Joshua M. Juneau

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 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.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claim for negligent investigation as statute-barred.

The court found that a legal opinion obtained by the plaintiffs was admissible and that their claims were indeed statute-barred under the Limitations Act, 2002.

Specifically, Mr. MacNeil's claim for negligent investigation failed because entering a peace bond is not considered a termination of criminal proceedings in his favour, a prerequisite for the tort.

Both plaintiffs' claims were deemed discoverable much earlier than they argued, as they had received legal advice outlining potential legal action and the applicable limitation period.

The court dismissed the action, granting summary judgment to the defendants.

Following the dismissal of the plaintiff’s claim, the court determined the appropriate costs award.

The successful defendants sought $12,944.96 in costs on a partial indemnity basis, while the plaintiff argued that success was divided because part of the claim had been found premature and sought a reduced award.

The court held that the defendants were the successful party and that the general rule awarding costs to the successful party applied.

The hourly rates and time expended by defence counsel were found to be reasonable.

Costs were fixed in favour of the defendants.

The defendants moved under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the plaintiff’s defamation action arising from allegations made during his service as a Canadian Armed Forces officer.

The court held that the claim arose directly from the employment relationship and should first be addressed through the military grievance process under the National Defence Act framework.

Because that statutory grievance procedure was capable of addressing the underlying issues, the civil action constituted an abuse of process and was premature.

The court also held that certain pleaded claims relating to publications and broadcasts were barred due to non-compliance with the notice requirements of the Libel and Slander Act.

The action was dismissed, with alternative findings that it could be stayed pending determination of entitlement to compensation for a service-related injury and that specified paragraphs of the pleading were struck.