Manufacturers must ensure their products, including drugs and medical devices, are safe for public use. Consumers should trust that products work as advertised and only carry risks clearly listed on the label. However, manufacturers can make errors. If a faulty product harms you, you have the right to seek legal recourse.
Product Liability Explained
Product liability is the legal obligation of manufacturers, distributors, suppliers, and sellers for any injuries or damages caused by the defective or hazardous products they introduce to the market. Rooted in Canadian tort law, this area addresses damages in civil claims when a product defect results in harm.
These laws mandate standards for companies. They must conduct comprehensive product tests, offer clear warnings and instructions, and quickly rectify known defects or product risks.
For a product liability claim to succeed, the injured party typically has to prove:
- The product was defective or excessively risky.
- The defect directly resulted in injury or damage.
- The product was being used as intended or in a reasonably foreseeable manner.
In successful claims, compensation might cover medical bills, lost earnings, pain and suffering, among other losses.
What is a defective product?
A defective product is a commercial item that is unsafe for its intended purpose, harmful during normal use, or lacks proper instructions. Essentially, it’s a product that isn’t safe for regular use.
What is the law on product liability?
Canada’s product regulations and liability laws vary based on the product type, falling either under federal or provincial oversight. The federal government manages industries like automotive, medical devices, drugs, food, and general consumer products. In contrast, provinces oversee areas like sales of goods, construction, and consumer agreements.
If a product is defective, the responsible party can face liability either through contract or tort. Under contract, if a product fails to meet the agreed terms, the consumer can sue for damages. In tort, lawsuits arise from product defects based on negligence.
The case law relating to product liability has remained relatively unchanged for close to 10 years despite the arrival of the Canada Consumer Product Safety Act, S.C. 2010, c. 21, a broad statutory regime that regulates many consumer products.
Who can be held liable for a defective product?
In Canada, almost everyone involved in a product’s supply chain can be held liable for a defective product. This includes:
- Importers, wholesalers, distributors, and retailers;
- Repairers and installers; and
- Inspectors and certifiers.
Manufacturers usually face the strictest standards, followed by importers and distributors, while retailers have the least stringent standards.
Does a manufacturer have a duty to warn consumers about the risks of their product?
Yes, manufacturers are obligated to inform users about the significant risks associated with their products, including any foreseeable misuse. The Supreme Court has emphasized that consumers typically know less about potential dangers than manufacturers, establishing a “relationship of reliance” (Hollis v. Dow Corning Corp.,  4 SCR 634).
The manufacturer’s duty varies depending on the product’s risk level. For instance, makers of consumable products like medications face stricter standards in educating consumers about inherent dangers. Importantly, their responsibility to warn isn’t a one-time obligation. They must continue to alert consumers about risks even after the product is sold, as stated in Rivtow Marine Ltd. v. Washington Iron Works,  SCR 1189.
Does my doctor or pharmacist have a responsibility to inform me of the risks inherent to the use of my medications?
Yes, doctors and pharmacists have a duty to inform you about the risks associated with your medications. This responsibility is rooted in the “learned intermediary rule”. This rule acknowledges that for high-risk products, consumers will rely on the expertise of a professional intermediary—like a pharmacist—rather than the manufacturer for guidance on product use.
This rule is often invoked by medical product manufacturers in liability cases. They argue that the healthcare professional interacting directly with the patient holds the responsibility to inform about product risks. Essentially, they believe the primary duty falls on these professionals to educate the consumer on potential dangers.
An experienced personal injury lawyer will collect the evidence necessary to determine whether you ought to have been warned and whether sufficient warning was given. Ultimately, a lawyer can provide their opinion on whether pursuing legal action is beneficial in your circumstances.
Can I sue if I have been injured by a defective product?
If you’ve been injured by a defective product, you can sue for breach of contract under contract law or negligence under tort law.
Breach of contract:
When you have a contractual relationship with entities like the manufacturer, importer, repairer, or inspector, you can claim compensation if the product’s defect breaches the terms of that contract.
Manufacturers and associated entities can be held accountable under tort law if their product leads to injuries. In Canada, negligence related to defective products usually falls under:
- Negligent manufacturing
- Negligent design
- Negligent failure to warn.
How is fault established in product liability claims?
In product liability cases, determining fault means proving a direct connection between the defective product and the resulting injuries. Here are the essential elements to consider:
- Duty of Care: The defendant (e.g., the manufacturer or distributor) has a legal obligation to ensure the product is safe for consumers.
- Breach of Duty: This entails showing that the defendant didn’t meet the expected safety standards or released a defective product.
- Damages: Clear evidence must be presented indicating the injuries or financial losses stemming from the defective product. Damages might encompass physical injuries, medical bills, loss of income, and other related financial impacts.
- Causation: Causation proves that the defendant’s breach directly led to the injuries or damages experienced. Establishing this direct link is crucial for a successful product liability claim.
Understanding and proving these elements are central to any product liability case, and a personal injury lawyer can help you prove your case.
What happens if you used or operated the product carelessly?
When someone uses or operates a product carelessly, they may be held partially responsible for the resulting harm. This concept is known as “contributory negligence.” If established, compensation may be reduced proportionally to their degree of fault.
For instance, if a plaintiff is awarded $100,000 in damages but is deemed 50% at fault due to careless product use, their compensation could be reduced to $50,000. It’s essential for plaintiffs to be aware of this potential reduction when pursuing a product liability claim.
Below is a list of the contributory negligence acts across Atlantic Canada:
A lawyer can argue to reduce your exposure to a reduction in damages for contributory negligence.
Can a manufacturer be excluded from liability for a defective product?
A manufacturer can limit or exclude liability for a defective product by way of contract under certain circumstances. They cannot however contract out of mandatory, statutory obligations. The following list includes the relevant Sales of Goods acts for each Canadian province:
What defences are available to companies in product liability cases?
Companies facing product liability claims often employ various strategies to counter allegations. These strategies are aimed at either diminishing their level of responsibility or absolving them from any liability. Common defences include:
- Improper Product Use: Arguing the injured party misused the product in a way it wasn’t intended for, leading to the injury.
- Voluntary Assumption of Risk: Suggesting the injured party was aware of the potential risks but chose to use the product anyway.
- Knowledge and Acceptance of Risk: Contending the injured party knew about the product’s dangers and accepted those risks.
- Product Modification: Claiming the injured party altered the product after purchase, leading to malfunction.
- Intervening Events: Asserting an unforeseen external event, not the product defect, was the actual cause of the injuries.
- Contractual Waiver: Indicating the injured party had previously agreed, possibly through a signed waiver or contract, not to sue the company over product-related injuries.
A personal injury lawyer will help prepare for these defences when pursuing a claim, ensuring they can effectively counter them to maximize the potential for a favorable outcome.
What kind of damages can I receive if I was injured due to a defective product?
Damages that you can claim in product liability cases can vary due to the wide range of cases. They sometimes include lost wages for time missed from work, decreased future earning capacity, medical expenses paid out of pocket, future medical care costs, housekeeping expenses, and general pain and suffering (called “general damages”) caused by the defective product. Our General Damages Guide provides a full explanation of each head of damages as well as examples of past general damage awards for various types of injuries. You can also use our Injury Claim Calculator to learn more about the factors a personal injury law firm would use to assess your claim’s value.
In certain circumstances, people sue to recover damages for economic loss resulting from the defective product where no personal injury has occurred. Justice LaForest noted in Canadian National Railway Co. v. Norsk Pacific Steamship Co.,  1 S.C.R. 1021 at 1054 (dissenting) that the categories for economic loss vary from (a) economic loss consequential to claims for property damages or personal injury (b) pure economic loss that is unrelated to any personal injury or property damage, and (c) contractual relational economic loss suffered as a result of damage caused to the property of a third party. An injury lawyer can determine whether you may be eligible for this kind of compensation.
How long do I have to start a claim for product liability?
The time for starting a claim for product liability is generally governed by provincial limitation legislation. In the Atlantic provinces, the typical time limit for filing an action is two years from the date of the incident. There are some exceptions to this rule, however, and a personal injury lawyer can provide guidance on your case. Because of this, we recommend speaking with a lawyer as soon as possible after an incident occurs. The relevant limitation legislation is linked below.
How long does a product liability case take?
The timeline for a product liability case can vary significantly based on several factors, such as:
- Complexity of the case
- Severity of injuries and recovery time
- Willingness to settle and success of negotiations
- Court backlogs
- Quality of legal representation
An experienced personal injury lawyer will work towards getting the best results for you in the shortest possible time period.
Do I need to hire a product liability lawyer?
Navigating a product liability claim can be difficult, especially when facing large corporations and their robust legal defenses. Here’s how a product liability lawyer can be a valuable asset:
- Expertise in Product Liability: These lawyers have specialized knowledge in the nuances of product liability law, ensuring that your case is built on a solid legal foundation.
- Gathering Evidence: A product liability lawyer collaborates with experts to meticulously analyze the product in question, highlighting its defects and establishing its link to your injuries.
- Negotiating with Manufacturers: Taking on big corporations can be daunting. Your lawyer will deal with their legal teams, ensuring that your rights are protected and that you are adequately compensated.
- Supply Chain Scrutiny: Sometimes, the defect might not arise from the manufacturer but somewhere within the distribution chain. Your lawyer will investigate every link in the chain to identify where the fault lies.
- Representation in Court: If negotiations don’t lead to a settlement, your lawyer will represent you in court, arguing your case with clarity and precision to ensure the best possible outcome.
- Protection Against Powerful Entities: Large corporations and insurance providers have vast resources at their disposal. A seasoned product liability lawyer levels the playing field, ensuring that your interests are fiercely protected.
- Class Action Lawsuits: If multiple individuals have been harmed by the same product, your lawyer can guide you through the complexities of a class action lawsuit, pooling resources and evidence for a stronger collective claim.
MacGillivray Law Product Liability Lawyers
At MacGillivray Law, we deliver high-quality legal services to individuals throughout Atlantic Canada who have suffered injuries due to product defects. If you have been harmed by a defective product, we are here to provide information and support as you navigate your options. Contact us to schedule a free consultation.
Have questions for our team?
MacGillivray Law is a personal injury law firm with offices in Nova Scotia, New Brunswick, and Newfoundland and Labrador. We serve clients all across Canada.
If you cannot travel to one of our offices, we will accommodate your circumstances and travel needs. We can provide a consultation by phone, Zoom, or FaceTime, or travel to meet you in your home when required.
If you would like to learn your legal options at no obligation, contact us today to set up a free consultation.