Product Liability Lawyers_.

Manufacturers of consumer products, pharmaceuticals and medical devices have a responsibility to ensure what they offer to the public is safe. As a consumer or patient, you should be able to rely on the assertions made by the manufacturer that a product is free of defects or that the risks of use are only those identified on the product label. Unfortunately, mistakes are sometimes made by manufacturers. When you have been hurt by a defective product, you can take legal action.

What is a defective product?

A defective product is a commercially produced and distributed good that is either unfit for its intended use, dangerous or harmful for normal use, inadequately equipped with instructions as to its use or inherently dangerous due to defective design, assembly, or manufacture. Put simply, a defective product is a product that is not reasonably safe in the course of its regular usage.

Who can be held liable for a defective product?

In Canada, the duty of care has been extended to almost all participants in the supply chain of a defective product, including:

• manufacturers;
• importers, wholesalers, distributors and retailers;
• repairers and installers; and
• inspectors and certifiers.

Typically, the highest standard is applied to manufacturers and then to importers and distributors, with the lowest standard being applied to retailers.

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: The manufacturer, importer, repairer or inspector can be held liable for a defective product on the basis of contract law principles where a contractual relationship exists between them and the consumer. In other words, compensation can be awarded if the express terms of the contract have been breached as a result of the defect in the product.

Negligence: The manufacturer, importer, repairer or inspector can be held liable in tort if their product causes the plaintiff to suffer injuries. In Canada, there are three main types of negligence that serve to establish liability in tort law for injuries caused by defective products:

1. negligent manufacture,
2. negligent design, and
3. negligent failure to warn.

The court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, held that in order to prove negligence, the plaintiff must establish that:

1. the defendant owed a duty of care to the plaintiff,
2. the product was defective or unreasonably dangerous,
3. the defendant’s conduct fell below the applicable standard of care,
4. the defect caused or contributed to the plaintiff’s damages, and
5. the plaintiff’s damages were caused by the defendant’s breach.

If you’ve been injured by a defective product, book a free consultation to learn your legal options.

Does a manufacturer have a duty to warn consumers about the risks of their product?

Yes. Manufacturers must always warn users of the material risks inherent in the use or possible foreseeable misuse of their product. The relationship between a consumer and a manufacturer was described by the Supreme Court as a “relationship of reliance”, in which consumers “have far less knowledge than the manufacturers concerning the dangers inherent in the use of the products” (Hollis v. Dow Corning Corp., [1995] 4 S.C.R. at para. 21).

The extent of the duty of the manufacturer will depend on the risk associated with the use of the product. For example, those manufacturing ingestible products such as medications have a higher barrier to clear when it comes to educating consumers on the dangers inherent to the use of their product. Their duty to warn is a continuing duty that requires them to warn consumers of dangers even after the delivery of the product (Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189 at para 19).

Does my doctor or pharmacist have a responsibility to inform me of the risks inherent to the use of my medications?

Yes. In law, there is what is called the learned intermediary rule. It applies where an intermediate inspection of the product is anticipated by the supplier or the producer, because it is a product of high risk in which a consumer will place reliance on the judgement and education of a learned intermediary and not on the manufacturer for information concerning the use of the product. For example, a pharmacist could be considered a learned intermediary, meaning they must inform you of the risks inherent to the medications you are taking.

The learned intermediary rule is often used as a defence by manufacturers in product liability cases in the medical field. These manufacturers claim that the health care provider directly in touch with the consumer of the product is responsible for clearing the onus of by informing the consumer of the risks of the product.

What is the law on product liability?

Product regulation and liability laws in Canada are diverse. The legislation governing product liability depends on the product in question, as it could fall within either federal or provincial jurisdictions. Automotive, medical device, drug, food and consumer products industries are regulated by the federal government whereas the sale of goods, construction, buildings and consumer transaction agreements are regulated by the provincial government.

The party responsible for a defective product can be held liable by way of contract or tort. In contract, a consumer can sue for damages if the quality, fitness or performance of the product does not comply with the terms of the agreement in which they are bound. In tort, liability is fault-based. This means that a lawsuit for negligence can arise from defects in any product.

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 serves to regulate many consumer products.

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 Sales of Goods acts for each Canadian province:

• Nova Scotia
• New Brunswick
• Newfoundland
• PEI
• Ontario
• Manitoba
• Saskatchewan
• Alberta
• British Columbia

How is fault determined in a product liability case?

In order to determine fault in a product liability case, the plaintiff must establish causation between the defective product and the injuries sustained by the plaintiff (See Johansson v. General Motors of Canada Ltd., 2012 NSCA 120). Canadian courts apply the “but for” test, which requires the plaintiff to show that the loss or injury would not have occurred but for the negligence of the defendant. The court may also apply the material contribution test which requires the plaintiff to prove that the defect in the manufacturing of the product materially contributed to the injuries sustained. The standard of care imposed upon a defendant in Canadian tort law is one of reasonableness.

What defences are available to defendants in product liability cases?

Product liability claims are technically complicated since an in-depth analysis of how a product works and the malfunction of the product is a key component to any successful claim. Aside from claiming that the plaintiff did not successfully establish the elements of the claim, the defendant will try to raise technical defences which will allow them to escape liability altogether, including:

• The plaintiff improperly used the product
• The plaintiff voluntarily assumed risk
• The plaintiff knew of and accepted the risk of injury
• The plaintiff modified the product in an unforeseeable way
• There was an unforeseeable intervening event which caused or contributed to the plaintiff’s injuries; or
• The plaintiff’s right to sue was contractually waived

What happens if the plaintiff used or operated the product carelessly?

If it can be proven that a plaintiff failed to observe warnings of risks, misused the product, or did not read instructions for the use of the product, the plaintiff could be held responsible for contributory negligence and therefore, have their damages award reduced. If a plaintiff that was awarded $100,000 in damages was found to be 50% responsible for his injuries, his damages award would be lowered to $50,000. Below is a list of the contributory negligence acts across Canada:

• Nova Scotia
• New Brunswick
• Newfoundland
• PEI
• Ontario
• Manitoba
• Saskatchewan
• Alberta
• British Columbia

What kind of damages can I receive if I was injured due to a defective product?

The damages awarded in product liability cases vary greatly due to the wide range of cases that present themselves in court. Generally, a plaintiff sues to obtain compensation for his injuries.

In certain circumstances, plaintiffs 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., [1992] 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.

How long do I have to start a claim for product liability?

There is no set time duration for product liability cases. The duration of time from the commencement of the action until the settlement will depend on a variety of factors, namely the degree of complexity of the case, the lawyer’s practice, and the stage of backlog in the court where the action has been brought.

How long does it take to settle a product liability case?

There is no set time duration for product liability cases. The duration of time from the commencement of the action until the settlement will depend on a variety of factors, namely the degree of complexity of the case, the lawyer’s practice, and the stage of backlog in the court where the action has been brought.

MacGillivray Law can help

MacGillivray Law stands up for people throughout Canada who have suffered severe injury as a result of product defects. If you’ve been harmed by a defective product, we can provide the information and guidance to help you determine your next steps. Contact us to set up a free consultation.