Canada: Made In Canada, But Sold South Of The Border: A Cautionary Tale For Supply Chain Participants

In Canada, liability for a defective product can attach to all participants in a supply chain to varying degrees, including retailers, suppliers, wholesalers, distributors, importers and manufacturers of the product. This liability is derived from consumer protection and sale of goods legislation, as well as the Canadian common law. However, a recent decision from the U.S. District Court for the Western District of Michigan may herald increased risk for Canadian manufacturers in product liability class actions south of the border. In Kellogg Co. et al. v. FPC Flexible Packing Corp. and The International Group, Inc., Justice Maloney held that an Ontario-based supplier who contracted exclusively with another Canadian entity was nonetheless a proper third-party defendant to a product liability claim that is ongoing before the U.S. District Court in Michigan. In assuming jurisdiction over an action in relation to a contract formed in Canada between two Canadian parties, the U.S. District Court has signaled a willingness to assume jurisdiction over disputes between Canadian entities doing business in Canada whose product (in this case, packaging) forms part of a product that is ultimately distributed and sold in the United States.


Kellogg Co. and Kellogg USA Inc. ("Kellogg") recalled more than 1.5 million boxes of cereal due to customer complaints of an "off" odour and taste, which allegedly resulted in five cases of illness. According to Kellogg, the odor and taste arose from defective cereal box liners supplied by FPC Flexible Packaging Corp. ("FPC"). FPC is a Canadian corporation organized under the laws of Ontario.

Kellogg commenced a claim against FPC for breach of express and implied warranties. The liners at issue were sold to Kellogg and sent to its cereal manufacturing plant in Omaha, Nebraska. FPC alleges that that the liners contained excessive hydrocarbons in the wax, and therefore moved to add the wax manufacturer, The International Group, Inc. ("IGI"), as a third party to the claim. IGI is also a Canadian company with its headquarters in Toronto. FPC and IGI had entered into an oral contract in Canada for the supply and purchase the wax used to make the liners, which was carried out on an "order-by-order" basis through the issuance of purchase orders. Kellogg subsequently amended its statement of claim to include claims against IGI.

Choice of Law

After being named as a defendant in the action, IGI moved for summary judgment against both Kellogg and FPC.

The court found that Michigan law governed the claims as between IGI and Kellogg. Applying Michigan law, the court found that the various FPC purchase orders constituted individual offers and that each acknowledgement sent by IGI constituted an acceptance of the specific offer to purchase wax. Justice Maloney also found that there were sufficient factual uncertainties regarding the terms of the contracts to preclude a finding on summary judgment. IGI's motion for summary judgment against Kellogg was therefore dismissed.

In determining whether Michigan law should also apply to the relationship between FPC and IGI, the Court considered "the place the contract was executed, the place where the contract was to be performed by the breaching party, and the locations of the parties' headquarters and incorporation". In light of these factors, the Court concluded that Canadian law must apply. Nevertheless, in so ruling, it also concluded that Michigan courts could assume jurisdiction over the dispute as a result of the fact that the third party claim "shares a 'common nucleus of operative fact' with the case already before the court." The Court also found that "judicial efficiency" considerations militated in favour of assuming jurisdiction over the action.

Applying Ontario law to the third-party complaint as between IGI and FPC, Justice Maloney found that, similar to the contractual dispute between Kellogg and IGI, there were sufficient factual uncertainties relating to the precise terms of the contract, and therefore a full trial was required.

After a number of preliminary motions for summary judgment and evidentiary motions to strike various portions of the record, the case is currently scheduled to be heard by a jury in July of 2015.

Key Take-Aways for Participants in a Supply Chain:

  • Be aware of the players in any supply chain with which you are involved, including where a particular material, product, ingredient, or component is sourced, as well as the ultimate destination of your own product.
  • Suppliers and distributors should be mindful of potential defects or hazards associated with materials, products, ingredients or components by virtue of past experience in the marketplace or which, through inspection, ought reasonably to have been discovered. Furthermore, suppliers and distributors should be mindful of any particular product uses that may have been communicated by counter-parties to a supply contract so as to ensure that the material, product, ingredient or component is fit for such purpose.
  • Protect yourself contractually by formalizing all business relationships through formal written agreements, which may include protections such as indemnity provisions, limitations of liability, and possible disclaimers of warranty (where appropriate). Sellers should ensure (where appropriate) that purchasers of materials, products, ingredients, and components represent and warrant that they have inspected the goods, to ensure that obvious defects that can be revealed by an inspection are caught. Purchasers should consider what types of defects can be reasonably be revealed during an inspection, and include contractual protections to limit liability accordingly.
  • To the extent possible, protect yourself "procedurally" through the use of choice of law and choice of forum provisions. Although such provisions may not ultimately preclude adjudication by a foreign court (as the Kellogg case illustrates), they will at least provide the courts with a clear statement of intention of the governing law and intended forum. In this regard, parties may also wish to consider specifically referencing applicable sale of goods or consumer protection legislation.

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.

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.