4 -4- The Defendant 8. Nestlé Canada Inc. ( NCI ) is a corporation incorporated under the laws of the province of Ontario. NCI is a wholly owned subsidiary of Nestlé S.A., a Swiss entity. 9. NCI carries on business as, among other things, a pet food manufacturer, distributor and vendor. Beneful Dry Dog Food is among the products it manufactures, sells and distributes with the intended end use of being purchased and used by consumers as food for dogs. 10. NCI is a supplier as that term is defined in the Ontario Consumer Protection Act, 2002, and the comparable legislation as set out in Schedule B hereto, and it is a professional seller under the Civil Code of Quebec ( CCQ ). 11. NCI s head office is in North York, Ontario, and its pet food manufacturing, production, testing, marketing, distributing, supply and sales operations (the pet food business ) are headquartered in Mississauga, Ontario. 12. NCI carries on its pet food business across Canada under the following business names: Nestlé Purina Petcare Canada; Nestlé Purina Petcare Canada (Prince Edward Island), Nestlé Purina Petcare Canada (New Brunswick), Nestlé Purina Petcare Canada (Nova Scotia), Nestlé Purina Petcare Canada (Ontario), Nestlé Purina Petcare Canada (Manitoba), Nestlé Purina Petcare Canada (Saskatchewan), Nestlé Purina Petcare Canada (Alberta), Nestlé Purina Petcare Canada (British Columbia), Nestlé Purina Petcare (British Columbia), Nestlé Purina soins des animaux familiers (Quebec), Nestlé Purina Petcare (Prince Edward Island).

5 NCI has four pet food manufacturing facilities in Canada where Beneful Dry Dog Food is manufactured and/or its raw ingredients are stored. They are located in Caledonia, Ontario; Mississauga, Ontario; Innisfil, Alberta; and Moncton, New Brunswick. B. Beneful Dry Dog Food 14. NCI markets, distributes, supplies and sells Beneful Dry Dog Food across Canada. It sells this product directly to consumers, and sells it to third parties for the purpose of re-sale to consumers. 15. NCI represents and warrants that Beneful Dry Dog Food is a high quality dog food that is nutritious, wholesome and safe for dogs to consume. The Defendant represents and warrants that Beneful Dry Dog Food meets or exceeds published food safety standards. NCI makes these representations and warranties with the knowledge and intention that they will be relied upon by dog owners. NCI makes these representations and warranties for the purpose of inducing the Plaintiff and the Class to purchase Beneful Dry Dog Food and feed it to their dogs. 16. NCI makes the representations and warranties referenced in the paragraph above: On the Beneful Dry Dog Food packaging; On its website, Facebook page, Twitter account and other websites or social media sites under its control; In its advertisements and press releases; and In other promotional sales materials such as manufacturer s discount coupons.

6 -6- C. Beneful Dry Dog Food is not safe for consumption by dogs 17. Beneful Dry Dog Food was, and is, not safe for dogs to consume and is not fit for canine consumption, which is its intended purpose as it can and does cause canine illness and death. 18. Beneful Dry Dog Food contains ingredients that are toxic to dogs including: a) Propylene glycol, a listed ingredient, which is present in large volume (the total amount is not disclosed), and is a known animal toxin, poisonous to cats and dogs; and b) Toxins, including mycotoxins, which are a group of toxins produced by fungus that grows on grains. Corn is the principal ingredient in Beneful Dry Dog Food. Corn gluten and whole wheat flour are the third and fourth listed ingredients. Mycotoxins grow on any of these three ingredients either or both before and after they are incorporated into other products, including Beneful Dry Dog Food. Both propylene glycol and toxins including mycotoxins are present in both the U.S. and Canadian formulations of Beneful Dry Dog Food. Neither propylene glycol nor toxins such as mycotoxins are visible upon ordinary examination, and so they cannot be identified by consumers, including the Plaintiff and the Class. 19. The ingestion of toxins, including mycotoxins and propylene glycol (either separately or together) are a known health risk to dogs. The Defendant is aware that

7 -7- mycotoxins and/or other toxins may be present in Beneful Dry Dog Food. It represents to the Class that its manufacturing process includes an adequate quality control program that tests for and identifies the presence of mycotoxins and/or other toxins, and thereby averts the sale and distribution of any tainted batches of Beneful Dry Dog Food. 20. However, the Defendant s quality control program is deficient, and it continues to manufacture, distribute and sell Beneful Dry Dog Food containing or susceptible to the formation of mycotoxins and/or other toxins at such dangerously high levels that they caused the illness and/or death of the Plaintiff s dogs as well as the illness or death of dogs belonging to members of the Class. 21. Consumers have made repeated complaints to NCI about their dogs becoming ill, in many cases seriously ill and/or dying, as a result of eating Beneful Dry Dog Food. The dogs all presented with similar symptoms, including but not limited to, sudden onset of stomach and related internal bleeding, liver malfunction or failure, kidney failure, vomiting, diarrhea, dehydration, weight loss, seizures, and bloat. All these symptoms are consistent with the ingestion of toxins at levels dangerous to dogs heath. 22. The Defendant therefore knew or should have known that Beneful Dry Dog Food is not safe for dogs to consume. Beneful Dry Dog Food poses a known, material and substantial danger to its intended consumers. 23. Furthermore, through these consumer complaints the Defendant has received notice of the defect in Beneful Dry Dog Food sufficient to give it knowledge of the dangerous defect. This notice is adequate notice to meet the notice requirements under

8 -8- all provincial consumer protection legislation, as set out in Schedule B hereto, and/or it is a sufficient and just reason for the Court to exercise its discretion to waive individual notice where notice of the claim under consumer protection legislation is required under the Schedule B legislation. 24. Since receiving the consumer complaints, the Defendant has not changed the ingredient formula for Beneful Dry Dog Food. Nor has it changed or improved its manufacturing process, or its testing and quality control procedures to improve detection of or prevent the formation of mycotoxins and/or other toxins. 25. NCI has made no effort to warn potential purchasers of Beneful Dry Dog Food of its harmful effects, but rather has actively tried to silence consumers whose dogs have become ill and/or died after eating Beneful Dry Dog Food. In particular, the Defendant has: deleted negative consumer criticism from its web-site, the Beneful Facebook page, the Beneful Twitter account and any other websites or social media sites under its control; banned users who have been critical of Beneful Dry Dog Food from posting any comments at all; and attempted to quash further action by consumers by approaching individuals who reported that their dogs have become ill or died as a result of eating

9 -9- Beneful Dry Dog Food to offer them monetary settlements in exchange for signing releases with strict confidentiality clauses. 26. Ms. Gendron posted a comment about Buddy and Bullit s experiences with Beneful Dry Dog Food on Beneful s public Facebook page. She was immediately contacted by an individual with Sedgwick Claims Management Services Inc., a U.S. based class action claims administrator, acting on behalf of the Defendant. The Sedgwick representative asked whether Ms. Gendron had retained a lawyer, whether he could contact Buddy s veterinarian, and whether she would be willing to settle her claim. Sedgwick has approached, and continues to approach, other class members with similar offers. 27. The fact that NCI has retained Sedgwick to make settlement offers on its behalf to affected Class members, including the Plaintiff confirms that NCI has knowledge of the harm Beneful Dry Dog Food causes to dogs. D. Beneful Dry Dog Food has caused illness &/or death to dogs 28. Beneful Dry Dog Food caused dogs that consumed it, including dogs owned by the Plaintiff and other members of the Class, to become ill and/or die. 29. Bullit s illness, and Buddy s illness and death were caused by substances in Beneful Dry Dog Food that are toxic to dogs including propylene glycol, mycotoxins and/or other toxins.

10 -10- E. The Defendant s Negligence 30. NCI had a duty of care to the Plaintiff and to the Class to manufacture, produce, market, distribute, supply and/or sell dog food that was safe for canine consumption and free from deleterious and harmful ingredients and/or substances. 31. The Defendant s duty of care included duties to: a) ensure that Beneful Dry Dog Food was manufactured using ingredients that are safe for consumption by dogs and/or was manufactured with ingredients that were free of any substances that were or could become harmful to dogs; b) ensure that Beneful Dry Dog Food was manufactured with adequate quality control and testing and using proper manufacturing and production practices to eliminate the presence of mycotoxins in the finished product; c) ensure that Beneful Dry Dog Food was manufactured with adequate quality control and testing and using proper manufacturing and production practices and packaging to prevent the formation of mycotoxins in the product at any time prior to the expiry of its best before date; d) ensure that Beneful Dry Dog Food packaging includes adequate labelling and instructions for the safe handling and storage of the food by distributors, third party vendors and the Class to prevent the growth of mycotoxins in the food; e) ensure that it properly investigated reports of pet deaths and illnesses following consumption of Beneful Dry Dog Food and to respond by removing the

11 -11- product from the market or providing warnings to consumers of the dangers associated with dogs consuming the product; f) adequately warn the Plaintiff and the Class of the dangers inherent in the consumption of Beneful Dry Dog Food on the product packaging; and g) take immediate steps to remove Beneful Dry Dog Food from the market once it became aware (or should have become aware) of any risks or danger associated with its consumption. 32. The Defendant breached its duties to the Plaintiff and the Class, including by: a) manufacturing Beneful Dry Dog Food in a dangerous form, with ingredients and/or substances that are toxic to dogs; b) manufacturing Beneful Dry Dog Food so that it contains a latent safety defect in the form of ingredients and/or substances that are toxic to dogs, rendering NCI strictly liable to the member of the Class resident in Quebec pursuant to Articles 1468 and 1469 of the CCQ; c) failing to ensure that Beneful Dry Dog Food was safe for canine consumption and would remain safe for canine consumption until a listed best before expiry date; d) failing to employ adequate testing and quality control processes used during both the manufacturing and raw ingredient storage process and thereby

12 -12- manufacturing and selling Beneful Dry Dog Food that was not safe for canine consumption; e) failing to properly investigate and act on reports of dogs deaths and/or illness following consumption of Beneful Dry Dog Food; f) failing to make improvements to the testing and quality control processes used during the manufacturing and storage process to eliminate all toxins and/or the potential for Beneful Dry Dog Food to form toxins post-manufacturing once the Defendant was aware of the reports of dogs deaths and illness following consumption of Beneful Dry Dog Food; g) failing to warn the Plaintiff and other members of the Class of the dangers of Beneful on the product packaging and otherwise; and/or h) failing to remove Beneful Dry Dog Food from the market. 33. The Defendant knew or should have known that Beneful Dry Dog Food posed a risk of harm to dogs and that it was unfit for its intended purposes. Moreover, the Defendant knew or should have known that consumption of Beneful Dry Dog Food by dogs would foreseeably result in damages to the Plaintiff and to other members of the Class, including but not limited to economic loss arising from the purchase of Beneful Dry Dog Food and/or injury or illness and/or death of the dogs owned by the Plaintiff and the Class, which would result in the Plaintiff and the Class incurring expenses in treating their pets or associated expenses with the death of their dog

13 NCI knew or should have known that Beneful Dry Dog Food was not fit for consumption by dogs and therefore was worthless. 35. NCI is therefore liable to the Plaintiff and the Class, and it must make reparation and pay for all the damages and losses that the Plaintiff and the Class suffered as a result of feeding Beneful Dry Dog Food to their dogs. 36. All the damages suffered by the Plaintiff and the Class were the direct and foreseeable result of NCI manufacturing, distributing and selling Beneful Dry Dog Food containing a latent defect of toxins or ingredients that are harmful to dogs if ingested. F. The Defendant s Misrepresentations 37. The Defendant represented to the Plaintiff and the Class that Beneful Dry Dog Food was a high quality and nutritious food, and that it posed no risk to the dogs who consumed it. These representations appear on the product s packaging as well as in the Defendant s advertising campaigns, which include NCI s website ( and and on its Facebook page, its Twitter account, and in print and other media advertisements. 38. The Plaintiff and the Class were the intended class of individual to whom NCI made the representations, with the expectation and intent that they would rely on these representations. 39. By purchasing Beneful Dry Dog Food and feeding it to their dogs, the Plaintiff and the Class did rely upon on the Defendant s representations that Beneful Dry Dog Food

14 -14- was a quality, nutritious food which posed no risk to the dogs that consumed it. They had no ability to independently verify the accuracy of the Defendant s representations, including no way to independently observe or otherwise ascertain whether it contained ingredients harmful to dogs on ingestion, or that it otherwise posed a risk of harm to their dogs. 40. At all material times, the Defendant owed the Plaintiff and the Class a duty to exercise reasonable care to make accurate and truthful representations about Beneful Dry Dog Food s suitability for consumption and its health benefits and safety. The Defendant also owed the Plaintiff and the Class a duty to warn of any risks associated with the consumption of Beneful Dry Dog Food as soon as NCI knew or it had a reasonable belief that Beneful Dry Dog Food was causing illness and/or death in dogs who ingested it, and that its prior representations about Beneful Dry Dog Food were not true. 41. The Defendant breached its duty of care owed to the Plaintiff and the Class by making misrepresentations about the nature and quality of Beneful Dry Dog Food. Particularly it: a) negligently misrepresented that Beneful Dry Dog Food was not only safe for consumption by dogs, but was a high quality, nutritious food, when that was not true, and in fact, Beneful Dry Dog Food contains ingredients and/or substances that are, or can be or become harmful to dogs;

15 -15- b) negligently misrepresented that Beneful Dry Dog Food is high quality and nutritious for dogs when its main ingredients are grains that contained or were susceptible to forming mycotoxins and/or other toxins before the expiry of the best before date of the product, and therefore Beneful Dry Dog Food is neither high quality nor nutritious for dogs, and is inherently unsafe and toxic; and c) failed to warn the Plaintiff and other Class members about the presence of harmful substances in Beneful Dry Dog Food, and the known risks associated with propylene glycol and mycotoxins. 42. The Plaintiff and Class relied on the Defendant s representations about the nature and quality of Beneful Dry Dog Food to their detriment when they purchased the product and fed it to their dogs. 43. The dogs owned by the Class died, became ill, or where put at substantial risk of illness or death as a direct result of consuming Beneful Dry Dog Food. 44. As a result, the Plaintiff and other members of the Class have suffered damages, including but not limited to the cost of purchasing Beneful Dry Dog Food which was not suitable for its intended purpose and therefore was of no value, as well as incurring out-of-pocket expenses associated with the illness and/or death of their dogs, including veterinarian bills and associated medicinal expenses, and cremation or burial expenses. All such damages were therefore reasonably foreseeable and the result of the Defendant s misrepresentations.

16 -16- G. The Defendant has breached an express, implied and/or collateral warranty 45. The Defendant provided both an express and an implied warranty to the Plaintiff and to the Class that Beneful Dry Dog Food was safe for canine consumption, contained no latent defects rendering it unfit for its intended purpose, and particularly that it posed no risk to the dogs who consumed it. The Defendant provided this warranty under the common law as well as under the CCQ and applicable provincial statutes as detailed in Schedule A. 46. The Defendant represented to the Plaintiff and to the Class that Beneful Dry Dog Food was high quality, nutritious and safe for its intended purpose of canine consumption. These representations included, but are not limited to those printed on Beneful Dry Dog Food packaging, in its advertisements and in its electronic media. 47. The Plaintiff and the Class would not have purchased Beneful Dry Dog Food had the Defendant not represented and warranted that it was fit for canine consumption and that it did not pose a health risk of any kind. These representations and warranties induced the Plaintiff and other members of the Class to purchase Beneful Dry Dog Food and to feed it to their dogs. 48. The Defendant intended the benefit of any warranties, including those in advertisements and on packaging regarding the fitness of Beneful Dry Dog Food for its intended purpose, and the absence of any risk associated with consuming it to extend to the ultimate purchasers of Beneful Dry Dog Food, including the Plaintiff and the other members of the Class.

17 The Defendant breached its warranty of fitness that Beneful Dry Dog Food would be fit for its intended purpose of canine consumption. At the time of its manufacture, Beneful Dry Dog Food contained a material latent defect in its ingredients rendering it unsafe (and in fact harmful) if ingested by canines, and it was of no use or value to the Plaintiff or the Class. 50. As a result, the Plaintiff and other members of the Class are entitled to damages in the total amount paid for Beneful Dry Dog Food during the class period. In addition, the Plaintiff and the Class are entitled to compensatory damages, including but not limited to and all out-of-pocket expenses they incurred that are associated with the illness and/or death of dogs owned by the Plaintiff and the other members of the Class. H. The Defendant has breached Consumer Protection Legislation 51. The Defendant is governed by and required to comply with the Ontario Consumer Protection Act and comparable provincial legislation as detailed in Schedule B. It is liable to the Class under this legislation for making false, misleading, and deceptive representations, and for engaging in unfair practices and unconscionable conduct (collectively, the Unfair Practices ) as detailed above. 52. The Plaintiff and the Class are consumers who relied upon the representations made by NCI referenced above regarding the quality and safety of Beneful Dry Dog Food to their detriment. The representations were false, misleading and deceptive. The Plaintiff and the Class were unable to protect their own interests due to the latent nature of the defect in Beneful Dry Dog Food.

18 Further, by providing a warranty to the Plaintiff and the Class about the fitness for use of Beneful Dry Dog Food, the Defendant and the Plaintiff were engaged in a consumer transaction and/or entered into a consumer agreement. 54. The Defendant engaged in Unfair Practices and breached the Ontario Consumer Protection Act and similar legislation in other provinces as set out in Schedule B hereto. 55. The Unfair Practices were the immediate and direct cause of loss and/or injury to the Plaintiff and the Class. But for the Unfair Practices, the Plaintiff and the Class would not have purchased Beneful Dry Dog Food and would not have fed it to their dogs. All of the losses and damages suffered by the Plaintiff and the Class were reasonably foreseeable. 56. The Plaintiff and other Class members are entitled to damages in lieu of rescission of their agreements for the purchase of Beneful Dry Dog Food and are entitled to the damages equal to the entire purchase price of all Beneful Dry Dog Food purchased during the class period. The Plaintiff and the Class are also entitled to compensation for all out of pocket expenses incurred by them arising from the Unfair Practices under s. 18 of the Ontario Consumer Protection Act and similar legislation in other provinces as set out in Schedule B hereto. 57. If any notice is required under s. 18 of the Ontario Consumer Protection Act or any similar notice provisions established under other applicable provincial legislation, it is in the interests of justice that the requirement for notice be disregarded or waived in the circumstances of this case. In the alternative, NCI received adequate notice from the

19 -19- Plaintiff and the Class through the complaints registered on its website and in other public forums. 58. The Plaintiff and other Class members also claim punitive and exemplary damages for the Defendant s breach of the Ontario Consumer Protection Act and other provincial legislation. 59. Punitive and exemplary damages are appropriate given NCI s knowledge of Beneful Dry Dog Food s harmful effects, its knowledge of the customer complaints, its failure to improve its manufacturing process to eliminate propylene glycol, and/or mycotoxins and/or other toxins from Beneful Dry Dog Food, its failure to remove the product from the market and continued efforts to conceal customer concerns about the product after NCI was made aware of the fact that dogs were falling ill and dying after ingesting Beneful Dry Dog Food. I. The Defendant has breached the Competition Act 60. The Defendant is also governed by the federal Competition Act. It is liable to the Plaintiff and the Class for making false or misleading representations to the public about the fitness of Beneful Dry Dog Food for canine consumption, about its testing and quality control processes, and for making misleading claims about the absence of risk associated with its consumption and the safety and health benefits associated with consumption of Beneful Dry Dog Food. 61. The Defendant s false or misleading representations were contained on the packaging of Beneful Dry Dog Food as well as in its advertising, including but not limited

20 -20- to the contents of its press releases, advertisements, website, Facebook page and Twitter account. 62. As a result of the Defendant s breach of the Competition Act, the Plaintiff and the Class have suffered loss or damage as set out above, and are entitled to be compensated therefor pursuant to s. 36 of the Competition Act. J. Unjust Enrichment 63. The Defendant manufactured, produced, marketed, distributed and sold Beneful Dry Dog Food in order to induce the Plaintiff and the other class members to purchase or otherwise acquire the product for consumption by their dogs. Directly or indirectly, the Defendant has received some or all of the monies paid by the Plaintiff and the Class members for the purchase of Beneful Dry Dog Food. 64. Beneful Dry Dog Food is not fit for its intended purpose, and has no value. Consequently: a) the Defendant has been unjustly enriched; b) the Plaintiff and Class Members have suffered a corresponding deprivation; and c) there is no juristic reason for this enrichment. 65. Specifically, the Defendant has been unjustly enriched by the monies directly or indirectly received by it from the Plaintiff and the Class as they received no benefit from

21 -21- their purchases of Beneful Dry Dog Food, since the product was unfit for its intended purpose. There is no juristic reason for the Defendant s betterment in these circumstances. 66. While the Plaintiff and other Class members purchased Beneful Dry Dog Food from various retailers, the enrichment was directly passed on to the Defendant as payment for Beneful Dry Dog Food. Moreover, the Defendant sold Beneful Dry Dog Food to retailers with the specific intention that it be resold and purchased by the Plaintiff and other members of the Class. The entire purpose of manufacturing and selling Beneful Dry Dog Food was its ultimate purchase by the Plaintiff and the members of the Class, and for consumption by their dogs. 67. Accordingly, the Defendant should repay to the Plaintiff and the Class the quantum by which it has been unjustly enriched. K. Remedy and Damages 68. The Plaintiff paid approximately $ for Beneful Dry Dog Food from September 2014 until February The Plaintiff received no value from the purchases, and is entitled to be refunded the full amount of the purchase price paid. The Plaintiff asserts that each Class member is entitled to damages equal to the total amount they paid for Beneful Dry Dog Food during the class period. 69. The Plaintiff incurred expenses totalling approximately $1, in veterinary and related expenses, including the costs of cremating Buddy, all arising directly from the

22 -22- illness and injuries suffered by Bullit and Buddy eating Beneful Dry Dog Food. The Plaintiff asserts that each Class member is entitle to damages for all out of pocket expenses they incurred as a result of their dogs illness, injuries or death caused by ingesting Beneful Dry Dog Food. 70. The Plaintiff pleads and relies upon the legal doctrine of waiver of tort. 71. NCI should be compelled to disgorge all the profits which it received, directly or indirectly, from the sale of Beneful Dry Dog Food and to repay to the Plaintiff and the Class Members all benefits, monies, and profits unjustly obtained by the Defendant s tortious, unlawful, and improper conduct as described herein. In the alternative, the Plaintiff claim the return of all monies spent to purchase Beneful Dry Dog Food. 72. The Plaintiff and Class claim compensatory damages for all out of pocket expenses they incurred as a result of the illness, injury or death of their dogs arising from their ingestion of Beneful Dry Dog Food. 73. The Plaintiff and Class also claim punitive and exemplary damages at common law. 74. The Defendant s conduct was planned and deliberate. It was aware of the risk of adverse consequences arising from propylene glycol, mycotoxins and/or other toxins in Beneful Dry Dog Food and failed to either warn the Plaintiff and other members of the Class or to improve its manufacturing and testing processes to eliminate the existence of any harmful substances in Beneful Dry Dog Food.

23 Moreover, when complaints about dogs becoming ill or dying arose, it sought to silenced online complaint by deleting them from its electronic media sites, and attempted to buy the silence of injured customers whose dogs had become ill and/or died after eating Beneful Dry Dog Food by offering them insufficient compensation for their losses in exchange for a stringent and comprehensive release that compelled the customer to keep the fact of and terms of the settlement entirely confidential. 76. The Defendant s conduct was motivated by profit, given it could have eliminated any risk of propylene glycol, mycotoxins and/or other toxins occurring in Beneful Dry Dog Food by either not using propylene glycol or not using ingredients which were susceptible to or contained mycotoxins or other toxins, by improving their testing and quality control processes, or by recalling Beneful Dry Dog Food when it was notified that the product contained ingredients or had the propensity to become infected with toxins dangerous to dogs. The Defendant did not take any of these courses of action and in doing so, profited handsomely without regard to the safety and well-being of the dogs who consumed Beneful Dry Dog Food and therefore were at risk of serious illness, injury or death. 77. This conduct warrants the sanction of the court through an award of punitive or exemplary damages. 78. The Plaintiff asks that this action be tried at Toronto, Ontario.

24 -24- Schedule A Provincial Statutory Warranty Legislation Jurisdiction Legislation Provisions Ontario New Brunswick Quebec Saskatchewan Consumer Protection Act, S.O. 2002, c 30 Law Reform Act, RSNB 2011, c. 184 Consumer Product Warranty and Liability Act, SNB 1978, c C-18.1 Civil Code of Québec, CQLR c C-1991 Consumer Protection Act, RSQ c P-40.1 Consumer Protection and Business Practices Act, SS 2014, c C-30.2 s. 9, 93, 94, 95, 96, 101 s. 4 s. 4, 10, 15, 23, 27 Articles 1442, 1590, 1604, 1726, 1728, 1730, 1733, 1739 s. 37, 53, 272 s. 16, 19, 21, 26, 27, 28, 35, 36, 37

25 -25- Schedule B Provincial Consumer Protection Legislation Jurisdiction Legislation Applicable sections Alberta Fair Trading Act, R.S.A c F-2 s. 5, 6, 8, 7, 13 British Columbia Business Practices and Consumer Protection Act, S.B.C c 2 s. 4, 5, 8, 9, 10, 171 Manitoba Business Practices Act, C.C.S.M. c. B120 s. 2, 4, 5, 7, 23 Newfoundland and Labrador Consumer Protection and Business Practices Act, S.N.L. 2009, C-31.1 s. 7, 8, 9, 10 Ontario Consumer Protection Act, S.O. 2002, c 30 s. 14, 15, 17, 18 P.E.I. Business Practices Act, R.S.P.E.I. 1988, c B-7 s. 2, 3, 4 Quebec Consumer Protection Act, RSQ c P-40.1 s. 215, 216, 217, 219, 221, 228, 239, 271, 272 Saskatchewan Consumer Protection and Business Practices Act, S.S. 2014, c C-30.2 s. 4, 5, 6, 7, 8, 9, 91

26 -26- April 13, 2015 Paliare Roland Rosenberg Rothstein LLP 155 Wellington Street West 35th Floor Toronto ON M5V 3H1 Tel: Fax: Margaret L. Waddell (LSUC #29860U) Odette Soriano (LSUC #37326J) Denise Sayer (LSUC #52378W) Lawyers for the Plaintiff

27 Court File No. CV CP COLLEEN GENDRON -and- NESTLÉ CANADA INC. Plaintiff Defendant ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT TORONTO STATEMENT OF CLAIM Paliare Roland Rosenberg Rothstein LLP 155 Wellington Street West 35th Floor Toronto ON M5V 3H1 Tel: Fax: Margaret L. Waddell (LSUC #29860U) Odette Soriano (LSUC #37326J) Denise Sayer (LSUC #52378W) Lawyers for the Plaintiff Doc v4