CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
ard of care and that this breach caused loss or injury. For example, in a claim for negligent manufacture, a plaintiff must prove that the product in question was defective, that the defect rendered the product unrea - sonably dangerous, and that this defect caused the plaintiff’s loss or injury. In contrast, Quebec law typically operates under a regime of presumed liability once certain demonstra - tions are made by plaintiffs, as noted in 2.1. Product Liability Causes of Action and Sources of Law , plac - ing a particular onus on manufacturers to ensure the safety of their products. A plaintiff in a Quebec prod - uct liability case is required to establish injury, defect, and causation. Unlike in common law provinces, the plaintiff is not required to prove fault or negligence on the part of the manufacturer. Instead, the law pre - sumes that a manufacturer is liable when a defect can be demonstrated, shifting the evidentiary burden to the defendant. 2.10 Courts in Which Product Liability Claims Are Brought Product liability claims are typically brought before the provincial or territorial superior courts given their over - all jurisdiction for civil matters. These courts ‒ such as the Ontario Superior Court of Justice, the Supreme Court of British Columbia, and the Superior Court of Québec (or the Court of Québec, depending on the value of the claims) ‒ have the authority to hear civil cases involving substantial sums and complex issues, including those related to allegedly defective or dangerous products. For claims involving smaller amounts, provincial small claims courts may also have jurisdiction, subject to monetary limits that vary by province. 2.11 Appeal Mechanisms for Product Liability Claims After a trial court renders a decision in a product liabil - ity case, parties dissatisfied with the outcome have the right to seek review by an appellate court. The appeal process does not constitute a re-hearing of the case or allow new evidence; rather, appellate courts focus on errors of law, palpable and overriding errors of fact, and significant procedural issues. This review may include examining whether the trial judge prop - erly interpreted relevant statutes, applied the correct
legal principles, or made findings of fact that were unreasonable or not supported by evidence. There are two levels of appeal in Canada. First, appeals from provincial or superior courts proceed to the respective provincial or territorial Court of Appeal. Second, and in rare circumstances, leave to appeal a decision from a provincial appellate court may be granted to the Supreme Court of Canada if the appeal raises matters of public importance. In Quebec, a judgment authorising a class action may be appealed by the defendants only with leave of the Court of Appeal, whereas a judgment refusing authori - sation may be appealed as of right by the plaintiffs. A decision on the merits is appealable as of right by all parties. 2.12 Defences to Product Liability Claims Defences to product liability claims include assump - tion of risk, compliance with requisite standards (dis - cussed in 2.13 The Impact of Regulatory Compliance on Product Liability Claims ), contributory negligence, intervening causes, misuse of the product, and the “learned intermediary” doctrine. Assumption of Risk If an individual knowingly and willingly exposes them - selves to a known risk associated with the use of a product, the manufacturer or seller may be absolved, wholly or partially, from liability for any resulting injury or loss. The risk must be known and appreciated by the plaintiff; mere exposure to danger is not sufficient, and the assumption of that risk must be voluntary. In the context of product liability, this means that if a plaintiff is fully aware of the dangers inherent in a prod - uct and proceeds to use it regardless, the defendant can argue that the plaintiff effectively consented to those risks, thereby limiting or negating the defend - ant’s responsibility. Contributory Negligence The defence of contributory negligence arises when a defendant alleges that the plaintiff’s own actions or omissions contributed to the harm suffered. If suc - cessful, this defence does not absolve the manufac - turer or distributor of all liability but rather serves to proportionately reduce the damages recoverable by
60 CHAMBERS.COM
Powered by FlippingBook