Comment on Ontario's Bill 110 "An Act to provide for Warranties in the Sale of Consumer Products

The government of Nova Scotia has recently made some limited improvements to the law of products liability1 . Merchant sellers are no longer permitted to contract out of the three basic obligations or "implied warranties" contained in the old Sale of Goods Act: to deliver a merchantable article, 2 fit for the buyer's purpose 3 which corresponds to the description under which it was sold. 4 The reformulation of these old common law obligations which first received statutory recognition in 18935, was done in a somewhat ambiguous and unsatisfactory manner. 6 Of far greater consequence to consumers however, is the fact that the old products liability rule has been left intact: namely, that a consumer who wishes to sue under any of these three "implied" warranties must be in privity of contract with his defendant supplier. 7 This means that the consumer can only sue an out-of-privity defendant in tort. When one considers that the Supreme Court of Canada has recently re-affirmed that there is no action for economic loss in tort 8, it becomes evident that the consumer has no legal remedy whatever against an out-of-privity defendant (typically the manufacturer) who has supplied an unworkable product.