Price et al. v. Smith & Wesson Corp.

[Indexed as: Price v. Smith & Wesson Corp.]

Ontario Reports

Ontario Superior Court of Justice

Perell J.

February 11, 2021

154 O.R. (3d) 675 | 2021 ONSC 1114

Case Summary

Civil procedure — Pleadings — Statement of claim — Striking out — Plaintiffs commencing proposed class proceeding against manufacturer of handgun — Pleading alleging negligence, public nuisance and strict liability for failure to use available technology to prevent firing of weapon by unauthorized user — Manufacturer's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — Claim fell within established negligence categories of goods dangerous per se and products liability.

Torts — Negligence — Duty of care — Products liability — Plaintiffs commencing proposed class proceeding against manufacturer of handgun — Pleading alleging negligence, public nuisance and strict liability for failure to use available technology to prevent firing of weapon by unauthorized user — Manufacturer's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — Claim fell within established negligence categories of goods dangerous per se and products liability.

Torts — Public nuisance — Plaintiffs commencing proposed class proceeding against manufacturer of handgun — Pleading alleging negligence, public nuisance and strict liability for failure to use available technology to prevent firing of weapon by unauthorized user — Manufacturer's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — Claim fell within established negligence categories of goods dangerous per se and products liability — Public nuisance claim struck as being bound to fail — Defendant's alleged wrongful activity did not involve harm to public property or public activities.

Torts — Strict liability — Products liability — Plaintiffs commencing proposed class proceeding against manufacturer of handgun — Pleading alleging negligence, public nuisance and strict liability for failure to use available technology to prevent firing of weapon by unauthorized user — Manufacturer's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — Claim fell within established negligence categories of goods dangerous per se and products liability — Strict liability claim struck as being bound to fail — Nothing about the claim involved an escape from defendant's land.

A man using a stolen handgun shot himself after randomly shooting and killing two persons and injuring several others. The handgun had been designed for military and police use. Two of the persons injured by the shooting and their parents commenced a proposed class action against the gun manufacturer. The causes of action pleaded were: negligent design, manufacture, and/or distribution; public nuisance; and strict liability. Three classes were proposed: all persons or their estates injured or killed by being shot; persons not shot but injured as a consequence of the incident; and family members of the first two classes. The plaintiffs pleaded that the defendant owed a duty of care to the class members to ensure that the handguns it designed, manufactured and made available for sale in Canada included safe gun technology so as to avoid, prevent, or deter substantial and foreseeable harm. The technology referred to would have allowed the weapon to fire only when activated by an authorized user. The defendant moved to strike the statement of claim as disclosing no reasonable cause of action.

Held, the motion should be dismissed.

The plaintiffs pleaded a reasonable cause of action in design negligence that was not doomed to fail. The defendant argued that the negligence cause of action did not come within an established category and did not satisfy a duty of care analysis. However, the cause of action for negligence fell within the established categories of the goods dangerous per se category and the products liability category. Accordingly, it was unnecessary to undertake a duty of care analysis. With respect to goods dangerous per se, although the proximate cause of the damage was the criminal acts of the shooter, the defendant could have taken the precaution of implementing the authorized user technology. As for products liability, the defendant's duties of design extended beyond the police officers and soldiers for whom the weapon was designed. The duty of care in design associated with goods, whether dangerous or not, was not confined to the closest degrees of proximity of the purchaser or consumer. What was required was a risk-utility analysis examining the utility of introducing authorized user technology, which would minimize putting into harm's way the citizens whom the police were charged to serve and protect, balanced against the risks to the police from the presence of authorized user technology.

The claims for strict liability and public nuisance were doomed to failure and were struck from the statement of claim. Under Canadian law, products liability was a matter of negligence and not strict liability, as there was nothing about the claim that had to do with the defendant's land and nothing was escaping. Public nuisance was typically about harm caused to public property or public activities. The alleged wrongful activity of the defendant was selling a handgun that did not utilize authorized user technology, which did not fall under either of those categories.

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Rylands v. Fletcher (1868), L.R. 3 H.L. 330, affg (1866) L.R. 1 Ex. 265, distd

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Moorhead, [2017] 1 S.C.R. 543, [2017] S.C.J. No. 28, 2017 SCC 28, 409 D.L.R. (4th) 395, [2017] 6 W.W.R. 431, 96 B.C.L.R. (5th) 1, 37 C.C.L.T. (4th) 1, [2017] I.L.R. para. M-3000, 279 A.C.W.S. (3d) 84, EYB 2017-280397, 2017EXP-1678; Shandloff v. City Dairy Ltd., 1936 68 (ON CA), [1936] O.R. 579, [1936] O.J. No. 236, [1936] 4 D.L.R. 712, [1936] O.W.N. 531 (C.A.); Silber v. DDJ Canadian High Yield Fund, 2006 21058 (ON SC), [2006] O.J. No. 2503, 20 B.L.R. (4th) 134, 24 E.T.R. (3d) 211, 149 A.C.W.S. (3d) 513, [2006] O.T.C. 557 (S.C.J.); Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273, 184 A.C.W.S. (3d) 28 (S.C.J.); Smith v. Inco Ltd. (2011), 2011 ONCA 628, 107 O.R. (3d) 321, [2011] O.J. No. 4386, 2011 ONCA 628, 340 D.L.R. (4th) 602, 284 O.A.C. 13, 88 C.C.L.T. (3d) 1, 62 C.E.L.R. (3d) 93, [2011] I.L.R. para. G-2414, 207 A.C.W.S. (3d) 605, 2011 OREG para. 58,885; Syl Apps Secure Treatment Centre v. D. (B.) (2007), 86 O.R. (3d) 720, [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38, 2007 SCC 38, 284 D.L.R. (4th) 682, 365 N.R. 302, J.E. 2007-1512, 227 O.A.C. 161, 49 C.C.L.T. (3d) 1, [2007] I.L.R. para. G-2102, 39 R.F.L. (6th) 245, 159 A.C.W.S. (3d) 464, EYB 2007-122390, 2007 DFQ para. 10,287, 2007 CFLG para. 26,250; Tabrizi v. Whallon Machine Inc., 1996 3532 (BC SC), [1996] B.C.J. No. 1212, 29 C.C.L.T. (2d) 176, 63 A.C.W.S. (3d) 755 (S.C.); Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664, [1990] O.J. No. 860, 38 O.A.C. 270, 21 A.C.W.S. (3d) 348 (C.A.); White v. Smith & Wesson, 97 F. Supp. 2d 816 (N.D. Ohio, 2000); Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85, [1995] S.C.J. No. 2, [121 D.L.R. (4th) 193, 176 N.R. 321, [1995] 3 W.W.R. 85, J.E. 95-274, 100 Man. R. (2d) 241, 23 C.C.L.T. (2d) 1, 18 C.L.R. (2d) 1, 43 R.P.R. (2d) 1, 52 A.C.W.S. (3d) 1398; Wright v. Horizons ETFS Management (Canada) Inc., [2020] O.J. No. 2431, 2020 ONCA 337, 448 D.L.R. (4th) 328, 66 C.C.L.T. (4th) 169

Statutes referred to

Class Proceedings Act, 1992, S.O. 1992, c. 6 [as am.], s. 5(1)(a)

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 84(1) [as am.], 180 [as am.]

Firearms Act, S.C. 1995, c. 39 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Authorities referred to

Lidwell, W., Holden, K., Butler, J., Universal Principles of Design — 100 Ways to Enhance Usability, Influence Perception, Increase Appeal, Make Better Design Decisions, and Teach through Design (Glouster, Mass.: Rockport Publishers Inc., 2003)

Osborne, Philip H., The Law of Torts, 4th ed. (Toronto: Irwin Law Inc., 2011)

MOTION to strike statement of claim as disclosing no reasonable cause of action.

Malcolm Ruby, Adam Bazak, Michel Drapeau and Joshua Juneau, for plaintiffs.

Scott Maidment and Jennifer Dent, for defendant.

PERELL J.: —

My Lords, the facts of this case are simple. On August 26, 1928, the appellant drank a bottle of ginger-beer, manufactured by the respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not, and could not be, detected until the greater part of the contents of the bottle had been consumed. As a result she alleged, and at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro-enteritis. She accordingly instituted the proceedings against the manufacturer which have given rise to this appeal. The foundation of her case is that the respondent, as the manufacturer of an article intended for consumption and contained in a receptacle which prevented inspection, owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that he neglected such duty and is consequently liable for any damage caused by such neglect. (Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, [1932] All E.R. Rep. 1 (H.L.) per Lord Buckmaster.)

The facts of this case are simple. On July 22, 2018, Samantha Price was shot by a criminal using a stolen handgun that had been manufactured by Smith & Wesson. The design of the handgun did not utilize available technology that would have made it unusable by an unauthorized user. Ms. Price instituted an action against Smith & Wesson which has given rise to this motion. The foundation of her case is that Smith & Wesson, as the manufacturer of an article intended for use as weapon, owed a duty to her as person who could be harmed by that weapon to take care that the weapon had authorized user technology, that it neglected such duty and is consequently liable for the damage caused by such neglect.

A. Introduction and Overview

[1] This is a Rule 21 motion to strike the plaintiffs' Amended Statement of Claim and to dismiss the plaintiffs' action. This motion is also phase 1 of a bifurcated certification motion in this proposed class action under the Class Proceedings Act, 1992.[^1]

[2] The plaintiffs are: (a) Samantha Price, (b) her mother, Claire Smith, (c) her father, Kenneth Price, (d) Skye McLeod, (e) her father, Patrick McLeodp and (f) her mother, Jane McLeod. The defendant is Smith & Wesson Corp., the manufacturer of the M&P®40 semi-automatic handgun.

[3] The tragic events giving rise to the proposed class action, which events have come to be known as the "Danforth Shooting", were that an M&P®40 handgun, which does not utilize "authorized user" or "smart gun" technology was stolen. The M&P®40 came into the hands of one Faisal Hussain, who, during the evening of Sunday July 22, 2018, walked along Danforth Avenue in Toronto, Ontario and randomly shot and killed two persons (aged ten and 18), shot and injured 13 others, and injured dozens that suffered injuries as they fled the active-shooter scene. The Danforth Shooting ended when, after exchanging gunfire with police officers, Mr. Hussain used the M&P®40 to kill himself.

[4] The plaintiffs advance causes of action against Smith & Wesson for: (a) negligent design, manufacturer, and/or distribution; (b) public nuisance; and (c) strict liability.

[5] Smith & Wesson submits that it has no civil liability for the Danforth Shooting, and it moves to have the plaintiffs' action dismissed pursuant to Rule 21 of the Rules of Civil Procedure.[^2] The plaintiffs resist the motion and submit that they have met the test for pleading a reasonable cause of action, which, in turn, means that they also have satisfied the first criterion for certification of their action as a class proceeding.

[6] For the reasons that follow, I strike out the claims for public nuisance and strict liability, but for the reasons that follow, I conclude that the plaintiffs' cause of action for negligence satisfies the cause of action criterion for the certification of their class action. I dismiss Smith & Wesson's Rule 21 motion to strike the negligence cause of action.

[7] By way of overview or summary of my opinion, assuming the facts set out in the Statement of Claim about the Danforth Shooting are true, then it is plain and obvious in the immediate case that the causes of action for public nuisance and strict liability are inapplicable and unobtainable. These causes of action are doomed for failure, and they should be struck from the plaintiffs' pleading.

[8] As for the plaintiffs' cause of action in negligence, it comes within two long-established categories of cases in which there is a duty of care relationship.

(a) First, for over two centuries, (since at least 1816), the common law has recognized that the manufacturer of a good "dangerous in itself" has "a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity" (the goods dangerous per se category).

(b) Second, for almost 90 years (since 1932), the common law has recognized a duty of care relationship between the manufacturer of an article and a person who is injured by reason of the article being defective in manufacture including a design defect (the products liability category).

[9] In the immediate case, the fate of the plaintiffs' cause of action in negligence requires a trial on the merits. The plaintiffs' negligence claim is not a novel claim for which a duty of care analysis is required, and it is not plain and obvious that the plaintiffs' negligence claim is legally untenable and doomed to fail.

B. Procedural Background

[10] The plaintiffs commenced this action on December 16, 2019.

[11] The plaintiffs were granted leave to file an amended Statement of Claim, which they did on August 17, 2020.

[12] In an Order/Direction issued July 6, 2020, I determined that the case was appropriate for a bifurcated certification motion. The first stage of the certification motion would determine the cause of action criterion of the certification test under the Class Proceedings Act, 1992 and Smith & Wesson's Rule 21 motion. If the cause of action criterion was satisfied, then the second stage would address the remaining four certification criteria.

C. Factual Background

[13] The factual background is taken from the Amended Statement of Claim. For the purposes of this motion, those facts, which are not admitted by Smith & Wesson, are assumed to be true.

1. The parties

[14] At the time of the Danforth Shooting, Samantha Price was an 18-year-old student. She was shot and injured by the gunman. Claire Smith and Kenneth Price are the parents of Samantha Price.

[15] At the time of the Danforth Shooting, Skye McLeod was an 18-year-old student. She was injured while fleeing the gunman. Jane McLeod and Patrick McLeod are the parents of Skye McLeod.

[16] The plaintiffs seek to be representative plaintiffs for the following three classes:

Class 1: Persons Shot and Injured or Killed

All persons (or their estates), except Faisal Hussain, who were shot and injured or killed on or near Danforth Avenue in Toronto on 22 July 2018 by a Smith & Wesson M&P40 handgun.

Class 2: Other Injured Persons

All persons who do not fall within Class 1, except Faisal Hussain, who were injured on or near Danforth Avenue in Toronto on 22 July 2018 as a result of the use of a Smith & Wesson M&P40 handgun.

Class 3: Family Members

Family members, within the meaning of section 61 of the Family Law Act, R.S.O., 1990, Chapter F.3, of all persons in Classes 1 and 2.

[17] Smith & Wesson Corp. is a United States corporation with a head office in Springfield, Massachusetts. It designs, manufacturers, and distributes the M&P®40 handgun.

2. The Danforth Shooting

[18] In 2005, Smith & Wesson designed and manufactured the M& P (or Military and Police) 40 series, and it introduced the M&P®40 handgun into the marketplace. The M&P®40 is a 40-calibre semi-automatic pistol for military and police use and it is not designed for hunting.

[19] Smith & Wesson made the M&P®40 handgun available for sale in Canada in 2013.

[20] In 2015, a Saskatchewan gun dealer reported the M&P& reg;40 later used by Mr. Hussain stolen.

[21] Around 10:00 p.m. on Sunday July 22, 2018, armed with the M&P®40, Mr. Hussain walked along Danforth Avenue in the City of Toronto. He used the weapon to randomly shoot and kill two persons (aged ten and 18), to randomly shoot and injure 13 others, and to injure dozens as they fled the active shooter scene. The Danforth Shooting ended when, after exchanging gunfire with police officers, Mr. Hussain used the handgun to kill himself.

3. Gun violence and gun diversion statistics

[22] In 2018, Statistics Canada reported that the rate of gun thefts in "break and enter" crimes had more than tripled between 2009 and 2017, with 309 reported incidents in 2009 and 1,175 reported thefts in 2017. Each year since 2009, about 60 per cent of firearm-related violent crime has involved handguns. In 2017, 145 homicides were committed in Canada with handguns.

[23] In 2018, Statistics Canada reported a 42 per cent increase in firearm-related violent crime in Canada between 2013 and 2017, particularly in the City of Toronto. Of the national increase after 2013, 43 per cent was attributable to increases in firearm-related violence in Toronto.

[24] The Royal Canadian Mounted Police ("RCMP") have reported that: (a) 3,486 registered firearms were stolen between 2013 and 2017; (b) 588 handguns were lost by, or stolen from, Canadian police and public agencies between 2005 and 2019; and (c) 32 Smith & Wesson handguns were lost by, or stolen from the RCMP between 2010 and 2017.

[25] Statistics published by the U.S. Federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATFE") and the National Crime Information Center (a branch of the F.B.I.) show losses or thefts of more than 250,000 firearms annually in the United States. In a 2012 report, the ATFE stated:

Lost and stolen firearms pose a substantial threat to public safety and to law enforcement. Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms, including a market for those who are prohibited by law from possessing a gun.

[26] U.S. studies show that thousands of handguns recovered by police in connection with crimes, including homicides and shooting injuries, were reported lost or stolen. According to the studies, handguns account for more than 75 per cent of stolen guns and Smith & Wesson handguns are the most common make of stolen handgun in the United States. Media reports provide numerous examples of stolen Smith & Wesson handguns being used by unauthorized persons to kill and injure innocent victims.

4. Smith & Wesson and authorized user gun technology

[27] Smart gun or authorized user technology, which is designed to prevent criminal use of weapons by unauthorized persons, has existed since the 1970s. By the 1990s, many gun manufacturers were using the technology to promote safety and prevent firearm misuse. By 2005, there were more than 100 patents dealing with authorized user related technology, including patents describing internal locks incorporating the technology.

[28] Authorized or personalized user handguns have one or more systems that allow the weapon to fire only when activated by an authorized user.

(a) Examples of the systems include biometric technologies like: (a) fingerprint or palm-print recognition; (b) dynamic grip recognition; (c) electronic signature authentication; (d) vascular biometrics; and (e) voice identification.

(b) Examples of the systems include automated identification technologies like: (f) radio-frequency identification ("RFID"); (g) proximity tokens; and (h) magnetic rings.

(c) Examples of the systems include miscellaneous technologies like (i) internal locking devices and (j) external locking devices.

[29] Guns with authorized user technology reduce accidental shootings, neutralize the impact of gun thefts, and prevent criminal use of weapons by unauthorized persons.

[30] Firearms incorporating authorized user technology have been tested by the United States government and found to be "commercializable".

[31] As early as 1998, Smith & Wesson began developing authorized user technology. Over the course of the next three to four years, it created a series of inventions in which electronic sensing devices were incorporated into the grip or handle portion of firearms to scan the fingerprints or skin of a user to determine whether the user was authorized to discharge the particular firearm, and to implement a firing control system.

[32] Smith & Wesson filed at least seven patent applications with the United States Patent and Trademark Office between December 1998 and December 2001; namely: (a) Biometrically Activated Lock and Enablement System -- U.S. Patent No. 6,260,300 (issued July 17, 2001); (b) Firing Control System for Non-Impact Fired Ammunition -- U.S. Patent No. 6,286,241 (issued September 11, 2001); (c) Security Apparatus for a Firearm (Divisional) -- U.S. Patent No. 6,286,242 (issued September 11, 2001); (d) Firearm Having an Intelligent Controller -- U.S. Patent No. 6,321,478 (issued November 27, 2001); (e) Authorization module for activating a firearm and method of using same -- U.S. Patent No. 6,357,156 (March 19, 2002); (f) Firing Control System for Non-Impact Fired Ammunition (Divisional) -- U.S. Patent No. 6,357,157 (issued March 19, 2002); and (g) Firearm Including Biometric Skin Sensor -- U.S. Patent No. 6,711,843 (issued 20 March 2004).

[33] Between November 1999 and June 2001, Smith & Wesson filed applications under the Patent Cooperation Treaty ("PCT") in markets around the world including Australia, Brazil, Canada, the European Patent Office, Israel, Japan and possibly elsewhere.

[34] In two of the authorized user patents, Smith & Wesson stated that: (a) its goals in developing its improved firearms technology included firearm improvement using electronics to prevent the use of firearms by unauthorized persons such as children or other non-owners; and (b) in commercial or public settings, it is desirable to prevent unauthorized access to and use of handguns in situations where handguns are subject to theft or are inadvertently misplaced.

[35] In early 2000, a United States District Court allowed a negligence and public nuisance product liability action commenced by the City of Cleveland to proceed against Smith & Wesson for unreasonably dangerous and negligently designed handguns. In White v. Smith Wesson,[^3] finding that a negligence and public nuisance product liability action could proceed based on allegations that the risks associated with unintended use of Smith & Wesson's product may be found to be reasonably foreseeable and to outweigh the benefit of a firearm manufactured without a personalized safety device.

[36] In March 2000, Smith & Wesson and other gun manufacturers entered into an Agreement (which I shall label the Authorized User Technology Agreement) with the government of the United States and several state and local governments.

[37] In the Authorized User Technology Agreement, Smith & Wesson acknowledged that its products were not equipped with a device that fully blocks use by unauthorized users and that more than 200,000 firearms are stolen from their owners every year in the United States.

[38] In the Authorized User Technology Agreement, Smith & Wesson made an undertaking with respect to its utilization by March 2003 of authorized user technology in new firearm designs. The Agreement stated, in pertinent parts:

Preamble

The manufacturer parties to the Agreement and the Department of the Treasury, the Department of Housing and Urban Development, and the undersigned state, city and county parties to the Agreement, enter into this Agreement to reduce the criminal misuse of firearms, combat the illegal acquisition, possession and trafficking of firearms, reduce the incidence of firearms accidents, and educate the public on the safe handling and storage of firearms. Furthermore, the manufacturer parties to the Agreement enter into this agreement as a continuation of their efforts to make their firearms as safe as practicable for their customers and the public. Accordingly, in consideration of the commitments set forth below:

Safety and Design

d. Authorized User Technology. The manufacturer parties to this Agreement shall each commit 2% of annual firearms sales revenues to the development of a technology that recognizes only authorized users and permits a gun to be used only by authorized persons. Within 36 months of the date of execution of this Agreement, this technology shall be incorporated in all new firearms designs, with the exception of curios and collectors' firearms.

[39] In 2005, the United States Congress passed the Protection of Lawful Commerce in Arms Act 15 U.S.C.,§ § 7901-7903 ("PLCAA"), a law that shielded Smith & Wesson and other manufacturers, dealers, and sellers of firearms and ammunition from civil actions resulting from unauthorized or unlawful misuse of a firearm.

[40] Canada has no laws comparable to the PLCAA, and the PLCAA has no extra-territorial effect in Canada or Ontario.

[41] After enactment of the PLCAA, Smith & Wesson never complied with the Authorized User Technology Agreement. It permitted its authorized user patents to lapse, and it never adopted authorized user technology or other feasible safety measures such as internal locks on the handgun.

D. The Regulation of Firearms in Canada

[42] The Criminal Code[^4] and the Firearms Act,[^5] along with their subordinate regulations, govern the control of firearms in Canada at the federal level. The Criminal Code classifies firearms into three categories: (1) "prohibited firearms", (2) "restricted firearms" and (3) "non-restricted firearms". The M&P®40 is a "restricted firearm".

[43] Section 84(1) of the Criminal Code defines a "restricted firearm" to include "a handgun that is not a prohibited firearm". Section 84(1) defines a "prohibited firearm" to include any handgun that is automatic or has a barrel length of less than 105mm (4.134 inches) or fires a 25 or 32-caliber cartridge.

[44] The M&P®40 is not automatic, has a barrel length of 4.25 inches (107.95mm) and fires a 40-caliber cartridge. It is a "restricted firearm".

[45] The Firearms Act regulates the acquisition, possession, transportation and storage of firearms through licensing and registration requirements. Canadians are prohibited from acquiring or possessing firearms without a valid firearms' licence. Acquiring or possessing a restricted firearm like the M&P®40 is subject to stringent licensing requirements. The Canadian Firearms Registry is the national gun registry managed by the Canadian Firearms Program ("CFP"), which is a division of the RCMP. The CFP requires the registration of all prohibited and restricted firearms.

[46] Both the Firearms Act and the Criminal Code set out offences and penalties for the illegal use, possession, assembly and trafficking of firearms, as well as offences relating to the illegal import or export of firearms.

E. The Pleaded Causes of Action

[47] In its Amended Statement of Claim, the Plaintiffs plead causes of action in negligence, public nuisance and strict liability as follows:

AMENDED CLAIM

1. Plaintiffs, Samantha Price, Skye McLeod, Kenneth Price, Claire Smith, Patrick McLeod, and Jane McLeod, on behalf of the proposed classes described in paragraph 9 below (collectively the "Class" or "Class Members"), claim the following from Defendant Smith & Wesson Corp. ("Smith & Wesson" or "Defendant"):

(a) $50 million in aggregate general damages;

(b) $100 million in aggregate punitive damages;

(c) special damages in an amount to be determined;

(d) pre-judgment and post-judgment interest on all damages claimed in amounts prescribed in the Ontario Courts of Justice Act, R.S.O. 1990, c.43;

(e) the costs of this proceeding, including all applicable taxes, on a complete indemnity scale; and

(f) such further and other relief as the court deems just.

Negligence

37. Defendant owed a duty of care to the Class to ensure that the ultra-hazardous handguns it designed, manufactured, and made available for sale in Canada included safe gun technology so as to avoid, prevent, or deter substantial and foreseeable harm. The foreseeable harm included death and injury of innocent victims like Class Members. Instead, Defendant designed, manufactured, and made available for sale in Canada weapons, including the Handgun used in the Danforth Shooting, which Defendant knew were deficient and inherently and unnecessarily dangerous. It was reasonable for Defendant to foresee injury and harm to third parties, including Class Members, given the Defendant's knowledge of widespread handgun diversion and use of diverted handguns to cause injury and death. Statements in the Agreement and the Smart Gun Patents demonstrate that Defendant is, and at material times was, aware of foreseeable harm to innocent third parties, like the Plaintiffs, who were victimized by unauthorized use of Defendant's handguns. In recognition of its awareness of actual, widespread, foreseeable, and substantial harm to innocent third parties arising from unauthorized use of its handgun products, Defendant devoted substantial resources to research and develop the Smith & Wesson Smart Gun Technology, obtained the Smart Gun Patents, and entered into the Agreement. Additional facts showing Defendant's awareness of the harm caused to innocent third parties by its handgun products without authorized user (or smart) technology as well as additional measures taken by Defendant to study and address the harm, are within the Defendant's possession, power, or control and will be learned on discovery. All of these facts form a sufficient basis to demonstrate the foreseeability and proximity necessary for the court to impose a duty of care.

38. Defendant was negligent in failing to design the Handgun with practicable safety features, including the Smith & Wesson Smart Gun Technology, which Defendant itself had developed and patented in the United States and under the PCT. Defendant chose not to include the Smith & Wesson Smart Gun Technology, or other feasible safety measures, in the design of the Handgun even though Defendant knew the technology would mitigate or eliminate harm to innocent third parties caused by unauthorized use. Defendant was equally negligent in manufacturing the Handgun without the Smith & Wesson Smart Gun Technology or other feasible safety measures when Defendant knew handguns manufactured with the Smart Gun Technology (or other feasible safety measures) would mitigate or eliminate unauthorized use that could lead to events like the Danforth Shooting. Finally, Defendant negligently distributed and sold the Handgun despite being aware that its handgun products had a propensity to injure or kill innocent third parties who were victims of unauthorized use. The reasons Defendant did not incorporate the Smith & Wesson Smart Gun Technology, or other feasible safety measures, and continued selling and distributing a product they knew had a propensity to cause substantial harm to innocent third parties are known only to Defendant.

39. Defendant breached the duty of care owed to the Class. Defendant knew, or should have known, as early as 2000, when it executed the Agreement and was developing the Smith & Wesson Smart Gun Technology and the Smart Gun Patents, that authorized user technology was available that would greatly reduce, if not eliminate, the risk of illegal diversion and unauthorized use of their products to cause injury or death to innocent members of the public. Instead of adopting safety measures that would prevent such harm to innocent third parties, Defendant chose to ignore: the commitments it had made in the Agreement; the Smith & Wesson Smart Gun Technology Defendant had developed that was embodied in the Smart Gun Patents, and other feasible safety technology and continued (for reasons known only to Defendant) to design, manufacture, and make available for sale in Canada handguns that Defendant knew could, and actually were, diverted and used to injure or kill innocent third parties like Class Members.

40. The injuries and deaths suffered by Class Members were preventable and would not have occurred if Defendant had adhered to its commitment in the Agreement and implemented the Smith & Wesson Smart Gun Technology embodied in the Smart Gun Patents, or otherwise designed, manufactured, and made available for sale in Canada after 2003 only safer handguns which included the Smith & Wesson Smart Gun Technology or other feasible safety measures. The Handgun caused substantial harm and damages to the Plaintiffs and the proposed Class. But for the Handgun, which was distributed and sold in Canada without any technology preventing use by unauthorized users, Plaintiffs would not have suffered harm from the Handgun used in the Danforth Shooting.

[Public] Nuisance and Strict Liability

41. Placing handguns without smart gun technology, or other feasible safety devices that prevent unauthorized use, into the Canadian stream of commerce unreasonably interferes with the interests of the Canadian public in health and safety. Defendant's conduct in making handguns without smart gun technology available callously ignores the right of Canadians generally to the reasonable expectation that they can enjoy Canadian public and private spaces, on Danforth Avenue in Toronto or elsewhere, without fear that one of Defendant's unsafe products can be fired by an unauthorized user and kill or injure an innocent third party. Through use of smart gun technology or other feasible safety measures, Defendant could prevent, or substantially reduce, the risk of death or injury from unauthorized use of its products. Defendant's circulation of unsafe lethal weapons in the stream of Canadian commerce is therefore an unreasonable activity that constitutes a public nuisance. Moreover, Defendant's products create an unreasonable burden on Canadian society and the Canadian health care system for which Defendant should be held accountable.

42. Defendant designs, manufactures, and sells handguns that it knows are inherently and unreasonably dangerous and lacking in features like smart gun technology or other feasible safety mechanisms that can prevent unauthorized users from injuring or killing innocent third parties like Class Members. Defendant is aware of the abnormal and ultrahazardous nature of its products. Defendant acknowledged its awareness of the risk when Defendant committed in the 2000 Agreement to design weapons with authorized user technology by 2003 and when Defendant in fact developed the Smith & Wesson Smart Gun Technology and obtained the Smart Gun Patents. Defendant knows the inadequacy, defects, and insufficiency of its products because of the history of illegal diversion acknowledged in the Agreement, the foreseeability of harm that motivated development of the Smith & Wesson Smart Gun Technology, and the actual harm caused to innocent third parties since 2000 by unauthorized users of Defendant's products, the importance of which was addressed in the Agreement and the Smart Gun Patents. Defendant's direct knowledge of the safety flaws in its products, the extreme and unnecessary harm the Defendant's products have caused in Canada and elsewhere, and the abnormally risky and ultra-hazardous nature of handguns designed without smart gun technology or other feasible safety mechanisms render the Defendant strictly liable for the harm caused to Class Members.

F. Smith & Wesson's Argument

[48] Smith & Wesson argues that:

(a) There is no cause of action in negligence because the relationship between a firearms manufacturer and a victim of a shooting does not fall with an established category of duty of care relationships.

(b) Nor does the relationship between a firearms manufacturer and a victim of a shooting satisfy a duty of care analysis that would recognize a novel negligence claim.

(c) In the immediate case, there is no novel negligence claim because: (a) the predicate events were not foreseeable in the requisite legal sense; (b) in the immediate case, the parties were not sufficiently proximate to give rise to a duty of care; and (c) in any event, public policy considerations would negate any prima facie duty of care.

(i) In the immediate case, any prima facie duty of care would be negated by the legal public policy that precludes indeterminate liability to an indeterminate class.

(ii) In the immediate case, any prima facie duty of care would be negated because imposing a duty upon gun manufacturers to produce only "smart guns" would be inconsistent with the policy choices reflected in current gun control legislation in Canada.

(d) In the immediate case, insofar as the plaintiffs rely on the Authorized User Technology Agreement between Smith & Wesson and the U.S. government, it cannot form the basis of proximity or of any duty to design guns with smart gun technology because the plaintiffs did not and could not rely on the agreement, which they do not plead they even knew about, and moreover, the agreement expressly did not extend to guns sold to the military and police forces. The plaintiffs do not plead any material facts that demonstrate physical, circumstantial, or causal closeness between Smith & Wesson and the plaintiffs.

(e) In the immediate case, the claims for negligent manufacture and negligent distribution are legally deficient because there are no material facts pled of negligence in manufacturing or in distributing the M&P®40 handgun.

(f) In the immediate case, insofar as the plaintiffs advance a negligent design case, it is legally deficient because; (a) there are no material facts pleaded to identify any particular "smart gun" design that ought to have been adopted by Smith & Wesson; and (b) there are no material facts pleaded to establish that a gun intended for military and police use could have been designed in a safer way without significantly increasing costs and impairing the military and police use.

(g) All the negligence claims are doomed to fail because the plaintiffs plead no material facts to establish causation, an essential element for any claim in negligence.

(h) In the immediate case, there is no basis for a claim for public nuisance or for strict liability based on Rylands v. Fletcher.[^6]

G. T he Cause of Action Criterion and Rule 21

[49] The first criterion for certification is that the plaintiff's pleading discloses a cause of action. The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada,[^7] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1) (a) of the Class Proceedings Act, 1992.[^8]

[50] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious and beyond a reasonable doubt that the plaintiff cannot succeed.[^9]

[51] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^10]

[52] The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action; or, (2) the allegations in the statement of claim do not come within a recognized cause of action.[^11]

[53] To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^12]

[54] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^13] and the court's power to strike a claim is exercised only in the clearest cases.[^14] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^15] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^16]

[55] In R. v. Imperial Tobacco Canada Ltd.,[^17] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated [at para. 21]:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one's neighbor premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[56] In Atlantic Lottery Corp. Inc. v. Babstock,[^18] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial.

H. The Plaintiffs' Negligence Cause of Action

1. Introduction and overview

"I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong:"

Donoghue v. Stevenson,[^19] per Lord Atkin.

[57] Negligence law is based on the existence of a duty of care relationship. The Canadian approach to determining whether there is a duty of care has been developed in a series of Supreme Court of Canada decisions[^20] adapting and explaining the House of Lord's decision in Anns v. Merton London Borough Council,[^21] and derived from the seminal cases of Donoghue v. Stevenson[^22] and Hedley Byrne & Co. v. Heller & Partners Ltd.[^23]

[58] The categories of negligence are not closed, and if a defendant challenges a plaintiff's cause of action in negligence as legally untenable, the plaintiff needs to show that: (a) the material facts of the pleaded cause of action are within an established category of duty of care; or (b) the material facts of the pleaded cause of action establish a duty of care relationship in accordance with a duty of care analysis.

[59] If a negligence case does not come within an established category, it is necessary to undertake a duty of care analysis. To determine whether a duty of care exists involves satisfying a three-step analysis; i.e. (1) foreseeability, in the sense that the defendant ought to have contemplated that the plaintiff would be affected by the defendant's conduct; (2) sufficient proximity, in the sense that the relationship between the plaintiff and the defendant is sufficiently close prima facie to give rise to a duty of care; and (3) the absence of overriding policy considerations that would negate any prima facie duty established by foreseeability and proximity. Thus, in a new category of case whether a relationship giving rise to a duty of care exists depends on foreseeability, moderated by policy concerns.[^24]

(a) To determine the foreseeability element, the court asks whether the harm that occurred was the reasonably foreseeable consequence of the defendant's act.[^25]

(i) A reasonable foreseeability analysis requires only that the general harm, not its manner of incidence, be reasonably foreseeable.[^26] The foreseeability element was examined by the Supreme Court of Canada in Rankin (Rankin's Garage & Sales) v. J. (J.),[^27] where the court reversed the conclusion of the lower courts that a garage owner had a duty of care to a person injured following the theft of the vehicle from the garage. A majority of the court concluded that for liability, the defendant ought to have foreseen the type of harm actually suffered. Justice Karakatsanis for the majority said that the proper question to ask is whether the plaintiff has offered facts to persuade the court that the risk of type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged.[^28] She said that there must be a connection between the wrong and the injury suffered by the plaintiff.

(b) Proximity focuses on the type of relationship between the plaintiff and defendant and asks whether this relationship is sufficiently close that the defendant may reasonably be said to owe the plaintiff a duty to take care not to injure him or her.[^29]

(i) Proximate relationships giving rise to a duty of care are of such a nature that the defendant in conducting his or her affairs may be said to be under an obligation to be mindful of the plaintiff's legitimate interests.[^30] The proximity inquiry probes whether it would be unjust or unfair to hold the defendant subject to a duty of care having regard to the nature of the relationship between the defendant and the plaintiff.[^31] The focus of the probe is on the nature of the relationship between victim and alleged wrongdoer and the question is whether the relationship is one where the imposition of legal liability for the wrongdoer's actions would be appropriate.[^32] Proximity focuses on the connection between the defendant's undertaking, the breach of which is the wrongful act, and the loss claimed.[^33] The proximity analysis involves considering factors such as expectations, representations, reliance and property or other interests involved.[^34] Proximity is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed.[^35] The proximity analysis is intended to be sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the close and direct relationship that is the hallmark of the common law duty of care.[^36]

(c) If the plaintiff establishes a prima facie duty of care, the evidentiary burden of showing countervailing policy considerations shifts to the defendant, following the general rule that the party asserting a point should be required to establish it.[^37]

(i) Policy concerns raised against imposing a duty of care must be more than speculative, and a real potential for negative consequences must be apparent.[^38] The final stage of the analysis is not concerned with the type of relationship between the plaintiff and the defendant. At this stage of the analysis, the question to be asked is whether there exist broad policy considerations that would make the imposition of a duty of care unwise, despite the fact that harm was a reasonably foreseeable consequence of the conduct in question and there was a sufficient degree of proximity between the plaintiff and the defendant such that the imposition of a duty would be fair.[^39] The final stage of the analysis is about the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.[^40]

[60] In the immediate case, as set out above, Smith & Wesson's argument is essentially that: (a) the plaintiffs' negligence cause of action does not come within an established category; and (b) for a plethora of legal, policy and precedential reasons, the plaintiffs' negligence cause of action does not satisfy a duty of care analysis or a constituent element analysis, and, therefore, the negligence claim is doomed to fail.

[61] The plaintiffs' essential counterargument, with which I agree, is that: (a) the negligence cause of action comes within an established category; and (b) if the negligence cause of action is a novel claim, it is not plain and obvious that it does not satisfy a duty of care analysis or a constituent element analysis and, therefore, the negligence claim is not fated to fail.

[62] I shall demonstrate in the next parts of this judgment that the plaintiffs' cause of action for negligence comes within two established categories for negligence claims; namely: (a) the goods dangerous per se category; and (b) the products liability category, particularly the negligent design genre.

[63] Thus, in the immediate case, it is not necessary to undertake a duty of care analysis because negligence claims of the nature of the claim in the immediate case have already established the foreseeability and proximity elements to establish a prima facie duty of care and it has already been established that there are no public policy factors that would negate the duty of care. The truth of these conclusions about the existing categories of duty of care will become clearer from the discussion below. However, in the discussion of the two established categories of duty of care relationships, it will become apparent that even if the plaintiffs' negligence case is treated as a novel claim, then it is not plain and obvious that the claim is doomed to fail.

[64] Therefore, for the reasons detailed below, I conclude that the plaintiffs have satisfied the cause of action criterion for certification and Smith & Wesson's Rule 21 motion should be dismissed.

2. The goods dangerous per se category

[65] As foreshadowed above, in my opinion, in the immediate case, the plaintiffs advance claims in two established categories of a duty of care relationship. The first of these is the goods dangerous per se category.

[66] Captivatingly, in the immediate case, the proof that the plaintiffs' cause of action is within an established category of negligence is to be found in the judgments of the Law Lords in Donoghue v. Stevenson, the almost 90-year-old judgment that heralded the modern law of negligence.

[67] Indeed, Donoghue v. Stevenson reveals that in the immediate case, the plaintiffs' cause of action is a centuries-old established category of negligence. All of the Law Lords recognized an established duty of care for goods dangerous in themselves.

[68] Donoghue v. Stevenson was heard by Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton and Lord MacMillan. The Law Lords split 3:2. Lord Atkin wrote the most famous judgment for the majority. The majority was comprised of himself and Lords Thankerton and MacMillan, who wrote concurring majority judgments. Lord Buckmaster, with whom Lord Tomlin concurred were the minority.

[69] In his dissenting judgment, Lord Buckmaster characterized the case as one in which a consumer -- but not the purchaser -- of a manufactured good (a bottle of ginger-beer) -- that was not dangerous in itself (food is not dangerous in itself) -- sued the manufacturer for compensation for having manufactured a good that caused the consumer harm (she suffered shock and gastro-enteritis from the presence of the decomposing snail). Lord Buckmaster (Lord Tomlin concurring) reasoned that the claim of the consumer of the ginger-beer was not supported by the precedents of the case law.

[70] In his judgment, Lord Buckmaster rejected the approach of deciding the consumer's claim as a matter of applying general legal principles. That approach to the development of the law was the approach famously adopted by Lord Atkin in the majority judgment where he described the neighbour principle. In contrast to Lord Atkin, Lord Buckmaster stated that the consumer's case had to be decided as a matter of precedent. Thus, Lord Buckmaster stated:[^41] "The law applicable is the common law, and, though its principles are capable of application to meet new conditions not contemplated when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit."

[71] Lord Buckmaster analyzed a line of cases, which had been relied on by the plaintiff. He explained that upon analysis, these cases did not support the precedential propositions for which they had been advanced. After this analysis, Lord Buckmaster set out the proper principles from the precedents to be applied on the facts of Donoghue v. Stevenson, and while doing so, he identified a category of existing cases for which a duty of care relationship was already recognized. Lord Buckmaster stated (my emphasis added):

The general principle of these cases is stated by Lord Sumner (then Hamilton J.) in Blacker v. Lake and Elliot, Ltd. (in these terms 106 L.T. [533] at p. 536):

The breach of the defendant's contract with A. to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B, when he is injured by reason of the article proving to be defective.

From this general rule there are two well known exceptions: (1) In the case of an article dangerous in itself; and (2) where the article, not in itself dangerous, is in fact dangerous, by reason of some defect or for any other reason, and this is known to the manufacturer. [. . .]

As to (1), in the case of things dangerous in themselves, there is, in the words of Lord Dunedin, "a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity": Dominion Natural Gas Co., Ld. v. Collins & Perkins ([1909] A.C. [640] at p 646). And as to (2), this depends on the fact that the knowledge of the danger creates the obligation to warn, and its concealment is in the nature of fraud.

In the present case no one can suggest that ginger-beer was an article dangerous in itself, and the words of Lord Dunedin show that the duty attaches only to such articles, for I read the words "a peculiar duty" as meaning a duty peculiar to the special class of subject mentioned.

[72] Pausing in the discussion of Donoghue v. Stevenson and reorienting the discussion to the immediate case, a handgun is an article dangerous in itself, and to paraphrase the words of Lord Dunedin in Dominion Natural Gas Co.v. Collins & Perkins, whose words were adopted by Lord Buckmaster, those who send forth a handgun have a duty to take care imposed on them when it is necessarily the case that other parties will come within proximity of the handgun.

[73] Returning to the discussion of Donoghue v. Stevenson, in his concurring majority judgment Lord Thankerton sided with the analysis of Lord Atkin, but before doing so, Lord Thankerton did not disagree with Lord Buckmaster's identification of an established duty of care for articles dangerous in themselves. Thus, Lord Thankerton stated with my emphasis added:[^42]

The question in each case is whether the pursuer has established, or in the stage of the present appeal has relevantly averred, such facts as involve the existence of such a relation of duty.

We are not dealing here with a case of what is called an article per se dangerous, or one which was known by the defender to be dangerous, in which cases a special duty of protection or adequate warning is placed upon the person who uses or distributes it.

[74] Lord MacMillan in his majority concurring judgment also addressed the matter of goods dangerous in themselves. On the issue of a duty of care arising from an article dangerous as such, Lord MacMillan stated, with my emphasis added:

The appellant in the present instance asks that her case be approached as a case of delict, not as a case of breach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject-matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort.

I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety.

[75] Once again, one sees in these remarks of Lord MacMillan a long-established category of a duty of care associated with products, like a firearm, that are dangerous as such. In his judgment, Lord MacMillan gives an example of one such decided case,[^43] the 1816 case of Dixon v. Bell.[^44] Lord MacMillan stated [in Donoghue v. Stevenson], with my emphasis added:

With these preliminary observations I turn to the series of English cases which is said to compose the consistent body of authority on which we are asked to non-suit the appellant. It will be found that in most of them the facts were very different from the facts of the present case, and did not give rise to the special relationship, and consequent duty, which in my opinion is the deciding factor here. Dixon v. Bell is the starting point. There a maidservant was sent to fetch a gun from a neighbour's house; on the way back, she pointed it at a child, and the gun went off and injured the child. The owner of the gun was held liable for the injury to the child on the ground that he should have seen that the charge was drawn before he entrusted the gun to the maidservant. "It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious." This case, in my opinion, merely illustrates the high degree of care, amounting in effect to insurance against risk, which the law extracts from those who take the responsibility of giving out such dangerous things as loaded firearms.

[76] In his famous judgment, Lord Atkin also recognized the long-established category of a duty of care existing for a thing dangerous itself, but his Lordship saw this category as not being an instance of a special category. Rather, he saw this type of case as stating the general principles that he was pronouncing in Donoghue v. Stevenson. Lord Atkin stated, with my emphasis added:[^45]

I do not find it necessary to discuss at length the cases dealing with duties where the thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or nonexistence of a legal right. In this respect I agree with what was said by Scrutton L.J. in Hodge & Sons v. Anglo-American Oil Co. [(1922)12 Ll. L. Rep. 183, 187], a case which was ultimately decided on a question of fact.

Personally, I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep's clothing instead of an obvious wolf.

The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate the general principle. In the Dominion, Natural Gas Co., Ld. v. Collins [and Perkins [1909] A. C. 640, 646] the appellants had installed a gas apparatus and were supplying natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of into the open air. The railway workmen -- the plaintiffs -- were injured by an explosion in the premises. The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee (consisting of himself, Lord Macnaghten, Lord Collins, and Sir Arthur Wilson), after stating that there was no relation of contract between the plaintiffs and the defendants, proceeded:

There may be, however, in the case of anyone performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.

This, with respect, exactly sums up the position. The duty may exist independently of contract. Whether it exists or not depends upon the subject matter involved; but clearly in the class of things enumerated there is a special duty to take precautions. This is the very opposite of creating a special category in which alone the duty exists. I may add, though it obviously would make no difference in the creation of a duty, that the installation of an apparatus to be used for gas perhaps more closely resembles the manufacture of a gun than a dealing with a loaded gun. In both cases the actual work is innocuous; .it is only when the gun is loaded or the apparatus charged with gas that the danger arises.

[77] It should be noted that both Lord Buckmaster and Lord Atkin accepted the authority of Dominion Natural Gas Co. v. Collins & Perkins.[^46] This is notable and significant to the immediate case because Dominion Natural Gas Co. v. Collins & Perkins is good law in Canada.[^47] Indeed, although not emphasized in the factums or in the oral argument Dominion Natural Gas Co. v. Collins & Perkins is an Ontario case!

[78] Before moving on to discuss Dominion Natural Gas Co. v. Collins & Perkins, about Donoghue v. Stevenson, it should be observed that Donoghue v. Stevenson both recognized the existing duty of care category of goods dangerous per se and also established the general products liability category. Analytically, Lord Atkin used the former category to establish the legal principles that underly the latter category of products liability in general.

[79] Moving forward, after Donoghue v. Stevenson, there was a recognized duty of care for products without regard to whether the product was dangerous or non-dangerous,[^48] but the dangerousness of the goods remains a factor in determining the standard of care. A heightened standard of care is prescribed for dangerous goods commensurate to the risks and threats inherent in those goods.[^49] The more dangerous the product, the greater is the care that must be taken in manufacturing the product.[^50]

[80] The facts of Dominion Natural Gas Co. v. Collins & Perkins were that the Dominion Natural Gas Co. delivered natural gas to a repair shop of the Toronto, Hamilton and Buffalo Railway Co. The repair shop was in Hamilton, Ontario. The natural gas was connected to a boiler and the installation required the venting of some emission of gas to control the gas pressure. The emission would not have been a problem if the gas was vented externally, but as installed the gas line emitted inside the repair shop near the flames of the boiler. Although the connection operated safely for a year, eventually there was an explosion that injured two railway company employees, one fatally. The Court of Appeal of Ontario affirmed a judgment against the gas company for negligence. There was then an appeal to the Privy Council, which affirmed the judgment of the Ontario Court of Appeal.

[81] For the present purposes of the immediate case, it is helpful to set out the complete passage from the judgment of Lord Dunedin for their Lordships that was mentioned by the Law Lords in Donoghue v. Stevenson. The full passage is particularly pertinent to the immediate case because: (a) Lord Dunedin identifies the established duty of care category of goods dangerous per se; (b) he addresses the matter of the standard of care for this type of case; and (c) he addresses the matter of causation when the volition of a third party is involved in the use of the dangerous good.

[82] Lord Dunedin stated with my emphasis added:[^51]

To come now to the position of the gas company. The gas company were not occupiers of the premises on which the accident happened. Further, there being no relation of contract between the company and the plaintiffs, the plaintiffs cannot appeal to any defect in the machine supplied by the defendants which might constitute breach of contract. There may be, however, in the case of anyone performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter. A loaded gun will not go off unless some one pulls the trigger, a poison is innocuous unless some one takes it, gas will not explode unless it is mixed with air and then a light is set to it. Yet the cases of Dixon v. Bell, Thomas v. Winchester (1852) 6 N. Y. R. 397, and Parry v. Smith, 4 C.P.D. 325 are all illustrations of liability enforced. On the other hand, if the proximate cause of the accident is not the negligence of the defendant, but the conscious act of another volition, then he will not be liable. For against such conscious act of volition no precaution can really avail.

[83] Returning to the immediate case, Smith & Wesson makes the argument that the plaintiffs' claim must necessarily fail because the proximate cause of the accident was not due to its alleged negligence but, was due to the criminal acts of Mr. Hussain. To use the words of Lord Dunedin, Smith & Wesson submits that: "On the other hand, if the proximate cause of the accident is not the negligence of the defendant, but the conscious act of another volition, then he will not be liable. For against such conscious act of volition no precaution can really avail."

[84] The difficulty, however, for Smith & Wesson in advancing this argument is that in the immediate case, there was a precaution that could have been taken to avail itself against the volition of Mr. Hussain shooting those innocents on the Danforth. The precaution that could have been taken is the implementation of authorized user technology. It is thus not plain and obvious that the plaintiffs' negligence claim based on a duty of care in relation to the manufacturing and distribution of a product that is dangerous as such is doomed to fail. It may fail but not necessarily so; there are issues to be tried and the putative Class Members should not be instantly denied a day in court.

[85] I wish to be clear that in no event should Smith & Wesson be blamed for the shooting on the Danforth. The thrust of the ancient cause of action identified in Donoghue v. Stevenson is that Smith & Wesson send forth an article that was dangerous per se and it did not take precaution; i.e., it was careless, when it is necessarily the case that innocent parties would come within proximity of that dangerous article. I also wish to be clear that all that is presently being decided is that there is an established duty of care relationship in the immediate case and it remains to be determined whether or not there was culpable carelessness.

[86] What also emerges from an analysis of Dixon v. Bell,[^52] Dominion Natural Gas Co. v. Collins & Perkins[^53] and Donoghue v. Stevenson,[^54] is that there has been for centuries a duty of care for goods dangerous per se that morphed into the general category of products liability claims, which is itself now almost a century old. It is to that products liability category that I now turn.

3. The products liability category

[87] In addition to the claim in negligence based on the duty of care associated with dangerous goods, in the immediate case, the plaintiffs advance a claim in another established category of a duty of care relationship; namely the duty of care associated with products liability generally. In the immediate case, the plaintiffs advance a products liability claim for negligence in design.

[88] The plaintiffs' negligence in design cause of action is pled in tandem with claims for negligence in manufacture and distribution, and I agree with Smith & Wesson's technical argument that in the immediate case, the claims for negligent manufacture and negligent distribution are technically deficient because there are no material facts pled of negligence in manufacturing or in negligence in distributing the M&P®40 handgun other than the allegations with respect to negligence in designing a gun without including authorized user technology. In the analysis that follows, I shall, therefore, just focus on the negligence in design products liability cause of action.

[89] The analysis may begin by placing the negligence in design cause of action in the context of products liability claims generally, for which there are four established genres. First, manufacturers have a duty of care to consumers to see that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of use.[^55] Second, manufacturers have a duty of care to warn consumers of dangers inherent in the use of the product of which the manufacturer has knowledge or ought to have knowledge.[^56] Third, manufacturers have a duty of care in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes.[^57] Fourth, there is a pure economic loss claim in negligence because manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger to the public.[^58]

[90] Although wrapped up in accompanying pleas of negligence in manufacturing or in distribution, the immediate case is not within the first, second, or fourth category of products liability claims. The immediate case is just a design negligence claim.

[91] The underlying argument in a design negligence action is that a manufacturer has a duty of care not to design a product negligently because the manufacturer should and can fairly be held responsible for the choices it makes that affect the safety of the product. The manufacturer has a duty to make reasonable efforts to reduce any risk to life and limb that may be inherent in its design.[^59]

[92] To succeed in a cause of action for negligent design of a product, the plaintiff must identify the design defect in the product and establish that the defect created a substantial likelihood of harm and that there is, safer and more economically feasible ways to manufacture the product.[^60]

[93] In the case of negligence in designing a product, the defendant is blameworthy for not designing its product in a safer manner. In Nicholson v. John Deere Ltd.,[^61] Smith J. noted that a manufacturer does not have the right to manufacture an inherently dangerous article when a method exists of manufacturing the same article without risk of harm.

[94] The law does not require a manufacturer to produce articles that are accident proof or incapable of doing harm, but a manufacturer does have a duty to design a product that is not defective. Depending on the product, defectiveness may be determined in relation to the design of the product based on a risk-utility analysis of an alternative safer design of the product.[^62] In this category of products liability duty of care, whether a manufacturer breaches its duty is determined by a risk-utility analysis that measures whether the utility of the chosen design outweighs the foreseeable risks associated with the chosen design.[^63]

[95] In negligent design cases, the determination of whether a manufacturer breaches its duty of care in designing a product depends upon a risk-utility analysis that measures whether the utility of the chosen design outweighs the foreseeable risks associated with the chosen design.[^64] This risk-utility analysis requires weighing any foreseeable risk against the foreseeable utility of the product based on the information available to the manufacturer at the time of distribution or implantation and without the benefit of hindsight.[^65] Manufacturers are required to weigh the likelihood of both the benefit and the risk offered by a product as well as the value of the potential benefit and the seriousness of the potential risks.[^66]

[96] In Rentway v. Laidlaw,[^67] Granger J. compiled a list of factors to consider when balancing the risks inherent in the product, as designed, against its utility and cost, namely, (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product -- that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer's ability to spread around any costs related to improving the safety of the design.

[97] Applying this law to the immediate case, I disagree with Smith & Wesson's arguments that in the immediate case the plaintiffs have not and cannot properly plead a negligence in design case. The major thrust of Smith & Wesson's argument is actually an argument on the merits of the design negligence claim.

[98] The point of Smith & Wesson's argument is while a manufacturer of a weapon for a police officer might be faulted for designing a weapon that was unsafe for the police officer, it cannot be a design defect to not utilize authorized user technology, which from the police officer's perspective would be a neutral safety factor or might actually present a danger to the police officer in his or her use of the weapon. Viewed in this way, introducing authorized user technology actually would be a design defect and thus not introducing the technology cannot be a design defect.

[99] However, in the context of a Rule 21 motion, the problem for Smith & Wesson in advancing this argument is that it begs the very issues that are to be decided in the immediate case. When the dust settles it is just a merits argument.

[100] That Smith & Wesson's argument is not really about the legal viability of the plaintiffs' negligence cause of action can be demonstrated by pointing out that even from the police officer's perspective, the absence of the authorized user technology might be a design defect. Visualize, a police officer is disarmed of his or her M&P®40 handgun and then he or she is shot with the weapon, which would not be possible if there was authorized user technology. Moreover, in the immediate case, as demonstrated by the law discussed above, the duty of care associated with goods that are dangerous as such is not confined to the perspective of the purchaser of the goods. The duty of care expands beyond purchasers of the product to include the perspective of others who will come within the product's proximity.

[101] Thus, Smith & Wesson's duties of design extend beyond the police officers and soldiers for whom the weapon was designed. The duty of care in design associated with goods (dangerous or non-dangerous) is not confined to the closest degrees of proximity of the purchaser or the consumer. Others may come within the ambits of foreseeability and proximity, in which it might be fair to make the manufacturer of the product liable for misadventures with its product.

[102] Ultimately, what is required in the immediate case is a risk-utility analysis that will examine the utility of introducing authorized user technology, which would minimize putting into harm's way the citizens who the police officers are charged to serve and protect, balanced against the risks to the police officers from the presence of authorized user technology.

[103] It may be the case that the plaintiffs will be unsuccessful in their design negligence case against Smith & Wesson. But Smith & Wesson's argument that the plaintiffs may ultimately not be successful misses the point that it is not plain and obvious that the plaintiffs' pleaded negligence design claim is doomed to failure; rather, its outcome remains to be determined.

[104] A firearm is a weapon; it is designed to be a risk to life and limb, and thus prior to the invention or innovation of authorized user technology, it arguably would be appropriate for Smith & Wesson to submit that its inherently dangerous product could not be designed to reduce any risk to life and limb that may be inherent in its design. This argument, however, may not hold with the invention or innovation of authorized user technology, which is designed to reduce the risk to life and limb that is consequent on an unauthorized user using the firearm. As noted above, a manufacturer has a duty to make reasonable efforts to reduce any risk to life and limb that may be inherent in its design, and it is arguable that a risk-utility analysis in the immediate case may demonstrate that there came a time when it was careless for Smith & Wesson not to utilize invented authorized user technology, of which there were many types, some of which Smith & Wesson invented and patented.

[105] The authors of Universal Principles of Design[^68] make the point that a common mistake regarding the application of the cost-benefit principle in making design choices is to presume which aspects of the system will be perceived as costs, and which will be perceived as benefits. There is a serious debate to be had in the immediate case about the design implications of user authorized technology in weapons and about when that technology should have been introduced.

[106] It is an argument for another day whether there are policy arguments that would negate the duty of care associated with a good dangerous as such like a firearm. For present purposes, I can say that I was not persuaded by Smith & Wesson's in terrorem arguments.

[107] Smith & Wesson argues that extending a duty of care in the immediate case would have industry shattering consequences because many goods can be used by criminals to cause harm to innocent persons who might be deliberately injured or killed by the criminal using the product. I am not persuaded by this argument because there is no extension of liability in the immediate case. The impact of extending a duty of care to introduce authorized user technology to weapons is a drop in the bucket to the extension of liability already introduced by Donoghue v. Stevenson, where the Law Lords heard similar in terrorem arguments, which arguments did not impress the majority judges. And for that matter the arguments were irrelevant to the minority, which accepted that there was already a duty of care for manufacturers of goods that were dangerous as such.

[108] Similarly, I am also not persuaded that the recognition of a duty of care in the immediate case raises concerns of indeterminate liability any more than did the enormous extension of liability introduced by Donoghue v. Stevenson.

[109] I, therefore, conclude that in the immediate case, the plaintiffs have pled a reasonable cause of action in design negligence that is not doomed to fail.

I. Strict Liability

[110] I can be brief in explaining why it is plain and obvious that the plaintiffs' claim of strict liability based on the rule in Rylands v. Fletcher[^69] is doomed to fail and why the claim should be struck for the plaintiffs' Statement of Claim and it should not be certified as a cause of action.

[111] The short explanation is that the rule of strict liability of Rylands v. Fletcher is a land or real property tort that is not applicable to products liability claims. The rule from Rylands v. Fletcher, which is a sister tort to the land law tort of nuisance, is that a person who makes a non-natural use of his or her land and who brings onto his or her property something that will cause harm if it escapes from the property is liable for the damage caused if the thing escapes.[^70] Under Canadian law, products liability is a matter of negligence not strict liability.[^71]

[112] Since there is nothing about the plaintiffs' claim that has anything to do with the use of Smith & Wesson's land and there is nothing that is escaping, it is plain and obvious that Rylands v. Fletcher has nothing to do with the case at bar. Under Canadian products liability law, a manufacturer is liable under the law of negligence described above. Thus, it is plain and obvious that the claim for strict liable is doomed to failure and this claim should be struck from the plaintiffs' Statement of Claim.

J. Public Nuisance

[113] For similar reasons as discussed in the last section and for additional reasons, it is plain and obvious that the cause of action of public nuisance, which is typically about harm caused to public property or public activities is not a cause of action available to the plaintiffs in the immediate case. A public nuisance is an activity that unreasonably interferes with the public's interest in questions of health, safety, morality, comfort, or convenience.[^72] An individual may bring a private action in public nuisance by proving special damage.

[114] The nature of a public nuisance claim is described by law professor Philip H. Osborne in The Law of Torts[^73] as follows:

[Public nuisance] covers a wide range of eclectic activities [. . . ]. Some further guidance is, however, provided by the recognition that public nuisances generally fall into two broad categories.

The first category includes interference with the rights and interests of the public which all persons share in common. The classic examples of public nuisances in this category include obstructing a public highway with a stalled motor vehicle, barriers, protest marches, excavations, or heavy smoke, blocking access to a public park, blocking a navigable waterway, destroying a provincial forest, polluting a river or stream, polluting the air with smoke and fumes, obstructing a public sidewalk with temporary structures, demonstrators or line-ups of people, selling food that is unfit for human consumption, and running a bawdy house. These are all instances of either an interference with public rights of way or an interference with public rights in property, safety, health, or comfort. [. . . ]

The second category of public nuisance arises from widespread interference with the use and enjoyment of private land. In this situation, a public nuisance arises where the defendant's activities have created a multiplicity of private nuisances that may be remedied either by each landowner as a private nuisance or cumulatively, by public remedies as a public nuisance.

[115] In the immediate case the alleged wrongful activity of Smith & Wesson is selling a handgun that does not utilize authorized user technology. That activity does not resemble either typical category of public nuisance claim. The misuse of its guns is not Smith & Wesson's activity, and while Mr. Hussain might be guilty of a public nuisance, both as a civil and as a criminal offence contrary to s. 180 of the Criminal Code, I do not see how the same charges can be made against Smith & Wesson. The manufacture of the M&P®40 was a regulated and permitted activity for Smith & Wesson. Society from the days of the Neanderthals until today does not regard fabricating weapons as a public nuisance although the misuse of those weapons -- by others -- may be. A manufacturer of a product cannot be made liable in nuisance for simply distributing its product in its course of business because the product is then misused by others causing harm to the plaintiffs.[^74]

K. Conclusion

[116] For the above reasons, Smith & Wesson's motion is dismissed and the certification motion shall continue to the second phase. The costs of the dismissed motion are in the cause of the certification motion.

Motion dismissed.

Notes

[^1]: S.O. 1992, c. 6.

[^2]: R.R.O. 1990, Reg. 194.

[^3]: 97 F. Supp. 2d 816 (N.D. Ohio, 2000).

[^4]: Criminal Code, R.S.C. 1985, c. C-46.

[^5]: Firearms Act, S.C. 1995, c. 39.

[^6]: (1866), L.R. 1 Ex. 265, affd (1868), L.R. 3 H.L. 330.

[^7]: 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93.

[^8]: Wright v. Horizons ETFS Management (Canada) Inc., [2020] O.J. No. 2431, 2020 ONCA 337, at para. 57; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), [2015] O.J. No. 4267, 2015 ONCA 572; Hollick v. Toronto (City) (2001), 56 O.R. (3d) 214, [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67, 2001 SCC 68.

[^9]: Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401, [2004] O.J. No. 4924 (C.A.), at para. 41, leave to appeal to the S.C.C. refused [2005] S.C.C.A. No. 50, revg (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492, [2003] O.J. No. 2698 (Div. Ct.); Hollick v. Toronto (City), ibid., at para. 25; Abdool v. Anaheim Management Ltd. (1995), 1995 5597 (ON SCDC), 21 O.R. (3d) 453, [1995] O.J. No. 16 (Div. Ct.), at p. 469 O.R.

[^10]: Deluca v. Canada (Attorney General), [2016] O.J. No. 3215, 2016 ONSC 3865 (S.C.J.); Losier v. Mackay, Mackay & Peters Ltd., 2009 43651 (ON SC), [2009] O.J. No. 3463, 76 C.C.E.L. (3d) 259 (S.C.J.), at paras. 39-40, affd [2010] O.J. No. 3984, 2010 ONCA 613, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 438; Grenon v. Canada Revenue Agency, [2016] A.J. No. 464, 2016 ABQB 260, at para. 32; Merchant Law Group v. Canada (Revenue Agency), [2010] F.C.J. No. 898, 2010 FCA 184, at para. 34.

[^11]: 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., [2016] O.J. No. 2289, 2016 ONSC 2673 (S.C.J.), at para. 42; Aristocrat Restaurants Ltd. (c.o.b. Tony's East) v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.), at para. 10.

[^12]: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 6199 (ON SC), 62 O.R. (3d) 535, [2002] O.J. No. 4781 (S.C.J.), at para. 19, leave to appeal granted (2003), 2003 36393 (ON SCDC), 64 O.R. (3d) 42, [2003] O.J. No. 1089 (S.C.J.), affd (2004), 2004 16620 (ON SCDC), 70 O.R. (3d) 182, [2004] O.J. No. 865 (Div. Ct.); Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. No. 2494 (C.A.), at p. 679 O.R., leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 476.

[^13]: Dawson v. Rexcraft Storage & Warehouse Inc., supra, note 11.

[^14]: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664, [1990] O.J. No. 860 (C.A.).

[^15]: Johnson v. Adamson (1981), 1981 1667 (ON CA), 34 O.R. (2d) 236, [1981] O.J. No. 3122 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n, [1982] 1 S.C.R. v, [1982] S.C.C.A. No. 277.

[^16]: Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273 (S.C.J.), at para. 20; Silber v. DDJ Canadian High Yield Fund, 2006 21058 (ON SC), [2006] O.J. No. 2503, 20 B.L.R. (4th) 134 (S.C.J.).

[^17]: [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, at paras. 17-25.

[^18]: [2020] S.C.J. No. 19, 2020 SCC 19, at paras. 87-88.

[^19]: 1932 536 (FOREP), [1932] A.C. 562, [1932] 2 All E.R. Rep. 1 (H.L.), at p. 883 A.C.

[^20]: Haig v. Bamford, 1976 6 (SCC), [1977] 1 S.C.R. 466, [1976] S.C.J. No. 31; Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29; Rothfield v. Manolakos, 1989 17 (SCC), [1989] 2 S.C.R. 1259, [1989] S.C.J. No. 120; Canadian National Railway Co. v. Norsk Pacific Steamship Co., 1992 105 (SCC), [1992] 1 S.C.R. 1021, [1992] S.C.J. No. 40; Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. No. 51; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210, [1997] S.C.J. No. 111; Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, [2000] S.C.J. No. 13, 2000 SCC 12; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, [2000] S.C.J. No. 60, 2000 SCC 60; Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79; Edwards v. Law Society of Upper Canada (2001), 56 O.R. (3d) 456, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 2001 SCC 80; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 2003 SCC 69; Childs v. Desormeaux (2006), 80 O.R. (3d) 558, [2006] 1 S.C.R. 643, [2006] S.C.J. No. 18, 2006 SCC 18; Syl Apps Secure Treatment Centre v. D. (B.) (2007), 86 O.R. (3d) 720, [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38, 2007 SCC 38; Hill v. Hamilton-Wentworth Regional Police Services Board (2007), 87 O.R. (3d) 397, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41; Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737, [2008] S.C.J. No. 22, 2008 SCC 22; Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27; Fullowka v. Pinkerton's of Canada Ltd., [2010] 1 S.C.R. 132, [2010] S.C.J. No. 5, 2010 SCC 5; R. v. Imperial Tobacco Canada Ltd., supra, note 17; Saadati v. Moorhead, [2017] 1 S.C.R. 543, [2017] S.C.J. No. 28, 2017 SCC 28; Deloitte & Touche v. Livent Inc. (Receiver of), [2017] 2 S.C.R. 855, [2017] S.C.J. No. 63, 2017 SCC 63; Rankin (Rankin's Garage & Sales) v. J. (J.), [2018] 1 S.C.R. 587, [2018] S.C.J. No. 19, 2018 SCC 19.

[^21]: [1978] A.C. 728, [1977] 1 All E.R. 492 (H.L.).

[^22]: Supra, note 19.

[^23]: [1964] A.C. 465, [1963] 2 All E.R. 575 (H.L.).

[^24]: Anns v. Merton London Borough Council, supra, note 21; Mustapha v. Culligan of Canada Ltd., supra, note 20, at para. 4.

[^25]: Cooper v. Hobart, supra, note 20, at para. 30.

[^26]: Bingley v. Morrison Fuels, a Division of 503373 Ontario Ltd. (2009), 95 O.R. (3d) 191, [2009] O.J. No. 1576, 2009 ONCA 319, at para. 24.

[^27]: Supra, note 20 (Karakatsanis J. with McLachlin C.J.C., Abella, Moldaver, Wagner, Côté and Rowe JJ. concurring; Brown and Gascon JJ. dissenting).

[^28]: Rankin (Rankin's Garage & Sales) v. J. (J.), ibid., at para. 24.

[^29]: Donoghue v. Stevenson, supra, note 19; Eliopoulos v. Ontario (Minister of Health & Long-Term Care) (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 514.

[^30]: Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No 74, 2003 SCC 69, at para. 49; Hercules Managements Ltd. v. Ernst & Young, supra, note 20, at para. 24.

[^31]: Syl Apps Secure Treatment Centre v. D. (B.), supra, note 20, at para. 26.

[^32]: Hill v. Hamilton-Wentworth Regional Police Services Board, supra, note 20, at para. 23.

[^33]: Deloitte & Touche v. Livent Inc. (Receiver of), [2017] 2 S.C.R. 855, [2017] S.C.J. No. 63, 2017 SCC 63.

[^34]: Cooper v. Hobart, supra, note 20, at para. 34; Hill v. Hamilton-Wentworth Regional Police Services Board, supra, note 20, at para. 23; Odhavji Estate v. Woodhouse, supra, note 30, at para. 50.

[^35]: Hill v. Hamilton-Wentworth Regional Police Services Board, ibid., at para. 29.

[^36]: Saadati v. Moorhead, supra, note 20, at para. 24.

[^37]: Childs v. Desormeaux, supra, note 20, at para. 13.

[^38]: Hill v. Hamilton-Wentworth Regional Police Services Board, supra, note 20, at paras. 47-48; Fullowka v. Pinkerton's of Canada Ltd., supra, note 20, at para. 57.

[^39]: Cooper v. Hobart, supra, note 20, at para. 37; Odhavji Estate v. Woodhouse, supra, note 30, at para. 51.

[^40]: Cooper v. Hobart, ibid., at para. 37; Odhavji Estate v. Woodhouse, ibid., at para. 51.

[^41]: Supra, note 19, at p. 567 A.C.

[^42]: Supra, note 19, at p. 602 A.C.

[^43]: All of the Law Lords, including Lord MacMillan also discussed the case of Langridge v. Levy (1837), 2 M. & W. 519, 150 E.R. 863; (1838), 4 M. & W. 337, 150 E.R.1458, which was a firearm case. In Langridge v. Levy the plaintiff was injured when a defectively manufactured gun purchased by his father exploded when being used by the plaintiff. The plaintiff, although not the purchaser, was held entitled to sue for damages. However, as a matter of precedent, Langridge v. Levy has been explained as a fraud or false representation case and as not establishing any principle of general application. Of the case, Lord Atkin stated [in Donohue v. Stevenson] at p. 588 A.C.: "It is sufficient to say that the case was based, as I think, in the pleading, and certainly in the judgment, on the ground of fraud, and it appears to add nothing of value positively or negatively to the present discussion."

[^44]: (1816), 5 M. & S. 198, 105 E.R. 1023. Dixon v. Bell was followed in the Fowell v. Grafton (1910), 22 O.L.R. 550, [1910] O.J. No. 66 (Div. Ct.), affg (1910), 20 O.L.R. 639, [1910] O.J. No. 194 (H.C.J.).

[^45]: Supra, note 19, at pp. 596-97 A.C.

[^46]: [1909] A.C. 640, [1909] UKPC 46 (P.C.).

[^47]: Hobbs Manufacturing Co. v. Shields Estate 1962 14 (SCC), [1962] S.C.R. 716, [1962] S.C.J. No. 57, affg 1962 20 (ON CA), [1962] O.R. 355, [1962] O.J. No. 558 (C.A.); McSweeny v. Windsor Gas Co., 1942 118 (ON CA), [1942] O.R. 140 (C.A.).

[^48]: Anderson v. Williams, 1996 4725 (NB QB), [1996] N.B.J. No. 158, 176 N.B.R. (2d) 11 (Q.B.); Dahlberg v. Naydiuk, 1969 774 (MB CA), [1969] M.J. No. 75, 72 W.W.R. (N.S.) 210 (C.A.).

[^49]: Heimler v. Calvert Caterers Ltd. (1975), 1975 411 (ON CA), 8 O.R. (2d) 1, [1975] O.J. No. 2249 (C.A.); Dahlberg v. Naydiuk, ibid.; Shandloff v. City Dairy Ltd., 1936 68 (ON CA), [1936] O.R. 579, [1936] O.J. No. 236 (C.A.); Northwestern Utilities Ltd. v. London Guarantee & Accident Co., 1935 255 (UK JCPC), [1935] J.C.J. No. 2, [1935] 4 D.L.R. 737 (P.C.); Dominion Natural Gas Co. v. Collins & Perkins, supra, note 47.

[^50]: Dahlberg v. Naydiuk, ibid.; Ayoub v. Beaupre, 1964 10 (SCC), [1964] S.C.R. 448, [1964] S.C.J. No. 25; Read v. J. Lyons & Co., [1947] A.C. 156, [1946] 2 All E.R. 471 (H.L.).

[^51]: Supra, note 47, at pp. 646-47 A.C.

[^52]: Supra, note 45. Dixon v. Bell was followed in the Fowell v. Grafton, supra, note 45.

[^53]: Supra, note 47.

[^54]: Supra, note 19.

[^55]: Donoghue v. Stevenson, supra, note 19.

[^56]: Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210, [1997] S.C.J. No. 111; Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634, [1995] S.C.J. No. 104, at para. 20; Lambert v. Lastoplex Chemicals Co., 1971 27 (SCC), [1972] S.C.R. 569, [1971] S.C.J. No. 132, at p. 574 S.C.R.

[^57]: O'Brien v. Bard Canada Inc., [2015] O.J. No. 1892, 2015 ONSC 2470 (S.C.J.); Martin v. Astrazeneca Pharmaceuticals PLC, [2012] O.J. No. 2033, 2012 ONSC 2744 (S.C.J.); Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603, [2000] O.J. No. 4597 (S.C.J.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786, 49 C.C.L.T. 150 (H.C.J.), affd [1994] O.J. No. 50, 45 A.C.W.S. (3d) 373 (C.A.); Rivtow Marine Ltd. v. Washington Iron Works, 1973 6 (SCC), [1974] S.C.R. 1189, [1973] S.C.J. No. 126.

[^58]: Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85, [1995] S.C.J. No. 2.

[^59]: Rentway Canada Ltd. v. Laidlaw Transport Ltd., supra, note 58; Gallant v. Beitz (1983), 1983 1905 (ON SC), 42 O.R. (2d) 86, [1983] O.J. No. 3054 (H.C.J.).

[^60]: Cantlie v. Canadian Heating Products Inc., [2017] B.C.J. No. 332, 2017 BCSC 286, at para. 197; Martin v. Astrazeneca Pharmaceuticals PLC, [2012] O.J. No. 2033, 2012 ONSC 2744 (S.C.J.), at paras. 135-137, affd [2013] O.J. No. 1182, 2013 ONSC 1169 (Div. Ct.); Kreutner v. Waterloo Oxford Co-operative Inc. (2000), 2000 16813 (ON CA), 50 O.R. (3d) 140, [2000] O.J. No. 3031 (C.A.), at para. 8; Rentway Canada Ltd. v. Laidlaw Transport Ltd., supra, note 58.

[^61]: (1986), 1986 2502 (ON SC), 58 O.R. (2d) 53, [1986] O.J. No. 1320 (H.C.J.), at p. 60 O.R.

[^62]: Daishowa-Marubeni International Ltd. v. Toshiba International Corp., [2010] A.J. No. 1128, 2010 ABQB 627; Tabrizi v. Whallon Machine Inc., 1996 3532 (BC SC), [1996] B.C.J. No. 1212, 29 C.C.L.T. (2d) 176 (S.C.), at paras. 28-42; Rentway Canada Ltd. v. Laidlaw Transport Ltd., supra, note 58; Nicholson v. John Deere Ltd., ibid.

[^63]: Ragoonanan v. Imperial Tobacco Canada Ltd., supra, note 58; Rentway Canada Ltd. v. Laidlaw Transport Ltd., ibid.

[^64]: Goodridge v. Pfizer Canada Inc. (2010), 101 O.R. (3d) 202, [2010] O.J No. 655, 2010 ONSC 1095 (S.C.J.).

[^65]: Andersen v. St. Jude Medical Inc., [2012] O.J. No. 2921, 2012 ONSC 3660 (S.C.J.), at para. 61.

[^66]: Andersen v. St. Jude Medical Inc., ibid., at para. 62.

[^67]: Supra, note 58.

[^68]: W. Lidwell, K. Holden, J. Butler, Universal Principles of Design - 125 Ways to Enhance Usability, Influence Perception, Increase Appeal, Make Better Design Decisions, and Teach through Design (Glouster, Mass.: Rockport Publishers Inc., 2010).

[^69]: (1866), L.R. 1 Ex. 265, affd (1868), L.R. 3 H.L. 330.

[^70]: Smith v. Inco Ltd. (2011), 107 O.R. (3d) 321, [2011] O.J. No. 4386, 2011 ONCA 628; Gersten v. Toronto (Metropolitan) (1973), 1973 606 (ON SC), 2 O.R. (2d) 1, [1973] O.J. No. 2223 (H.C.J.); Dahlberg v. Naydiuk, supra, note 49 (Rylands v. Fletcher, ibid.

[^71]: Dahlberg v. Naydiuk, supra, note 49; Ayoub v. Beaupre, supra, note 51; Read v. J. Lyons & Co., supra, note 51.

[^72]: Karpouzis v. Toronto (City of), [2020] O.J. No. 124, 2020 ONSC 143 (S.C.J.); Hoffman v. Monsanto Canada Inc., [2005] S.J. No. 304, 2005 SKQB 225, affd [2007] S.J. No. 182, 2007 SKCA 47, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 347; Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7.

[^73]: P.H. Osborne, The Law of Torts, 4th ed. (Toronto: Irwin Law Inc., 2011) at pp. 397-398.

[^74]: Hoffman v. Monsanto Canada Inc., supra, note 73 (Q.B.), at para. 111.