Court of Appeal for Ontario

Date: 2025-06-23
Docket: C69226, COA-24-CV-0859 & COA-24-CV-0927
Coram: Hourigan, Wilson and Pomerance JJ.A.

Between:
Samantha Price Skye McLeod, Kenneth Price, Claire Smith, Patrick McLeod, and Jane McLeod
Plaintiffs (Appellants/Respondents)

and

Smith & Wesson Corp.
Defendant (Respondent/Appellant)

Counsel:
Linda Rothstein, Odette Soriano, Malcolm N. Ruby, Adam Bazak, Michel W. Drapeau and Joshua Juneau, for the appellants/respondents Samantha Price Skye McLeod, Kenneth Price, Claire Smith, Patrick McLeod, and Jane McLeod
Scott Maidment, Jennifer Dent, Francesca D’Aquila-Kelly and Emily Hush, for the respondent/appellant Smith & Wesson Corp.

Heard: December 9, 2024

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated December 3 and 4, 2020, with reasons reported at 2021 ONSC 1114, 154 O.R. (3d) 675.
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 5, 2024, with reasons reported at 2024 ONSC 1368.

A. Overview

[1] In July 2018, Faisal Hussain shot 15 people who were enjoying a summer evening on Toronto’s Danforth Avenue, killing two of them. He used a gun manufactured by Smith & Wesson to do it. Some of the victims and their families brought a class action against Smith & Wesson for failing to implement technology to prevent unauthorized use of the gun. Had Smith & Wesson implemented that technology, the plaintiffs say, Hussain would not have been able to use it. Their claim failed at the certification stage.

[2] The motion judge bifurcated the plaintiffs’ certification motion. During the first phase, which also included a motion to strike by the defendant under r. 21 of the Rules of Civil Procedure, the motion judge dismissed the plaintiffs’ claims based in strict liability and nuisance, but determined that their negligence claim satisfied the cause of action criterion for certification. During the second phase, he concluded that the plaintiffs had not satisfied the common issues criterion set out in s. 5(1)(c) of the Class Proceedings Act, 1992, and declined to certify their claim.

[3] Both parties appeal. The defendant contends that the negligence claim has no reasonable prospect of success and should have been struck at the first phase. The plaintiffs argue that their strict liability and public nuisance claims are not doomed to fail, and that their action satisfies the common issues criterion.

[4] For the reasons that follow, I would dismiss both the defendant’s and the plaintiffs’ appeals from the first phase of the certification motion and the r. 21 motion. The plaintiffs’ negligence claim is not doomed to fail, but their claims in strict liability and public nuisance are. I would allow the plaintiffs’ appeal from the second phase of the certification motion and certify their claim in negligence as a class action.

B. Factual Summary and Procedural History

[5] Faisal Hussain went to Danforth Avenue on a July 2018 evening, armed with a stolen M&P®40 handgun manufactured by the defendant. He shot at pedestrians and people coming out of shops and restaurants. He killed two people and injured 13 more. When the police arrived, Hussain exchanged gunfire with them before taking his own life.

[6] According to the pleadings, the defendant made the M&P®40 available for sale in Canada in 2013. It is a semiautomatic pistol designed for military and police use, so it is built to harm or kill people, not for hunting. A Saskatchewan gun dealer reported the M&P®40 that Hussain used as stolen in 2015. It had no features that would prevent an unauthorized user from firing it.

[7] But the plaintiffs allege that the defendant may have been able to implement those features—in fact, it had preliminarily agreed with the United States government to do so in 2000, as part of a settlement of civil claims in the United States arising out of gun violence. In that agreement (the “Agreement”), the defendant acknowledged that more than 200,000 firearms were stolen each year in the United States, and committed to incorporating authorized user technology in newly designed handguns by March 2003. The preamble to the Agreement described one of its purposes as “to reduce the criminal misuse of firearms”.

[8] The defendant never complied with the Agreement. In 2005, the United States Congress passed legislation that effectively immunized gun manufacturers from civil liability to victims arising from the unauthorized use of a firearm. Yet the danger of unauthorized firearm use did not recede. In 2012, the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) released a report discussing the “substantial threat to public safety and to law enforcement” posed by lost and stolen firearms.

[9] According to the pleadings, the statistics in both the United States and Canada echoed that report: thousands of handguns recovered by police in the United States in connection with crimes had been reported lost or stolen. More than 75 percent of them were handguns, and Smith & Wesson was their most common manufacturer. In Canada, the rate of gun theft in break-and-enters more than tripled between 2009 and 2017, and nearly 3,500 firearms were stolen between 2013 and 2017. A 43 percent increase in gun-related violence accompanied that figure.

[10] The plaintiffs commenced a class action in 2019. They pleaded that these facts, if true, established claims in negligence, strict liability, and public nuisance. The defendant, their claim asserts, was aware of foreseeable harm to innocent third parties—like the plaintiffs—if it did not implement authorized user technology. It could have implemented that technology, but chose not to.

[11] The motion judge bifurcated the certification motion. At the first phase, the defendant also moved under r. 21 of the Rules of Civil Procedure to strike the plaintiffs’ claim and dismiss their action. In the February 11, 2021 decision, the motion judge struck the claims for strict liability and public nuisance, concluding that it was plain and obvious that they were doomed to fail, but determined that the plaintiffs’ claim in negligence disclosed an arguable cause of action and satisfied the cause of action criterion for certification.

[12] At the second phase of the certification motion, the plaintiffs were required to satisfy the remaining four certification criteria set out in s. 5(1) of the Class Proceedings Act. In the March 5, 2024 decision, the motion judge found that the plaintiffs failed to satisfy the proposed common issues criterion, and dismissed the certification motion.

C. Issues on Appeal

[13] The plaintiffs and defendant appeal. The issues raised and my conclusions may be summarized as follows:

1. Did the motion judge err in not striking the claim in negligence?
   No. The motion judge correctly held that the plaintiffs’ claim discloses a cause of action in negligence, and that it was capable of success. His decision not to strike the negligence claim is fortified by a full Anns/Cooper analysis, which establishes that the defendant could reasonably have foreseen that its handguns might be stolen and used to harm other people. Further, the foreseeability of that injury put the parties in a proximate relationship, and no policy considerations negate the resulting duty of care.

2. Did the motion judge err in striking the claim in strict liability?
   No. It is plain and obvious that a strict liability claim does not extend to the facts of this case. It is inappropriate to extend the law of strict liability to this product manufacturer, particularly when the damages were caused by a third party while committing a crime.

3. Did the motion judge err in striking the claim in public nuisance?
   No. The motion judge correctly held that it was plain and obvious that selling firearms does not sound in public nuisance. Firearm manufacturing is a regulated and permitted activity. There is a difference between manufacturing firearms, which cannot constitute a public nuisance, and the actions of people who misuse firearms, which could constitute a public nuisance.

4. If the negligence claim was not properly struck, did the motion judge err in not certifying the action because the common issues criterion for certification was not met?
   Yes. The motion judge erred in principle by imposing a standard that required the plaintiffs to prove their case on the merits at the certification stage. The plaintiffs’ claim in negligence should be certified as a class proceeding.

D. Issue #1: The Negligence Claim

(1) Overview

[14] The first phase of the certification motion addressed the defendant’s r. 21 motion and the cause of action criterion for certification. The motion judge concluded that the plaintiffs’ claim disclosed a cause of action in negligence, and so satisfied the cause of action criterion under s. 5(1)(a) of the Class Proceedings Act.

[15] The defendant appeals. It argues that the motion judge took a “shortcut” by recognizing a duty of care based on established categories which are not analogous to the relationship in this case. It says that this case involves a novel duty of care, so the motion judge should have conducted a full Anns/Cooper analysis to determine whether relational proximity and reasonable foreseeability are present, and whether any residual policy considerations would negate a prima facie duty of care: see Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. The defendant asserts that it owed the plaintiffs no duty of care in designing and manufacturing the gun, so the negligence action is bound to fail and must be dismissed.

[16] The plaintiffs respond that the motion judge correctly held that it was not plain and obvious that the defendant owed no such duty to the plaintiffs.

[17] The correctness standard of review applies on a motion determining whether a claim discloses a reasonable cause of action: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 26. Applying the Anns/Cooper framework below, I agree with the motion judge that the plaintiffs’ claim discloses a cause of action in negligence that satisfies the cause of action criterion.

(2) Analysis

(a) The Governing Principles on a Motion to Strike

[18] The test applied on a motion to strike a pleading is the same test used to determine whether pleadings satisfy the cause of action criterion under s. 5(1)(a) of the Class Proceedings Act: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 63. That test asks whether it is plain and obvious, assuming the facts pleaded are true, that the plaintiff’s claim cannot succeed: Pro‑Sys, at para. 63.

[19] Rule 21.01(1)(b) provides a tool to eliminate cases at an early stage that have no possibility of success. There is no evidence on a r. 21 motion—it is determined based on the pleadings alone, with the pleaded material facts usually accepted as true: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22. The threshold to strike a claim is high, and the court must read the claim “as generously as possible” because it is preferable to dispose of cases on their merits: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 88, per Karakatsanis J. (dissenting, but not on this point). That is especially so when it comes to novel claims. “The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed”, so courts “must be generous and err on the side of permitting a novel but arguable claim to proceed to trial”: Imperial Tobacco Canada Ltd., at para. 21.

(b) The Motion Judge’s Reasons

[20] Although the motion judge’s decision that the plaintiffs’ claim disclosed a cause of action in negligence is reviewable on a correctness standard, it is helpful to review his reasons in more detail. Before doing so, however, I briefly outline the duty of care framework that governed his analysis. I return to this framework in more detail below.

[21] As the motion judge correctly observed, the existence of a relationship that involves a duty of care lies at the root of negligence law in Canada. To determine whether a duty of care exists, the Anns/Cooper framework applies. It inquires into whether the plaintiff’s claim: (a) falls within or is analogous to an established duty of care, or (b) is based on a novel duty: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at paras. 17-18. In some cases, a relationship will fall within, or be analogous to, a category that has already been judicially recognized as giving rise to a duty of care: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 5. In other cases, however, there will be no established or analogous category, so the court must undertake a full duty of care analysis: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 29.

[22] To defeat a motion to strike and satisfy the cause of action criterion, the action as pleaded must: (a) fall within an established or analogous category of duty of care, or (b) plead material facts which show that the relationship between plaintiff and defendant establishes a duty of care. The applicable framework has three elements—proximity, reasonable foreseeability of harm, and the absence of countervailing public policy considerations—and is commonly referred to as the “Anns/Cooper test”: e.g., Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at para. 16.

[23] The motion judge found that the action as pleaded fell within two recognized categories of negligence: the goods dangerous per se category, and the product liability category. He therefore concluded that it was not plain and obvious that the action had no prospect of success.

[24] First, the motion judge held that the plaintiffs advanced a negligence claim that fell within the “goods dangerous per se”, or just “dangerous goods”, category. He observed that the law lords in the seminal case of Donoghue v. Stevenson, [1932] A.C. 562 (Eng. H.L.), referred approvingly to the category. He based his analysis on two cases referenced in Donoghue: Dixon v. Bell (1816), 105 E.R. 1023 (Eng. K.B.), and Dominion Natural Gas Co. v. Collins, [1909] A.C. 640 (P.C.).

[25] In Dixon, the defendant sent his “servant”—who was a child—to bring him a loaded gun. The servant mistakenly shot the gun at the plaintiff’s child and injured him. Lord Ellenborough C.J. held that an action could lie against the defendant.

[26] In Dominion Natural Gas, a gas company installed a “supply plant” in a blacksmith’s shop, but set it up so that the gas vented into the shop itself as opposed to the outside air. The gas caught fire and caused an explosion that killed one plaintiff and injured another, both of whom worked in the shop. Lord Dunedin held, at p. 646, that “in the case of articles dangerous in themselves, … there is a peculiar duty to take precaution imposed upon those who send for or instal such articles when it is necessarily the case that others will come within their proximity”.

[27] The second category on which the motion judge relied was “products liability”. He described it as a duty on manufacturers “in designing [a] product to avoid safety risks and to make the product reasonably safe for its intended purposes”.

[28] With one exception, each of the cases the motion judge cited in support of this category holds that a manufacturer owes a duty to the foreseeable user of their product. Specifically, the motion judge relied on cases about the duty owed by a drug manufacturer to consumers (Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744, 27 C.P.C. (7th) 32); a propane tank manufacturer to homeowners (Kreutner v. Waterloo Oxford Cooperative Inc., 50 O.R. (3d) 140 (C.A.)); a fireplace manufacturer to homeowners (Cantlie v. Canadian Heating Products Inc, 2017 BCSC 286); and a garden and lawn riding mower manufacturer to mower users (Nicholson v. John Deere Ltd., 58 O.R. (2d) 53 (H.C.), aff’d (1989), 68 O.R. (2d) 191 (C.A.)). The one exception is the duty that automobile manufacturers owe to other users of the road injured by their negligent manufacturing: Rentway Canada Ltd./Ltée v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150 (Ont. H.C.), aff’d [1994] O.J. No. 50 (C.A.); Gallant v. Beitz (1983), 42 O.R. (2d) 86 (H.C.).

[29] This court’s last—and most comprehensive—word on the products liability category postdates the motion judge’s reasons. It refers to the category in the more restricted manner I just described, namely as “the duty of care owed by a manufacturer to the ultimate consumer or user of its product”: Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135, 32 C.C.L.I. (6th) 4, at para. 53. Burr was about a manufacturer and the foreseeable user of its product, i.e. the manufacturer of an exploding heat recovery ventilator and a homeowner whose residence was damaged as a result.

[30] Given the motion judge’s conclusion the plaintiffs’ negligence claim came within two established categories, he found it unnecessary to undertake a full duty of care analysis.

(c) The Anns/Cooper Framework

[31] The parties in this case understand recent Supreme Court jurisprudence on the duty of care differently. The defendant insists that the motion judge’s reliance on categories sits uneasily with Livent’s cautious approach to established categories, and that the plaintiffs’ claim is otherwise doomed given the Supreme Court’s approach to the foreseeability of harm flowing from theft in Rankin. The plaintiffs respond that Livent only applies to pure economic loss cases, and that Rankin maintains that duties of care are easier to establish in personal injury cases.

[32] I agree partly with each of them. But their disagreement suggests that some guidance on the duty of care analysis is necessary. As I explain below, Livent’s analytical caution with categories in the duty of care analysis applies generally, including to the personal injury context. Rankin confirms that approach. But importantly for purposes of this case, Rankin does not sever the longstanding connection between foreseeable bodily harm and proximity. As a general rule, if bodily harm is reasonably foreseeable, a duty of care will usually exist.

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Footnotes

[1] The defendant makes a range of arguments against the relevance of the Agreement, but none of them speak to the reason the Agreement is relevant: its existence makes it clear that the defendant was able to reasonably foresee the risk of gun violence flowing from gun theft.

[2] The Class Proceedings Act was amended in 2020. The former Act continues to apply to cases started before October 1, 2020, including this case: see Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1, 492 D.L.R. (4th) 294, at para. 4. The certification criteria in s. 5 remain unchanged.

[3] The plaintiffs seek certification of three classes. Class 1 includes persons shot and injured or killed; Class 2 includes other injured persons; and Class 3 includes family members of persons in Classes 1 and 2.

[4] In their notice of appeal, the plaintiffs seek certification of the common issues set out in Schedule A to their notice. Schedule A lists only the first four issues.

[5] As noted above, on appeal, the plaintiffs did not seek to certify the fifth common issue.

[6] This approach does not entail the kind of “conditional certification” that this court rejected in Knisley v. Canada (Attorney General), 2025 ONCA 185, at paras. 28-40. As Cloud and Keatley Surveying show, there is nothing unusual about modifying a litigation plan after certifying a class action. Flexibility is inherent in litigation plans, even if it is not, as Knisley holds, inherent in some of the other criteria in s. 5(1) of the Class Proceedings Act.