Andy orders a meal in a restaurant. The meal makes him ill with botulism poisoning. Can Andy sue for breach of contract or must he take the more difficult and complex route of suing in tort?
B.C. and Ontario suggests that the courts will hold that a restaurant meal is a sale of goods). If it is a sale of goods, then the Act will apply and Andy will be able to sue successfully in contract. If it is not, Andy would have to sue in tort for negligence.

If Andy is to sue for breach of contract, he will be alleging that the restaurant sold him a meal of un-merchantable quality, which, under the Sale of Goods Act, is a breach of a condition. The issue would be whether there is a sale of goods or whether a restaurant meal is a sale of services. (Case law in B.C. and Ontario suggests that the courts will hold that a restaurant meal is a sale of goods). If it is a sale of goods, then the Act will apply and Andy will be able to sue successfully in contract. If it is not, Andy would have to sue in tort for negligence.