When a product seems useless or causes damage, one consumer may claim that a product is defective while its manufacturer or seller may assert otherwise. The question arises on what constitutes a defective product and what are the rights of both the buyers and sellers in such a case.
What is considered a defective product?
In general, a defective product is an item already made available to the public. It carries with it some kind of problem stemming from:
- its design
- the manufacturing process
- the way it was marketed to the public
These factors make the product dangerous or impractical when used as directed.
A product may also be considered defective when it poses a danger to a person and that person’s property.
Another test is when a product falls short of the appropriate industry standards imposed by law and the government.
Canada’s laws on defective products
Common law and federal legislation that govern defective products made and sold in Canada provide for:
- the industrial standards that all manufacturers, sellers, and marketers must adhere to
- the specific basis for a product to be considered defective
- the remedies that persons who are injured by defective products may pursue
- the penalties for persons or entities that are held liable for such injury
- the steps that manufacturers, sellers, and marketers or advertisers may take to prevent or lessen their liabilities in such cases
Canada Consumer Product Safety Act
The Canada Consumer Product Safety Act (CCPSA) provides for various remedies to the buyer and the manufacturer, importer, advertiser, or the seller in case a product was deemed to be defective.
There are various prohibitions in the CCPSA in relation to a consumer product, otherwise it may be considered defective and be subject to certain measures. These prohibitions (Sections 5 to 11, CCPSA) include the manufacturing, importation, advertising, or selling of:
- prohibited consumer products that are listed under Schedule 2 of the CCPSA;
- consumer products that do not comply with the standards according to their appropriate Regulations;
- consumer products that are considered a “danger to human health or safety” because of their hazards;
- consumer products that are subjects of a recall order or currently being voluntarily recalled by their manufacturer, importer, advertiser, or seller;
- consumer products that are subjects of a corrective measure that is yet to be implemented; or
- consumer products with packaging or labels that are misleading or deceptive regarding the products’ safety, certification, or compliance with safety standards or the Regulations.
Watch this video know to more about the CCPSA:
Provincial Legislations
Certain provinces in Canada have enacted their own laws to protect consumers in cases of defective products. Some of these are:
- Ontario: Consumer Protection Act, 2002 and the Sale of Goods Act
- British Columbia: Sale of Goods Act
- Québec: Consumer Protection Act in addition to its Civil Code provisions on negligence and torts
- Alberta: Sale of Goods Act
Consumers may contact lawyers in their area for more information on these provincial laws. For instance, Ontarians may contact a Lexpert top-ranked product liability litigation lawyer in Ontario.
Who is responsible for products that are defective?
The CCPSA will apply to all entities involved in the distribution chain when a defective product harms the life or property of its buyer. Specifically, the CCPSA will hold liable any of the following:
- manufacturers, including testers;
- importers;
- sellers and retailers; or
- advertisers, including those responsible for packing and labelling
What will you do if you get a defective product?
When a consumer has bought a defective product, or has been injured after using such product, Canadian laws provide remedies for the wronged consumer.
Consumers may:
- contact the manufacturer, advertiser, or seller for a refund, return, or repair
- report to Health Canada, which may order a recall of the defective products
- file a lawsuit for product liability and damages, in addition to the criminal charge that the government may file against the erring producer, advertiser, seller
1. Demand a refund, return, or repair
Depending on the business that sold or produced the product, a consumer may demand that it be repaired, replaced, or refunded by the manufacturer or the seller.
Buyers must be familiar with the refund or exchange policy when dealing with such businesses. Consumers are also encouraged to keep any evidence, such as receipts, for an easier claim for a refund, return, or repair.
2. File a report
An injured consumer, or those who wish to report on a defective product’s safety concerns, may do so by filing a report online with Health Canada.
Buyers whose property was damaged due to defective products, or buyers whose products have confusing or wrong safety instructions or label may also file under the same report.
While consumer reports are optional or will depend upon the consumer, this is different with the businesses engaged in the manufacturing, importing, and selling consumer products. If an “incident” occurs, the CCPSA requires that such businesses submit an industry report to Health Canada (Section 14(2), CCPSA).
Under the CCPSA, an incident is reportable (Section 14(1), CCPSA) when:
- the use of a product resulted or will result in a serious injury, serious adverse effects, or death;
- the product bears an incorrect label, or has no label, that resulted or will result in a serious injury, serious adverse health effects, or death; or
- a recall was ordered by a foreign entity, a provincial government, a public provincial body, an aboriginal government, or an institution of any of these.
Manufacturers, importers, and sellers must report these incidents within 10 days after becoming aware of the incident, unless Health Canada specifies a different timeframe according to its Regulations.
3. File a lawsuit
Injured consumers of defective products may also file a lawsuit against the manufacturers, importers, advertisers, and sellers based on their liability and/or their negligence.
Contracts
Some of the common causes of action when a product turns out to be defective under a contract are:
- breach of contract
- breach of warranties
- specific performance in case the seller refuses to act on an agreed remedy under the contract
Claim for Negligence
Another cause of action against a manufacturer, importer, advertiser, and seller may be for a claim for negligence under the law on torts and damages. Here, the plaintiff (the injured consumer) must prove that:
- the plaintiff safely used the product, or used the product according to its label or instructions
- there is an existing duty of care owed by the defendant to the plaintiff
- the product was defective or hazardous, or its use would bring injury to its user and/or to their property
Know more about defective products and your rights when suing or claiming for damages under Canada’s laws - consult with the best product liability litigation lawyers in Canada as ranked by Lexpert.