When the product you bought seems useless or is harmful, you may have a claim for a defective product. To resolve the issue, the question now is what constitutes a defective product and what are your legal remedies as a buyer.
In this article, we'll discuss the answers to these questions, and more. In any case, you can always consult a product liability lawyer, who can help you pursue your claim for a defective product. If your case has caused an injury or death, to you or a loved one, hiring a lawyer should be step 1 ...after finishing this article!
What is a defective product?
Defective products are those are publicly available goods that are causing problems for consumer, due to issues such as:
Recent Articles
- its design
- the manufacturing process
- the way it was marketed to the public
These factors make the product dangerous or impractical, even when used as directed.
Test to know if the product is defective
A product must be defective as defined by Canadian laws so that your claim or any remedy you're taking will prosper. As such, a product is considered defective when:
- it poses a danger to you and/or your property; or
- it falls short of the appropriate industry standards, imposed by law or regulators
Watch this video to know what to do next if you're injured by a defective product:
Learn more about the things that you should do if the product you bought is defective by consulting with the best product liability lawyers in Canada as ranked by Lexpert.
What are the laws in Canada that govern defective products?
There are several federal statutes, including common law, which govern defective products that are made and/or sold in Canada. These laws provide for the:
- industrial standards that all businesses must adhere to
- specific basis for a product to be considered defective
- remedies that buyers can pursue if they are injured by a defective product
- the penalties for those who can be held liable for their defective products
- the steps that businesses can do to prevent or lessen their liabilities
Below are some of the laws that you can refer to if you want to file a claim for defective products. For more information on these laws, you can also talk to a product liability lawyer.
Canada Consumer Product Safety Act (CCPSA)
Aside from being the federal law that covers defective products, the CCPSA is also the law which imposes certain obligations to the businesses with regards to these products. Learn more about the CCPSA and other related laws with this video from Health Canada:
Check out Lexpert's Special Edition on Litigation Law, which includes a directory of the best lawyers that you can ask for help regarding your product liability claim.
Prohibitions under the CCPSA
There are various prohibitions in the CCPSA in relation to consumer products. When these prohibitions are violated, the product will be considered defective and will be subject to certain measures.
These prohibitions in the CCPSA include the manufacturing, importation, advertising, or selling of the following consumer products:
- prohibited products: as listed under Schedule 2 of the CCPSA (e.g., spectacle frames made of cellulose nitrate)
- substandard products: did not comply with the standards under their appropriate Regulations (e.g., ice hockey helmets must follow its own Regulations)
- dangerous products: those that are considered a "danger to human health or safety" because of their hazards, as defined by the CCPSA
- recalled products: those that are subject of a recall order, or are currently being voluntarily recalled by their manufacturer, importer, advertiser, or seller
- non-compliant products: if it is the subject of a corrective measure by Health Canada, but was not yet implemented by the business concerned
- misleading products: if its packaging or label is deceptive, as regards to its safety, certification, or compliance with safety standards or the appropriate Regulations
If you believe that the product you bought is any of these prohibited items, you can contact a product liability lawyer to know exactly what to do next and win your case.
Provincial laws on defective products
Certain provinces have enacted their own laws to protect consumers in cases of defective products:
- Alberta: Sale of Goods Act
- British Columbia: Sale of Goods Act
- Ontario: Consumer Protection Act, 2002, and the Sale of Goods Act
- Québec: Consumer Protection Act, plus its Civil Code provisions on negligence and damages
You can contact a lawyer in your area for more information on these provincial laws. If you're in Ontario, you can contact a Lexpert-ranked product liability litigation lawyer in Ontario.
Who can be held liable for defective products?
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 law will hold liable any of the following:
- manufacturers or producers (including testers)
- sellers, distributors, or retailers
- marketers or advertisers
- those responsible for the packaging and labelling
- importers and exporters
Knowing who among them you should sue is best left to product liability lawyers, since several factors must be considered. For instance, your lawyer would look at the injury you suffered, which part of product is involved (e.g., its design, its packaging, etc.), and what you want to happen with your case.
What should you do if the product you bought is defective?
When you purchased a defective product, or have been injured after using the product, you may:
- Contact the business concerned for a refund, return, or repair
- Report to Health Canada, which may order a corrective measure
- File a lawsuit for product liability and damages or a criminal case
We'll discuss these legal remedies below:
1. Refund, return, or repair
Depending on the business that sold or manufactured the product, you may demand that it be repaired, replaced, or refunded by the business involved.
As a buyer, you must be familiar with that business's refund or exchange policy. While no Canadian law requires businesses to accept the return of purchased items, they may be compelled to do so in the case of a defective product. Consumers are also encouraged to keep any evidence (e.g., receipts) for an easier claim for a refund, return, or repair.
If things are not resolved after dealing with the business involved, you can then file a complaint with your provincial or territorial consumer affairs office.
2. Report to Health Canada
You can use the online consumer incident reporting form found in Health Canada's website if you want to file a report under the following cases:
- if you or your family are personally injured by a defective product
- if your property was damaged after using a defective product
- if you want to report about a defective product or have safety concerns
- if a product has a confusing or wrong label or safety instructions
Reports by businesses to Health Canada
While consumer reports are optional or will depend upon the consumer, this is different from businesses engaged in manufacturing, importing, and selling consumer products. If an incident occurs, the CCPSA requires that an industry report be submitted by the business concerned to Health Canada.
Under the CCPSA, the following incidents must be reported by a business:
- when the use of a product resulted, or will result, in a serious injury, serious adverse health effects, or even death;
- when the product bears an incorrect label, or has no label at all, that resulted or will result in a serious injury, serious adverse health effects, or death; or
- when a recall was ordered by a foreign entity, a provincial government, a public provincial body, or an Aboriginal government
Manufacturers, importers, and sellers must report these incidents within 10 days, counting from the day when they become aware of the incident.
3. File a lawsuit (civil and/or criminal)
As a last resort, you can also file a lawsuit against any of the businesses that can be held liable for defective products. The lawsuit can be based on their liability and/or their negligence involving these products, which can either be civil or criminal in nature. The best practice here would be to hire a product liability litigation lawyer.
Civil case based on contract
If you want to claim damages from these businesses, then filing a civil action is your best option. Some of the causes of action when a product turns out to be defective under the law on contracts are:
- breach of contract
- breach of warranties
- specific performance, in case the seller refuses to act on an agreed remedy under the contract
Civil case for damages
Another cause of action against these businesses can be for a claim for negligence under the law on torts and damages. Here, the plaintiff (you, as the injured consumer) must prove that:
- you safely used the product, or used the product according to its label or instructions
- there is an existing duty of care that the defendant owes you as a buyer
- the product was defective or hazardous, or its use would cause injury to you and/or your property
How can lawyers help in claims for defective products?
If the product you bought is defective, it's important to immediately consult a product liability lawyer, especially if it caused personal injury or property damage. Not only does this prevent your claim from becoming a stale one, but also to help you assess whether you even have a claim or not.
Here are the other ways the product liability lawyers can help you in cases of defective products:
- evaluate your claim to see what legal remedy best suits your situation
- help you prepare the pieces of evidence that you would need to win your case
- check which among the possible businesses can be sued for damages
Defective products: Best handled by lawyers
When a product poses a threat to your life or property, the situation may be bigger than you thought, which can push you to seek legal help. For this purpose, product liability lawyers are there to assist you, check your claim, and see what the Canadian laws says about the defective product you just bought.
Subscribe to the free Lexpert newsletter to be updated on Canadian laws, including the laws governing defective products.