CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
Penalties are intended to be proportionate to the risk posed by the product and the conduct of the party responsible. Civil remedies under the FDA are similar to those under the CCPSA. Criminal Penalties Under the CCPSA Criminal penalties similarly depend on the legislative regime at hand. Most breaches under the CCPSA are handled with civil penalties, resulting in monetary pen - alties or remedial orders. However, the CCPSA out - lines a range of criminal offences, including: • knowingly manufacturing, importing, advertising, or selling a product that poses an unreasonable danger to human health or safety; • failing to report incidents or provide required docu - ments; and • obstructing or hindering an inspector or making false or misleading statements to authorities. Section 41 of the CCPSA establishes specific penal - ties for such offences. • On summary conviction: fines up to CAD5,000 and/or imprisonment for up to six months for a first offence. • On indictment: fines up to CAD5 million and/or imprisonment for up to two years for a first offence. • For subsequent offences, the fines and/or impris - onment terms can increase. The FDA makes it an offence to sell unsafe or adulter - ated food, drugs, or cosmetics. Penalties for breaches can include the following. • On summary conviction: fines up to CAD5,000 and/or imprisonment for up to six months. • On indictment: fines up to CAD250,000 and/or imprisonment for up to three years. Provincial Penalties While the federal government provides the main oversight for consumer product safety, provinces can impose additional requirements for products regulated in their legislative portfolios. Provincial authorities may have their own inspection and enforcement regimes
and can issue their own penalties for breaches under provincial law.
2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law In Canada, product liability claims typically arise as breaches of contract or negligence. In common law provinces, sources of law include provincial sale of goods and consumer protection statutes, federal stat - utes like the Competition Act or the Food and Drugs Act, and common law. In Quebec, a French-speaking civil law province, product claims are governed by the Civil Code of Québec and the Consumer Protection Act. Breach of Contract A manufacturer may be held liable for breach of war - ranty or conditions in a sales contract, including statu - torily implied conditions. Unlike in a negligence claim, a plaintiff is not required to demonstrate that the prod - uct was defective or that the defendant breached a duty to exercise reasonable care, but typically a con - sumer contract or transaction is required to ground these types of claims. • Breach of warranty: a warranty is a legally bind - ing assurance provided by the seller to the buyer regarding the quality, condition, or functionality of the goods or services sold. In common law provinces, if an existing warranty is not fulfilled, a consumer may bring a breach of warranty claim seeking the payment of damages. • Breach of condition: a condition is a fundamen - tal term that must be fulfilled for the contract to become binding or for the parties’ obligations to take effect. If a condition is not satisfied or waived by the relevant party within the stipulated time - frame, the contract may be rendered void or unen - forceable, and the parties may be released from their obligations without penalty.
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