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Product Liability Lawyers

When you purchase a product, what do you think about? Most people think about why they need or want the product, how they will use it, and if its value is worth the cost. Few people think about whether the product could harm them or their loved ones.

Many consumers feel confident in making purchases because of Canada's product standards. However, there are always risks:

  • Quality control can fail to identify defective items.
  • Small changes to product design or composition can cause unexpected consequences.
  • Manufacturers may have failed to warn consumers about a product’s dangers.

If a product or its use injures you or a loved one, you may be able to file a liability claim for compensation and damages. Product liability claims can be very complex and challenging to litigate. With years of experience in product liability settlements and claims, Gluckstein Lawyers can make the difference for you.

If you believe a defective product has caused you or a loved one serious harm, contact our law firm today for a free, no obligation consultation.

Product liability and the law.

What is considered product liability?

A manufacturer may be liable for injuries as a result of manufacturing or design defects of their products, failing to warn consumers of their product’s potential hazards, and general negligence. Some examples of product liability cases we pursue include:   

Dangerous or toxic foods:

  • Food or containers made toxic by chemicals or improper sanitary methods or conditions; food tainted with harmful bacteria such as salmonella, listeria or E. coli.

Unsafe toys and children’s products:

  • Choking hazards; toxic materials; cuts, burns, electrocutions, traumatic brain injuries, sudden infant death syndrome (SIDs) or other injuries from faulty design or defects. 

Defective autos, airbags and car parts:

  • Defective seat belts, steering components, braking systems, tires, locks and door latches, fuel pumps, lights, and computerized safety features.

Defective safety equipment:

  • Protective personal equipment (such as face and dust masks, respirators, goggles, gloves, helmets and hearing protection; protective environmental equipment such as ventilation systems.

Pharmaceuticals and medical equipment:

  • Medications and medical tools or equipment found to cause injury or result in serious side-effects without adequate warning.

Toxic or unsafe house-building materials:

  • Asbestos, mercury, lead, arsenic, volatile organic compounds (VOCs), paraffins, ethers, flame retardants.

Defective machinery and tools:

  • Household appliances, power tools, lawn mowers, pools and hot tubs, fireworks, construction equipment.

Defective recreational vehicles:

  • ATVs, snowmobiles, jet skis, dirt bikes, mobile homes.

What are your legal options?

There are three sources within the law that are applicable in product liability cases: contract law, statutory provisions, and tort law. 

Under contract law, a manufacturer can be held liable for:

  • A breach of a condition (a fundamental obligation which is crucial to the contract).
  • Warranty (a statement of fact about the product whether expressed, implied or statutory). 

Manufacturers usually do not sell products directly to consumers. As a result, contract law is not usually relevant in cases brought by consumers. However, courts have found that some promises or representations made by manufacturers about their products are actually implied warranties.

If the court determines that the manufacturer intended to create liability (for example, by producing detailed information directed towards consumers), then contract law may be applicable.

The second source of law used in these cases is statutory.

There are three statutes that usually apply to product liability cases. Other statutes may apply to specific types of products (for example, recall obligations under Canada’s Motor Vehicle Safety Act).

The Sale of Goods Act provides that in most sale agreements and/or contracts, it is a condition of sale that the goods are fit for a specific purpose and of merchantable quality. There are two components to satisfy the “specific purpose” test:

First, the buyer implicitly or explicitly lets the seller know how the products will be used and therefore relies on the seller’s judgement or skill.

Second, the seller must usually have these products in their store.

Merchantable quality means that the goods are of a quality that would make them saleable to the average buyer and that they would meet the reasonable expectations of a typical buyer. 

Although a contractual relationship is required to use the Sale of Goods Act and an end user rarely has such a contract directly with the manufacturer, each contract within the distribution process (the supply chain) can be subject to this Act.

In Ontario, the Consumer Protection Act ensures none of the implied conditions and warranties within the Sale of Goods Act are variable or able to be excluded if the contract includes a consumer sale. 

Finally, Ontario’s International Sale of Goods Act adopts all articles in the United Nations’ Convention on Contracts for the International Sale of Goods. This agreement between member nations is designed to “provide a modern, uniform and fair regime for contracts for the international sale of goods.”

The third source of law to remedy product liability is tort law.

The tort may be to cause intentional harm, but is most often the result of negligence. To successfully pursue a tort claim of negligence, a plaintiff must demonstrate that: 

  • (S)he was owed a duty of care by the defendant.
  • The defendant breached the required standard of care.
  • (S)he suffered damages/losses.
  • The damages/losses suffered were caused by the defendant’s breach of the standard of care both in fact and law.
  • Most product liability cases rely primarily on tort law principles.
  • Negligence in tort cases.
  • Failure to warn.

Manufacturers and distributors have a responsibility to inform consumers of any inherent dangers when using their product or foreseeable dangers if their product is misused.

An inherent danger may be known to a manufacturer, but the law does not permit a defense of an unknown danger if it ought to have been known.

If a danger is obvious, there is no duty to warn, but the danger must be obvious to the expected user of the product. A warning could consist of printed information or instructions on proper installation and use, or labelling on the package and/or the product itself. 

Design defects. 

The manufacturer of a product with a design defect may be liable for injuries caused by the defective product. In reviewing the facts of the case, a court will consider: 

  • Whether the manufacturer knew of the potential defect and whether there was a reasonable alternative to the design based on its cost, availability and function.
  • Whether the usefulness of the defective product to its user or the public justified the design and outweighed an alternative design.
  • The likelihood the product would cause serious harm and the severity of harm it could cause.
  • The likelihood the alternative design would cause serious harm and the severity of harm it could cause.

Even if a product conforms to industry standards and/or federal regulations, if it is unsafe it may be deemed to have a design defect.

Manufacturing defects.

During the production process, unintended errors can result in a product that does not conform to its design specifications.

If quality control processes do not identify the problem and the defective product is made and distributed, the manufacturer could be liable for injuries that result from its use. In these cases, a plaintiff must demonstrate the manufacturer failed to take reasonable care during production, and that the plaintiff’s injury was caused by the product’s defective state.

The most common manufacturing defects are when a product contains something it should not or when it is missing an important component.

How can Gluckstein Lawyers help?

If you or a loved one sustained a serious injury due to a defective or dangerous product, the losses you experience can dramatically change your life. When a manufacturer’s negligence or breach of contract or statutory law causes harm, they may be liable to compensate for the damage caused.

Gluckstein’s product liability lawyers in Toronto, Ottawa, Niagara, and Barrie serve clients across Ontario and are here to work with you, so make the call today for a free consultation.

Product liability lawsuits often have consumer protection value in spurring manufacturers to make changes to their products or production practices that will help to protect other people from experiencing the trauma that you or your loved ones have. 

With our commitment to full-circle client care, you can be confident that we will be there to support you both during and after the life of your personal injury case. When your lawyer sees you as a person who is deserving of respect, compassion and empathy, he or she will be a fierce advocate for you.

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Product Liability FAQs

What is Surveillance in Long-Term Disability Insurance?

Surveillance in the context of Long-Term Disability (LTD) insurance refers to the practice where insurance companies may conduct covert monitoring and observation of claimants to investigate the validity of their disability claims. This surveillance is typically carried out by professional investigators who gather visual evidence, such as photographs or videos, to assess the claimant's activities and functional limitations. Here are key points to understand about surveillance in LTD insurance:

  • Purpose: The primary purpose of surveillance is to verify the extent of a claimant's disability and ensure that the reported limitations align with their actual activities. Insurance companies use surveillance as a tool to prevent fraud, confirm the accuracy of claims, and protect the integrity of the LTD system.
  • Activities Monitored: Surveillance may involve monitoring various aspects of a claimant's daily life, including physical movements, interactions with others, engagement in recreational activities, and participation in events that could indicate the level of disability.
  • Covert Nature: Surveillance is typically conducted covertly, meaning that the claimant is not aware that they are being monitored. This approach aims to capture the claimant's behavior and activities in their natural state without influencing their actions.
  • Legal Compliance: Surveillance activities must comply with legal regulations and privacy laws to ensure that the rights of the claimant are respected. Investigators must adhere to ethical standards and obtain evidence lawfully.
  • Impact on Claims: The results of surveillance can influence the outcome of an LTD claim. If the surveillance footage contradicts the claimant's reported limitations or suggests misrepresentation of disability, the insurance company may use this information to deny or terminate benefits.
  • Frequency: Surveillance is not conducted continuously for all claimants but is often employed selectively based on specific factors, red flags, or suspicions raised during the claims process.
  • Balancing Privacy and Investigation: While surveillance is a legitimate tool for insurance companies to verify claims, it raises concerns about privacy invasion and the potential misinterpretation of normal activities as evidence of fraud. Claimants have the right to challenge surveillance findings if they believe their disability status has been misrepresented.

Understanding the role of surveillance in LTD insurance can help claimants navigate the claims process effectively, ensure transparency in their interactions with the insurance company, and seek legal advice if they have concerns about the handling of surveillance activities in relation to their disability claim.

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How Much Money Can I Get From My Long-Term Disability Benefits?

The amount of money you can receive from Long-Term Disability (LTD) benefits in Ontario is influenced by various factors, including the terms of your specific LTD policy, your pre-disability earnings, and the duration of your disability. Here are key points to consider regarding LTD benefits in Ontario:

  • Percentage of Pre-Disability Earnings: LTD policies typically provide a percentage of your pre-disability earnings as benefits. This percentage can vary but commonly ranges from 50% to 70% of your pre-disability income.
  • Maximum Benefit Amount: Most LTD policies have a maximum monthly benefit amount, which caps the total benefits you can receive each month. This maximum amount is determined by the terms of your policy.
  • Duration of Benefits: The duration for which you can receive LTD benefits varies and is specified in your policy. Some policies provide benefits until retirement age, while others have a limited benefit period (e.g., two years, five years).

  • Integration with Other Benefits: LTD benefits may be integrated with other disability benefits you receive, such as Canada Pension Plan Disability (CPP-D) benefits or workplace pensions. The total amount you receive from all sources may be subject to offsets or reductions.

  • Tax Considerations: LTD benefits in Ontario are generally considered taxable income. However, if you paid the premiums for the LTD policy with after-tax dollars, a portion of the benefits may be tax-free.

  • Cost-of-Living Adjustments: Some LTD policies include cost-of-living adjustments to account for inflation, ensuring that the purchasing power of your benefits is maintained over time.
  • Return-to-Work Provisions: Many LTD policies include provisions for partial disability benefits if you can return to work on a part-time basis or in a reduced capacity. These provisions may affect the amount of benefits you receive.

To determine the specific amount of money you can receive from LTD benefits in Ontario, it is essential to review your LTD policy documents, understand the terms and conditions of the policy, and consult with the insurance provider or a legal expert specializing in disability insurance claims. They can provide detailed information on benefit calculations, limitations, and any additional factors affecting the amount of LTD benefits you are eligible to receive.

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Why Do Insurance Companies Deny LTD Claims?

Insurance companies may deny Long-Term Disability (LTD) claims for various reasons, some of which are legitimate while others may involve errors, misinterpretations, or disputes. Here are common reasons why insurance companies deny LTD claims:

  1. Insufficient Medical Evidence: If the medical documentation provided does not sufficiently support the severity or duration of the disability, the insurance company may deny the claim due to a lack of evidence.
  2. Pre-Existing Conditions: Some policies exclude coverage for pre-existing conditions or conditions that existed before the policy came into effect. If the disability is deemed to be related to a pre-existing condition, the claim may be denied.
  3. Policy Exclusions: Certain policies have specific exclusions for certain types of disabilities, treatments, or conditions. If the disability falls under an exclusion listed in the policy, the claim may be denied.

  4. Failure to Meet Criteria: Insurance policies often have specific criteria that must be met to qualify for LTD benefits. If the claimant does not meet these criteria, such as the definition of disability or waiting period requirements, the claim may be denied.

  5. Incomplete Documentation: If the required documentation, forms, or information are incomplete, missing, or not submitted within the specified timeframe, the insurance company may deny the claim due to insufficient information.

  6. Discrepancies in Information: Inconsistencies between the claimant's statements, medical records, and other documentation can raise red flags and lead to the denial of the claim.

  7. Failure to Follow Treatment Plans: If the claimant does not follow prescribed treatment plans, attend medical appointments, or comply with rehabilitation efforts, the insurance company may deny the claim on the basis of non-compliance.

  8. Occupational Duties: If the disability does not prevent the claimant from performing the essential duties of their occupation as defined in the policy, the claim may be denied.

  9. Surveillance Results: Insurance companies may conduct surveillance to investigate the validity of a claim. If the surveillance results suggest that the claimant's reported limitations are inconsistent with their activities, the claim may be denied.

  10. Fraud or Misrepresentation: If the insurance company suspects fraud, misrepresentation of facts, or intentional withholding of information by the claimant, the claim may be denied.

Understanding these reasons for denial can help claimants navigate the LTD claims process more effectively, address any issues proactively, and seek recourse if they believe the denial is unjustified. It's advisable to consult with legal counsel specializing in disability insurance claims to explore options for disputing a denied LTD claim.

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What Medical Conditions Qualify for Long-Term Disability?

Long-Term Disability (LTD) insurance typically covers a wide range of medical conditions that significantly impact an individual's ability to work and perform daily activities. While the specific criteria for qualifying for LTD benefits may vary depending on the policy and insurance provider, here are common medical conditions that often qualify for Long-Term Disability coverage:

  1. Musculoskeletal Disorders: Conditions affecting the muscles, bones, joints, and connective tissues, such as chronic back pain, arthritis, osteoporosis, and fibromyalgia.

  2. Mental Health Disorders: Including depression, anxiety disorders, bipolar disorder, post-traumatic stress disorder (PTSD), schizophrenia, and other psychiatric conditions that impair daily functioning.

  3. Neurological Disorders: Such as multiple sclerosis (MS), Parkinson's disease, epilepsy, Alzheimer's disease, and other conditions affecting the brain and nervous system.

  4. Cardiovascular Disorders: Including heart disease, congestive heart failure, arrhythmias, and other cardiovascular conditions that impact physical functioning.
  5. Cancer: Various forms of cancer, including leukemia, lymphoma, breast cancer, lung cancer, and other malignancies that require extensive treatment and cause disability.
  6. Autoimmune Disorders: Such as lupus, rheumatoid arthritis, Crohn's disease, ulcerative colitis, and other autoimmune conditions that result in chronic symptoms and limitations.
  7. Chronic Pain Syndromes: Conditions leading to persistent pain and discomfort, such as migraines, complex regional pain syndrome (CRPS), and neuropathic pain disorders.
  8. Respiratory Disorders: Including asthma, chronic obstructive pulmonary disease (COPD), emphysema, and other lung conditions that impact breathing and physical exertion.
  9. Endocrine Disorders: Such as diabetes, thyroid disorders, adrenal insufficiency, and hormonal imbalances that affect overall health and functioning.
  10. Degenerative Diseases: Conditions like osteoarthritis, degenerative disc disease, muscular dystrophy, and other progressive diseases that result in physical decline over time.

It's important to note that each LTD policy may have specific definitions, limitations, and exclusions regarding covered medical conditions. To determine if your medical condition qualifies for Long-Term Disability benefits, consult your policy documents, speak with your insurance provider, and consider seeking guidance from a healthcare provider or legal expert specializing in disability insurance claims.

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Can You Dispute Your Denied Disability Claim?

Yes, you can dispute a denied Long-Term Disability (LTD) claim if you believe that the denial is unjustified or incorrect. Disputing a denied LTD claim involves challenging the decision made by the insurance company and presenting additional evidence or arguments to support your claim for disability benefits. Here are steps to effectively dispute a denied LTD disability claim:

  1. Understand the Reasons for Denial: Review the denial letter from the insurance company to understand the specific reasons for the denial. This will help you address the issues raised in your dispute.
  2. Gather Additional Evidence: Collect any new medical records, test results, physician statements, or other relevant documentation that strengthen your case for disability benefits. Ensure that this evidence directly addresses the reasons cited for the denial.
  3. Consult with Legal Counsel: Consider seeking advice from a lawyer specializing in disability insurance law. A legal expert can assess your case, provide guidance on disputing the denial, and represent you in negotiations with the insurance company if needed.
  4. Prepare a Detailed Dispute Letter: Craft a comprehensive dispute letter outlining the reasons why you believe the denial is incorrect. Clearly present the additional evidence, explanations, and arguments supporting your claim for disability benefits.
  5. Submit the Dispute: Send your dispute letter and supporting documentation to the insurance company within the specified timeframe outlined in your policy. Use a method that provides proof of delivery to ensure your dispute is received.
  6. Engage in Dialogue: Stay in communication with the insurance company throughout the dispute process. Be prepared to provide further clarification, answer questions, or provide additional information as requested.
  7. Consider Alternative Resolution: If direct negotiation with the insurance company does not lead to a resolution, explore alternative dispute resolution methods, such as mediation, to seek a mutually acceptable outcome.
  8. Legal Action: If all attempts to dispute the denial prove unsuccessful, you may consider taking legal action against the insurance company by filing a lawsuit. Your legal counsel can guide you through the litigation process and represent your interests in court.
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How Do I Appeal Long-Term Disability Denial?

When faced with a denial of your Long-Term Disability (LTD) claim, appealing the decision is a crucial step to seek reconsideration and potentially secure the benefits you are entitled to. Here are the steps to effectively appeal a Long-Term Disability denial:

  1. Review the Denial Letter: Carefully review the denial letter from the insurance company to understand the reasons for the denial, the policy provisions cited, and any additional information or documentation required for the appeal.
  2. Gather Supporting Documentation: Collect all relevant medical records, test results, physician reports, and any other evidence supporting your disability claim. Ensure that this documentation addresses the reasons for denial outlined in the letter.
  3. Understand the Appeals Process: Familiarize yourself with the specific appeals process outlined in your LTD policy. Note any deadlines for submitting an appeal and follow the prescribed procedures to ensure your appeal is considered.
  4. Draft a Comprehensive Appeal Letter: Prepare a detailed appeal letter addressing each reason for denial, providing additional evidence, explanations, and arguments supporting your claim for disability benefits. Be clear, concise, and organized in presenting your case.
  5. Seek Legal Advice: Consider consulting with a lawyer experienced in disability insurance law to guide you through the appeals process, review your appeal letter, and provide legal representation if needed.
  6. Submit the Appeal: Send your appeal letter and supporting documentation to the insurance company within the specified timeframe. Use certified mail or another method that provides proof of delivery to ensure your appeal is received.
  7. Follow Up and Maintain Communication: Keep track of your appeal timeline, follow up with the insurance company to confirm receipt of your appeal, and maintain open communication throughout the appeals process.
  8. Consider Alternative Dispute Resolution: If the appeal is unsuccessful, explore alternative dispute resolution options, such as mediation or arbitration, to resolve the dispute outside of litigation.
  9. Legal Action: If all appeals are exhausted and your claim remains denied, you may consider pursuing legal action against the insurance company through a lawsuit with the assistance of legal counsel.

By following these steps and seeking professional advice where necessary, you can navigate the appeal process effectively and increase your chances of overturning a Long-Term Disability denial.

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What Types of LTD Claims Can I Sue For?
In Ontario, individuals with Long-Term Disability (LTD) claims may have legal options to pursue lawsuits in various situations. Some potential types of LTD claims that individuals in Ontario can sue for include:

Wrongful Denial of Benefits: If your LTD claim is wrongfully denied by the insurance company, you may have grounds to sue for a breach of contract or bad faith denial. This can involve challenging the denial based on policy provisions, medical evidence, or procedural errors in the claims process.

Termination of Benefits: If your LTD benefits are terminated unfairly or prematurely, you may have a basis to sue for wrongful termination. This could include situations where benefits are cut off without proper justification or where the insurance company fails to provide adequate reasons for ending payments.

Breach of Fiduciary Duty: In cases where the insurance provider fails to fulfill its fiduciary duty to act in the best interests of the insured individual, leading to harm or financial loss, a lawsuit for breach of fiduciary duty may be pursued.

Disability Discrimination: If you believe you have been discriminated against based on your disability status in the context of your LTD claim, you may have legal grounds to sue for disability discrimination. This can include situations where you are treated unfairly, denied benefits, or subjected to adverse actions due to your disability.

Violation of Human Rights: If your rights under human rights legislation in Ontario, such as the Ontario Human Rights Code, are violated in relation to your LTD claim, you may have the option to bring a lawsuit for human rights violations.

Bad Faith Insurance Practices: In cases where the insurance company engages in bad faith practices, such as unreasonably delaying or denying valid claims, acting in a discriminatory manner, or failing to adhere to legal obligations, a lawsuit for bad faith insurance practices may be pursued.

When considering legal action related to LTD claims in Ontario, it is advisable to seek guidance from a lawyer specializing in disability law to assess the specifics of your case, understand your rights under Ontario laws, and determine the appropriate course of action to seek redress for any injustices related to your LTD claim.

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What is Disability?

Disability is a broad term that encompasses physical, cognitive, sensory, or mental impairments that may limit an individual's ability to engage in certain activities or perform tasks compared to the general population. Disabilities can be temporary, permanent, or episodic, and they vary in severity and impact on daily functioning.

Disabilities can result from various factors, including congenital conditions, illnesses, injuries, accidents, or age-related changes. The effects of a disability can manifest in limitations related to mobility, communication, cognition, sensory perception, or self-care, affecting an individual's independence and quality of life.

In the context of insurance, such as Long-Term Disability (LTD) coverage, disabilities are typically assessed based on their impact on an individual's ability to work and earn income. Insurance policies define disability criteria to determine eligibility for benefits, considering factors such as medical evidence, functional limitations, and the individual's capacity to engage in gainful employment.

Understanding the nature of disabilities, their diverse manifestations, and the challenges they pose to individuals is crucial for creating inclusive environments, providing appropriate support and accommodations, and promoting equal opportunities for individuals with disabilities in various aspects of life.

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Who determines if an incident involving a surgical implant should be reported?
To determine whether an incident is reportable, Health Canada states it must meet the following three criteria: First, a malfunction or failure of an implant occurs in real world use or through information from device testing performed by the manufacturer, user or other party. Second, a reasonable assessment determines the device likely caused or contributed to the incident. Third, the incident leads to the actual or potential death or serious deterioration in health of a patient, user or other person.
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Who is responsible for tracking incidents linked to surgical implants?
Once surgical implants are approved for use, Health Canada conducts post-market inspections and monitoring. Recent changes to medical device laws mandate that hospitals and healthcare facilities must report serious incidents to the ministry. However, manufacturers remain primarily responsible for reporting incidents involving their surgical implants.
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Are surgical implants safe?
While there are inherent risks with any surgical procedure, on the whole, most surgical implants have benefits that outweigh the anticipated risks for a given patient. A patient and their doctor would determine if a surgical implant is the right option after the patient is informed of the benefit of the surgery and all known or potential risks that come with the surgery and the medical device. Prior to recent changes to the medical device approvals and monitoring process, however, an unfortunate number of defective surgical implants were permitted for use. Many of these implants remain inside people and have unreasonably high risk of causing harm of death. Although hospitals are now required to track certain implants in order to communicate information about recalls directly to affected patients, if you believe your surgical implant is defective in some way you should consult government sources for ant recall information, make your medical provider or surgeon aware of your concerns, and contact an experienced personal injury lawyer if you have experienced injury or loss related to an implant.
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What are some examples of surgical implants?
Some common surgical implants include: cardioverter defibrillators and pacemakers; coronary stents; insulin pumps; gastric stimulators; artificial hip, knee, shoulder, elbow, wrist, finger and toe joints; phakic intraocular lenses; breast implants; penile implants; cerebral spinal fluid shunt systems; metal screws, rods, pins and plates; artificial discs; intrauterine devices; cochlear implants; and hernia and trans-vaginal mesh.
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What are surgical implants and what functions do they have?
Surgical implants are usually defined as medical devices manufactured from metals, plastics, ceramics, and biomaterials in contrast to transplants which use biomedical materials (living tissues, organs and bone grafts). Surgical implants can provide support to existing tissue and organs, act as prosthetics (replacement body parts), deliver medication, or monitor body functions.
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What should you do if you are affected by a product recall?
If you learn you possess or used a recalled product, the government recommends: following the recall notice’s instructions and/or contacting the manufacturer; keeping the product unless advised by the manufacturer or government regulatory body to dispose of it; preventing anyone else from using or being exposed to the product; and monitoring the recall process by using the government’s recall notification system. If you suffered a personal injury, property damage or another tangible loss from using or being exposed to the recalled product, you should also contact an experienced product liability lawyer.
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I suffered an injury while using a product that had already been recalled. Am I still able to make a claim?
Likely, yes. If you were seriously injured by a product that had been the subject of a recall and you were not aware of the recall, you may have an actionable claim. If you were aware of the recall or ought to have been aware of the recall based on the steps the manufacturer or regulator took to communicate with expected users, you may have more difficulty making a claim because the defendant will likely argue you showed contributory negligence by using the product after you were warned about a danger. If the person responsible for a product was aware of a recall notice and allowed it to be used by another person without informing them of the possibility of a danger or defect, they may share in liability over any damages.
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If I own or use a recalled product, am I able to sue for damages?
Not always. A product recall in itself is not sufficient grounds to launch a claim against a product’s manufacturer, even though a recall notice can be used to help a court infer that a product is defective or a safety risk in a lawsuit. To have an actionable claim against a manufacturer a person must demonstrate that the product’s maker breached a duty of care (in contract or in law) owed to consumers and that this breach caused tangible damages.
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What government ministries and agencies are responsible for handling recalls?
Some recalls are done independently of government regulators and handled entirely by the manufacturer or through a voluntarily arrangement with a regulator. Otherwise, Health Canada is responsible for ensuring the safety of most consumer products and overseeing recalls related to these products. Transport Canada is responsible for overseeing recalls related to motor vehicles and parts and child restraint systems. The Canadian Food Inspection Agency is tasked with food products safety.
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What event would prompt a product to be recalled?
The decision to launch a recall usually comes after one or more of the following events: post-market testing by a manufacturer; consumer complaints about a product; reports of consumer injuries, illnesses or deaths linked to the product; recalls of the product in other markets; and/or government inspections.
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What types of corrective actions could be part of a product recall?
Depending on the severity of the defect, the recall notice may offer an advisory for how to use the product safely, a process to fix the defect, or steps a consumer can take to exchange or replace the defective product. In other cases the notice will outline plans to remove the product from the market. A recall may cover all distributed products or be limited to a particular batch of products or products produced during a certain time period.
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How would I know if my medical device malfunctioned?
If you experienced an unanticipated adverse medical outcome, it is worth your time to investigate the cause. If there is a possibility a medical device caused or contributed to the outcome a personal injury lawyer may be able to review your medical records with a medical expert to determine if there may be a link. If a medical device you have used has been the subject of a recall notice and information in this notice advises that you seek further medical attention or watch for symptoms that may be related to device malfunctions or failures, you should also consult a lawyer to review whether you have an actionable claim.
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What are some examples of medical devices that have malfunctioned?
Gluckstein Personal Injury Lawyers has launched claims on behalf of many clients who have experienced medical device malfunctions or failures, including numerous class action and mass tort proceedings. Some examples of medical device malfunctions we have investigated include: the DePuy Attune Knee System, the ExploR Modular Radial Head System, and the Advanced Bionics Cochlear Implant.
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How are medical devices approved for use and monitored for safety?
The approval process varies by medical device class. Licensing applications for higher risk devices (Class III and IV) must provide evidence of their clinical effectiveness, including clinical trials and reviews, meta-analyses and real-world evidence reviews. To be licensed, a medical device’s risks must be mitigated as much as possible and the regulatory agency must determine the benefits of its use outweigh any remaining risks. Post-licensing monitoring includes: inspections, reports noting information that may change the devices expected risks and benefits, and compiling information on recalls, complaints and problem reports from a variety of consumer and medical sector sources. Both manufacturers and Health Canada have responsibilities to monitor medical devices that have been approved for sale and distribution.
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Why do medical devices have different classifications?
Medical devices vary greatly and each device is given one of four classifications by Health Canada based on the anticipated risk to a person’s health and safety. Class I medical devices (a wheelchair) are low risk, while Class IV medical devices (a defibrillator) pose the highest risks. Class II and higher devices must obtain a medical devices licence before they can be sold in Canada. A second type of licensing (medical device establishment licence) is required for companies to import (Class I to IV), distribute (Class I to IV) or manufacture (Class I) medical devices.
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What are medical devices?
Medical devices are any instrument or component used to mitigate, treat, diagnose or prevent a disease or abnormal physical condition.
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Should I participate in a class action or mass tort against the manufacturer of a recalled drug?
An experience personal injury lawyer can explain the benefits and risks of participating in a class action lawsuit or mass tort if you a a member of an eligible class so that you can make an informed decision.
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How can a product liability lawyer help if I believe I or a loved one has been harmed by a recalled drug?
If you believe you or a loved has suffered a serious or fatal injury that may be linked to a recalled drug or if the drug recall notice suggests you may be at risk of future harm, a knowledgeable, skilled and experienced personal injury lawyer can launch a preliminary investigation into the circumstances around your case. If there is sufficient evidence to argue you or your loved one has suffered damages or losses linked to the recalled drug, the product liability lawyer may be able to help you make a claim for compensation.
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What should I do if I am taking a recalled drug?
Medical professionals advise to keep taking prescription medications that are the subject of recalls until you are able to speak with your doctor, the medication’s prescriber and/or your pharmacist. Some medications may produce withdrawal symptoms if stopped suddenly. Moreover, if the medication is treating a serious health condition, your doctor may want to transition you onto another medication to manage your condition. However, you should stop taking non-prescription (over-the-counter) recalled drugs immediately. Securely store unused medication until you are able to dispose of it according to the instructions in the recall notice or return it and any packaging or proof-of-purchase documents to the place where it was sold.
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What are some examples of large-scale drug recalls
The most well-known drug recall in Canada was thalidomide. Although this drug was known to cause severe birth defects, it received approval for sale in Canada and recall notices were issued months after similar recalls had been introduced in European countries. Other more recent well-known and wide-ranging drug recalls include blood pressure medications containing sartan (due to the presence of a cancer-causing impurity) and Vioxx and Bextra (arthritic drugs that were linked to fatal heart attacks, strokes and serious skin conditions).
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Why are some drugs recalled?
Drugs are generally recalled from the marketplace when the manufacturer or regulator discovers defects make them unreasonably dangerous. Defects can occur at the design stage (insufficient testing for harmful side effects or curative properties or falsified test results), during the manufacturing process (impurities, incorrect ingredients, or improper dosing), or during distribution (improper handling/storage guidelines, labelling or marketing). Recall notices may cover entire classes of drugs or only certain batches of drugs produced. The level of assessed risk of the defect will determine the scope of the recall and how it is communicated to people deemed to be at risk.
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What types of drugs can be recalled?
Both prescription and non-prescription (over-the-counter) medications are subject to recalls by either their manufacturer and/or Health Canada’s Health Products and Food Branch.
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How does a plaintiff show they are owed damages under contract law and tort law relating to a defective product?
For a claim through contract law, the plaintiff must prove they entered into the contract with the defendant and the enforceable terms of the contract or the product’s warranty were breached. A prospective tort claim plaintiff must show: they were owed a duty of care by the defendant with respect to the product; the product, in its design, manufacture, marketing or use was defective or unreasonably dangerous; the product’s defect caused or contributed to harm and tangible damages of a person or their property; and, these damages were reasonably foreseeable. Depending on who is named as the defendant, the prospective plaintiff must also prove the defect or flaw was either known by the defendant or the plaintiff’s negligent actions or inaction caused or contributed to the defect or flaw. The flaw also must be present at a time the defendant had responsibility for or control over the product.
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What laws provide for liability claims related to products?
Generally a plaintiff would use contract law or tort law (common law) to make a claim for compensation. Certain products must also meet specific requirements under government regulations. Showing products did not conform to these regulations may help a plaintiff argue the product was unsafe or unreasonably dangerous.
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How could a manufacturer or distributor open themselves to liability if their product causes losses or damages to a person or their property?
There are three categories of product defects which may open a manufacturer or distributor to liability: design defects (problems introduced before a product is manufactured), manufacturing defects (errors or impurities introduced when the product is built or produced), or marketing defects (a failure to properly label a product, warn users of dangers, or provide instruction for safe use). Products may also become defective after manufacturing and distribution if they are damaged through improper storage or poorly maintained. In these cases a manufacturer or distributor may share in liability with another negligent person if they could have reasonably prevented this damage through proper warnings.
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If a product carries inherent risks and I'm injured, would I be able to sue for damages?
A product may carry certain inherent risks or defined risks that have been specified by the manufacturer, safety agencies, distributors or owners. Injuries related to these risks, if properly understood by and communicated to the end user, would not generally result in liability on the part of the products manufacturers, distributors or regulators. However, even when a product user knowingly and willingly assumes a level of risk by using a product, it does not mean any and all harm caused by the product is deemed acceptable by the law.
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What are defective products?
Generally, the law defines a defective product as one that falls short of reasonable standards to the point where it is unreasonably dangerous to the user, consumer, or their property.
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Who can be held liable for a defective product?

The defendant in most product liability claims is the company or entity that manufactured the item in question, as they are usually directly responsible for the condition of a sealed product when it reaches a consumer. However, there are some situations where other parties may bear partial or total liability for a dangerous product.

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What are some potential grounds for product liability claims?

In Ontario, a consumer can only file suit over a product defect if they can prove that the item was “unreasonably dangerous” because of a flaw that existed when the product was made available to the public. The consumer must then show that the defendant owed them a duty of care, that the defect in question directly caused them to suffer an injury, and that they are entitled to compensation for specific compensable losses such as damages for pain and suffering, medical expenses, and loss of income.

There are several forms of actionable product defects, including:

  • Defective design;
  • Manufacturing defects; and
  • Marketing defects.
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Why should I hire a product liability lawyer?

Whenever you buy something from a private retailer, you can rightfully expect a safe product that functions as advertised. If a product malfunctions and causes you to suffer harm as a result, or does not come with instructions about how to avoid injury during use, you may be able to pursue litigation against the manufacturer and/or certain other liable parties.

However, seeking compensation for damages stemming from a dangerous product can be difficult without the assistance of an experienced personal injury lawyer. By retaining a skilled product liability lawyer, you can greatly improve your chances of securing a positive outcome against the company or seller who wronged you.

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What experience does Gluckstein Personal Injury Lawyers have in dealing with product liability cases?

We have been taking legal action on behalf of seriously injured individuals for more than five decades.

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What are some of the product liability cases that Gluckstein Personal Injury Lawyers pursues?

Among the product liability cases we pursue are:

  • Dangerous or toxic foodstuffs;
  • Unsafe toys;
  • Unsafe children’s products;
  • Unsafe household appliances;
  • Defective autos, airbags and car parts;
  • Defective safety equipment;
  • Toxic or unsafe house-building materials;
  • Defective machinery;
  • Defective recreational vehicles.
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