Adam Bazak

This decision concerns a class action brought by victims and families of the 2018 Danforth Avenue shooting against Smith & Wesson Corp., alleging negligence for failing to implement authorized user technology in its handguns.

The Court of Appeal for Ontario held that the plaintiffs’ negligence claim should proceed as a class action, finding that the claim disclosed a reasonable cause of action and that the certification judge erred by applying a merits-based test at the certification stage.

The court struck the strict liability and public nuisance claims, holding that Canadian law does not recognize such claims against product manufacturers in these circumstances.

The Independent Electricity System Operator (IESO) appealed a lower court's interpretation of its standard-form "feed-in-tariff" (FIT 1) contracts with solar energy suppliers.

The dispute centered on whether suppliers breached contracts by "optimizing" their facilities (installing more efficient solar panels) without IESO's consent, specifically regarding changes to DC energy capacity and DC/AC ratio.

The application judge found that consent was only required for features outlined in the application or contract cover page, which did not include DC capacity or DC/AC ratio.

The Court of Appeal upheld this interpretation, dismissing IESO's appeal, finding no reversible error in the application judge's reasoning regarding contract interpretation or the impact of optimizations on metering plans.

This is a costs endorsement following a decision where solar energy suppliers (the "Suppliers") successfully argued that their "Optimizations" did not constitute "Contract Facility Amendments" under their Feed-in-Tariff (FIT) contracts with the Independent Electricity System Operator (IESO).

The Suppliers sought approximately $2 million in partial indemnity costs, while the IESO proposed around $817,000.

The court, applying Rule 57 factors, found the issues complex and high-stakes for both parties.

Despite the Suppliers' higher learning curve and efficient litigation, the court deemed their claimed hours disproportionate.

The court fixed the aggregate partial indemnity legal fees at $1 million, plus disbursements of $270,000 (less specific deductions), finding this amount fair, reasonable, and proportionate given all circumstances.

This addendum to a costs decision addresses two requested corrections: one regarding a consent order on costs for a motion to be in the cause of the certification motion, and another clarifying the actual amount of partial indemnity costs requested by the plaintiffs.

The court acknowledged the factual corrections but affirmed that these changes do not alter the original exercise of discretion regarding costs.

The moving party brought a motion for leave to appeal an order dated February 11, 2021.

The Divisional Court granted the motion for leave to appeal on consent, with costs of the leave motion in the cause of the appeal.

The Independent Electricity System Operator (IESO) sought to prevent solar energy suppliers from increasing their DC capacity, arguing it constituted a 'Contract Facility Amendment' requiring IESO consent under Feed-in-Tariff (FIT) 1.3 and 1.5 contracts.

The suppliers argued that such 'Optimizations' did not require consent as they did not alter features explicitly outlined in the contract application or cover page, and did not exceed AC capacity limits.

The court found that the Optimizations were not Contract Facility Amendments requiring IESO notice and consent, as DC capacity was not an 'outlined' feature in the contracts.

The suppliers' applications for declarations were granted, and the IESO's counter-applications were dismissed.

The plaintiffs sought to certify a class action against Smith & Wesson for design negligence following the Danforth Shooting, where a stolen M&P®40 handgun without "authorized user" (smart gun) technology was used to kill and injure multiple people.

The plaintiffs argued that Smith & Wesson was negligent in failing to incorporate authorized user technology into the handgun's design.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy the common issues and preferable procedure criteria.

Specifically, the plaintiffs did not provide expert evidence from a firearm design expert to establish some basis in fact that the absence of authorized user technology constituted a design defect, or that an alternative design was feasible without impairing the handgun's utility for its intended military and police users.

The plaintiffs in a proposed class action brought two motions: one seeking leave to file third and fourth supplementary affidavits from an expert, Dr. Jooyoung Lee, and another compelling the defendant, Smith & Wesson Corp., to provide answers and documents from a cross-examination.

The court dismissed both motions, finding that the supplementary affidavits were not relevant to the certification criteria and that the requested discovery questions were primarily merits inquiries or fishing expeditions, disproportionate to the needs of the certification motion.

In a proposed class action against a firearm manufacturer for design negligence following a mass shooting, the defendant moved to strike portions of the plaintiffs' layperson affidavit evidence filed for the certification motion.

The impugned evidence included foreign patents for 'smart gun' technology and firearm-related crime statistics.

The court granted the motion to strike, finding that expert evidence in handgun design was required to establish some basis in fact for the design negligence claim, and a layperson could not provide the necessary factual logic or theory.

The court granted the plaintiffs leave to file additional expert evidence and rescheduled the certification motion.

The plaintiffs commenced a proposed class action against the manufacturer of a handgun used in a mass shooting, alleging negligent design, public nuisance, and strict liability for failing to incorporate authorized user ('smart gun') technology.

The defendant moved to strike the statement of claim under Rule 21 for disclosing no reasonable cause of action.

The court dismissed the motion regarding the negligence claim, finding it fell within the established duty of care categories for goods dangerous per se and products liability.

However, the court struck the claims for public nuisance and strict liability, concluding they were legally untenable in the context of product liability.

The plaintiff in a certified class action regarding the federal government's response to the Mad Cow Disease outbreak brought a motion under the Interprovincial Summonses Act to compel the attendance of the former federal Minister of Agriculture, Ralph Goodale, as a witness at trial.

The court dismissed the motion, finding that while the proposed witness's evidence would be relevant, it was neither necessary nor essential to the administration of justice.

The plaintiff already had copious documentary and oral discovery, and the federal government planned to call sixteen civil servants from Agriculture Canada at trial.

The plaintiff, Jooli Park, brought a motion for certification of a class action against Samyang Foods Co. for settlement purposes, approval of a settlement agreement with Samyang, dismissal of the action against the non-settling defendants (Nongshim, Ottogi, Korea Yakult, and Paldo), approval of class counsel fees and disbursements, payment of an honorarium to Park, and cy-près distribution of remaining settlement funds.

The court granted all requested relief except for the honorarium to Park, finding that her contributions were not exceptional enough to warrant it.

The settlement with Samyang was approved, and the action against the non-settling defendants was dismissed without costs, considering the increased litigation risks after an unsuccessful jury trial in a related US class action.