Michel W. 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 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.