Canada: Where Do You Keep Your Corrosive Cleaner?

The Facts

La Capitale was claiming reimbursement of more than $137,000 in compensation paid to its insureds following water damage that occurred in their home on February 2, 2017. La Capitale was thus suing the general contractor who built the residence in 2012, the distributor of the faucet whose flexible pipe failed, as well as the manufacturer of a Lysol brand product, whose chlorine fumes altered the flexible pipe.

The insureds from La Capitale stored Lysol Advanced, a toilet bowl cleaner, in the closed cabinet under their bathroom sink, which they purchased at Costco. The experts retained by the parties following the incident all concluded that the stainless steel braided sheath of the flexible conduit of the faucet had degraded by a corrosion phenomenon resulting from the chlorine vapors emanating from the Lysol Advanced product, which contained a concentrated content (12%) of hydrochloric acid, a chemical compound that is very corrosive to any metal in the vicinity.

Before analyzing the liability of the parties involved, the Court emphasized that the obligation to inform was based on articles 1468 and 1469 of the Civil Code of Quebec, which relate to the safety of a product . Furthermore, since the faucet in question was sold to consumers, the obligation to inform is also provided for in the second paragraph of section 53 of the Consumer Protection Act (RLRQ, P-40.1). The Court concluded that the manufacturer and the distributor were liable in solidum.

The Liability of the Manufacturer

Citing the Supreme Court Lambert v. Lastoplex Chemicals, 1971 CanLII 27 (SCC), the Court recalled that when manufactured products are placed on the market to be ultimately purchased and used by the general public and that they are dangerous, even if used for the purposes for which they are intended, the manufacturer is obliged, knowing the risk, to specify the concomitant dangers that may arise from their use, since it must be presumed that a manufacturer is in a better position to appreciate the dangers of its product than the ordinary consumer or end user. In short, a general warning is not sufficient.

The Court noted that the label of the product Lysol Advanced only mentioned to "Keep the container tightly closed in a cool and well-ventilated place". Based on the teachings of the Court of Appeal in Imperial Tobacco Canada Ltd. v. Conseil québécois sur le tabac et la santé, 2019 QCCA 358, the Court concluded that the manufacturer of the product Lysol Advance had failed to provide accurate and complete information or sufficient warnings and instructions for use for the consumer to fully appreciate the dangers and risks associated with the use of the product, namely the risk that the chlorine vapours emanating from the product Lysol Advanced would significantly degrade nearby metals, such as the stainless steel fittings of the faucet at issue.

The manufacturer argued that La Capitale's insureds were responsible for their own misfortune, because they had not followed the instructions on the Lysol Advanced product label. However, the Court recalled that in order to be exonerated, the manufacturer had to be able to demonstrate that the victim had a precise and complete idea of the dangers and the associated risks, and that the victim was informed of the measures to be taken in order to deal with or to protect himself from them. It was demonstrated that La Capitale's insureds were unaware of the risks inherent to the chlorine emanations of the Lysol Advanced product, and this situation undeniably resulted from the manufacturer's breach of its duty to inform. The Court therefore did not accept this argument. Moreover, the Court recalled that a consumer's consideration of the risks of a product must be assessed according to the standard of the average consumer, a credulous and inexperienced person, which is low.

Thus, the Court concluded that the failure of the manufacturer of Lysol Advanced to include accurate, understandable and complete information on the label of the container as to the specific hazards presented by the highly corrosive nature of the product was to be considered the most significant causal factor in the occurrence of the loss and attributed 75% of the liability to the manufacturer.

The Distributor's Liability

The Court concluded from the start that there was no defect in the faucet and its fittings, particularly since it was not reasonable to believe that the normal conditions of use of the faucet and its fittings had a corrosive environment component. It therefore did not hold the distributor liable in this respect.

As for the duty to inform, the distributor argued that it was not its responsibility, since the dangerous corrosive product, Lysol Advanced, was not its own. However, the Court disagreed. The evidence showed that the distributor of the faucet had known since July 2014 that the flexible fittings on the faucets sold were particularly susceptible to corrosion. In fact, the distributor had begun to compile an inventory of claims made by this incompatibility of the two products at issue. After knowledge of a dozen incidents , the distributor added a summary notice to its installation instructions in 2015, but no action was subsequently taken regarding the faucets already sold, even though these products had a life expectancy of approximately 15 to 20 years. The Court then determined that the distributor had been negligent in its duty to inform when it became aware of the existence of this defect, according to the requirements of article 1473 paragraph 2 C.C.Q, and attributed 25% of the liability to it.

The Contractor's Liability

As for the contractor, the Court determined that it could not be held liable. On the one hand, the contractor qualified as a professional seller of the home, but not as a specialized seller with respect to all accessories that could be incorporated into the residence, such as the faucet in question. The Court noted that there was a significant difference between, for example, the concrete used to pour the foundation, which was necessary for the performance of the contract, and the faucet accessory that controls the flow of water. As such, the presumption of knowledge of a defect in the faucet, if any, could be rebutted. As well, since the contractor was not legally presumed to know of the defect in the faucet, the Court determined that it could not be held to have a duty to inform or disclose.

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