Civil Litigation and Collections

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Product Liability

Product liability law in Canada underwent a dramatic transformation with the Supreme Court of Canada’s decision in Hollis v. Dow Corning Corp. This 1995 decision found Dow Corning liable for the medical problems of the Plaintiff who suffered many health problem after her breast implant ruptured. This case is important not only for breast implants but for all product liability cases. It has changed the standard that the court applies and may make it easier than ever before for parties injured due to the negligence of manufacturers to sue.

In the Dow chemical case, that company was aware for a number of years of unusual ruptures in its implants but did not pass this information onto the medical community for two years. The court felt that this was a breach of Dow’s duty to warn the doctors about these ruptures. Also, the doctors had a duty to warn Ms. Hollis of the potential dangers.

In this case, the court changed the test from the previous objective one in determining what effect a proper warning from a manufacturer would have had on someone such as Ms. Hollis. The test was, whether a reasonable person would have consented to the use of the product such as the breast implants even if fully aware of the risks. The court threw out that test and replaced it with a subjective one. The new test is whether or not that individual Plaintiff, in the Dow case, Ms. Hollis, would have consented to the procedure if adequate warnings had been given to the doctor by Dow which in turn would have been passed on to her prior to her making her decision.

The court for policy reasons decided that it was important to now hold manufacturers to a strict standard of warning consumers about the potentially dangerous consequences arising from their products. The duty of the manufacturer is accordingly not only to give proper and clear notice of the potential dangers that might arise from the use of its product, but to also continue to pass on those warnings even after the product has been sold. An example might be by means of newspaper advertisements warning the public and the industry of newly discovered problems with one’s own product. It is important to note that these problems may not even be very common. If the risks are very small but the danger is great, the warning still must be given. If they are not given, the manufacturer may very well be found liable for damages suffered by the Plaintiff. This is based upon the legal concept that the Plaintiff never would have consented to the use of the product such as buying it, installing it, using it, drinking it, sitting on it, riding in it, if it had known that there was a potential danger.

A New Way of Suing for Under $50,000

The most one can sue for in Small Claims Court is $10,000.00. The problem is that legal fees when suing for $7,000.00 are not all that different than suing for $700,000.00 until now.

There is simpler and cheaper way of suing for claims no greater than $50,000.00. This method called “Simplified Procedure” is due to a change made to the rules of the court and opens up a new possibility for the clients of Dale Streiman Law LLP.

This simpler method of suing is both faster and cheaper than traditional court action.

The advantages of the Simplified Procedure are:

  • a number of procedural steps have been removed, primarily examinations for discovery and in some cases lengthy trials
  • trial can be much shorter
  • a lot of the evidence is given in writing rathen than oral testimony
  • some court documents, such as pretrial memorandums, have been eliminated
  • If you do not use this method and you recover less than $50,000.00 in a standard action, you may receive no costs.

However making the process simpler and faster has made it more arbitrary and less predictable. There is no chance to test the other side’s version of the case prior to trial and very little even if there is a trial.

The drawbacks of the simplified method of suing:

  • little chance to test the other sides story
  • limited ability to get facts and information from the other party
  • greater chance of the court making an error because of the restriction in obtaining information not only in advance but at trial in the event there is one.
  • there is a need to organize and present your evidence in a comprehensive affidavit (written) form. Your whole case will probably be won or lost on this document

Case Update on the Simplified Rules

Judge Chadwick in the case of Bradley-Kelly Construction Limited v Ottawa-Carleton Regional Transit Commission, (1996) 30 O.R. 3rd p. 301, upheld the obvious difference between the simpler on a motion for summary judgment under the Simplified Rules of Civil Procedure and under then normal motion for summary judgment.

The details of the case surrounded an interpretation of a construction contract. The Plaintiff was successful in its motion for summary judgment. His Honour held at page 302:

“It is obvious that the test under the summary judgment rules is a lower standard than the test provided for in Rule 20.04(2) [this refers to the existing summary judgment rule dealing with no genuine issue for a trial judge].”

The net effect of this is the importance of using the new Simplified Rules of Civil Procedure whenever available. The purpose of the Rule was to lessen the costs of civil litigation when less than $25,000.00 was in dispute.