Certification Denied In Proposed Class Proceeding Against Gun Manufacturer For Mass Shooting

• Published date: 22 March 2024
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Class Actions, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Bennett Jones LLP
• Author: Mr Gannon Beaulne and Thomas Feore

An Ontario Superior Court Judge has refused to certify a class action against the manufacturer of the handgun used to carry out the 2018 mass shooting on Danforth Avenue in Toronto. The plaintiffs brought their claim on behalf of those killed or otherwise affected by the tragedy. After a two-phase process, Justice Paul Perell found no basis in fact for concluding that the handgun used in the shooting had been negligently designed or that the manufacturer's alleged negligence had caused the plaintiffs' injuries.

Justice Perell's decision followed an earlier determination in Price v Smith & Wesson Corp, 2021 ONSC 1114 (Price), that the plaintiffs' negligent design claim, based on the lack of certain safety features in the handgun's design, was not bound to fail based on the pleadings. In 2020, Justice Perell bifurcated the certification process into two phases: (1) an initial assessment of the adequacy of the plaintiffs' claims based only on the pleadings; and (2) if the claims could proceed to the next phase based on the pleadings, an assessment of the threshold adequacy of those claims at the certification stage based on the evidence. While the plaintiffs' negligent design claim survived pleadings scrutiny (as discussed in our earlier blog post, Are Gun Manufacturers Liable for Mass Shootings?), Justice Perell found that the plaintiffs' evidence in support of that claim did not meet the "some basis in fact" standard applied at the certification stage.

This decision sets clear and specific guidelines for the evidence that courts will expect from plaintiffs before certifying a negligent design claim. It also shows that any "information deficit" of plaintiffs relative to defendants about design decisions and other details, often highlighted by plaintiffs in products liability cases, does not relieve plaintiffs of the onus of proving some basis in fact for their design negligence claims, including through expert evidence.

This decision also reinforces the now well-established principle that proving some basis in fact for common issues requires not only some basis in fact that the proposed issues can be answered in common across the class, but also some basis in fact that the proposed common issues actually exist.

No Basis in Fact for Negligent Design

To make out a negligent design claim, a plaintiff must:

1. identify the design defect in the product;
2. establish that the defect created a substantial likelihood of harm; and
3. establish that there are safer yet...