Grounds for a lawsuit? | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (March 17, 2023, 2:34 PM EDT) --
Marcel Strigberger
Double, double toil and … is Tim Hortons in trouble?

As part of its latest Roll Up To Win contest a number of contestants noticed they each won $10,000. The problem is they received this news in error. Tim Hortons naturally has apologized for any disappointments caused, blaming the matter on a technical glitch.

This announcement did not sit well with a number of lucky customers who are now considering legal action. They are trying to complain to Tim Hortons but are not getting anywhere.

Out of curiosity I tried reaching out to Tim Hortons to get more information and their recording said something like, “Your call is important to us. Wait times are a bit longer than usual. If you are calling to complain about supposedly winning $10,000, we can’t help you. Try calling Rogers.”

One gentleman, a Jeremy from Tillsonburg, Ont., said if he does not get his $10,000, Tim Hortons will be hearing from his lawyer. I am trying to imagine what his lawyer might possibly say in a demand letter:

“As announced by my client, you are hearing from me.” That should get them quaking in their Timbits.

Actually, there may be a couple of legal grounds for a claim. Perhaps breach of contract? Possibly but I would not bet on it dollars to doughnuts. There are likely lengthy convoluted terms and conditions covering errors and omissions. There’s probably even one which says something like “You are not eligible to win $10,000 if you bought your coffee in Quebec, Newfoundland or Tillsonburg.”

Another cause of action I see is negligent misrepresentation, resulting in mental distress. The road to hoe on this ground is not an easy one given the Supreme Court of Canada’s decision in Mustapha v. Culligan of Canada Ltd. [2008] 2 S.C.R. 114 where the plaintiff freaked out after noticing a dead fly in his tank of water. The court held that even if there is a breach of a duty not to cause emotional harm, these damages are remote if they would not have resulted in harm to a reasonable person, i.e., a person of normal fortitude.

The question here would be did Jeremy overreact? How would a person of normal fortitude react to notification about winning $10,000.

He apparently went to the Tim Hortons where he bought his coffee and the manager confirmed his $10k prize winnings, noting it was all good. This repartee resulted in Jeremy letting out a loud “woo.”

I would say emitting a loud woo is a reasonable reaction for a person of normal fortitude, and emblematic of a major anxiety disorder. It would certainly shoot up my adrenalin, exciting and rattling me more than that coffee’s caffeine.

I actually Googled “causes of action-mental distress-normal fortitude-loud woo.” I expected to see at least a handful of decisions on the subject. Alas, there is a dearth of cases dealing with the loud woo test. Alas indeed. The courts in future have their work cut out for them.

I wonder whether it would make a difference had Jeremy found in addition to the winning rim, a dead fly in his coffee. This would certainly have added a new dimension to the phrase “double double.”

For now, Tim Hortons is offering Jeremy and other $10k “winners” a $50 gift card. I know it’s only a half a per cent of $10,000. But at least this shows genuine remorse. They are obviously sorry about this unfortunate error. No doubt customer satisfaction is their main priority. Cheers.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version. Visit Follow him @MarcelsHumour.
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