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What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Litigation practice and procedure in Canadian common law provinces is generally governed by provincial rules of court and the common law of each province. Civil claims relating to product liability are normally commenced by filing a statement or notice of claim in the provincial or superior court registry (depending of the amount of the claim) of the province where the plaintiff resides or was injured. 

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

Interlocutory relief in civil litigation relating to product liability is available but rarely sought in a products liability claims. A number of product regulation statutes provide the regulating entity jurisdiction to issue mandatory compliance orders and, if necessary, enforce such orders with the court through injunctions or mandatory orders. The rules and procedures relating to such interlocutory proceedings will normally be governed by rules of procedure in the province where the proceeding has been commenced. 

Although interlocutory or interim relief is available, it is not something usually demanded or awarded in product liability claims in Quebec.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

Document discovery

Document production obligations in Canadian common law civil cases are broad. While the exact scope of document production will vary from province to province, parties to common law civil litigation are generally required to disclose all documents in their possession or control which may be relevant to matters in issue in the litigation. It is not necessary for an opposing party to initiate the production of documents by serving a document request; rather the obligation is on each party to identify and produce its relevant documents for opposing parties. 

A defendant manufacturer in a negligent design, manufacture or failure to warn claim will typically be required to produce all relevant documents relating to the design, testing, manufacture, distribution and sale of the product. Manufacturers may also be required to produce documents generated subsequent to the incident in question, including documents relating to similar complaints or accidents, warranty claims, recalls, design changes and related litigation in other jurisdictions.

Oral discovery

Canadian rules of civil procedure normally allow oral discovery in all superior court cases. Generally, each party is entitled to conduct one examination under oath of all parties adverse in interest. Where the party is a corporation, the company will generally be required to produce one representative knowledgeable of the litigation. Some provinces permit multiple examinations (questionings) of current and former employees of corporate parties without leave. 

The scope of questions which can be asked on examinations for discovery is normally broad and is similar to the scope of document discovery. A party’s counsel may object to answering a question on numerous grounds, including irrelevance and privilege. Where the representative being examined is unable to answer a question because he or she does not possess the requisite knowledge, the examining party may require the representative to undertake to make inquiries and respond in subsequent examinations or in writing. Examinations for discovery are normally taken under oath and transcribed by a court reporter. In many common law provinces, including British Columbia and Ontario, the evidence taken at an examination for discovery can be used only against the party under examination. Excerpts from examinations for discovery are often read into evidence at trial.

In Quebec, while pre-trial discovery is permitted, its scope is more limited than in the common law provinces. Examinations on discovery are usually limited to one representative of each party, except when the said representative is unable to testify on all aspects of the file. The examination on discovery of third parties is subject to the court’s approval. Other restrictions apply to actions involving low amounts of damages claimed.

Documentary discovery is also possible, either by filing a motion to that effect or requesting the communication of undertakings from the witness being examined on discovery.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Canadian common law courts require that a plaintiff prove on balance of probabilities that a manufacturer is at fault to some degree for any injuries caused by its products, by establishing that the manufacturer failed to meet the reasonable standard of care in all circumstances. 

Canadian common law courts have held that the standard of care is “to use reasonable care in the circumstances and nothing more”. There are many factors which inform the standard of care in the design and manufacture of a product. Industry practices and regulatory standards play an important role in determining the applicable standard of care in product liability cases in British Columbia and Ontario. Once the standard of care has been established, the onus rests on the plaintiff to adduce evidence proving, on balance of probabilities, that the defendant did not meet the standard of care. 

Where there is direct evidence available with respect to how the plaintiff’s injury occurred, common law courts will normally be required to decide liability on that evidence alone. However, where there is no direct evidence of negligence, the courts may consider circumstantial evidence to determine whether the plaintiff has, on balance of probabilities, established a prima facie case of negligence against the defendant. 

In Quebec, the buyer bears the burden of proving that the defect existed at the time of the sale. However, the legal presumption applicable to professional sellers significantly helps the buyer to prove its case against a professional seller by reversing the burden of proof on the seller.

Evidence in Quebec product’s liability cases is given by oral testimony, whether the witness is a fact or expert witness. Written testimony through affidavits is generally not permitted, except in particular circumstances, such as when a witness is deceased or it is otherwise impossible or unreasonable to request his or her presence at trial.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

Certain common law provinces have rules of procedure which allow courts to directly appoint experts to assist the court in deciding the merits of the case. Court appointment of experts is rare in product liability cases, as most judges are satisfied to receive the opinion evidence of the parties’ respective experts. 

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Expert evidence is commonly accepted by the courts in product liability cases. Generally, expert evidence is adduced through both written reports and testimony at trial. As a result, the selection, instruction and preparation of experts and expert reports are critical elements of product liability litigation.

The Supreme Court of Canada has held that in order for expert evidence to qualify for admissibility, it must be:

  • relevant;
  • necessary to assist the trier of fact;
  • not barred by an exclusionary rule; and
  • given by a properly qualified expert.

Even where expert evidence may satisfy the above criteria, the court retains the discretion to exclude expert evidence that is marginal in its probative value in relation to its potential prejudicial effects. Where the scientific method underlying the expert opinion is novel, the party advancing the opinion must establish that the science is sufficiently reliable to be admissible. 

In the province of Quebec, the parties often rely on expert opinion evidence in product liability cases. However, under the rules of civil procedure, an expert’s report stands in lieu of his or her testimony, but can be asked or permitted by the courts to testify where the expertise in question is particularly complex or requires further explanation and questioning.

Class Actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction?  If so, what is the procedure of their formation and what benefits do they afford claimants?  Are class actions formed on an opt-in or an opt-out basis? 

Class actions are permitted in nine of the 10 Canadian provinces (the one exception being Prince Edward Island), pursuant to class proceedings legislation in each of the provinces. The fundamental components of a class action proceeding are certification, trial of common issues, and (if the common issues are resolved in favour of the plaintiff), adjudication of individual issues and damages. 

In order for an action to proceed as a class proceeding, it must be certified by the court as a class action. Generally, the test for certification comprises five elements:

  • the pleading discloses a cause of action;
  • there is an identifiable class of two or more persons;
  • the claims or defences of the class members raise one or more issues that are common among all class members;
  • there is no other procedure preferable to a class proceeding for the resolution of the common issues; and
  • the representative plaintiff will fairly represent the interests of the class.

In Quebec, the requirements for authorisation (referred to as certification in the common law provinces) of a class action are as follows:

  • the recourses (ie, claims) of the members raise identical, similar or related questions of law or fact;
  • the facts alleged seem to justify the conclusions sought;
  • the class proceeding would be the preferable procedure for the resolution of the common issues; and
  • a representative who can represent the members adequately.

The theory underlying class action legal proceedings is that they achieve the following three objectives which were originally set out in the Ontario Law Reform Commission’s Report on Class Actions in 1982 and subsequently adopted by the courts: 

  • judicial economy;
  • behaviour modification; and
  • access to justice. 

Whether any given class action actually achieves any or all of those objectives is a matter of debate. For example, many defendants and members of the defence side of the bar note that the objective of ‘access to justice’ should be a two-way street benefitting both plaintiffs and defendants, a point which has been confirmed by various courts (AIC Limited and 2038742 Ontario), yet they question whether some aspects of class actions law facilitate a just process and just results for defendants in many cases.

In most provinces, individuals who fall within the definition of the class in a given case are deemed to be members of the class and are bound by the result of the common issues trial or a settlement agreement made by the representative plaintiff, unless they opt out of the class. However, in three provinces (British Columbia, New Brunswick, and Newfoundland and Labrador) class membership is bifurcated between an opt-out system for residents of the province and an opt-in system for persons residing elsewhere in Canada.


What rules and procedures govern appeals of court decisions? 

Provincial superior court trial judgments may generally be appealed as a right to provincial courts of appeal. However, in several provinces special rules apply to appeal rights where the amount of the judgment is below a prescribed sum. 

The ultimate right of appeal in civil matters is to the Supreme Court, although leave must be granted on application by the would-be appellant. Such leave is rarely granted since the Supreme Court will generally only agree to hear a case if it raises legal issues of sufficient public importance that transcend the interests of the immediate parties to the appeal. 

Appellate courts will generally be highly deferential to the findings of fact made by the trial judge and will intervene on such findings only if it is shown that the judge made some palpable and overriding error in his or her appreciation of the evidence. By contrast, on pure questions of law, the appellate court will review the decision below on a standard of correctness.

Statute of Limitations

What is the statute of limitations for filing product liability claims?

The time for bringing an action in Canada is generally governed by provincial and territorial limitation period legislation. Therefore, the periods within which an action for compensation may be commenced will vary from province to province and may vary depending on the nature of the loss or damage for which compensation is claimed and the legal cause of action relied on to assert such a claim. 

However, in most common law provinces and territories, all such claims must be commenced within two years from the date on which the claimant discovered the claim. While in many cases, this discovery date will be the date on which the product allegedly fails and causes injury, this period may be extended if, for example, the claimant is not aware of, and could not reasonably have discovered, the identities of potential defendants at that time. 

In Quebec, the limitation period applicable to a buyer’s recourse for breach of legal warranty of quality, pursuant to both the Civil Code of Quebec and the Quebec Consumer Protection Act, is three years from the time that the buyer becomes aware of the defect.


What is the typical duration of proceedings in product liability cases?

There is no typical duration of product liability proceedings in Canada. The length of time that a given case may take from commencement to completion varies widely and is dependent on a variety of factors:

  • the nature of the particular plaintiff’s lawyer (ie, how aggressive or passive the lawyer may be);
  • the practice, rules or inclination respecting judicial activism in pushing cases forward of the court where the action has been commenced;
  • the state of backlog (if any) in the court where the action has been brought;
  • the degree of complexity of the case; and
  • the existence of any rules respecting delays for dismissal in the court where the action has been brought.

Costs, Fees and Funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party?  If so, what rules and procedures apply? 

Although costs awards are ultimately at the discretion of the trial judge, the near-universal practice among Canadian common law courts is to award costs to the successful party in the lawsuit (in Canada, the term ‘costs’ refers to not just disbursements, but also attorney fees). Typically, this means that the unsuccessful party must pay a percentage of the successful party’s legal fees and reasonable disbursements. The specific quantum of costs and disbursements recovered depends on the rules of procedure of the particular province and will vary from province to province. 

In Quebec, the winning party can usually recover its disbursements and court costs, including judicial fees based on a tariff and expert witness fees. However, the winning party cannot recover fees paid to its own attorney unless he or she can prove abuse of process on the part of the defendant.

What rules and restrictions (if any) govern contingency fee arrangements?

Historically, contingency fee arrangements in civil litigation in Canada were also contrary to the rules respecting champtery and maintenance because they involved the litigation being financed by someone other than the plaintiff – specifically, the plaintiff’s counsel. The introduction of class action legislation in Canada led to a relaxation of these principles. It is now the case that in product liability actions, contingency fee arrangements are permitted in both class actions and individual actions. However, such arrangements must comply with the rules regulating the legal profession in each province, and their enforcement remains subject to court supervision.

Is third-party litigation funding permitted in your jurisdiction?  If so, do any rules or restrictions apply?

An amendment to the Law Society Act in 1992 established the Class Proceedings Fund as an exception to the common law rules of champerty and maintenance. The fund provides financial support to approved class action representative plaintiffs to cover disbursements incurred while conducting a class action and indemnifies representative plaintiffs for adverse costs awards which may be made against them in a class action proceeding. In return, the fund receives 10% of any judicial award or settlement in favour of the plaintiffs plus a return of any funded disbursements. 

Further, in recent years, Canadian courts in some provinces have accepted the role of litigation funding by third parties, particularly in class actions where other sources of funding are likely to be unavailable. Generally, such funding arrangements must be disclosed to the defendant and the court and are subject to court approval.  

Is legal aid (ie, public funding) available to claimants in product liability cases?  If so, what rules, restrictions and procedures apply?

Legal aid is potentially available to claimants in any type of civil litigation matter, including product liability cases. However, few product liability civil lawsuits are funded this way. Rather, the majority, if not all, product liability lawsuits are brought by plaintiffs’ lawyers pursuant to a contingency fee agreement with the plaintiffs. 


What rules and procedures govern the settlement of product liability cases? 

There are no separate rules relating to the settlement of product liability lawsuits in Canada, relative to other types of civil lawsuit. The rules and procedures respecting settlement of lawsuits apply to all types of civil lawsuit, including product liability cases. 

Generally, court approval is not required for the settlement of private legal actions, unless the settlement involves a plaintiff under a legal disability. The most common type of legal disability relates to age (ie, if the plaintiff is under the age of majority). 

Settlements of class actions require court approval. The process for seeking court approval of a class action is much more involved than a motion for approval of a settlement of a private action. In brief, it is necessary to publish notice of the settlement agreement and the date of the hearing of the motion for court approval. Class members who may object to the terms of the settlement agreement as not being fair and reasonable, are entitled to attend the hearing of the settlement agreement approval motion and have standing to object to the court’s approval of the settlement agreement.

How common are settlements in product liability cases?

The majority of civil lawsuits, including product liability lawsuits, are resolved by way of a settlement as opposed to an adjudicated determination. 

Alternative Dispute Resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

The most common ADR method in Canada is mediation. The courts in many Canadian jurisdictions require the parties to attempt mediation of their lawsuit as a mandatory step in the litigation process. Even where mediation is not required, many parties in civil litigation proceedings engage in voluntary mediation. 

How commonly is ADR used in relation to production liability cases in your jurisdiction? 

Mediation is conducted in the majority of product liability lawsuits in Canada.

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