Product Liability

When you purchase a product, what do you think about? Most people think about why they need or want the product, how they will use it, and if its value is worth the cost. Few people think about whether the product could harm them or their loved ones.

Many consumers feel confident in making purchases because of Canada's product standards. However, there are always risks:

• Quality control can fail to identify defective items.
• Small changes to product design or composition can cause unexpected consequences.
• Manufacturers may have failed to warn consumers about a product’s dangers.

If a product or its use injures you or a loved one, you may be able to file a liability claim for compensation and damages. Product liability claims can be very complex and challenging to litigate. With years of experience in product liability settlements and claims, Gluckstein Personal Injury Lawyers can make the difference for you.

If you believe a defective product has caused you or a loved one serious harm, contact our law firm today for a free, no obligation consultation.

Product liability and the law.

What is considered product liability?

A manufacturer may be liable for injuries as a result of manufacturing or design defects of their products, failing to warn consumers of their product’s potential hazards, and general negligence. Some examples of product liability cases we pursue include:   

Dangerous or toxic foods:

• Food or containers made toxic by chemicals or improper sanitary methods or conditions; food tainted with harmful bacteria such as salmonella, listeria or E. coli.

Unsafe toys and children’s products:

• Choking hazards; toxic materials; cuts, burns, electrocutions, traumatic brain injuries, sudden infant death syndrome (SIDs) or other injuries from faulty design or defects. 

Defective autos, airbags and car parts:

• Defective seat belts, steering components, braking systems, tires, locks and door latches, fuel pumps, lights, and computerized safety features.

Defective safety equipment:

• Protective personal equipment (such as face and dust masks, respirators, goggles, gloves, helmets and hearing protection; protective environmental equipment such as ventilation systems.

Pharmaceuticals and medical equipment:

• Medications and medical tools or equipment found to cause injury or result in serious side-effects without adequate warning.

Toxic or unsafe house-building materials:

• Asbestos, mercury, lead, arsenic, volatile organic compounds (VOCs), paraffins, ethers, flame retardants.

Defective machinery and tools:

• Household appliances, power tools, lawn mowers, pools and hot tubs, fireworks, construction equipment.

Defective recreational vehicles:

• ATVs, snowmobiles, jet skis, dirt bikes, mobile homes.

What are your legal options?

There are three sources within the law that are applicable in product liability cases: contract law, statutory provisions, and tort law. 

Under contract law, a manufacturer can be held liable for:

• A breach of a condition (a fundamental obligation which is crucial to the contract).
• Warranty (a statement of fact about the product whether expressed, implied or statutory). 

Manufacturers usually do not sell products directly to consumers. As a result, contract law is not usually relevant in cases brought by consumers. However, courts have found that some promises or representations made by manufacturers about their products are actually implied warranties.

If the court determines that the manufacturer intended to create liability (for example, by producing detailed information directed towards consumers), then contract law may be applicable.

The second source of law used in these cases is statutory.

There are three statutes that usually apply to product liability cases. Other statutes may apply to specific types of products (for example, recall obligations under Canada’s Motor Vehicle Safety Act).

The Sale of Goods Act provides that in most sale agreements and/or contracts, it is a condition of sale that the goods are fit for a specific purpose and of merchantable quality. There are two components to satisfy the “specific purpose” test:

First, the buyer implicitly or explicitly lets the seller know how the products will be used and therefore relies on the seller’s judgement or skill.

Second, the seller must usually have these products in their store.

Merchantable quality means that the goods are of a quality that would make them saleable to the average buyer and that they would meet the reasonable expectations of a typical buyer. 

Although a contractual relationship is required to use the Sale of Goods Act and an end user rarely has such a contract directly with the manufacturer, each contract within the distribution process (the supply chain) can be subject to this Act.

In Ontario, the Consumer Protection Act ensures none of the implied conditions and warranties within the Sale of Goods Act are variable or able to be excluded if the contract includes a consumer sale. 

Finally, Ontario’s International Sale of Goods Act adopts all articles in the United Nations’ Convention on Contracts for the International Sale of Goods. This agreement between member nations is designed to “provide a modern, uniform and fair regime for contracts for the international sale of goods.”

The third source of law to remedy product liability is tort law.

The tort may be to cause intentional harm, but is most often the result of negligence. To successfully pursue a tort claim of negligence, a plaintiff must demonstrate that: 

• (S)he was owed a duty of care by the defendant.
• The defendant breached the required standard of care.
• (S)he suffered damages/losses.
• The damages/losses suffered were caused by the defendant’s breach of the standard of care both in fact and law.
• Most product liability cases rely primarily on tort law principles.
• Negligence in tort cases.
• Failure to warn.

Manufacturers and distributors have a responsibility to inform consumers of any inherent dangers when using their product or foreseeable dangers if their product is misused.

An inherent danger may be known to a manufacturer, but the law does not permit a defense of an unknown danger if it ought to have been known.

If a danger is obvious, there is no duty to warn, but the danger must be obvious to the expected user of the product. A warning could consist of printed information or instructions on proper installation and use, or labelling on the package and/or the product itself. 

Design defects. 

The manufacturer of a product with a design defect may be liable for injuries caused by the defective product. In reviewing the facts of the case, a court will consider: 

• Whether the manufacturer knew of the potential defect and whether there was a reasonable alternative to the design based on its cost, availability and function.
• Whether the usefulness of the defective product to its user or the public justified the design and outweighed an alternative design.
• The likelihood the product would cause serious harm and the severity of harm it could cause.
• The likelihood the alternative design would cause serious harm and the severity of harm it could cause.

Even if a product conforms to industry standards and/or federal regulations, if it is unsafe it may be deemed to have a design defect.

Manufacturing defects.

During the production process, unintended errors can result in a product that does not conform to its design specifications.

If quality control processes do not identify the problem and the defective product is made and distributed, the manufacturer could be liable for injuries that result from its use. In these cases, a plaintiff must demonstrate the manufacturer failed to take reasonable care during production, and that the plaintiff’s injury was caused by the product’s defective state.

The most common manufacturing defects are when a product contains something it should not or when it is missing an important component.

How can Gluckstein Personal Injury Lawyers help?

If you or a loved one sustained a serious injury due to a defective or dangerous product, the losses you experience can dramatically change your life. When a manufacturer’s negligence or breach of contract or statutory law causes harm, they may be liable to compensate for the damage caused.

Gluckstein’s product liability lawyers in Toronto, Ottawa, Niagara, and Barrie serve clients across Ontario and are here to work with you, so make the call today for a free consultation.

Product liability lawsuits often have consumer protection value in spurring manufacturers to make changes to their products or production practices that will help to protect other people from experiencing the trauma that you or your loved ones have. 

With our commitment to full-circle client care, you can be confident that we will be there to support you both during and after the life of your personal injury case. When your lawyer sees you as a person who is deserving of respect, compassion and empathy, he or she will be a fierce advocate for you.