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Personal Injury

Salmon tartare allergy incident best handled by the civil courts

Criminal charges are unlikely in the case of a Quebec waiter who was arrested after serving salmon tartare to a man with severe allergies, says Toronto personal injury lawyer Darryl Singer.

“I can’t see charges being laid — there’s no possible way a criminal charge would survive,” Singer, principal of Singer Barristers Professional Corporation, tells AdvocateDaily.com.

The man, who ordered beef tartare, was served the fish even after the waiter was allegedly told several times about the customer’s severe seafood allergy, the Canadian Press reports. The man was sent to hospital and fell into a coma for two days.

Singer says there are two parts to any criminal charge: actus reus, meaning “guilty act,” and mens rea, which means “guilty mind.”

“We can assume that giving the poisonous thing is the alleged assault, but there has to be a mental intent to have done so,” he says.

“In this case, if it was clearly an accident, then there is no criminal charge.

“He could pursue a civil case in negligence, but I can’t possibly see how a criminal charge could be sustained.”

In civil law, however, negligence means there was a mistake, but you are still at fault and must pay damages, Singer says. 

According to the news story, police said the 22-year-old waiter allegedly didn't write down the man’s order even though he was apparently warned repeatedly about the allergy to ensure there wasn't any cross-contamination in the kitchen.

The waiter was arrested and later released on a promise to appear in court at a later date.

The Toronto Star reports that the diner says he “has sent letters to the restaurant warning the owners that he intends to sue for damages.” 

In Singer’s opinion, civil court is the right place for this kind of dispute.

If it was a purely accidental situation, then it can’t possibly survive a criminal charge,” he says.

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