The Superior Court of Québec, presided by Justice
Geneviève Marcotte, rendered an interesting judgment on the
topic of the shared liability between purchasers and manufacturers
in the case of De Luxe Produits de papier inc. c. Technical
Adhesives Ltd, (De Luxe c. Technical).
De Luxe, a specialist in food packaging, had hired Technical to
develop and manufacture an adhesive for its food packaging needs.
De Luxe sued Technical for damages caused by having to recall its
hamburger packaging due to a latent defect in the adhesive
manufactured by Technical that caused residual odours in the food
De Luxe bases its recourse on the warranty of quality provisions
in the Civil Code of Quebec as well as on the teachings of
the Supreme Court in ABB inc. c. Domtar inc., where it was
established that a defect is latent when it is serious, when it
existed at the time of the sale and when it is hidden. In
Québec, a defect is presumed to have existed at the time of
the sale when a product perishes prematurely in comparison to
When these elements are combined, the manufacturer is presumed
to have been aware of the defect given its privileged knowledge.
Rebutting this presumption is an uphill battle for any manufacturer
and is contingent on proving improper use of the product or an act
However, on the flip side, the experience of a purchaser will
come into play when determining the hidden nature of the defect
and, in this case, the contributory liability of the purchaser.
This is in fact what led the court to find shared liability between
the purchaser and the manufacturer in De Luxe c.
On the one hand, Technical, as the manufacturer of the product,
had not met its duty to inform the purchaser. More specifically,
Technical was aware that diluting adhesive was normal practice for
the purchaser. However, Technical chose to simply advise De Luxe
that there was no need for dilution rather than articulating the
adverse affects of such a practice. The duty to inform was even
more burdensome in this case as the manufacturer had been advised
of this potentially adverse practice prior to developing and
tailoring the product to the specific needs of the purchaser.
Furthermore, the manufacturer omitted to advise the purchaser of
the importance of drying the product adequately so as to avoid
On the other hand, the purchaser, who was equipped with a team
of professionals capable of analyzing technical sheets and carrying
out its own qualification testing was also found liable. More
specifically, De Luxe had ignored the inscriptions on the technical
sheets pertaining to odour formation and had also omitted to draw
inferences from the odour emanating from the adhesive before it was
even incorporated into the product. De Luxe was also responsible
for not having inquired about the consequences of changing the
method used during product testing to incorporate the adhesive into
the product, a procedure in which both parties were involved.
These elements resulted in a 50/50 finding of shared liability
for both the experienced purchaser and the manufacturer.
What does this mean for you? Purchasers, beware: your level of
expertise can and will be held against you. Manufacturers, be
transparent: you must explicitly communicate any information that
may be useful to the purchaser.
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