Product Recalls

Everyone has likely heard about a product recall. Larger or more serious recalls are often reported in the news, advertised in a variety of media or posted in the stores where the recalled product was initially sold. But have you ever discovered you own or have used one of these recalled products?

If you or a loved one has discovered a product you own or use has been the subject of a recall and you believe the product may have caused or contributed to a serious personal injury, economic loss, or damage to your property, Gluckstein Lawyers can help determine whether you have an actionable claim for compensation.

What are product recalls and why do they occur?

A product recall is any corrective action associated with a potential or known defect in a product. Depending on the severity of the defect, the recall notice may offer an advisory for how to use the product safely, a process to fix the defect, or steps a consumer can take to exchange or replace the defective product. In other cases the notice will outline plans to remove the product from the market. A recall may cover all distributed products or be limited to a particular batch of products or products produced during a certain time period.

In many cases, recalls are precautionary and the risk of serious harm to consumers or the public is low. In other cases, the recall may have been prompted by reports of serious injuries or deaths linked to the product.

The decision to launch a recall usually comes after one or more of the following events:

• post-market testing by a manufacturer.
  
• consumer complaints about a product.
  
• reports of consumer injuries, illnesses or deaths linked to the product.
  
• recalls of the product in other markets.
  
• government inspections.

Who is responsible for product safety and recalls?

The Canada Consumer Product Safety Act prohibits the manufacture, import, advertisement or sale of any consumer product that poses a “danger to human health or safety.” The onus is on the manufacturing industry to ensure they comply with the Act. Moreover, numerous products must meet product-specific regulations. These products include, but are not limited to:

• food.
  
• liquor.
  
• tobacco.
  
• clothing.
  
• cosmetics.
  
• pharmaceuticals and biologics.
  
• medical devices.
  
• natural health products.
  
• electronic and wireless devices.
  
• motor vehicles.
  
• safety devices and equipment (car seats, smoke detectors, helmets).
  
• children’s strollers, cribs, and pacifiers.
  
• firearms.
  
• consumer chemicals and pest control products.

Used or second-hand products are indistinguishable from new products according to these laws and regulations. Anyone who imports, distributes, sells, or gives away non-compliant products would be breaking the law.

Companies who produce or manufacture products owe a duty of care to consumers or anticipated users of their products. Generally these manufacturers will bear most of the responsibility and costs associated with undertaking and executing recalls.

They may initiate their own recalls proactively or negotiate voluntary arrangements with regulatory agencies. In some cases, when the risk or serious harm to consumers or the public is high, a formal mandatory recall may be issued by the federal ministry tasked with oversight for the product.

Health Canada is responsible for ensuring the safety of most consumer products and overseeing recalls related to these products. Transport Canada is responsible for overseeing recalls related to motor vehicles and their associated parts, and child restraint systems. The Canadian Food Inspection Agency is tasked with food products safety.

Is a recall grounds for a lawsuit?

A product recall in itself is not sufficient grounds to launch a claim against a product’s manufacturer, even though a recall notice can be used to help a court infer that a product is defective or a safety risk in a lawsuit. To have an actionable claim against a manufacturer, a person must demonstrate that the product’s maker breached a duty of care (in contract or in law) owed to consumers, and that this breach caused tangible damages.

Often claims against a manufacturer will allege a breach in its duty of care due to negligence. This negligence may have resulted in a product’s defective design, defective manufacture, or in a failure to warn a consumer or user about inherent dangers a manufacturer knew about or ought to have known about.

If you or a loved one suffered an injury or tangible damages due to this negligence prior to a recall notice, you may be able to use the recall notice in support of your claim that a product was defective or marketed in an unsafe manner. If you suffered an injury or loss following a recall, you may still use the recall notice as evidence of negligence. However, you may need to explain why you continued to use a product when the manufacturer or a regulatory body made attempts to alert consumers to the defect or risk of harm.

It is important to note that simply issuing a recall notice does not absolve the manufacturer of their liability in bringing a defective product to the market – one that posed a dangerous risk to consumers. Nevertheless, if the manufacturer has taken reasonable steps to identify affected consumers, advertise or otherwise communicate the danger to them, and correct the defect, they may argue they have mitigated some of the potential for the product to cause harm.

If a consumer was aware of a recall, but continued to use the product and subsequently sustained injuries or losses, a manufacturer may argue that the consumer was contributorily negligent, which would reduce the manufacturer’s share of liability for the damages. A consumer who was aware of a recall and allowed a defective product to be used by another person may also be partially liable for any injuries or losses that result.

What should you do if you are affected by a product recall?

If you learn that you possess or used a recalled product, the government recommends:

• following the recall notice’s instructions and/or contacting the manufacturer.
  
• keeping the product unless advised by the manufacturer or government regulatory body to dispose of it.
  
• preventing anyone else from using or being exposed to the product.
  
• monitoring the recall process by using the government’s recall notification system.

If you believe you or a loved one may have been harmed by the product or suffered property damage or an economic loss as a result, you should also:

• contact a personal injury lawyer who has experience handling product recall cases.
  
• collect any documents (packaging, receipts, product manuals, warranties) that provide evidence that you own or have used the product, if possible.
  
• collect evidence of the injury or loss by taking photos, videos, notes, or visiting a medical provider to establish a medical record.
  
• contact anyone else who may have used the product or with whom you have been in contact if you have experienced symptoms related to a recall involving a food-borne illness outbreak.

We can help.

Gluckstein Lawyers is one of Canada’s top ranked personal injury firms. Our knowledgeable, skilled and experienced product liability lawyers have helped many people just like you who have been harmed and suffered losses related to defective products. If you or a loved one has discovered you own, have used or have consumed a recalled product, and you believe it has caused or contributed to a serious personal injury, property damage or an economic loss, we may be able to help you access compensation.

When you contact a member of our product recall team for a no cost, no obligation initial consultation, with great empathy we will listen attentively to your story. Once we explain your legal rights and your options, you can make an informed decision about if and how you would like to proceed to seek justice and/or a sense of closure.

If we believe that you have an actionable case and that we can negotiate a fair settlement or win a court award on your behalf, we will offer our services as your legal representative. Our ability to build strong, court-ready cases gives us the confidence to work on contingency. That means we will cover all costs during proceedings and we only receive payment for our legal services if you receive financial compensation for your losses.

As a client at Gluckstein Lawyers, we do everything possible to show you that we always see you, first and foremost, as a person who needs and deserves compassionate care and support. We treat you as we would treat our own family. Our renowned client liaisons will guide you through the legal process, answer questions you may have about your case, and offer to connect to you resources that may help as you recover from a serious injury or help build community if a newly acquired disability has changed the course of your life.

If you or a loved one has been seriously harmed by a defective product that is the subject of a recall, contact Gluckstein Lawyers to learn more about what we can do for you.