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EDITORIAL: Frozen yogurt the crux of deliciously interesting East Coast court case

A judge in Nova Scotia recently had to decide whether frozen yogurt is a perishable food. —
A judge in Nova Scotia recently had to decide whether frozen yogurt is a perishable food. — 123RF Stock Photo

How many angels can dance on the head of a pin?

If you split a drop of water in two, why do you have two drops of water, instead of two half-drops of water?

Is Pinkberry frozen yogurt a perishable food, or not?

These are the questions that bedevil the universe.

Well, maybe not the third question of those three — but it is the kind of question of law that can make for an expensive battle.

There are plenty of complaints about the legal system in Canada — just two of them being how slow it can be and how expensive court action is. A recent Globe and Mail column pointed out that, even if, as a small business person you win in court, you end up losing because it’s so hard to actually enforce the court’s judgment.

But still, court cases march on, even in the Atlantic provinces, and even if they’re about something as inconsequential as frozen yogurt.

The argument boiled down to whether the frozen yogurt was non-perishable. The mall owners insisted it was, and thus could not be sold there.

A decision in a Supreme Court of Nova Scotia case between the Second Cup and the owners of the Halifax Shopping Centre was released Nov. 12 — the case was to settle whether or not the Second Cup was allowed, under its lease, to sell frozen yogurt.

The key part of the lease included this: “Tenant shall use the store only for the sale at retail of specialty coffees, coffee, espresso based beverages, teas, other hot, cold and blended beverages, gourmet coffee products, coffee in bean or bulk form and as ancillary thereto the sale of non-perishable food products, including, but not limited to, desserts, pastries, baked goods, dessert squares, muffins, croissants, danishes, scones, tarts, rolls, cakes, donuts, biscotti, bagels, cookies and premade specialty sandwiches all for on or off premises consumption."

The argument boiled down to whether the frozen yogurt was non-perishable. The mall owners insisted it was, and thus could not be sold there.

In a 4,400-word decision, the judge wrote about the quandary: “‘Non-perishable’ would generally mean … a foodstuff that is not subject to speedy decay. The dictionary does not assist us in assessing how ‘speedy’ a foodstuff must decay to be considered ‘non-perishable.’ ”

That didn’t solve the issue; the judge decided that “non-perishable” was a spectrum and should be looked at in the context of other foods the lease did allow: “For instance, ‘premade specialty sandwiches’ presumably contain various parts that would normally be considered perishable, including meat or fish dairy, and eggs. Therefore, ‘non-perishable’ means ‘food that is at least as non-perishable as these other food items’, which all require some form of preservation, notably refrigeration.”

A judicial order allowing the sale of frozen yogurt ensued.

The moral of the story? Sometimes, the courts are the only solution to a dispute, despite the hassle and expense.

The result just might not be as satisfying as a single serving of frozen yogurt in a waffle cone.

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