Scope/Coverage of the Legislation

This page was last modified on September 9, 2004. There are no plans to update it further.

The Legal Guide includes scope/coverage of legislation, express warranties, implied warranties, privity & products liability, remedies and waivers. Also included are the full text of the legislation, cases (indexed by name, section of Act considered, product, judge & date), law review articles, background law reform reports, top 10 list and table of contents.

This website was created by Karl Dore, the principal architect of the Consumer Product Warranty and Liability Act. It is intended to provide information on the legislation, not to give or offer individual legal advice. For further assistance contact New Brunswick's Consumer Affairs Branch or one of the Rentalsman Offices.

This page was last modified on September 9, 2004.

Table of Contents

  1. The kinds of goods
  2. The kinds of sellers and suppliers
  3. The kinds of persons protected
  4. The kinds of transactions
  5. CPWALA prevails over everything
  6. CPWALA not a complete code

Introduction

The Consumer Product Warranty and Liability Act (CPWALA) applies to a wide range of cases. However, it does not apply in every case. It applies only to certain kinds of goods and to certain kinds of suppliers, and the extent of its coverage may vary depending on the category of buyer (or other affected person) and the kind of transaction involved.

CPWALA applies to any consumer product supplied (whether by sale or otherwise) by anyone who supplies goods of that kind as part of his, her or its regular business (or purports to do so), whether as dealer, retailer, wholesaler, manufacturer, producer, processor, importer, or other distributor.

Some parts of CPWALA apply in favour of all buyers, whether consumer buyers or business buyers, while other parts apply only in favour of consumer buyers.

Some parts of CPWALA apply in favour of consumers (and some other affected parties) even when they have no privity of contract with the supplier.

Indeed, some parts of CPWALA apply in favour of consumers (and some other affected parties) even when goods are not supplied by any contract at all -- e.g. goods supplied by way of a gift sample.

CPWALA deals with

  • express warranties
  • implied warranties
  • remedies for breach of warranties
  • the supplier's ability to limit its liability
  • the supplier's rights against its own supplier
  • rights against the manufacturer or other distributor regardless of privity of contract
  • the imposition of strict liability on suppliers for unreasonably dangerous defective products.

1. The kinds of goods

CPWALA does not apply to all goods, but only to consumer products.

CPWALA text

2(1) Subject to subsection (2), this Act applies to every sale or supply of a consumer product.

1(1) "consumer product" means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes;

Cases
(in reverse chronological order)

Focus on product, not buyer. Consumer products are those types of goods that are commonly used for personal purposes, as contrasted with business or other purposes. Whether something is a consumer product depends on the nature of that product itself, and not on the nature of the buyer nor the nature of that buyer's purposes.

If the goods are the sort that are commonly used for personal purposes then they are a consumer product, even if the buyer is a business corporation buying them for business purposes. If the goods are not the sort commonly used for personal purposes then they are not a consumer product, even if the buyer is a consumer buying them for personal purposes. If the goods are the kind commonly used for either personal or business purposes then they are a consumer product, again regardless of whether the buyer is a consumer buyer or a business buyer, or whether he, she or it is buying them for personal purposes or business purposes.

Question of fact. It is a question of fact whether goods are the kind that are commonly used for personal purposes.

Examples of things found to be consumer products

Things found not to be consumer products

Judicial comments re consumer products

Greene v. D. R. Sutherland Ltd.
A large farm tractor with 50% more horse power than the usual farm tractor, and heavier, was held not to be a consumer product.

JUSTICE CREAGHAN:
"The Act states that the test to be applied in determining whether the Act applies, that is, whether the article is in law a consumer product, is not the use intended to be made by the buyer, but is the article itself the kind of product that is commonly used for personal, family or household purposes.

By definition it is my opinion that the court must determine as a question of fact if the article or product purchased is of 'a kind' that is commonly used for personal purposes. This would include a car, a van, a family type trailer but not necessarily a transport truck or road grader.

It was argued . . . that the Act did not include farm tractors. I cannot accept such a general submission. . . . . . Tractors are commonly used to plow long private driveways, for assistance in private wood cutting and personal farming. The use depends on various circumstances, where a person resides, that is in a rural as opposed to an urban area, whether it is in a snow belt and many other factors. I am satisfied that some tractors are of a kind now commonly used for personal purposes, even though the same unit is manufactured for and used for industrial or public as opposed to personal purposes.

As stated it is a question of fact. . . ."

Savin Canada Inc. v. Wood
A photocopier purchased for personal purposes was held not to be a consumer product.

JUSTICE DAIGLE:
"The defendant submits that the photocopier falls within the ambit of the Act. It was argued that in the age of advanced technology and lower costs, what would formerly be considered business products are now becoming household or personal products. For example, large and expensive IBM computers formerly used only by business and governments are now being used in homes. In this case, it was thus argued that the leased photocopier is of the small, table top, portable type and as such should be considered appropriately designed for household use. The intended use for personal purposes is also supported by the evidence of both the defendant and his wife.

I cannot accept the defendant's argument. In my view, photocopiers were not in 1981, the time the lease was made, and are not even today commonly used for personal, family or household purposes nor are they advertised or promoted as such. The computer example given by the parties points to a significant difference with respect to copiers. While the large computers of years past would definitely not be considered consumer products within the definition of the Act, it is clear that personal computers as they exist today would fall within the definition. I am not at all satisfied however that the computer example applies to photocopiers and that they have been so modified as to be commonly used for personal purposes. I therefore find that this particular copier, the subject matter of the lease, is not a consumer product and the Act has no application to this case."

Wood v. Connell Motors Ltd.
A cube van with greater size and capacity than a standard van (15 foot box), and not equipped as a recreational vehicle, was held not to be a consumer product.

JUSTICE McLELLAN:
"In Greene v. D.R. Sutherland . . . Mr. Justice W.L.M. Creaghan of this court observed: 'The Act states that the test to be applied in determining whether the Act applies, that is, whether the article is in law a consumer product, is not the use intended to be made by the buyer, but is the article itself the kind of product that is commonly used for personal, family or household purposes.'

Similarly, in an article Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, Professor Ivan F. Ivankovich noted at pages 130 and 131: 'The test for a consumer product adopted by the Act is not the use of the specific product purchased, but, rather, the common use for that kind of product. Under this test, a product may fall within the Act if it is commonly used for personal, family or household purposes notwithstanding that the aggrieved buyer is purchasing for a commercial purpose.'

I agree with Mr. Justice Creaghan and Professor Ivankovich. Thus the fact Mr. Wood purchased the cube van for a commercial purpose only and not for personal, family or household purposes is not relevant. The correct test or question is whether such a cube van is something that is commonly used for personal, family or household purposes.

There are many sizes, types and models of vans ranging from minivans to moving vans. Various models of small and medium sized vans are commonly used for personal, family or household purposes, In my opinion large vans are not commonly used for such personal purposes unless they are equipped as "recreational vehicles". . . . . . . There is no suggestion that the cube van is in any way comparable to a large recreational van or Winnebago or a 'standard sized' van.

. . . . . . I am satisfied that some vans are of a kind now commonly used for personal purposes, even though the same unit is manufactured for and used for industrial or public as opposed to personal purposes. Here there is evidence that the cube van has a 15 foot box and a much larger carrying capacity than the small van it replaced. Thus like the larger and heavier than usual farm tractor in Greene, I think the cube van is larger and has more capacity than a standard or usual van. As well it is not equipped as a recreational vehicle.
Accordingly, I am not convinced that the particular kind of cube van involved in this case is commonly used for personal, family or household purposes. I find that this particular cube van is not a consumer product as defined by the Act."

Savoie v. Lavoie
A horse was held to be a consumer product.

JUSTICE McLELLAN:
"In our modern law a horse is an item of 'tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes'. That is the definition of a 'consumer product' in the Consumer Product Warranty and Liability Act. . . .The court has to treat the sale of this consumer product, a bay Belgian Horse, like any other agreement for the purchase and sale of any other consumer product such as a pet, a home entertainment system or a light tractor. For example in Gandy v. Robinson (1990), 108 N.B.R.(2d) 436; 269 A.P.R. 436, a dog was ruled to be a consumer product and in Greene v. D.R. Sutherland (1982), 40 N.B.R.(2d) 27; 105 A.P.R. 27, a 40 horsepower farm tractor was ruled to be a consumer product."

McNeil v. Shaw (L.E.) Limited
A high temperature masonry cement was held not to be a consumer product.

JUSTICE DICKSON:
"A cement intended for use in construction of a chimney, whether for the laying of fire-brick or flue-liner tile, is certainly not a product commonly used for either personal or family purposes. Nor could it be considered as commonly used for 'household' purposes. The word 'household', according to its dictionary meaning, connotes a relationship to the maintaining of a house or other domestic establishment. In no way, in my view, could a building material such as cement used for essentially the once-only purpose of construction of a chimney be considered a consumer product within the meaning of the Act."

Cavanaugh v. Brookside Mini Home Park Ltd. (F/C/569/90)
A mini home to be built on land was held not to be a consumer product.

JUSTICE STEVENSON:
". . . Brookside agreed to sell lot 12 in the subdivision and 'to build a 16'x 66' mini home as per customer blueprints and to supply a 5 yr home warranty . . . Home and lot to be on city water & sewage'.

The Act only applies to personal property. A house constructed on a lot becomes part of the realty and the Act therefore does not apply to home construction."

Troublesome cases. Two of these cases are troublesome. The first is the finding in Alder v. Defazio Autobody Ltd. that a car paint job was a consumer product. The paint that was used for the job could be a consumer product (if it was a kind of paint commonly used non-commercially), but it is difficult to see how the "paint job" itself could be, because "it" (the paint job) never was property. There was no evidence in Alder of any problem with the paint itself. For further discussion, see below.

The second is the comment in McNeil v. Shaw (L.E.) Limited that "in no way . . . could a building material such as cement used for essentially the once-only purpose of construction of a chimney be considered a consumer product." If this comment was intended to rule out all building materials purchased for once-only use in construction, it is submitted that it cannot be supported. For example, standard caulking compound is surely a consumer product because that sort of product is commonly used non-commercially. The actual decision in McNeil can be supported on the ground that there was no evidence that this type of cement was commonly used for personal purposes -- and indeed at one point in the judgment the court characterized this masonry cement as a "commercial product."

2. The kinds of sellers and suppliers

CPWALA does not apply to every seller or supplier of a consumer product, but only to one who supplies that sort of consumer product as part of his, her or its regular business (or holds himself, herself or itself out as such a supplier), whether as dealer, retailer, wholesaler, manufacturer, producer, processor, importer, or other distributor.

CPWALA text

2(1) Subject to subsection (2), this Act applies to every sale or supply of a consumer product.

2(2) This Act does not apply to the sale or supply of a consumer product by a seller or supplier

(a) who is not a distributor of consumer products of that kind and does not hold himself out as such;

1(1) "distributor" means a person who supplies consumer products as part of his regular business and, without limiting the generality of the foregoing, includes a producer, processor, manufacturer, importer, wholesaler, retailer or dealer;

1(1) "business" includes a profession and the activities of any government department or agency, of any municipality or agency thereof, and of any Crown corporation;

Cases
(in reverse chronological order)

Section 1 -- "distributor"

Section 2

Distributor of the kind of consumer product supplied. In order for CPWALA to apply, it is not sufficient simply that the supplier be (or hold out to be) a distributor of consumer products. The supplier must be (or hold out to be) a distributor of the kind of consumer product that is being supplied.

For example, a restaurant deals in food, not cars. CPWALA applies to the food the restaurant supplies. But CPWALA would not apply to the restaurant's sale of its delivery car, because it does not supply cars as part of its regular business.

Onus of proof. Since section 2(1) is the general provision and section 2(2)(a) is the exception, it appears that the seller/supplier bears the onus of proving that it is not subject to CPWALA.

Some cases. In most cases it will be clear one way or the other whether the supplier is covered by the legislation. However, this was a major issue in VanWart v. MacDonald et al. (1994), 151 N.B.R.(2d) 129 (N.B. Queen's Bench). That case concerned a sale of a used car by a seller who sold used cars from his home as a sideline to his full-time job as a steel fabricator for a shipbuilding company. The seller did not in any way hold himself out as a dealer of any sort, and on its face this sale appeared to be private, the seller leading the buyer to believe that the car belonged to his spouse. Although the seller had bought at least nine used cars during that past year, and had owned this car only five days before selling it, he testified that he was not in the used-car business, but sold cars as a hobby. He did not have tax-exempt dealer status. The seller was held to be a distributor, Justice McLellan saying: ". . . MacDonald bought the Firefly car at a low price intending to sell it quickly at a profit to a consumer. In my opinion his course of conduct of regularly doing that is sufficient to label him for this case as a retailer of used cars and thus as a distributor within the meaning of the Consumer Product Warranty and Liability Act."

In Witherell v. Buchanan Estate (1995), 169 N.B.R.(2d) 14 (N.B. Court of Appeal), a private seller put his used Jeep on the used-car lot of a car dealer and sold it through the dealer, with full disclosure to the buyer that it was a private sale and not one of the car dealer's cars. The trial judge held that CPWALA applied, apparently because the Jeep was on a used car sales lot. Not surprisingly, the Court of Appeal reversed this decision. The seller was not a distributor, and had not held himself out as a distributor.

In Doiron v. Bayside Chrysler Dodge Ltd. (1999), 210 N.B.R.(2d) 201 (N.B. Queen's Bench) there was no question that the defendant was a dealer, but the defence was that despite appearances the real seller was not the defendant but the previous owner of the vehicle, the defendant having taken the vehicle "in trade" simply as an "accommodation" to save the previous owner some sales tax. However, the plaintiff knew nothing about this arrangement, and the defendant was named as the seller in the written contract. The defendant was held liable as the seller.

Other examples. In Watt v. Maillet et al. (1995), 163 N.B.R.(2d) 387 (N.B. Queen's Bench), the court held that CPWALA did not apply to the sale of a farm tractor because the seller was not a distributor. And in C. & L. Transport Ltd. v. Brine (1988, N.B. Queen's Bench) a trucker selling his tractor and trailer was held not to be a distributor. (Even if he were a distributor, CPWALA would not apply because this was not a consumer product.)

Application to professionals. CPWALA applies to a professional person who supplies a consumer product as part of her or his regular practice. For example, it would apply to glasses supplied by an optometrist.

CPWALA text
1(1) "business" includes a profession and the activities of any government department or agency, of any municipality or agency thereof, and of any Crown corporation;

Application to government & its agencies. CPWALA applies to a government department or agency that supplies a consumer product as part of its regular activities.

For example, it would apply to water supplied by a municipality. Another example would be a hot water heater leased by NB Power (see Parker v. New Brunswick Power Corp. (1996), 183 N.B.R. (2d) 316 (N.B. Court of Appeal); Silliker v. New Brunswick Power Corp. (1992), 130 N.B.R.(2d) 444 (N.B. Queen's Bench).

CPWALA text
1(1) "business" includes a profession and the activities of any government department or agency, of any municipality or agency thereof, and of any Crown corporation;

2(5) The Crown in right of the Province and in every other right is bound by this Act.

Exemptions from CPWALA. CPWALA exempts from its application any person who is acting as a

  • trustee in bankruptcy
  • receiver
  • liquidator, or
  • sheriff.

CPWALA also exempts any person who is acting under a court order.

CPWALA text
2(2) This Act does not apply to the sale or supply of a consumer product by a seller or supplier

(b) who is acting as a trustee in bankruptcy, receiver, liquidator or sheriff, or who is acting under an order of a court.

Private sellers also protected against indemnification claims. Private sellers are not only exempt from the Act but are also protected from certain indemnification claims.

CPWALA text
3 Notwithstanding any agreement to the contrary, a person who incurs any liability in relation to a consumer product, other than liability under section 8 of this Act, cannot recover indemnification or damages in respect of that liability from or against any seller or supplier of that consumer product who is not a distributor of consumer products of that kind and does not hold himself out as such, unless he incurs the liability because of that person's fraud.

This provision operates mainly in the used goods area, where a consumer is trading in her or his used goods on the purchase of new goods, e.g. trading in an old car on a new car. It prevents a dealer who buys goods from a private seller from taking an indemnity from that private seller for any liability that the dealer incurs to its own buyer when it resells those goods. The rationale for this was given in one of the law reform Reports leading up to the legislation: "Not only is the dealer in a better position to handle the risks of unknown defects vis-a-vis the consumer buyer, he is also in a better position to handle these vis-a-vis his consumer seller." (Second Report, at pages 71-72.)

Private sellers not protected for title defects or fraud. This provision does not protect the private seller against claims for title defects or fraud.

3. The kinds of persons protected

CPWALA applies in favour all buyers. CPWALA applies in favour all buyers of consumer products, whether consumer buyers or business buyers. Generally speaking, however, the Act gives more protection to consumer buyers than it does to business buyers.

  1. CPWALA's warranties apply in favour of all buyers.
  2. CPWALA's special remedies apply only in favour of consumer buyers.
  3. CPWALA gives some protection against "contracting out" to all buyers, but it gives more protection to consumer buyers than to business buyers.

Protection to buyers who have no privity of contract with manufacturer or other distributor. CPWALA gives buyers some protection against distributors even when there is no privity of contract between them. For example, the consumer may purchase the goods from a dealer and have no contract at all with the manufacturer or wholesaler of the goods. However, CPWALA gives some protection against the manufacturer and wholesaler even though the consumer has no privity of contract with either.

Protection to persons who have no privity of contract with anyone -- donees, users and bystanders. CPWALA gives some protection even to persons who have no contract with anyone, e.g. the buyer's spouse who suffers injury caused by a defective product.

Supplier's own rights against other distributors. CPWALA gives extensive indemnification rights to distributors against their own suppliers (e.g. wholesalers) and other distributors further up the distribution chain (e.g. manufacturers). CPWALA attempts to stream legal liability for defective goods back to the source of the problem.

4. The kinds of transactions

CPWALA applies to

  • sales
  • leases
  • barters or exchanges
  • consumer products supplied under contracts for services
  • consumer products supplied under contracts for labour and materials
  • dangerously defective consumer products, whether supplied by contract or by any other means (e.g. gift or sample).

CPWALA text

1(1) "contract for the sale or supply of a consumer product" means

(a) a contract of sale of a consumer product, including a conditional sale agreement;

(b) a contract of barter or exchange of a consumer product;

(c) a contract of lease or hire of a consumer product, whether or not there is an option to purchase it; or

(d) a contract for services or for labour and materials if a consumer product is supplied along with the services or labour;

Liability for dangerously defective products
27(1) A supplier of a consumer product that is unreasonably dangerous to person or property because of a defect in design, materials or workmanship is liable to any person who suffers a consumer loss in the Province because of the defect, if the loss was reasonably foreseeable at the time of his supply as liable to result from the defect and

(a) he has supplied the consumer product in the Province;

27(4) The liability of a person under this section does not depend on any contract or negligence.

Cases
(in reverse chronological order)

Section 1(1)

Leases

Section 27

Peterson v. Clark (J.) & Son Ltd.

Contracts involving both consumer product and labour/service

If a consumer product is supplied along with them, CPWALA applies to contracts for services or for labour and materials. However, as will be seen below, the express (s. 4) and implied (ss. 8-12) warranties provided by CPWALA are in relation to the consumer product itself. They are not in relation to the labour or service. Moreover, CPWALA's special remedies do not apply at all to such a contract (s. 13(b)).

Section 5 may apply to entire contract. Section 5 of CPWALA (the "parol evidence" section) may apply to both the product and the labour/service, because it applies in relation to the contract. See the discussion in Prof. Ivankovich's article at pages 129-130.

CPWALA text
5 Where there is a written contract, oral and other extrinsic evidence is admissible in any court to establish an express warranty notwithstanding that it adds to, varies or contradicts the written contract.

1(1) "warranty" means a term of the contract that is a promise.

A consumer product must be supplied. A paint job on a car was held to be a consumer product in Alder v. Defazio Autobody Ltd. (1992, N.B. Queen's Bench). However, this is questionable because CPWALA applies only to consumer products, and how can a paint job be a consumer product? It is difficult to see how a paint job can be, because "it" is not property. CPWALA could apply to the paint that was used for the job, if it was the kind of paint that was commonly used non-commercially, but CPWALA would not apply to the labour/service part of the job.

A very different case from Alder is Medjuck & Budovitch Ltd. v. Young (1988), 86 N.B.R. (2d) 386 (N.B. Queen's Bench), where there was a contract for custom made drapes to be made up. The finished drapes were themselves consumer products, so CPWALA applied to them regardless of whether there was a problem with the materials or the workmanship. It turned out that there was a problem with the workmanship. Although all the materials were of first class quality, some drapes were made too long, some too short, some had incorrect width, some were wrinkled, and some had puckered hems. The supplier was liable under CPWALA.

Where consumer product is incorporated into some other product, e.g. paint used in a paint job. Suppose that in Alder v. Defazio Autobody Ltd. the reason why the paint job was unsatisfactory was because the paint used in that job was defective, and that this paint was the sort of paint that was commonly used non-commercially. So, although the final product itself, the paint job, was not a consumer product, the paint used for the job was a consumer product. Would this case fall within CPWALA as being a contract for labour/service and materials, where a consumer product is supplied along with the labour/service? Although debatable, it is submitted that the answer is Yes. A consumer product, the paint, was certainly used/supplied along with the labour/service in performing this contract for labour/service and materials. The fact that the paint did not retain its character as a separate entity but was incorporated into something else should not be relevant, because CPWALA hinges on whether the contract is one for labour/service and materials, under which a consumer product is supplied along with the labour/service, not on whether there is a consumer product in the end.

Case law. In Lanteigne v. Foulem & Blanchard Ltée (1986, N.B. Queen's Bench) it was held that the CPWALA warranties applied to a replacement muffler system installed in a car.

Policy. As a matter of policy, there would seem to be no reason for excluding non-commercial paint from CPWALA coverage. When the paint shop bought it from their supplier, it was most certainly a consumer product, and accordingly the paint shop itself was protected by CPWALA. (For the consumer's rights against the paint shop's supplier, please see below.)

Defective products posing safety hazards to person or property

Strict product liability. Section 27, the so-called product liability part of CPWALA, imposes strict liability on suppliers of dangerously defective consumer products, regardless of whether or not those goods are supplied under any contract.

5. CPWALA prevails over everything

Like most consumer protection legislation, CPWALA does not allow the parties to make a contract or agreement that CPWALA will not apply. In fact, CPWALA prevails even over other legislation.

CPWALA text

2(3) This Act applies notwithstanding any agreement, notice, disclaimer, waiver, acknowledgement or other thing to the contrary.

2(4) If there is a conflict between this Act and any other Act, this Act prevails.

Cases

Consumer buyers. CPWALA does not allow a supplier to exclude or restrict the consumer's protection under its (1) express warranties, (2) implied warranties, or (3) remedies for breach of implied warranties.

CPWALA does allow the supplier to make a contract providing for different remedies for breach of some express warranties, but this is subject to a fairness and reasonableness control.

For further discussion, see below.

Business buyers. CPWALA does generally allow a supplier to make a contract with a business buyer excluding or restricting a business buyer's protection under the Act.

But this is subject to a major exception. Pursuant to its policy to stream legal liability back to the ultimate source of the problem, CPWALA generally does not allow a business buyer to give up its rights to indemnification under CPWALA for any liability that it bears to its consumer buyer.

For further discussion, see below.

6. CPWALA not complete code

CPWALA text

28 The rights and remedies provided in this Act are in addition to any other rights or remedies under any other law in force in the Province, unless a right or remedy under such law is expressly or impliedly contradicted by this Act.

Cases

In addition to CPWALA, buyers have rights under many other laws, including legislation such as

For further information on other consumer protection legislation, click here.