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The Canada Consumer Product Safety Act
Moving Towards Uniformity In Compliance:
Guidelines From The American Model
Daniel L. Kiselbach, Partner
International Trade, Customs and Commodity Tax Group
Miller Thomson LLP
#1000 – 840 Howe St., Vancouver, BC, V6Z 2M1
604.643.1263
dkiselbach@millerthomson.com
www.millerthomson.com

INTRODUCTION
• Overview of common features of
consumer protection laws and policies
in Canada and U.S.
• Compliance issues

CANADA CONSUMER PRODUCT SAFETY ACT -
COMPARISON WITH U.S. LEGISLATION
• U.S. and Canadian legislation
– Mandatory incident reporting
– Prohibitions/penalties
– Preparing and maintaining documents
– Remedial measures
– Recall power

CANADA CONSUMER PRODUCT SAFETY ACT -
COMPARISON (cont'd)
• Mandatory reporting
– S.14 Requirements/Duties
– Draft Policy
– Duty to submit a written report
– 10 days after the date that the person
became aware of the incident

CANADA CONSUMER PRODUCT SAFETY ACT -
COMPARISON (cont'd)
• Potential concerns
– Insufficient guidance on when a product
might be “related” to an “incident”
– Tight time frame within which to provide
notice and report (precludes evaluative
reporting)

CANADA CONSUMER PRODUCT SAFETY ACT -
COMPARISON (cont'd)
– U.S. consumer complaints could trigger
notice/reporting duty
– No requirement that the complaints relate to a
“substantial risk of injury” to the public

CANADA CONSUMER PRODUCT SAFETY ACT -
COMPARISON (cont'd)
• Duty to prepare and maintain
documents
– Section 13 of the Canada Consumer Product
Safety Act
– Draft policy
– Facilitates tracing of products
– 6 year obligation

MANAGING IMPORTS/EXPORTS:
DEALING WITH RECALLS
• Checklist of considerations
–Design
–Testing
– Manufacturing
– Recordkeeping
– Supply contracts
– Insurance

HOW TO ENSURE COMPLIANCE WITHOUT
SACRIFICING TRADE
• Pre-contract due diligence
– Inspecting manufacturers
– Inputs into finished goods
– Standards
• Contract negotiations/agreements
– How parties will cooperate to ensure compliance
– Mandatory incident reporting
– Who will bear the cost of measures/recall

HOW TO ENSURE COMPLIANCE WITHOUT
SACRIFICING TRADE (cont’d)
• Post-contract audit/verification
– Periodic compliance audits of production
– Production and maintenance of records
– Production records
– Distribution records
– Quality control records

CROSS BORDER DOCUMENT MAINTENANCE,
PRODUCTION AND SEALING ORDERS
• Maintenance of documents
– Retailers must maintain documents indicating
the name and address of the person from
whom they obtained the product as well as
sales locations
– All parties must produce and maintain
prescribed documents

CROSS BORDER DOCUMENT MAINTENANCE,
PRODUCTION AND SEALING ORDERS (cont'd)
• Canada Consumer Product Safety Act –
defines “Confidential Business
Information”
– Not publicly available
– Measures taken to ensure it remains not
publicly available
– Has active or potential economic value

CROSS BORDER DOCUMENT MAINTENANCE,
PRODUCTION AND SEALING ORDERS (cont'd)
• Minister may disclose “Confidential
Business Information”
– To a person or government carrying out
protective functions
– To address a serious and imminent danger

CROSS BORDER DOCUMENT MAINTENANCE,
PROSECUTION AND SEALING ORDERS
• Sealing Order
– May apply to keep documents out of public
record
– High threshold
• Sierra Club of Canada
– Necessary to prevent a serious risk to an
important interest
– Beneficial effects outweigh dangerous effects

APPLICATION OF INTERNATIONAL COMITY PRINCIPLES
IN MULTI-JURISDICTIONAL CLASS ACTIONS
• Class actions in Canada follow class actions in
the U.S.
• Preclusive effect of a class action in one
jurisdiction is unsettled
• Currie v. McDonald’s Restaurants of Canada
Ltd.
– Class action in Ontario brought in face of class action
brought in U.S.
– Failure to opt out of foreign class action is similar to
attornment
– The Ontario class action was allowed to continue due
to a lack of notice of opt out rights

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