Proposed Danforth Shooting Class Action Against Smith & Wesson Relating To Authorized User Technology Allowed To Proceed

Published date18 February 2021
Subject MatterLitigation, Mediation & Arbitration, Technology, Class Actions, Professional Negligence, Marketing
Law FirmGardiner Roberts LLP
AuthorMr James Cook

The Ontario Superior Court of Justice has dismissed a motion by Smith & Wesson Corp to throw out a potential class action for negligent manufacturing of the firearm used in a mass shooting in Toronto: Price v. Smith & Wesson Corp., 2021 ONSC 1114.

In July 2018, a loan gunman shot and killed two people on a busy street in Toronto and injured several others in a notorious incident known as the "Danforth Shooting." The firearm used in the shooting was a Smith & Wesson handgun which had been reported stolen in 2015 by a gun dealer in Saskatchewan.

The plaintiffs ' victims of the shooting and their family members ' subsequently commenced an action against Smith & Wesson for negligence relating to the design, manufacturing and/or distribution of the firearm, as well as strict liability and public nuisance. The action has not yet been certified as a class proceeding.

In 2020, Justice Paul M. Perell heard a preliminary motion to determine whether the proposed causes of action met the first stage of the certification test under the Class Proceedings Act, 1992. Concurrently, Smith & Wesson brought a motion to have the plaintiffs' action dismissed on the basis that it failed to disclose a reasonable cause of action pursuant to Rule 21 of the Rules of Civil Procedure.

In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.

In the decision, released in February 2021, Justice Perell reviewed the established law for product liability claims regarding goods that are dangerous per se, which includes firearms. Justice Perell noted that in the seminal negligence case of Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.), which involved a contaminated bottle of ginger beer, the Law Lords recognized an established category for duty of care cases involving goods that were dangerous in and of themselves (as opposed to a food product such as ginger beer).

As the law of product liability negligence developed thereafter, there was a recognized duty of care for products without regard to whether the product was dangerous or non-dangerous, but the dangerousness of the goods remained a factor in determining the standard of care. A...

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