Whose Fault is it Anyway? - Statutory Warranties & Contributory Fault

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The purpose of consumer protection legislation is to provide greater safeguards to purchasers of personal use items. This is seemingly because of the power imbalance between purchasers and suppliers. In Ontario, there are two main pieces of legislation: the Sale of Goods Act (the "SGA") and the Consumer Protection Act (the "CPA"). The SGA deals with buyers and sellers; a purchase is required. The CPA has broader language; it deals with consumers and suppliers. The language of the CPA suggests that consumer contracts for the sale of goods and/or services, and bare licenses may all be covered by this legislation. These Acts have many similarities, one of which being the consumer's reliance on the supplier. The supplier is perceived to have greater knowledge and skill regarding the subject matter. The SGA and CPA are mechanisms which keep suppliers accountable for their products and services. Actions commenced under these Acts have strict liability, meaning that should an action arise, the Defendant may be found liable regardless of fault. An example of this can be found in the recent case of Singh v. Shoppers Home Health Care. Mr. Singh, a paraplegic, acquired his first electric wheelchair in 2008, from Shoppers Home Health Care. The wheelchair had a metal power box incorrectly installed on the seat pan. As a result, Mr. Singh suffered pressure ulcers, which lead to the loss of his colon. Mr. Singh stated that he noticed the box, however he relied on Shoppers to provide a product free from defects. The court found that Shoppers supplied a wheelchair that breached warranties under the CPA and SGA. Shoppers was found liable. Great for consumers, right? Yes, however: The court noted that although Shoppers was liable for supplying a defective product, Mr. Singh contributed to his own loss. The jury found him to be 75% liable, thereby reducing the award. Contributory negligence has been a long standing principle in tort law. S.3 of the Negligence Act clearly states that the court may apportion the damages in proportion to the degree of fault or negligence found against the parties respectively. Although the Negligence Act does not apply to breach of warranties, the courts have recognized that fault based apportionment is applicable in contract cases. Takeaway Lawyers: Product Liability matter? Consider pleading the Negligence Act, CPA, and SGA. There may be a host of advantages (depending on your fact scenario). However, note that an award in tort will likely not differ than an award in contract. Plaintiffs: Even if you are supplied with a defective product, it is still your responsibility to mitigate your damages. Have a potential product liability or personal injury matter? Contact Beament Hebert Nicholson for a free 1 hour consultation.


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