Product Liability Law & Litigation

Product Liability

Who Can I Sue?

In product liability cases, products generally pass through various hands from the manufacturer to the distributor to the retail store and often times many more. We can help distinguish which parties are liable for the defect and harm caused to ensure maximum recovery.

What Exactly Is A Product Liability Claim?

Product liability claims arise when a company has cut corners or otherwise failed to provide a safe product, which at some point in time causes harm to an individual.

Product liability claims can include, among other things, unsafe packaging, dangerous appliances, children’s toys, or a hazardous power tool. The hazards in the product can be the result of a range of issues such as faulty design or manufacturing defects.

Product liability laws in Canada have been around for a long time and are well developed. The government has passed significant legislation both federally and provincially. In common law provinces such as Ontario, the law relating to product liability is mainly governed by case law. Case law relating to product liability has been very consistent over the years, and the Supreme Court of Canada has settled much of the law. In that sense, most of the law in this area is well settled.

Product liability in Canadian common law can arise from defects in any type of personal property that is tangible. Generally, the main issue in these types of claims is whether the product is defective. A defect is commonly defined as a defective condition unreasonably dangerous to the user or consumer or to his or her property. Unfortunately, dangerous products are very common in the industrial world we live in and it is important that consumer protection be a priority. Often times when a product is defective and distributed on a large scale, a class action may be commenced involving several plaintiffs.

For a product to be defective, there must be a determination made that the product falls short of the standard of care. If the plaintiff's injury is serious enough, it may be worth commencing a products liability case. The onus is on the plaintiff to prove that the product was designed, manufactured or labelled below reasonable standards. The products are judged against other products in the market place that are similar.

In 2011, Canada adopted the Canada Consumer Product Safety Act, which created legislation that regulated many consumer products.

Standard of Proof for Causation

The standard of proof in determining causation in negligence claims involving product liability is what the courts refer to as the "but for" test. A plaintiff must establish beyond a balance of probabilities, that "but for" the defendant's breach of its duty of care, the Plaintiff would not have suffered harm.

In Canadian courts, the burden of proof is "beyond the balance of probabilities" when it comes to product liability cases. The courts require that the plaintiff demonstrate that the product is defective, and has also caused or contributed to the plaintiff's injury such as by design defect or breach of contract, beyond the balance of probabilities.

Pharmaceuticals and Product Liability

Product liability claims involving medical devices and pharmaceutical drugs are popular in Canada. This could entail a breach of warranty where a warrantor fails to provide the assurance warranted. Product defects unfortunately are very common in the pharmaceutical and medical industry. The types of products that could fall under this category could consist of pharmaceutical drugs that are mislabeled or dangerous.

If the negligence is brazen and there is no concern for the consumer's health, the plaintiff may be able to seek punitive damages in court. Canadian law is unlike the United States in that punitive damages are rarer in Canada. However, if the defendant's conduct is so bad, the courts may award punitive damages. Often times the defendant's negligence does not meet this threshold.

Defences to Product Liability Claims

In personal injury claims in Canada involving product liability, there are a number of defences available to manufactures. Compliance with the requirements under regulatory laws does not bar liability. In other words, the manufacturer could still be liable even if the regulatory standards are met. However, if they did meet the regulatory requirements it is relevant in considering whether the standard of care was breached by the defendant.

The insurance company defending the product liability claim will likely retain an expert to testify that the product was not designed poorly. The common issues in these trials often include what is industry standard and whether or not the plaintiff can prove that the harm was caused by the negligence. If the plaintiff was part of the reason the harm was caused, there may be some contributory negligence and the recovery of compensation may be less. The product liability negligence can occur during the manufacturing process, but also throughout the distribution chain if, for instance, the packaging is not safe.

The Advantage Of Legal Expertise

Product liability lawsuits are complex, and often involve retaining multiple experts. Additionally, many manufacturers vigorously defend these cases to prevent further actions or class actions. Manufacturers also want to avoid "recalling" products as this can be extremely costly especially in products involving motor vehicles. Product liability cases often involve finding proof of a defect or other fault in a product which can be a difficult and very technical process. It is imperative that reasonable care is taken by all those involved in the manufacturing, distribution, and sale of goods. Products that do not meet the merchantability standard must not be sold to consumers.

It is important to contact a personal injury lawyer at the early stages, in any case, to avoid missing any limitation periods. If you have the suspicion that you have been injured as a result of a faulty or defective product, contact our office to review your product liability case.

Contact Bernstein Law Group

Call us at 905-546-1990 or email us if you have suffered an injury due to a failed product in or around Hamilton.


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