Canada: Product Recalls: Determining If You're Affected And If You Have A Legal Claim

Health Canada expands growing list of hand sanitizer recalls... What to know about Canada's onion recall... Fresh imported peaches recalled due to salmonella

If you search the term "recall" on a Canadian news website, chances are you will find a lengthy list of headlines like these. But despite how often product recalls occur, it's not always easy to understand what a product recall means for you.

This article is the second of a two-part guide to understanding product recalls. It explains:

• how to identify if your product is part of a recall
• how to tell if the recall involves a health or safety issue
• what to do once your product is recalled, and
• whether or not you may have grounds for a lawsuit.

Look to my prior article for what causes a recall and where to find out about them.

How can I tell if my product is part of a recall?

In a limited scale recall, the recall notice will typically specify which products are at risk by referencing the products' unique identifiers. Most consumer products are labelled with numbers or codes, such as serial numbers, SKU (Stock Keeping Unit) numbers, UPCs (Universal Product Codes) and PLCs (Price Look-up Codes), so it's easy to identify what product you have.

When a recall impacts an entire line of products, the recall notice may not specify particular codes and instead may say that it impacts "all lots" or "all products sold" of a certain product.

For products that have no or removable labels, such as certain foods, a recall notice may specify a period of time when the product was sold (ex. all peaches sold from June 1 to 22, 2020), or the names of retailers who carried the product ("sold at various IGA and Sobeys locations") or even the location of the exact store where the product was sold (ex. 123 Main St., Smalltown, ON).

Notices may also list the geographic distribution of the recall (i.e. specific provinces or national).

How can I tell if a recall involves a safety risk?

Consumers can tell whether a recall involves a safety issue by looking to the source of the recall and how the recall is categorized.

Consumer product recalls issued by Health Canada involve products that are a potential danger to human health or safety. Health Canada recalls are also labelled with an "Issue". Sometimes, the Issue will clearly identify the safety concern (ex. Laceration Hazard), though sometimes the listed Issue is vague, and it may be necessary to read the full notice to find out more.

Transport Canada only investigates safety defects. Transport Canada recalls will typically also specify a "Safety Risk" (ex. "Reduced brake performance can increase the risk of a crash") and the Corrective Action that the automaker has taken (ex. "Take your vehicle to a dealer for repair").

Unique from other types of recalls, Canadian Food Inspection Agency (CFIA) recalls show the specific level of health risk that recalled products pose to the public:

• Class I (high risk) – eating or drinking the product could lead to serious health problems,
• Class II (moderate risk) – eating or drinking the product could lead to short-term or non-life-threatening health problem, or
• Class III (low or no risk) – the product will not likely result in undesirable health effects, but it does not comply with relevant laws (e.g. more than the allowed level of a preservative).

If the source of a recall is a manufacturer, the defect may not pose a risk to safety. However, if you receive a recall notice that comes directly from the manufacturer, it may be prudent to verify that the government agency who regulates that type of product hasn't also issued its own recall.

What do I do if my product was recalled?

If your product was recalled, the Canadian government recommends you take the following steps:

Some other good practice tips to follow with recalled products, particularly if the products are valuable and/or if you believe the product's safety issue may have caused you harm, are to:

• track down any important documentation about the product to the extent that you have it (i.e. proof of purchase, instruction manual, warranty card, etc.),
• if you need to give documents to the manufacturer as part of the recall, make copies,
• record any damage that is attributable to the identified defect (through photos, videos, or notes) if applicable, or
• if it's a food product recalled over a foodborne illness, notify anyone else you know who ate the product or who you have been in contact with if you experienced symptoms.

Can I sue a manufacturer over a product recall?

A product recall may be relevant to determining whether you have a claim against a manufacturer. But a recall alone will not provide you with a basis to sue. To bring a legal claim against a company, you must have a cause of action (the legal basis for your claim). The most common cause of action for consumers to have against manufacturers is negligence.

A manufacturer may be negligent if it breaches a duty of care that it owes to consumers, such as:

1. the duty to avoid manufacturing defects in the product that are likely to cause injuries during ordinary use;
2. the duty to warn consumers of dangers inherent in the use of the product which the manufacturer has knowledge of or ought to have knowledge of;
3. the duty in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes; and
4. the duty to compensate consumers for economic losses suffered due to misrepresentations that the manufacturer made about its products that consumers relied upon.

A product recall may be relevant to a claim for a breach of these duties, as a recall can act as evidence through which a court or jury could infer the existence of a defect or a safety risk.¹

Regardless, even in situations where a recall may be useful to a consumer's case, a consumer will only have a claim if a manufacturer's breach of a duty actually caused the consumer to suffer some form of damage, such as a personal injury, damage to other property, or certain economic losses.

In most product recall situations, the manufacturer will offer a corrective action to fix the defect, (such as a refund, exchange, or repair). If you followed the corrective action, and the product didn't physically harm you or damage any other property you own, then you arguably haven't suffered any damages and wouldn't have the basis of a claim.

However, courts have been open to possibility that consumers may have grounds for a claim if a recall causes them to dispose of a product, even if they can't prove that the product was one of the recalled products. Our firm brought claims on behalf of consumers who disposed of beef due to recall notices which encouraged consumers to throw out any beef they had if they were uncertain of its origin. The Court found there was some basis in fact that those people may have claims.²

What if I can't return the product for a refund, can I still sue the manufacturer?

If the recalled product was something that you already used up (i.e. a disposable item such as food) and can't return, in most situations you probably would not have the basis for any claim. The biggest obstacle once again would be damages. If you already used a product for its intended uses, then you likely obtained a benefit from it. And if you have not suffered personal injury or harm to other property, then there is no loss to form the basis of a legal claim.

One category of claims that may be an exception are products that are recalled over concerns of exposing consumers to serious health risks. In such situations, consumers may have claims based on having relied on the manufacturer's representations about the safety or positive health benefits of the products as part of their decision to purchase the products. As a result, consumers may allege that they would have never purchased the products but for those potential misrepresentations.

If I keep using the product, does that affect my legal rights?

If you are aware that a product was recalled and you continue to use it, you could negatively affect any legal claim you might have.

If your own reckless actions contribute to an injury that you suffer (such as using a product that you knew was defective), when it comes time for a court to determine liability you may be found to be "contributorily negligent" and a court may split liability between you and the company. The result would be that you would lose a portion of the monetary damages attributed to your harms.

It is also possible that the company could mount a defence based on the "voluntary assumption of risk" (i.e. a volenti defence). A company may have a complete defence if it can prove that a consumer fully consented to the assumption of a risk and waived any liability on the part of the company. (Though this defence is rarely successful as it requires circumstances that clearly show the plaintiff, knowing of a virtual certain risk of harm, in essence bargained away his right to sue.³)

A further risk of using a defective product is making yourself liable for potential harms caused to others. This is especially true about motor vehicles. Owners and drivers are responsible for keeping their vehicles in safe working order. If a person ignores a safety recall and then gets into an accident that is attributable to the safety issue, that person may be liable for any harms caused to others.

However, if a consumer has no knowledge of a recall and continues using a product despite the fact it was pulled from the market, that person may still have a viable a claim.

In Nicholson v John Deere Ltd, a defect caused the plaintiff's lawn mower to catch fire and burn down her home. John Deere had rolled out a safety program, which included sending letters to dealers to urge their customers to have a safety kit installed. The plaintiff was not aware of the recall and did not get the fix. The plaintiff's claim, however, was still successful. The court found that no amount of or degree of specificity of warning will exonerate a manufacturer from liability if it makes an inherently dangerous item when a method exists of manufacturing the same item without a risk of harm.⁴

Footnotes

1 Johansson v General Motors of Canada Ltd, 2012 NSCA 120

2 Harrison v XL Foods, 2014 ABQB 720

3 Dube v Labar, [1986] 1 SCR 649

4 Nicholson v John Deere Ltd, 1986 CanLII 2502 (ON SC)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.