Edited by Belinda A. Bain, Mary M. Thomson and Nicholas Kluge
In this issue:
- Ontario Court Shatters Defendants' Spoliation Arguments in Product(less) Liability Claim
- Class Action on Defective But Not Dangerous Goods A Wash: Whirlpool Unhampered by Product Liability in Tort
- Bill C-17: Modernizing the Food and Drugs Act but at What Cost?
Ontario Court Shatters Defendants' Spoliation Arguments in Product(less) Liability Claim
By: Belinda Bain and Emily Heersink
When broken, defective, or dangerous consumer products are thrown out with the trash, potentially important evidence for future litigation is tossed away with it. A recent decision by the Ontario Superior Court, Stilwell v. World Kitchens Inc., 2013 ONSC 3354, allowed injured plaintiffs to recover in a product liability case, despite the fact that they had little evidence to show that it was the defendants' product that caused the injuries, and they lacked proof of how the particular item shattered. Justice Leach issued an interim endorsement that the jury could not be asked to consider the doctrine of spoliation, that is, the jury was not permitted to think that the discarded evidence would "tell against" the plaintiffs if it were found. While the decision did not introduce new law, it is a poignant reminder that those who manufacture disposable or perishable consumer goods may be particularly vulnerable to product-less liability claims where they are unable to rely on physical evidence.
Class Action on Defective But Not Dangerous Goods A Wash: Whirlpool Unhampered by Product Liability in Tort
By: Belinda Bain and Emily Heersink
The recent decision Arora v. Whirlpool LP, 2013 ONCA 657 by the Ontario Court of Appeal clarified the law on product liability in tort. In refusing to certify a proposed class action, the Court found that Whirlpool was not liable for economic losses stemming from the allegedly negligent design and manufacture of non-dangerous washing machines. However, the Court was clear that the manufacturer could still be open to liability on contractual or statutory grounds, as could be the retailers that sold the machines.
Bill C-17: Modernizing the Food and Drugs Act but at What Cost?
By: Julia Vizzaccaro
Bill C-17, An Act to amend the Food and Drugs Act was introduced to Parliament by the Minister of Health on December 6, 2013. The bill proposes a number of amendments to the Food and Drugs Act (the Act) which has not been substantially updated in over 50 years. The amendments seek to improve the safety of drugs and medical devices by broadening Health Canada's powers to include the ability to collect post-market safety information and take appropriate action when a serious health risk is identified.
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