September 15, 2019

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Product Liability Claims in Canada

Product liability law in the common law jurisdictions of Canada, that is to say, all jurisdictions apart from Quebec, is fairly uniform. In order to establish product liability in Canada, a claimant must prove contractual liability, tort liability or statutory liability.

Contractual liability

Before contractual liability can be established, it must first be established that a contract exists between the claimant and the defendant. The provisions of the warranty must then be discerned so that breach can be established. Warranty provisions may be express, implied, or even collateral.

Once a contract and its provisions can be determined, proof of defect must be shown. The defect must then be shown to have caused the loss the claimant is trying to obtain compensation for.

Liability may befall all parties who the claimant can show are parties to the contract. In certain circumstances, parties who are not privy to a contract may also be held liable, such as a manufacturer who may not have participated in the contract between the retailer and the purchaser or claimant but who may have made inaccurate representations, such as through advertising, that may have caused the claimant to purchase or use the product.

Tort liability

Product liability claims can also be made on the basis of tort law principles. Just as a contract must be established in order to establish contractual liability, a duty of care in relation to the product must be found to have been owed by the defendant to the claimant for liability in tort to be established.

Once a duty of care is established, it must be shown that the defendant not only breached the duty of care, but also the standard of care appropriate for establishment of liability. The standard of care in Canada is that of the reasonable person in similar circumstances. The standard of care rises significantly in certain situations. For instance, where products are meant to be eaten, drunk or swallowed by the user, or where products are inherently hazardous, an extremely high standard of care is imposed.

Any breach must be tied to a defect in the product, proof of which must be shown. In product liability claims, a claimant usually tries to prove that the product was negligently designed, negligently manufactured or that there was a failure to warn.

Causation must also be established for liability to be found, so it must be proven that the damages suffered were the result of the breach of the defendant or of a relevant defect of the product.

Liability may befall all entities who participated in the creation and manufacture of a product. Liability may fall on manufactures, suppliers, designers and packagers.

Statutory liability

Examples of legislation that creates new categories of statutory liability include the Sale of Goods Act in operation in Ontario, the International Sale of Goods Act which brings into effect the UN Convention on Contracts for the International Sale of Goods, which was ratified by Canada, and the federal Canada Consumer Product Safety Act.