CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
2.5 Pre-Action Procedures and Requirements for Product Liability Claims While there are no formal pre-action requirements to bring a product liability claim, plaintiffs may notify manufacturers, distributors, retailers, and other rel - evant entities of a potential claim prior to commence - ment if required to do so by contractual terms, or to preserve rights or attempt early resolution. In Quebec, the Civil Code provides that plaintiffs must notify the seller in writing of the defect within a reason - able period of time after discovering it. This require - ment does not apply to the claims brought under the Consumer Protection Act. 2.6 Rules for Preservation of Evidence in Product Liability Claims The obligation to preserve evidence begins as soon as litigation is reasonably anticipated. This duty applies to all parties in the chain of possession, including manufacturers, distributors, retailers, and consumers. Courts expect parties to take reasonable steps to ensure that relevant evidence is not altered, destroyed, or otherwise rendered unavailable. In product liability claims, this may include the product itself, as well as its packaging, instructions, related components, and any relevant documentation such as design records, manufacturing logs, purchase records, maintenance logs, or correspondence regarding the product’s per - formance. Where the product is perishable or must be evaluated in a manner that could destroy it (destruc - tive testing), parties are typically required to provide advance notice to other stakeholders and, where pos - sible, permit joint examination or participation in the testing process. There is no tort of spoliation for the intentional or neg - ligent destruction or alteration of relevant evidence in Canada. Nonetheless, spoliation of evidence can impact the evidentiary phase of an action. Where spo - liation is found, courts may make adverse inferences, impose cost awards, or (in rare circumstances) dis - miss a claim or defence, depending on the severity and impact of the evidentiary loss.
proceeding would be an appropriate means to seek a remedy. Limitation periods may be suspended or “tolled” if the claimant is a minor, lacks legal capacity, or if the defendant wilfully concealed the defect or the injury. A proposed class action may also toll limitation periods in some provinces. In such cases, the limitation period may not run until the incapacity or concealment ends, or the class action is dismissed. 2.4 Jurisdictional Requirements for Product Liability Claims Canadian courts are divided into federal and provin - cial courts, with provincial superior courts possessing broad jurisdiction over civil matters, including product liability claims. In contrast, the Federal Court of Cana - da has limited jurisdiction, typically only hearing mat - ters explicitly assigned to it by statute, (eg, administra - tive law, Aboriginal law, competition law, maritime and admiralty law, intellectual property, national security, and immigration law). As a result, most product liabil - ity claims are brought in provincial superior courts, unless the case involves a specific federal statute or party such as the federal government. For each named defendant (including foreign corpo - rations, even if they are related to a Canadian corpo - ration), a plaintiff must ground jurisdiction in a “real and substantial connection” between the forum and either the defendant or the subject matter of the liti - gation. The Supreme Court of Canada has provided a non-exhaustive list of presumptive connecting fac - tors, such as whether the defendant is domiciled or resident in the province or carries on business there; whether the tort was committed in the province; or whether a contract related to the dispute was made there. Jurisdiction for a parent, subsidiary or affiliated company will not be established on that basis alone: the plaintiff must show each corporate defendant has a real and substantial connection to the dispute and forum at issue. The Civil Code specifically lists connecting factors granting Quebec jurisdiction over product liability claims, including, in addition to the above factors established by the Supreme Court of Canada, whether an injury was suffered in Quebec.
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