Canada: Class Action On Defective But Not Dangerous Goods A Wash: Whirlpool Unhampered By Product Liability In Tort

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.


The proposed class action sought to compensate consumers who purchased front-loading washing machines manufactured by Whirlpool between 2001 and 2008.  The class alleged that the machines suffered from a common design defect and were prone to developing an unpleasant smell.  They did not plead that the washing machines were dangerous or caused any injury or significant damage to property.  The class elected to sue Whirlpool, and not the retailers from which they bought the machines.

The class claimed damages for breach of express warranty, breach of implied warranty, breach of the Competition Act, negligence, and waiver of tort.  The motions judge determined that the class had not disclosed a tenable cause of action on any of these claims, and therefore did not meet the criteria for certification of a class action.1

The Court of Appeal Decision

The Court of Appeal agreed with the motions judge, and disposed of all of the class' causes of action individually.

  1. Breach of Express Warranty

Whirlpool had provided three different warranties that covered defects in the materials or workmanship of the washing machines.  The Court saw the matter as one of simple contractual interpretation and found that, given that the class were suing for defective design, rather than materials or workmanship it was plain and obvious that the express warranties did not cover their claim.2

  1. Breach of Implied Warranty

Section 15 of the Sale of Goods Act3 provides for an implied warranty in a contract of sale between a purchaser and seller.  The class argued that Whirlpool had breached the implied condition, namely that the washing machines would be "reasonably fit" for the purpose of washing clothing.

Since Whirlpool does not sell its machines directly to consumers, it argued that it was not a "seller" within the meaning of the Act, so the implied warranty did not apply.4  The Court agreed, stating that the fact that the machines were purchased from third-party retailers was "critical to the viability of the class' implied warranty claim."5  Section 15 provides a remedy against the seller with whom the consumer has a contract of sale.  The statutory warranty is implied into this contract. The class had no such contract with Whirlpool, and no exception to the law of privity of contract could be found.6  This being the case, the Court found that there was no reasonable prospect of success for this claim.7

A Notable Exception: Saskatchewan and New Brunswick Sale of Goods Legislation

Residents of Saskatchewan and New Brunswick could still have a cause of action against Whirlpool for breach of an implied warranty because the sale of goods legislation in those provinces expressly provide that lack of privity does not defeat a third party's claim for damages as a result of a breach of an implied warranty.8  That is, the implied warranty is not limited to agreements between sellers and purchasers, and consumers can make direct claims against manufacturers.

An Unanswered Question for Future Litigation: A Change to the Doctrine of Privity?

The class could have argued that the contract between Whirlpool and the retailers included an implied condition and that they intended to extend the benefit of section 15 to the third-party purchaser.  This would have required the class to establish that allowing the consumer to sue under manufacturer-retailer contracts would be an incremental change to the doctrine of privity.  However, since the class had not plead the issue, the Court of Appeal concluded that it was not necessary to decide the question, and noted that it would be preferable for the courts to await a case focused squarely on that subject.9

  1. Breach of the Competition Act

The class claimed that Whirlpool had breached section 52 of the Competition Act,10 which provides that no person shall "knowingly or recklessly make a representation to the public that is false or misleading in a material respect" for the purpose of promoting the supply or use of a product.11  The statute further empowers a person to sue for damages where a person has acted in contravention with the act.12

Because Whirlpool had never revealed to consumers that the machines suffered from a design defect that exacerbated unpleasant odours, the class argued that Whirlpool had made a representation by omission.13  However, silence is not an actionable misrepresentation unless there is a legal duty to disclose something, and the Court found that there was no such duty under the Competition Act.14  It went on to adopt the holding in Williams v. Canon Canada Inc., 2011 ONSC 6571, where Ontario's Superior Court held that a failure to disclose an alleged defect cannot be a "representation" that would violate section 52.15  Nonetheless, it noted that such omissions can still give rise to an action in negligence.

  1. Negligence: Economic Loss for Negligent Design of a Non-Dangerous Consumer Product

The class' claim for economic losses stemming from a shoddy, but not dangerous product was novel in the realm of tort law.  Ultimately, the Court of Appeal upheld the motion judge's finding that the class' claim was untenable, and supported the broader statement that, "compensation for economic losses are best regulated by contract and property law." 16  The Court of Appeal wrote:

At its core, the appellants' economic loss claim is for diminution in value – that is, the difference in value between the product they thought they were getting and the one actually received.  In my view, it is clear that such a claim has no reasonable prospect of success in light of the jurisprudence and the relevant statutory framework... 17

The Court further concluded that:

... in my view policy considerations negate recognizing a cause of action in negligence for diminution of value for a defective, non-dangerous consumer product. On the pleaded facts, I agree with the motion judge that the appellants should be left to their statutory and contractual remedies, including express, implied or statutory warranties and 'should not look to tort law to negotiate a better bargain for themselves.'"18

Understanding Pure Economic Loss

The Class' claim was characterized as one for "pure economic loss" because there was no significant damage to clothing or property, and no person had suffered bodily harm.19   Pure economic loss is defined as "a financial loss which is not causally consequent upon physical injury to the plaintiff's own person or property."20

Canadian courts have traditionally limited recovery in tort for pure economic loss.  This is partly because economic interests are seen as "less compelling of protection than bodily security or proprietary interests."21  Courts are also concerned about the "spectre of indeterminate liability" and the encouragement of inappropriate lawsuits.22

A Policy-Based Distinction Between "Dangerous" and "Shoddy" Workmanship

Tort law was expanded to recognize claims for pure economic loss stemming from dangerous goods in Winnipeg Condominium Corporation v. Bird Construction Co., [1995] 1 SCR 85.  In that case, the Supreme Court of Canada found that there were compelling policy reasons to impose tortuous liability on contractors for the cost of repairing dangerous defects of a building, but expressly declined to settle whether a similar duty should be recognized when the defect is not dangerous.23  The washing machines in Arora were alleged to be shoddy, but not dangerous,24 thus the Court of Appeal was compelled to consider the issue.

The Court in Arora determined that the extension of liability for dangerous defects in Winnipeg Condominium was derived from "conventional concerns of protection of bodily integrity and property interests."25  In contrast, the class did not suggest there was a danger to the health and safety of the proposed class members, nor did their claim involve damage to property.26  Consequently, the Court stated that "recognizing the possibility of tort liability on the pleaded facts of this case would represent such a quantum leap [in the law] that it is plain and obvious that the class' negligence claim will not succeed."27  The rationale for extending tort liability for a potentially lethal condominium building simply would not reach into the realm of merely defective, somewhat smelly washing machines.

The Class' Claim was Properly Contractual

Even though the damages sought by the class were not a recognizable claim in tort, they could have been appropriately pursued as expectation damages for breach of contract.28  As the Court of Appeal stated:

At its heart, the appellants' claim is that they paid more for their washing machines than they are worth. It is squarely about relative product quality – a matter that, as LaForest J. noted in Winnipeg Condominium, is customarily dealt with by contract and not easily defined by tort.29

The Court also stated that to require courts to analyze "a myriad of consumer transactions ... in tort, without the framework of consumer protection legislation, to determine whether the consumer received value for his or her money, would burden an already taxed court system."30 Of course, pursuing the matter as a contractual claim would have required the class to sue the individual retailers with whom they had contracts, rather than a single manufacturer.

The Availability of Alternative Remedies: Consumer Protection Legislation

The Court of Appeal was heavily influenced by what it perceived to be readily available remedies under various statutory regimes. It wrote:

... it must be remembered that this is not a case where the appellants were without a remedy. The SGA31 and CPA32 provided a statutory remedy against the seller of the machines for breach of implied warranties of quality and fitness for purpose, and the BPA33 and CPA 34 provided remedies against Whirlpool for unfair practices.35

To the extent that Ontario's legislation dealing with breach of implied warranties limits consumers to remedies against individual retailers, it must be acknowledged that class actions will be fractured and multiplied, and likely uneconomical.  Recognizing this, the Court encouraged Ontario's legislature to reconsider amendments to the CPA to include an exception to privity of contract that would allow consumers to recover against manufacturers for breach of implied warranties.36

  1. Waiver of Tort

The Court of Appeal reinforced that waiver of tort requires, at minimum, that a defendant has committed some form of wrong.  Since the class had not pleaded any tenable cause of action, there was no wrongdoing to support a finding of waiver of tort, regardless of whether it was plead as a remedy or a cause of action.37

Conclusions on Liability in Tort for Defective, Non-Dangerous Consumer Goods 

While the Court's invocation of policy reasons suggests a broad moratorium on tort claims for economic losses stemming from non-dangerous goods, the Arora decision ultimately centres on the specific facts of the case.  Though the class' claim could not pass through, the door to tort-based recovery for defective goods remains slightly ajar for future plaintiffs who may wish to give it another spin.

It is also noteworthy that the class had dropped their initial claim under the CPA,38 had made some concessions about the nature of their losses,39 and had failed to plead all of the potential claims available to it under contract law.  The dismissal of their appeal may instigate a renewed caution on the part of plaintiffs' counsel to exhaust every legal avenue in their pleadings and refrain from making concessions at the pre-certification stage.  As a result, defendants of product liability class actions may find themselves faced with increasingly complex claims.  


1 Class Proceedings Act, 1992, SO 1992, c 6 s 5(1)(a).

2 At paras 22-23.

3 RSO 1990 c S 1.

4 At para 28.

5 At para 31.

6 At para 37.

7 At para 33.

8 At para 32.

9 At para 42.

10 RSC, 1985, c C-34.

11 At para 43.

12 At para 44.

13 At para 45.

14 At para 50.

15 At para 51.

16 At paras 65, quoting trial decision at paras 288-289.

17 At para 96.

18 At para 116.

19 At para 73, 76-79.

20 At para 52, quoting Professor Feldthusen in Bruce Feldthusen, Economic Negligence, 6th ed. (Toronto: Carswell, 2012) at p 1.

21 Martel Building Ltd. v. Canada, 2000 SCC 60 at para 37, quoted in Arora at para 53.

22 Ibid.

23 At paras 58-59, and 81-83.

24 At para 59.

25 At para 101.

26 At para 101-102.

27 At para 97.

28 At para 104.

29 At para 105.

30 At para 105.

31 Sale of Goods Act, supra.

32 Consumer Protection Act, 2002, SO 2002, C-30.

33 Business Practices Act, RSO, 1990, c B018 – now repealed.

34 Consumer Protection Act, supra.

35 At para 115.

36 At paras 112-114.

37 At paras 117 and 121.

38 At para 111.

39 At para 74 and 75.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.