5.2 - Manufacturers and Distributors of Products Flashcards
Explain the defences available in Quebec to manufacturers and others involved in the sale of products
Defences for Manufacturers and Distributors of Products
-overall, the law ensures that manufacturers value the safety of consumers
-the Civil Code contains a provision regarding the warranty of fitness as follows:
CCQ Article 1726:
»The seller is bound to warrant the buyer that the property and it accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.
The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert.»
The Manufacturer
-if it was impossible for the manufacturer to have known of the safety defect in the product because the state of the knowledge at the time of manufacture, distribution, or supply did not support it, the manufacturer can escape liability, as stated in:
CCQ Article 1473:
»The manufacturer, distributor or supplier of a movable thing is not bound to make reparation for injury caused by a safety defect in the thing if he proves that the victim knew or could have known of the defect, or could have foreseen the injury.
Nor is he bound to make reparation if he proves that, according to the state of knowledge at the time that he manufactured, distributed or supplied the thing, the existence of the defect could not have been known, and that he was not neglectful of his duty to provide information when he became aware of the defect»
-the CCQ provides the manufacturer with 3 defences if the claimant succeeds in proving a safety defect in a product:
> 1. The manufacturer could only have known the state of knowledge regarding the product in existence at the time
> 2. The claimant could have known about the defect and should have known its risks
> 3. The manufacturer made available all the proper information about the shortcomings of the product
The Seller
-the seller is not bound to warrant against any latent defect known to the buyer or any apparent defect
-an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the help of an expert
2nd paragraph of CCQ Article 1726:
»The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert»
Product Suppliers and Distributors
-In Quebec, the Civil Code provides that product suppliers and distributors are also bound to warrant the fitness of their products
CCQ Article 1730:
»The manufacturer, any person who distributes the property under his name or as his own, and any supplier of the property, in particular the wholesaler and the importer, are also bound to the seller’s warranty»
Extra-Contractual Liability
-In Quebec, extra-contractual liability can be assessed against the manufacturer, distributor, wholesaler or retailer
-in products liability cases, Quebec courts have recognized manufacturing flaws, design defects, poor preservation or presentation of a thing, or failure to warn consumers as bases for claimants to recover damages
CCQ Article 1468:
»The manufacturer of a movable thing is bound to make reparation for injury caused to a third person by reason of a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of the immovable.
The same rule applies to a person who distributes the thing under his name or as his own and to any supplier of the thing, whether a wholesaler or a retailer and whether or not he imported the thing.»
-the defendant will not be able to escape liability if they did not provide adequate labelling or warn of a known danger, as stated in:
CCQ Article 1469:
»A thing has a safety defect where, having regard to all the circumstances, it does not afford the safety of which a person is normally entitled to expect, particularly by reason of a defect in design or manufacture, poor preservation or presentation, or the lack of sufficient indications as to the risks and dangers, it involves or as to the means to avoid them»
CCQ Article 1468 provides that the manufacturer of a movable property is liable to make reparation for injury caused to a third person by reason of a safety defect in the thing
-the same is true for the retailer, as seen in ‘Veranda Industries Inc. v. Beaver Lumber’
-in this case, the retailer, Beaver Lumber, was held liable, along with the manufacturer, for a third-party bodily injury arising from the use of a ladder by a consumer that, unfortunately collapsed and caused injury
-Beaver Lumber did not modify the ladder or have any ability to test the ladder for defects
CCQ Article 1477:
»The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the author of the injury»
Consumer Protection Act
-CCQ Articles 1473, paragraph 2, seems to apply only in commercial transaction, since the ‘Consumer Protection Act’ provides that manufacturers or sellers cannot defend against a suit filed by a consumer by claiming they were unaware of a defect or a lack of instructions
-they cannot escape liability by pleading ignorance; they are presumed to know such details about their own products
Consumer Protection Act of Quebec, Section 53:
»A consumer who has entered into a contract with a merchant is entitled to exercise directly against the merchant or the manufacturer a recourse based on a latent defect in the goods forming the object of the contract, unless the consumer could have discovered the defect by an ordinary examination.
The same rule applies where there is lack of instructions necessary for the protection of the user against a risk or danger of which he would otherwise be unaware.
The merchant or the manufacturer shall not plead that he was unaware of the defect of lack of instructions.
The rights of action against the manufacturer may be exercised by any consumer who is a subsequent purchaser of the goods.»
-any subsequent purchasers of the defective product continue to have the right of action against a manufacturer
-action may be taken by the consumer who has suffered damages under the ‘Consumer Protection Act’
-this Act applies similar regulations to those found in the sale of goods legislation of the other Prov. and Terr., in respect of the reasonable fitness of the goods, and the goods must conform to the description of them
-also the seller is bound by any warranties either implied or written that are made to the buyer, and any advertisements must accurately describe the product
-the Consumer Protection Act also sets out how action can be taken by injured parties when no contract existed between them and the manufacturer, if a product is defective (similar to an action in tort in the common law prov. and terr.
