Michel Joseph Romeo William Drapeau

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 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 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.

The plaintiffs moved for an order staying or adjourning the defendant's motion for leave to appeal a case management judge's decision on a Rule 21 motion.

The Rule 21 motion was heard together with the first stage of a bifurcated certification motion in a proposed class proceeding arising from a mass shooting.

The Divisional Court applied the RJR MacDonald test under section 106 of the Courts of Justice Act and granted the stay, finding that the balance of convenience favoured postponing the leave motion until after the second stage of the certification motion was decided to avoid a multiplicity of proceedings.

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.

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.