When we discard those forgotten leftovers at the back of the fridge, the quiet sense of guilt we feel underscores a larger, systemic failure: an epidemic of food waste that fuels environmental degradation and exacerbates social inequality.

From farm to fork, food is discarded at every stage. Crops are left unharvested for being too small or oddly shaped, produce is rejected by grocers for minor imperfections, and uneaten meals prepared in buffets and restaurants go straight to waste.

This phenomenon is not just a personal lapse in responsibility. Collectively, Canadians all along the food chain —  including producers, processors and retailers — generate nearly nine million tonnes of avoidable food waste each year,  a staggering $58 billion worth of food.

The environmental toll is equally alarming. Food waste contributes to biodiversity loss and contributes to deforestation, water depletion, and unnecessary energy expenditure, all to produce food that will never be eaten. If ranked as a greenhouse gas source, global food waste would be the third-largest emitter, responsible for 3.3 gigatonnes of CO₂ emissions annually, behind only China and the United States. Yet, despite these devastating figures, government efforts to combat food waste remain insufficient.

The burden of filling the gaps in government efforts against food insecurity continues to fall on food banks and non-profit organizations. But with food banks facing unprecedented strain as soaring demand increasingly outstrips donations, what can Canadians do to bring about meaningful change?

Expanding public rights

In seeking to fix the food waste crisis, tort law – particularly public nuisance – may seem like an unlikely solution. Historically, public nuisance was used by the kings in medieval England to tackle things affecting the common good or preventing access to public resources, like blocking public highways and waterways. Over time, the scope of public nuisance has expanded to include a wider range of harms that affect communities, such as excessive noise, offensive smells, and air contamination.

The Supreme Court of Canada, in the 1999 case Ryan v Victoria (City), affirmed that public nuisance includes any activity that interferes with the public’s interest in health, safety, morality, comfort, or convenience. But key specific questions remain, such as what “public rights” are violated by food waste? And who would bring the case — and against whom?

In terms of defining the “public rights” at stake and how food waste interferes with them, anyone arguing that food waste violates our right to a clean environment would find support in laws like the Canadian Environmental Protection Act, 1999, the Ontario Environmental Bill of Rights, and a growing number of court cases. If this public right is accepted, the next hurdle is that, to successfully sue in public nuisance, it must be shown that excess food waste is an unreasonable interference with the right to a clean environment.

Determining if an interference is unreasonable depends on several factors, including how socially useful the defendant’s actions are, how severe the harm is, the frequency or duration of the conduct, and how difficult it would be to reduce or prevent the harm. While these aspects will vary with each case, it is arguable that the harm from food waste could constitute an unreasonable interference with the public’s right to a clean environment.

The costs of wasted food

First, throwing away edible food at the retail and household level has no social usefulness; in fact, it has very high social costs. Second, the financial burdens to address food waste — such as fixing misleading best-before dates and normalizing imperfect fruits and vegetables — are relatively small and produce benefits that far outweigh any costs of implementing such measures. And with the volume of food waste constantly increasing, the environmental impacts will become more severe, frequent and prolonged. All of these likely meet the test for unreasonableness in public nuisance.

Another approach for legal recourse would be to focus on the public’s right to food and health. Food insecurity is an attack on these rights, which are recognized in international treaties that Canada has signed. Research has tied food insecurity to heightened health risks, cognitive problems, poorer psychosocial and academic development in children, and decreased participation in social life. While a claimant would have to prove that a defendant’s food waste was a cause of others’ food insecurity, the increasing body of research linking food waste and food insecurity would provide critical evidence to support a claim.

There would be a final hurdle for citizens or groups wanting to use the courts to challenge food waste. In public nuisance, only the Attorney General can sue as the guardian of public rights. Ordinary citizens seeking to bring a claim must ask the Attorney General for consent, qualify for statutory exceptions or show that they have suffered “special damage,” which is different from harms suffered by the general public.

While food waste affects society broadly, individuals and groups facing food insecurity endure disproportionate health, social and economic burdens — in other words, “special damage” that is not experienced by the general public.

Even if a claimant satisfies these requirements, who would they sue? To some degree, every one of us contributes to the food waste problem. However, avoidable food waste is most concentrated in the links of the food chain that are closer to the consumer, such as retail and the food service industry.

While households account for a large portion of total food waste, retailers produce it in much larger quantities, often involving food that could still be used or donated. Grocery chains also have greater control over the food supply chain, as well as the tools to reduce waste. Focusing on these high-impact sectors could be a strategic and effective way to address food waste in court.

While still hypothetical at this stage, a public nuisance claim for food waste could have significant impacts. Even if litigation ultimately fails in court, just bringing a claim for food waste can have effects beyond the circumstances of any specific case. Increased community  awareness of the broader issue could influence policy, practice and public perceptions, and motivate law reform by highlighting the failures in our current approach to managing food waste.

At a minimum, publicizing Canada’s food waste problem could embarrass potential defendants into voluntarily adopting more sustainable business practices, and spur governments to seriously examine and act on food waste, for example making food waste reporting mandatory or revising rules on best-before dates.

Increased awareness of food waste, particularly its connection to food insecurity, will also strengthen the prospects for public nuisance lawsuits that lead to better government policy. For example, Canada could implement a donation mandate similar to that of France, where grocery stores are prohibited from throwing away food that is approaching its best-before date, and must instead donate it to food banks or charities.

The potential of public nuisance as a tool for environmental and social change remains largely untapped, and Canadian courts could play a pivotal role in confronting the economic, environmental and social harms of avoidable food waste.