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[
220]
The Quebec jurisprudence on this question appears to have started with the
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exploding-gun case of Ross v. Dunstall ("Ross") in 1921 . Its ground-breaking holding
was that a manufacturer of a defective product could have extracontractual (then known
as "delictual") liability towards a person that did not contract directly with it.
[
221]
The Plaintiffs advance that it also stands for the proposition that the mere
marketing of a dangerous product constitutes an extracontractual fault against which
there can be no defence. They cite Baudouin in support:
2
-346 - Observations – Cette reconnaissance (de l’existence d’un lien de droit direct
entre l’acheteur et le fabricant) établissait, en filigrane, une distinction importante
entre le produit dangereux, impliqué en l’espèce, et le produit simplement
défectueux, la mise en marché d’un produit dangereux étant considérée comme
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une faute extracontractuelle.
(The Court's emphasis)
[
222]
The Court does not read either the Ross judgment or the citation from Baudouin
in the same way as do the Plaintiffs. In Ross, it appears never to have crossed Mignault
J.'s mind that the marketing of a dangerous product could constitute an automatic fault in
and of itself. The closest that he comes to that is when he writes:
[
…] but where as here there is hidden danger not existing in similar articles and no
warning is given as to the manner to safely use a machine, it would appear
contrary to the established principles of civil responsibility to refuse any recourse to
the purchaser. Subject to what I have said, I do not intend to go beyond the
circumstances of the present case in laying down a rule of liability, for each case
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must be disposed of according to the circumstances disclosed by the evidence.
[
223]
In light of that, far from asserting that the sale of a dangerous product will
always be a fault, the statement in Baudouin appears to be limited to underlining the
possible extracontractual nature of marketing a dangerous product without a proper
warning , as opposed to its being strictly contractual. That is the only rule of liability
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that Mignault J. appears to have been laying down in Ross.
[
224] Building on the sand-based foundation of the above argument, the Plaintiffs
venture into the area of "risk-utility" theory. They argue that, "absent a clear and valid
legislative exclusion of the rules of civil liability, every manufacturer must respect its duties under
civil law to not produce and market a useless, dangerous product, and repair any injury caused by
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Implicit in this statement is the assumption not only that cigarettes
its failure to do so".
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S.C.R. (1921) 62 S.C.R. 393.
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ème
Jean-Louis BAUDOUIN, Patrice DESLAURIERS and Benoît MOORE, La responsabilité civile, 8
cit., Note 62, at para 2-346, p. 362.
éd., op.
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09
Ross, op. cit., Note 106, at p. 421.
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It is important to note that, even in 1921, our courts recognized the duty to warn, a fact that disarms
any argument here to the effect that imposing such a duty as of the beginning of the Class Period,
some thirty years later, is an error of "hindsight".
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Plaintiffs also cite the reflection of Professor Jobin as to whether, in the most serious of cases, an
extremely dangerous item should ever be put on the market, regardless of the warnings attached:
ème
Pierre-Gabriel JOBIN, La vente, 3
éd., Cowansville, Éditions Yvon Blais, 2007, pages 266-267. The
question is an interesting one, flowing, as it seems to, from "risk-utility" theory, which we discuss
below. That said, in our view it overstates the situation at hand.
At paragraph 42 of their Notes.
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