Product Liability - What do the Canadian courts have to say about it?

The memory of that infamous McDonald’s hot coffee case burns brightly in the minds of many people who lived through it in the 90s. That case sparked much discussion about customer safety when doing something as mundane as ordering a coffee at McDonald’s. Civil suits for product liability cases have run rampant in the US for years where the sky is the limit when it comes to settlement payouts.  But the question is: What if something like that happens to a person in Canada?

Since we are discussing tort law cases and not contract law cases (which is an entirely different topic), we must explore the issue of negligence.

In tort, when it comes to a product liability case involving food, a plaintiff will prove negligence on behalf of the defendant. In order to prove negligence, these are the criteria that must be met:

·         That a defendant owed a duty of care to the plaintiff;

·         That the defendant breached the standard of care;

·         The product was defective or dangerous; and

·         That the plaintiff suffered damages and that the damages were caused as a result of this breach by the defendant.

In cases of negligence, a contract does not need to exist between the customer and any of the other involved parties. Basically, any party that was part of the chain of events that resulted in the food being placed into the plaintiff’s hands can be liable depending on the facts (this could even include food delivery apps).  The courts in Canada have recognized that in tort, a duty of care exists between the manufacturer and consumer. This duty of care implies that the manufacturer will be providing products free of hazards to the public and if a dangerous product is sold to a consumer, that duty of care is breached. The judgment of Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 SCR 634 can be viewed as cementing this high standard of care that is in place in Canada:

The courts in this country have long recognized that manufacturers of products that are ingested, consumed or otherwise placed in the body, and thereby have a great capacity to cause injury to consumers, are subject to a correspondingly high standard of care under the law of negligence;

Additionally, the recent case of Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135 affirmed that manufacturers also have a duty to ensure there are no defects in their products that could result in injury to the consumer.

This decision also affirmed the principle of duty to warn consumes of any dangerous aspects of the product which entails:

• a duty to warn of dangers inherent in the use of a product;

• a duty that is ongoing and continues after the product is delivered;

• warnings must be clear and specific to the dangers that arise from ordinary use; and

• the duty varies with the level of danger associated with ordinary use of the product.

However, adhering to the standard product labelling requirements may not be enough in the eyes of the court if the product can pose such a severe hazard if consumed improperly. For example, in the Supreme Court of Canada case of Lambert v. Lastoplex Chemicals, the judgment stated:

Where manufactured products are put on the market for ultimate purchase and use by the general public and carry… although put to the use for which they are intended, the manufacturer, knowing of their hazardous nature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer or user. A general warning, as for example, that the product is inflammable, will not suffice where the likelihood of fire may be increased according to the surroundings in which it may reasonably be expected that the product will be used. The required explicitness of the warning will vary with the danger likely to be encountered in the ordinary use of the product.

It is important to keep a few things in mind if you find yourself in a situation involving a possible product liability claim. Firstly, perhaps the most important thing of all to do is keep every piece of evidence you have which includes the receipt showing proof of purchase. You should also, if possible, keep any fragments of the food item itself. Retaining even a sliver of the foreign object can bolster your case significantly.  That mysterious substance can be sent to a lab and your lawyer may be able to commission an expert report that can outline the hazards of ingesting a foreign object that was never intended to be consumed. Always be extra vigilant the next time you eat out!