Manufacturer's Duty to Warn: A Canadian Perspective[dagger], The

FDCC Quarterly, Fall 2004 by Churchill-Smith, Bruce

In some instances, warnings are required by statute. The Food and Drugs Act5 and the Hazardous Products Act6 regulate the production and distribution of potentially dangerous consumer goods in Canada, including food, drugs, and manufactured articles. The Hazardous Products Act, and its associated regulations, prescribes the conditions under which hazardous products may be advertised or sold in Canada. The regulations created pursuant to that Act require specific warnings to be provided on various products sold in Canada. For example, the Science Education Sets Regulations,7 in section 5, requires the following warning to be printed on the outer display carton and in any accompanying literature:

Warning: This set contains chemicals that may be harmful if misused. Read the information in the instruction manual. If splashed in the eyes, or on skin, flush thoroughly with water. Get medical attention immediately if splashed in eyes. Not to be used by children except under adult supervision. Not recommended for children under 12 years of age.

Stiff penalties may be imposed for violations of the Act. Any individual, including an officer or director of a corporation, that contravenes the Act or its regulations may be liable for a fine up to one million dollars or to imprisonment for a term of not more than two years.8

V.

PARTIES OWING A DUTY OF CARE

In an action alleging breach of a duty to warn, the court must determine whether the manufacturer had a duty to warn of the risk that materialized and whether that duty was breached in the circumstances of the case. A duty will be owed to the plaintiff if there is a relationship of sufficient proximity between the parties. Manufacturers have a duty to protect consumers from the reasonably foreseeable risks associated with the use of their products.9 As a result, when a consumer suffers damages as a result of a product defect, the courts generally find a prima facie relationship of sufficient proximity between the consumer and the manufacturer of the defective product. The duty of care to protect consumers from reasonably foreseeable harm, however, has been applied beyond manufacturers. The courts have also imposed a duty of care on individuals involved with the distribution of the product, such as assemblers, distributors and suppliers. In addition, repairers, installers, and individuals who recommend a product for use may have a duty to warn the consumer of hazards of which they are aware.

A wholesaler or distributor may owe a duty to warn, even though they did not participate in the actual manufacture of the product. However, not all distributors will be liable for defective goods. It will depend on the circumstances of the case, including the nature and extent of the distributor's involvement with the product, the feasibility of product testing or intermediate examination of the goods, and the part played by the distributor in promoting its use. A distributor has a duty, however, to warn of product defects or dangers of which it has knowledge and to inform the purchaser of any instructions for use or warnings that have been received from the manufacturer. In McEvoy v. Ford Motor Co.,10 James McEvoy was killed when his Ford pickup truck ran over him due to a defect in the vehicle's transmission. The court found that there was an unusually close business relationship between the manufacturer and the distributor. The distributor was held liable, as it was aware of complaints concerning the transmissions but failed to take steps to warn customers of the defect by taking measures such as placing warning decals on the vehicles or mailing a warning letter to purchasers of the product.