CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
computers, mobile phones, and air conditioners – are expected to function properly. Negligence Product liability claims against manufacturers are often framed in negligence, as no privity of contract is required. To establish negligence, a plaintiff must prove: (i) the manufacturer owed them a duty of care; (ii) the duty was breached; and (iii) the breach caused damages. Canadian courts generally accept that manufacturers owe a duty of care to users of their products. Product liability claims in Canada have the following four established categories. • Failure to warn: manufacturers have a duty to pro - vide warnings about inherent risks that the manu - facturer knows or ought to know about that are associated with the normal or foreseeable use of their goods. This duty extends not only to the time of sale but also to any new post-sale risks that are discovered. Warnings must be clear, specific, and sufficiently prominent. • Negligent design: manufacturers have a duty to make a product reasonably safe for its intended use. Liability may arise when a plaintiff demon - strates that the foreseeable risks of the product’s design outweigh its utility, and that no safer and more economically feasible ways to manufacture the product exist. • Negligent manufacture: manufacturers have a duty of care to consumers to ensure that there are no defects in manufacturing that are likely to give rise to injury in the ordinary course of use. Unlike failure-to-warn or negligent design claims, manufacturing negligence claims typically relate to isolated lapses during production ‒ for example, the use of incorrect materials, improper assem - bly, contamination, or other mistakes that deviate from the original product specifications or design. Manufacturing negligence claims do not require proof that the entire line of products is danger - ous; it is sufficient to show that the particular item involved in the incident was deficient due to a flaw in its manufacture. • Repairing a dangerous product: manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product, but only
if the product presents a real and substantial dan - ger of physical injury or damage to property. In Quebec, the Civil Code creates an extracontractual right against all parties in the distribution chain (eg, manufacturers, distributors, retailers, etc) when third parties are injured as a result of a good with a safety defect. The Civil Code provides that a safety defect exists when “it does not afford the safety which a per - son is normally entitled to expect”. This includes when a product is affected by a manufacturing design or where it lacks adequate warnings about the risks and dangers it may pose. Once a safety defect is proved, the law presumes that all parties in the distribution chain were aware of it. However, this presumption can be rebutted by showing that the injured party (i) knew or could have known about the defect, (ii) could have foreseen the harm, or (iii) that, based on the state of knowledge at the time the product was made, distrib - uted, or sold, the defect could not reasonably have been known. False or Misleading Representations Negligent or fraudulent misrepresentation may overlap with product liability claims in contract or negligence in cases where a manufacturer, distributor or retailer makes exaggerated or false claims about a product’s safety, performance or features. Additionally, the federal Competition Act prohibits false or misleading representations made to the pub - lic about a product’s safety, performance or charac - teristics that are not substantiated or are intention - ally deceptive. If a company knowingly or negligently misleads consumers regarding a product’s safety and this misrepresentation leads to consumer harm, the Competition Act provides a statutory cause of action for recovering damages caused by the false represen - tation. Many provincial consumer protection statutes contain similar provisions providing for statutory caus - es of action for damages arising from false, misleading or deceptive representations. The Competition Bureau has also recently published finalised guidelines on the anti-greenwashing provisions of the Competition Act, confirming that the Bureau is focused on marketing and other promotional representations.
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