Collecting Evidence In A Product Liability Case

Lerners LLP


Lerners LLP is one of Southwestern Ontario’s largest law firms with offices in London, Toronto, Waterloo Region, and Strathroy. Ours is a history of over 90 years of successful client service and representation. Today we are more than 140 exceptionally skilled lawyers with abundant experience in litigation and dispute resolution(including class actions, appeals, and arbitration/mediation,) corporate/commercial law, health law, insurance law, real estate, employment law, personal injury and family law.
In our daily lives, as consumers frequently purchase and use products, product liability claims may emerge due to defects.
Canada Consumer Protection
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In our daily lives, as consumers frequently purchase and use products, product liability claims may emerge due to defects. These claims can arise from design or manufacturing defects, or they can arise from a failure to warn consumers about the product. It is therefore important to know what to do and how to seek legal help if you run into a product liability issue.

The Supreme Court of Canada held in its decision in Hollis v Birch that manufacturers are held to a high standard of care for consumable products.* This means that manufacturers of food, pharmaceuticals, and any other consumable products must not be negligent in the designing and manufacturing of products.

It is important to note that a standard of care also exists for other types of products used by consumers, such as vehicles, tools, or even clothing. There are legal consequences if a product is defective and the standard of care is breached.

In determining whether a product is defective, the court considers "what is reasonable to expect of the product in all the circumstances."**

When making a claim that a product is defective, the purchaser of the product must prove to the court that the "defect existed at the time of the delivery of the product or revealed itself within a reasonable amount of time thereafter."***

Hence, in product liability claims, purchasers must promptly collect evidence on product defects as soon as they become apparent for a stronger legal position.

If you believe you have incurred harm or loss from a defective product, begin collecting evidence for a potential product liability claim.

  • First, you should document the time that you realized the product was defective. You can do this by taking a photo or video of the defect on your cell phone, which would have a time stamp.
  • Second, you should document the events that led to the product's malfunction.
  • Third, if you contacted the manufacturers or distributors of the item about the purchase or defect, you should make sure to document who you spoke with and the content of any advice given.

If you purchased the product, you should save the receipt and any information you were given about the object. If the product caused you any harm or damage, you should document when the damage occurred and how it happened.

You should also save the receipts and document any purchases you were required to make because of the product's defects. For example, if the product caused damage to your belongings, document how much it cost you to replace those belongings. Make a note of any items that carry sentimental value and cannot necessarily be replaced.

Alternatively, if the product caused personal injury, save the receipts for any required medication, rehabilitation, and other medical expenses for your injuries.

Many product liability claims stem from a failure to warn the user about an issue in using the product.

In a product liability claim, you need to collect evidence pertaining to the warnings you were given about the product to show that you were not adequately warned about your particular issue. For example, a company could be liable for failing to warn that a device with a hot element is flammable.

If you purchased this product and it caught on fire while you were using it reasonably, you may be able to pursue the company for failing to warn you about this risk. As such, you should document your losses and the timeline of events.

However, you should also save any documentation and advice on how to use the product that was provided to you. These documents will be looked at by the court to see if the company provided you with an adequate warning about the product.

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.
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