James the red engine from Thomas the Tank Engine.Jim Ross/The Globe and Mail
It was none other than James, the cocky red locomotive from the Thomas the Tank Engine stories, who proved himself a Really Useful Engine by sparking a comprehensive rewrite of Canada's consumer-protection laws.
The public outcry in 2007 about the lead in James's red paint and the subsequent North-America-wide recall of millions of toys manufactured in China helped accelerate efforts to tighten Canada's rules on consumer safety, an article on Health Canada's website acknowledges.
This week, as holiday-shopping season started in earnest, Health Minister Leona Aglukkaq said the government is bringing in new rules to reduce the amount of lead in children's toys and other products.
More reforms are just around the corner. Bill C-36, now before the Senate, would dramatically update Canada's consumer-protection regime. Among the changes is a new power for the health minister to order mandatory recalls for potentially dangerous consumer products - not only toys, but everything from razors to toaster ovens.
Currently, recalls in Canada for consumer products are voluntary moves by the companies involved. Even Health Canada acknowledges that its current Hazardous Products Act is limited, outdated and well behind the regulations in place in the United States and the European Union. (Food, drugs and cars in Canada are governed by other legislation.)
If the new bill becomes law (previous attempts have died on the order paper) companies would not only have more government inspectors looking over their shoulders: With potentially more product recalls, manufacturers can also expect to face more class-action lawsuits, a prominent product-liability lawyer predicts.
Peter Pliszka, a partner with Fasken Martineau DuMoulin LLP in Toronto who defends manufacturers hit with lawsuits over defective products, said companies facing even the remote possibility of mandatory recalls may be more likely to voluntarily pull products off the shelves first. Whether ordered or voluntarily, he said, there will be more recalls.
And recalls, Mr. Pliszka argued, inevitably attract the attention of lawyers who specialize in filing class actions on behalf of consumers: "As sure as night follows day, class-action lawsuits follow product recalls."
Mr. Pliszka also described other provisions in the bill, which recently sailed through the House of Commons, as "draconian." If the bill becomes law, for example, companies would have to alert Health Canada within two days of learning of a serious incident involving one of their products. Health Canada inspectors would also have new powers to search facilities and seize documents. (The department points out its inspectors already have these powers in food and drug investigations.)
Mr. Pliszka and other lawyers who represent manufacturers support the current system. They say companies are usually quick to pull a potentially dangerous product off the shelves, both because it is the right thing to do and because they would rather do that than deal with the disastrous public relations and legal fallout of a series of deaths or injuries.
Canada has also been able to piggyback on the more powerful U.S. system of consumer product regulation, which Mr. Pliszka described as "light years" ahead of Canada's. In the U.S., recalls can be ordered. Many of the products subject to recall there are sold in Canada as well.
"The people who build these products take real pride in them. The last thing they want to see is somebody get hurt," said Glenn Zakaib, of Cassels Brock & Blackwell LLP, who defends companies in product liability cases.
Toronto lawyer Joel Rochon, who represents plaintiffs in class actions, acknowledged that a recall is always a key tool in a class-action case. "As a class-action litigator, it assists the case to have a recall in place."
Mr. Rochon, who represented dog owners in a high-profile class action over tainted pet food, disputed the argument that Canada's history of piggybacking on U.S. recalls has always worked in favour of consumer safety.
"You'd be surprised," he said. "Often it's not an automatic knee-jerk reaction to have a recall in Canada just because there's one in the U.S."
Not every lawyer who represents defendants in product-liability cases agrees that the proposed legislation will result in more class actions over defective or dangerous products.
Doug Harrison of Stikeman Elliott LLP in Toronto said he isn't certain the proposed new rules will cause any noticeable increase in class actions. He cited the example of Ontario's Electrical Safety Authority, which was granted enhanced powers to essentially order electrical appliances off the market three years ago.
"To my mind, there hasn't been a spate of class actions in Ontario arising from unsafe electrical products," Mr. Harrison said. "And there have been many things that have had to have been pulled back."
* Correction: Glenn Zakaib is a partner with Cassels Brock & Blackwell LLP. Incorrect information appeared in an earlier version of this story.