This handbook is a must read for any entity producing or selling goods in Canada. It provides an overview of the legal process and includes specific guidance as to how a manufacturer or distributor may be held liable in contract and in tort.
Regardless of how well a product is designed, manufactured or distributed, the threat of litigation is always present. Manufacturers and distributors often find themselves faced with allegations that a product was defectively designed or manufactured, or that warnings with regard to usage were inadequate, and sometimes a combination of these.
This handbook provides an overview of the legal process, and is a must read for any entity producing or selling goods in Canada. It includes specific guidance as to how a manufacturer or distributor may be held liable in contract and in tort and provides guidance on topics such as manufacturing defects, design defects, failure to warn, general negligence and contractual liability. Applicable legislation, general defences against allegations, product recalls and class actions are also discussed.
Generally, (except for Québec) only one corporate representative may be deposed (examined) and that representative must inform him or herself about the issues relevant to the litigation. Where the deponent does not know the answer, an “undertaking” is given to ask the appropriate person and answer in writing.
Strict Liability in NegligenceThe courts have not imposed strict liability (absent contract) and it is up to the plaintiff to prove all elements of negligence.
The Supreme Court of Canada has imposed an indexed “cap” on non-pecuniary damages for pain and suffering which, in 2012, is approximately $345,000.00. Further, Punitive Damages, while generally available, are rarely awarded. Awards are designed to punish and deter; are modest, and are based on proportionality, not a ratio or formula.
Attorney's FeesCanada, except for Québec, generally follows the “loser pays” rule whereby an unsuccessful litigant may be required to pay a portion of the successful litigant’s attorney’s fees.
In most jurisdictions, except for Québec, parties are not permitted to depose experts. Experts deliver a written report in advance of trial setting out their qualifications, findings, opinions and conclusions. Depending upon the province, they may be cross-examined on their reports.
Jury TrialsWhile jury trials for products liability claims are generally available, except for Québec, such trials usually proceed in Canada with a judge alone.
Class ActionsThe Canadian courts have generally shown a willingness to certify classes asserting personal injury based claims, so long as the general conditions for certification are met.
Regulatory NegligenceGovernment regulators can be sued for negligence in the regulation of a product where it can be shown that a government regulator was negligent in the implementation of a policy in respect of the regulation of a product.
Daubert Challenge“Daubert” challenges are rare and can only be brought at trial as the trial judge is usually not assigned until just prior to the trial.
SpoliationThe Canadian courts have rarely considered the concept of spoliation and, currently, only limited evidentiary sanctions have been imposed.
Management of Multi-Jurisdictional ClaimsThere is no federal civil jurisdiction of significance in Canada, and any class action of significance will proceed in one or more provincial courts. The management of multiple proceedings is subject to the common law approaches to jurisdiction and forum conveniens.