Consumer Law/Droit de la consommation

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Consumer law is a field of law that deals with the law of contract and tort as it applies to relationships between individual public consumers of goods and services and entities that are in the regular business of selling goods and services to the public. Particularly since the early 20th century, this law has been substantially changed by a wide range of statute law that has shifted the balance to consumers. As a result, in the early 21st century, there are a wide variety of remedies available to consumers where goods and services are inadequate for their intended purpose.


Under both common law and civil law, the general rule in any commercial transation is caveat emptor - "Let the buyer beware". However, as society went from a series of limited transactions between individuals to an economy dominated by mass marketed goods controlled by a relatively small number of people,

Classic contract law provided the remedy of recission (cancellation) of a contract only where the goods were manifestly unfit for their intended purpose. If the goods were merely in constant need of repair, or dangerous to use for their intended purpose, that might give rise to an action for damages, but not the cancellation of the contract.

Some of the early reforms started with President Theodore Roosevelt in the United States in the early 20th century:

  • The development of Competition law to deal with anti-competitive practices that drove up prices to consumers, particuarly in the oil industry.
  • The development of Government regulation of food and drugs, to prevent adulteration.
  • The licensing of professions, which both started to eliminate incompetent practitioners and opened up the professions to minority groups.

Réglementation des produits Objectives Développer des connaissances de base sur la réglementation des produits de consommation en droit canadien, dans une perspective transystémique et comparée; apprécier l'importance et l'impact de la recherche scientifique dans le domaine de la réglementation du risque; savoir distinguer et expliquer le traitement des données scientifiques dans le contexte réglementaire et dans le contexte judiciaire; pouvoir appliquer ces notions à un cas concret. Readings Dossier Produits Défectueux: documents sur la réglementation des implants mammaires - Rapport à Santé Canada; Angell 1996, Hersch 2002, US FDA; - article sur la science et la réglementation: Michaels 2005; - première lecture des décisions canadiennes: Harrington et Doyer

Polycentricité Absence de recherche/incertitude scientifique

Khoury article

These two judges have a different perspective Tinguely J --> Cour supérieure du Québec Edwards J --> Cour ? de Colombie Brittanique

Is it logical or justified that the govt's role is/may be different depending on whether one is in CVL Quebec or CML other canadian provinces. This is an extra-Kal responsibility issue, and there is lots of movement in this area.

Yves Lauzon & Klein (the ptfs' lawyers): What makes them think the government has a responsibility towards the consumer in cases of dangerous products? (Breast implants: 2 issues: 1) defect of the specific implant itself; 2) systemic problems with implants)

Harrington & Doyer cases: Let's look at the law: the regulatory landscape: any discretion vs. obligation/duty to act? Harrington vs. Doyer: they are requêtes préliminaires What does the law impose/require, & at what degree of specificity? Different approach - Declared irrecevable vs. not found to be so clearly irrecevable that it was rejected.

Tinguely J: "Canada's role is to prevent dangerous devices before they are released on the market" --> is this backed up by reality? --> no, the Canadian government does not carry out its own tests, and it requests only self-disclosure

Why the different results? demande en précision vs. demande en rejet d'action

Qu'est-ce que la loi habilitante prévoit?

cf: site: [Government of Canada Consumer Protection site]

"Santé Canada veille à la protection des Canadiens en effectuant la recherche et l'évaluation, et en collaborant à la gestion des risques pour la santé et la sécurité associés aux produits de consommation, y compris les produits antiparasitaires que les Canadiens utilisent régulièrement" --> but who does it collaborate with? --> Santé Canada does not have the power to recall products -- so the product recalls that one can subscribe to are all voluntary.

Santé Canada says on the site: "We have your safety to heart & we are very active" when the Judge in Harrington says: "the ptf is trying to introduce a new theory of civil liability".

So why did the judge decide this way? - floodgates argument -- but this is always a consideration (cf. Anns test for civil liability)

2 poids, 2 mesures (double standards)?? if it were a private company, wouldn't it be a case of false representation?

cf. [Health Canada Medicines Site]

See also the legislative change site of health canada (on webct).

Sometimes a producer will admit "la responsabilité" sans admettre la faute/la négligence.

2 different types of negligence & damages admitted by Tinguely: - by the producer - by the government

The source of the liability & the amount of damages are different. Refers to Béliveau St-Jacques: Gonthier J: one or the other: CCQ art. 1457 vs. Qc. Charter art. 49 TInguely: contrasts to Béliveau...

Athis case (Winkler J.): another health products liability case: Government being responsible does not exclude manufacturer liability.

Weight of preliminary requêtes: has interpretative value. It may technically obiter. But the problem is, we have NO cases until now on the responsibility of the State in product/health product liability. So until then, the class action suite certification decisions are all we have to go on. The other thing is that settlements are frequent in this area.

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