Understanding Product Liability in Canada

Canadians use a wide variety of products everyday ranging from construction materials, electronics, and furniture, to food items, toys and pharmaceuticals.   We assume that these products will be safe to use and that we are protected by Canadian safety standards and legislation.  For the most part,  safety standards for products sold in Canada exceed those in much of the world, but sometimes unsafe products slip through the cracks or it is not determined that they are unsafe until they been marketed and used for some time.

There are many examples of infamous products that have caused serious injuries to Canadians.  Where many people were injured by a proven dangerous product, class action law suits have increasingly been brought to get compensation for the victims. However, there are many instances where there is just cause for an individual victim to seek compensation because a defective product caused injuries to them or a loved one.

One of the most egregious unsafe products, in terms of the number of fatalities and severity of injuries resulting from its use, is asbestos fiber.  Asbestos was for many years the material of choice for a variety of uses, including insulation, roofing, floor tiles, ceiling materials, textiles and automotive parts.   It was initially desired because of its strength and heat resistance, but declined in use when it was proven to be a highly hazardous product, causing mesothelioma (cancer of the lungs and lower digestive tract) and death for many people who came into contact with the fibers.  Another product that was widely used and is now well-established in terms of health risks is smoking, which we know to be a cause of cancer, heart disease and respiratory diseases.

Recently, it was discovered that a faulty ignition switch in many General Motors cars was a factor in many collisions, severe injuries and deaths.  It has been reported that GM knew of the defective switch for many years, but did not recall the potentially dangerous makes of cars for the years 2003-2007, until 2014. Some of the serious injuries that were reported to have resulted from this unsafe product include quadriplegia, paraplegia, permanent brain damage, double amputation, severe burns and death.

Laws to protect Canadians from unsafe products

The Canadian Consumer Product Safety Act (CCPSA) is administered by Health Canada and came into force in 2011.  The goal of the Act is to use modern techniques and tools to provide better protection for Canadians and bring standards in line with Canada’s key trading partners.  The Act requires companies and industry to report product safety incidents and defects to the product supplier and Health Canada.  Any business or industry that manufactures, imports, sells or tests consumer products must prepare and maintain documents, including such information as the supplier’s name and the period in which the product was sold.   Health Canada may require manufactures to provide safety information on products. There are certain products that are prohibited to be sold or manufactured in Canada.  Finally, the packaging, labelling and advertisement of products cannot be misleading or false, in terms of safety. 

Health Canada also provides a list of recent product recalls on its website.

Steps to take if a product was unsafe

Health Canada offers an online Consumer Product Incident Report Form for reporting any product that was unsafe and resulted in a serious injury to you or your family.  Some products are regulated by other government branches or departments, and should be reported to the appropriate division as identified on the online site.  Food products that result in injury are governed by the Canadian Food Inspection Agency.  The safety of pharmaceutical products, medical devices, natural health products and pesticides is also administered under different federal agencies.

When you report an unsafe product to the appropriate agency, you may be asked to provide the following information.  This is also pertinent information if you choose to make a claim for compensation for damages arising from your injuries.

• How many people were hurt by the product and what are their injuries?
• What medical treatment was sought for the injuries?
• Did you report the unsafe product to the company, and if so, what was their response?
• When did the incident happen?
• What were the circumstances surrounding the event?  What were the victims doing when it happened?
• What is the product brand name and manufacturer name?
• Where was the product purchased?
• Product information and instructions for use, including such details as where it was manufactured, date of purchase, age recommended for use, and product descriptors (serial number, model number, date of manufacture).

After you have reported an unsafe product, you should expect to be contacted for more information and should be ensured that the appropriate agency is following through on your concerns.  If you or a loved one was seriously injured by an unsafe product you are also entitled to make a claim for your injuries and losses that resulted from the unsafe product.

Getting compensation for injuries resulting from unsafe product

You can make a product liability claim in the form of a negligence suit against the manufacturer and/or seller of the unsafe product.   A personal injury lawyer can advise you on your rights and the kind of information and evidence that will be needed to support your claim.  You will need to establish negligence, which includes proving that the manufacturer/seller owes you (the consumer) a duty of care which was breached when injuries resulted in the use of this product.  The standard for safety of consumer products is that the manufacturer/seller must have used “reasonable care in the circumstances”.  The courts generally put the greatest onus on product safety on the manufacturer as they have the most knowledge of the product and the potential risks involved with its use.

If you were injured by the use of a product, you can make a claim for compensation for pecuniary losses (the financial costs of getting the victim back to the state they were in before the injury occurred) and non-pecuniary losses (loss of enjoyment in life).    The injured person is generally entitled to seek the following compensation.

• Costs of medical or rehabilitation treatments
• Loss of earning capacity
• Pain and suffering compensation
• Punitive damages  (These are not commonly awarded in product liability cases, but possible in cases of reckless or malicious negligence.)
• Economic loss (Pure economic costs, where there was no personal injury are less often awarded in tort claims.)

There are a number of ways in which negligence may have been involved in the manufacture or sale of a product.

• Design defects

Manufacturers can be held liable for injuries or damage that should have been foreseeable in the design of a product.   A successful negligent design claim must provide evidence that the defect created a significant risk of harm.  For some products, it must also be proven that an alternative safer design exists and could reasonably been adopted by the manufacturer.

• Manufacturing defects

Manufacturers are liable for injuries or damage that were caused by an unintentional product defect, but should have been foreseeable.  The onus is on the manufacturer to disprove that they were responsible for the product defect.  Manufacturers may also be found negligent if they failed to properly inspect for product safety.

• Failure to warn

Manufacturers are required, under Canadian Law, to warn consumers of any dangers in the use of their product of which the manufacture should have had knowledge.  If there are any risks associated with the product’s use of which the typical consumer would likely not be aware, the manufacturer must provide a warning for the product, even if it’s generally considered safe.

• Distributors/sellers failure to test or inspect

A distributor may be held liable if they did not take reasonable care in purchasing, inspecting or testing a product that they are selling.  A determination of negligence may involve a defect that the seller could have discovered with reasonable diligence.  When distributors make claims about products without properly inspecting or testing them, they may be held responsible if injuries result.  Distributors may also be liable for a failure to warn of possible dangers in the use of a product, particularly if it was known that a product would be used in a manner that it’s not suited for.

If you or a loved one was injured through the use of an unsafe product, contact Injury Lawyers of Ontario.  We are experienced product liability attorneys and can provide strong legal representation against the manufacturer and/or distributor responsible for your injuries.  Your ILO attorney will ensure that all your questions and concerns are answered in a no-obligation consultation, so that you have all the necessary facts in determining whether you want to proceed with making a claim.