COURT FILE NO.: CV-19-00632915-00CP

DATE: 20211224

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAMANTHA PRICE, SKYE MCLEOD, KENNETH PRICE, CLAIRE SMITH, PATRICK MCLEOD, AND JANE MCLEOD

Plaintiffs

• and -

SMITH & WESSON CORP.

Defendant

Malcolm Ruby and Adam Bazak for the Plaintiffs

Scott Maidment and Jennifer Dent for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: November 30, 2021

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction. 1 B. Factual Background. 2 C. Procedural and Evidentiary Background. 3 D. Discussion and Analysis. 7 Introduction. 7

1. Certification: General Principles and the Some-Basis-in Fact Standard. 8
2. The Admissibility of Evidence for a Certification Motion. 10
3. The Role of Experts on a Certification Motion. 11
4. The Elements of a Design Negligence Cause of Action. 12
5. The Evidence about Firearm-Related Crime Statistics. 14
6. Design Negligence, Patents, and Authorized Used Technology for Firearms. 14
7. The Authorized User Technology Agreement Signed in 2000. 14
8. Mark A. Chapman’s Evidence. 14 E. Conclusion. 14

A. Introduction and Overview

[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] the certification motion has been bifurcated. Earlier this year, I determined that the Plaintiffs, Samantha Price, Skye McLeod, Kenneth Price, Claire Smith, Patrick McLeod, and Jane McLeod, have satisfied the cause of action criterion for certification.[^2] I concluded that the Plaintiffs had a design negligence cause of action against the Defendant Smith & Wesson Corp. What remained to be determined was whether there is some basis in fact for the four remaining certification criteria. The balance of the certification motion was scheduled for March 21-24, 2022.

[2] Because of the motion now before the court, the completion of the certification motion, must be rescheduled.

[3] In the motion now before the court, Smith & Wesson seeks to strike some of the evidence that the Plaintiffs have proffered for their certification motion. The impugned material includes seven expired U.S. patents. It includes allegedly inadmissible hearsay evidence about design defects and about matters that Smith & Wesson submits have no probative value on the certification motion.

[4] Smith & Wesson submits that the admission of the impugned material would be highly prejudicial to a fair hearing. An aspect of Smith & Wesson’s argument is its submission that a design negligence case requires expert opinion evidence on the certification motion and the Plaintiffs’ approach of tendering foreign patents about gun designs as exhibits to one of the Plaintiffs’ affidavits is not an acceptable substitute for expert evidence of negligent design.

[5] The Plaintiffs resist the motion to strike and submit that: (a) all the proffered evidence is admissible; and (b) the certification motion should proceed as scheduled or as adjusted to allow Smith & Wesson an extension of time to deliver its responding evidentiary material for the certification motion.

[6] In the alternative, the Plaintiffs submit that if Smith & Wesson’s motion to strike were successful, they ask for an opportunity to file revised or additional material. As a backstop to their alternative request, at the return of Smith & Wesson’s motion, the Plaintiffs delivered what might be called a provisional cross-motion. It is a motion for leave to admit for the certification motion the affidavit of Mark A. Chapman, an expert in U.S. patent law, including U.S. patent litigation.

[7] For the reasons that follow, I grant Smith & Wesson’s motion to strike.

[8] I grant the Plaintiffs leave to file additional expert’s or experts’ opinions, as they may be advised, in addition to Mr. Chapman’s affidavit, with respect to the design aspects of their negligence claim. It shall be for the expert(s) to explain the relevance of the foreign patents and the other evidence as some basis in fact for the alleged design defects.

[9] In these circumstances, the March hearing must be rescheduled. During the hearing of the motion to strike, this eventuality was discussed, and the parties agreed on the following revised timetable.

Plaintiffs’ Certification Motion Record	Already delivered
Plaintiffs’ Supplementary Motion Record	By March 30, 2022
Defendant’s Responding Motion Record	By June 30, 2022
Plaintiffs’ Reply Motion Record, if any	By August 15, 2022
Cross-examinations	By September 15, 2022
Plaintiffs’ Factum	By October 15, 2022
Defendant’s Factum	By November 15, 2022
Plaintiffs’ Reply Factum	By November 30, 2022
Certification Motion (4 days)	December 12-15, 2022

B. Factual Background

[10] 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.

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

[12] In 2015, a Saskatchewan gun dealer reported a M&P^®40 stolen. The stolen handgun came into the possession of one Faisal Hussain.

[13] 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 10 and 18), to randomly shoot and injure 13 others, and to injure dozens as they fled the active shooter scene (the “Danforth Shooting”). At the time of the Danforth Shooting, Samantha Price was an 18-year-old student. She was shot and injured. Claire Smith and Kenneth Price are the parents of Samantha Price. 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. The Danforth Shooting ended when, after exchanging gunfire with police officers, Mr. Hussain used the handgun to kill himself.

[14] At the time of the Danforth Shooting, Smith & Wesson had available to it “smart gun” or “authorized user technology”, which is designed to prevent use of weapons by unauthorized persons. Authorized user handguns have one or more systems that allow the weapon to fire only when activated by an authorized user. As early as 1998, Smith & Wesson began developing authorized user technology. Smith & Wesson filed at least seven patent applications with the United States Patent and Trademark Office between December 1998 and December 2001.

[15] 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. 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.

[16] 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. The Authorized User Technology Agreement lapsed.

[17] The design of the M&P^®40 handgun does not utilize authorized user technology.

C. Procedural and Evidentiary Background

[18] The Plaintiffs commenced this action on December 16, 2019.

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

[20] The Amended Claim alleges that it was reasonably foreseeable that Smith & Wesson products without authorized user technology, like the handgun used in the Danforth Shooting, would, in the hands of unauthorized users, cause substantial harm to members of the public. In support of the contention, the Amended Claim cites published statistical information showing a high rate of illegal handgun diversion and use of illegally diverted handguns to harm innocent third parties.

[21] 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 a Rule 21 motion by Smith & Wesson seeking to strike the action as not disclosing a reasonable cause of action. If the cause of action criterion was satisfied, then the second stage would address the remaining four certification criteria.

[22] The Plaintiffs advanced causes of action against Smith & Wesson for: (a) negligent design, manufacturer, and/or distribution; (b) public nuisance; and (c) strict liability. The Amended Claim asserted that Smith & Wesson was negligent in failing to incorporate any kind of safety mechanism in the handgun that would prevent unauthorized users, like the gunman, from firing the weapon. Authorized user technology involves “personalized firearm safety” measures that prevent unauthorized users from firing lost or stolen weapons.

[23] The Amended Statement of Claim alleges that Smith & Wesson’s familiarity with authorized user technology is reflected in the Authorized User Technology Agreement with the U.S. government signed in 2000.

[24] In the first phase of the certification motion, by reasons for decision dated February 11, 2021, I struck out the claims for public nuisance and strict liability. I concluded that the Plaintiffs’ cause of action for negligence satisfies the cause of action criterion for the certification of their class action. I dismissed Smith & Wesson’s Rule 21 motion to strike the design negligence cause of action.

[25] On June 30, 2021, the Plaintiffs delivered their motion record for the completion of the certification motion. Their motion was supported just by the 412-page affidavit of Kenneth R. Price dated June 28, 2021.

[26] On the run-up to the second phase of the certification motion, the next procedural step would have been for Smith & Wesson to deliver its responding motion material. However, it did not do so. Instead, on October 5, 2021, Smith & Wesson brought a motion for an order striking out: (a) paragraphs 19 to 25, including Exhibits “C” to “I”: and (b) paragraphs 29 to 34, including Exhibits “K1” through “L”, of the Mr. Price’s affidavit. The impugned paragraphs are set out below:

19. I have reviewed a summary report published in June 2018 by Statistics Canada of firearm-related crime in Canada from 2009 to 2017. In the report, Statistics Canada states that the rate of gun thefts in “break and enter” crimes more than tripled between 2009 and 2017. Statistics Canada also reports a 42% increase in firearm-related violent crime in Canada between 2013 and 2017 and states that 43% of the increase after 2013 was attributable to increased firearm-related violence in the City of Toronto. Each year since 2009, about 60% of firearm-related violent crime has involved handguns. A copy of this summary analysis is attached at Exhibit “C”.

20. I have also reviewed a presentation on firearm-related crime statistics given to the Standing Senate Committee on National Security and Defence by Yvan Clermont, Director of the Canadian Centre for Justice Statistics at Statistics Canada. In his presentation, Mr. Clermont stated that an increase in the theft of firearms has been observed since 2013, and that Toronto’s gun crime rate has doubled since that year. A copy of the transcript of the evidence submitted during the Senate presentation, including a visual presentation referred to by Mr. Clermont, is attached at Exhibit “D”.

21. I have also reviewed an infographic providing a visual representation of police reported data from the 2019 Homicide Survey published by Statistics Canada in October 2020. The infographic states that in 2019 in Canada, 261 homicides were committed with a firearm of which about 60% involved use of a handgun. A copy of this infographic is attached at Exhibit “E”.

22. I have been provided by counsel with “Shooting and Firearm Discharges” statistics for the City of Toronto compiled by Toronto Police Services for the period between 2016 and 2021, a copy of which is attached at Exhibit “F.” The data show dozens of gun related deaths and injuries each year in Toronto. I have learned from information provided by the Guns and Gangs Unit of the Ministry of the Attorney General of Ontario that between 2015 and 2020, virtually all of crime guns seized by the Toronto Police Service that were successfully sourced were either illegally in Canada or had been reported lost or stolen in Canada.

23. I am informed by counsel and believe that on 8 March 2021, the Royal Canadian Mounted Police (“RCMP”) delivered a response to counsel’s request for information under the Access to Information Act relating to total firearms lost or stolen in Canada. The response provided by the RCMP, a chart which I have reviewed, contains figures of lost and stolen firearms recorded in the Canadian Firearms Information System (“CFIS”). The chart states that CFIS recorded 1,830 lost or stolen firearms in 2018 and 1,540 lost or stolen firearms in 2019. A copy of the chart provided to counsel by the RCMP is attached at Exhibit “G”.

24. I have also reviewed a 2012 report published by the U.S. Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the National Crime Information Center (“NCIC”), which I am informed by counsel and believe is a national criminal justice database operated by the U.S. Federal Bureau of Investigation’s Criminal Justice Information Services Division. The report shows losses or thefts of more than 250,000 firearms annually in the United States. The ATF report states:

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.

A copy of the 2012 ATF report is attached at Exhibit “H”.

25. I have also reviewed a news report published by The Trace on 20 November 2017, which, based on statistics supplied by the NCIC, reported that more than 238,000 guns were reported stolen in the United States in 2016. According to The Trace, this figure represented a 73 percent increase in gun thefts from 2005. NCIC records cited by The Trace show that nearly two million weapons were reported stolen between 2007 and 2017. The Trace reports that of the nearly 150,000 records of stolen weapons analyzed in which the type of gun was listed, 77 percent were handguns. Based on police data obtained by The Trace, Smith & Wesson was the most common make of stolen gun and .40 caliber weapons were the second-most common caliber of stolen weapons. The news report cites Frank Occhipinti, deputy chief of the firearms operations division for the ATF as stating: “The impact of gun theft is quite clear … It is devastating our communities.” A copy of the report published by The Trace on 20 November 2017 is attached at Exhibit “I”.

26. In total, at least seven United States patents involving authorized user technology were granted to Smith & Wesson beginning in 2001 (“Smith & Wesson Patents”). Copies of the seven Smith & Wesson Patents, describing inventions relating to authorized user technology and granted by the USPTO are attached at Exhibit “K”. The table below lists the seven Smith & Wesson Patents by application number, title, issued patent number, and relevant dates:

Patent Application Number	Title	Issued Patent Number	Date Patent Issued	Date Patent Lapsed
09/205,391	Firing Control System for NonImpact Fired Ammunition	6,286,241	2001-09-11	2013-09-11
09/206,013	Firearm Having an Intelligent Controller	6,321,478	2001-07-17	2013-11-27
09/296,014	Biometrically Activated Lock and Enablement System	6,260,300	2001-07-17	2013-07-17
09/625,688	Authorization Module for Activating a Firearm and Method of Using Same	6,357,156	2002-03-19	2014-03-19
10/027,133	Firearm Including Biometric Skin Sensor	6,711,843	2004-03-30	2016-03-30
09/566,007 (divisional of 09/205,391)	Firing control system for nonimpact fired ammunition	6,357,157	2002-03-19	2014-03-19
09/595,164 (divisional of 09/206,013)	Security Apparatus for a Firearm	6,286,242	2001-09-11	2013-09-11

30. In U.S. patents 6,711,843, Firearm Including Biometric Skin Sensor, and 6,357,156, Authorization Module for Activating a Firearm and Method of Using Same, Smith & Wesson included the following statement regarding the background of the invention:

Manufacturers have recently incorporated electronic circuitry in firearms to improve their performance and reliability. One area of particular interest in firearm improvement using electronics is to prevent the use of firearms by unauthorized persons such as children or other non-owners.

31. In U.S. Patent 6,260,300, Biometrically Activated Lock and Enablement System, Smith & Wesson included the following statement in the section describing the background of the invention:

The use of handgun locking systems and safe boxes for storing and locking handguns for the purpose of preventing unauthorized access and use is generally known. Such systems are useful for limiting access to handguns in private and commercial or public settings. In private residential settings, for example, it is desirable to prevent unauthorized access to and use of handguns by children, intruders, or other unauthorized individuals. 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.

32. One of Smith & Wesson patent applications dealing with authorized user technology, a “Firing Control System For Non-Impact Fired Ammunition” (Application Number 09/566,007 issued as patent 6,387,157) filed on 4 December 1998, stated that although “numerous advances in firearm technology have been made over the years, the principle of ignition by impact is based on technology that was developed during the last [19th] century” that had “inhibited significant advances in safety, performance and reliability.”

33. I am informed by counsel and believe that it can take several years from the time a patent is filed to the date a patent is issued, as shown by the history of each of the Smith & Wesson Patents listed above in paragraph 29. Each patent application is reviewed by Examiners at the USPTO who are identified on the front page of each patent. I am informed that the process is known as patent “prosecution.” I am further informed that the USPTO maintains public records of what happens during the prosecution stage and my lawyers have obtained copies of records for the Smith & Wesson Patents (which number hundreds of pages) from the USPTO.

34. For example, attached as “Exhibit L” are copies of exchanges between the Examiner at the USPTO and the patent agent for Smith & Wesson regarding issues that arose in the prosecution of the application for a Firearm Having an Intelligent Controller (6,321,478). In Smith & Wesson’s response dated 16 June 2000, which I have reviewed, Smith & Wesson states that its invention pertaining to authorized user technology “exhibits a much higher degree of operational safety heretofore unknown in the art.”

[27] By way of a summary classification, the impugned evidence proffered by Mr. Price is comprised of:

a. various documents about firearm-related crime statistics;

b. statements regarding the development of “authorized user technology” for firearms, and the U.S. patent process;

c. seven U.S. patents and one U.S. prosecution history; and

d. a copy of the Authorized User Technology Agreement signed in 2000. The copy was obtained from public corporate filings maintained by the U.S. Securities and Exchange Commission (“SEC”).

[28] On November 28, 2021, the Plaintiffs brought a cross-motion seeking leave to admit for the certification motion the affidavit of Mark A. Chapman dated November 26, 2021. Mr. Chapman is an expert in U.S. patent law, including U.S. patent litigation. The Plaintiffs seek to proffer Mr. Chapman’s evidence as a precautionary measure to respond to any potential technical concerns regarding admitting U.S. patent documents through a lay witness. The Plaintiffs submit that their cross-motion is not an admission regarding the merits of Smith & Wesson’s motion to strike various paragraphs in Mr. Price’s affidavit.

[29] For the certification motion, the Plaintiffs propose the following common issues:

1. Was the Defendant negligent in failing to incorporate authorized user technology in the Handgun used in the Danforth Shooting?
2. Did the Plaintiffs and the proposed Classes suffer compensable harm resulting from the use of the Handgun in the Danforth Shooting?
3. Is the Defendant liable to family members within the meaning of section 61 of the Family Law Act, R.S.O., 1990, c. F.3, of all persons in Classes 1 and 2?
4. Is this an appropriate case to award punitive damages against the Defendant?
5. Is this an appropriate case for the Court to order an aggregate assessment of damages under section 24 of the Class Proceedings Act, 1992?

D. Discussion and Analysis

Introduction

[30] As foreshadowed above, it is my conclusion that Mr. Price’s evidence should be struck.

[31] As the discussion that follows will reveal, the explanation for why Mr. Price’s evidence should be struck is a complex matter in the occult world of certification motions with its metaphysical and magical some-basis-in-fact standard and its nebulous role for expert witnesses.

[32] To set the stage for the magic show (now you see the evidence, now you don’t) in the immediate case, before I can explain my decision to strike, I shall need to describe: (1) the general principles of certification and the some-basis-in-fact standard; (2) the admissibility of evidence for a certification motion; (3) the role of experts on a certification motion; and (4) the elements of a design negligence cause of action.

[33] To set the stage, in this introduction, I must also explain what it is I can properly decide on this preliminary motion about the evidence for the certification motion and what I cannot properly decide.

[34] In this last regard, the predominant and fundamental common issue proposed by the Plaintiffs in this action is whether Smith & Wesson was negligent in designing the M&P^®40 by failing to adopt authorized user technology. On this motion, the predominant and fundamental submission of Smith & Wesson is that paragraphs 19 to 25, including Exhibits “C” to “I” and paragraphs 29 to 34, including Exhibits “K1” through “L”, of Mr. Price’s affidavit dated June 28, 2021 should be struck because they do not establish some basis in fact for the proposition that it was negligent in designing the M&P^®40 by failing to adopt authorized user technology.

[35] It should immediately be appreciated that Smith & Wesson’s predominant and fundamental submission on this motion is a trick proposition much like the trick cross-examination question which asks the accused where he was standing when he murdered his wife. However, at this juncture of the run-up to the certification motion, it would not be proper for me to answer in the negative or in the affirmative whether Mr. Price’s layperson's evidence establishes some basis in fact for the proposition that Smith & Wesson was negligent in designing the M&P^®40 by failing to adopt authorized user technology. On a preemptive motion before the certification motion, it would not be proper for me to determine whether the proffered evidence is adequate to establish some basis in fact for the negligence claim.

[36] In general, the most that can be achieved on a motion to strike evidence before a certification motion (or on a preliminary motion as a part of the certification motion itself) is: (a) a determination whether the impugned evidence is admissible to prove whether there is some basis in fact for the common issue; (b) a determination of whether admissible evidence should be excluded by some rule of evidence; and (c) a discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence, including the consumption of time, prejudice, and the risk of confusing the trier of fact.

[37] Therefore, on this motion in the immediate case, I shall not determine Smith & Wesson’s trick proposition, but I will address its genuine and acceptable challenge to have Mr. Price’s affidavit evidence in paragraphs 19 to 25 and paragraphs 29 to 34 struck from the record for the certification motion.

[38] Keeping within my lanes for this preliminary evidentiary motion, I shall be able to explain why Mr. Price’s evidence should be struck with leave to the Plaintiffs to file additional expert’s or experts’ opinions, as they may be advised, in addition to Mr. Chapman’s affidavit, with respect to the design aspects of their negligence claim.

[39] It is somewhat an oversimplification of the explanation of why Mr. Price’s evidence should be struck, but I am in general agreement with Smith & Wesson’s transparent submission that expert evidence is required in the immediate case to establish some basis in fact for the proposition that there has been design negligence in the manufacture of the M&P^®40 handgun design. It shall be for the expert(s) to explain the relevance of the foreign patents and the other evidence as some basis in fact for the alleged design defects. In short, Mr. Price is not the medium for the message.

[40] In this last regard, I shall also explain below why I do not regard Mr. Chapman as being the expert required for the certification motion in the immediate. This is, however, not to say that Mr. Chapman’s evidence should not be part of the certification motion. His evidence about the legal principles that govern the issuance of a patent in the United States might assist me in construing the patents and their relationship to the issues relating to negligent design. However, a different expertise is required for the determination of whether there is some basis in fact for a common issue about design negligence. What is required in this design negligence case to connect the dots of the some-basis-in-fact standard is an expert in handgun design.

[41] Still by way of an oversimplified explanation of my decision to strike Mr. Price’s evidence, it may be said that the outcome of Smith & Wesson’s motion to strike is similar to the outcome of what occurred in Vester v. Boston Scientific Ltd.[^3] In that case, the plaintiffs failed to show some basis in fact for a design defect across the nine Boston Scientific medical device products at issue. In that case, I adjourned the certification motion, and I permitted the plaintiffs to have their experts specify what precisely was wrong with the Type I polypropylene mesh in each of Boston Scientific’s nine products. In that case, I relied on s. 5(4) of the Class Proceedings Act, 1992, which provides that the court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. In my opinion, the immediate case is similar in that it wants for an expert to provide some basis in fact for a design negligence common issue. It is fortuitous that this has become apparent before the certification motion rather than during it as occurred in the Vester case.

[42] Thus, in my opinion, the case at bar is an appropriate case for a rescheduling of the certification motion to permit the Plaintiffs to file that additional expert evidence. My more detailed explanation for this decision follows.

1. Certification: General Principles and the Some-Basis-in-Fact Standard

[43] As background information to explain my decision to strike Mr. Price’s evidence, the first matter to discuss is the general principles for certification and the some-basis-in-fact standard.

[44] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (a) the pleadings disclose a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (c) the claims of the class members raise common issues; (d) a class proceeding would be the preferable procedure for the resolution of the common issues; and (e) there is a representative plaintiff who: (i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and (iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[45] For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers.[^4] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^5] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (a) to provide access to justice for litigants; (b) to encourage behaviour modification; and (c) to promote the efficient use of judicial resources.[^6]

[46] For certification, the plaintiff in a proposed class proceeding must show some basis in fact for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^7]

[47] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^8] In particular, there must be a basis in the evidence to establish the existence of common issues.[^9] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[^10]

[48] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^11] In Pro-Sys Consultants Ltd. v. Microsoft Corp.,[^12] Justice Rothstein observed that there is limited utility in attempting to define some basis in fact in the abstract and each case must be decided on its own facts.

[49] On a certification motion, evidence directed at the merits may be admissible if it also bears on the requirements for certification but, in such cases, the issues are not decided on the basis of a balance of probabilities, but rather on the much less stringent test of some basis in fact.[^13] The evidence on a motion for certification must meet the usual standards for admissibility.[^14] While evidence on a certification motion must meet the usual standards for admissibility, the weighing and testing of the evidence is not meant to be extensive, and if the expert evidence is admissible, the scrutiny of it is modest.[^15]

[50] The heart of a class proceeding is the common issues and from a factual perspective, the Plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and, (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class Members and the proposed common issues.[^16]

2. The Admissibility of Evidence for a Certification Motion

[51] As background information to explain my decision to strike Mr. Price’s evidence, the second matter to discuss is the admissibility of evidence for a certification motion.

[52] A certification motion is an interlocutory motion, and pursuant to rule 39.01 (4) of the [Rules of Civil Procedure][^17] hearsay evidence is admissible on a motion. Rule 39.01 (4) states:

39.01 (4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[53] The Rules of Civil Procedure permit hearsay evidence for motions. A statement in an affidavit that: (a) does not state the source of the affiant’s information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part.[^18]

[54] Thus, for an interlocutory motion, rule 39.01 (4) provides a limited exception to the general rule that hearsay evidence is not admissible; however, hearsay about contentious matters about which there is serious dispute between the parties, or hearsay evidence submitted to avoid cross-examination on a material issue, should be struck from the offending affidavit or disregarded by the court as inadmissible evidence.[^19]

[55] Rule 25.11 of the Rules of Civil Procedure provides a means to strike evidence from an affidavit proffered for a motion. Rule 25.11 states:

25.11. The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of process of the court.

[56] Similar to the court’s jurisdiction to strike paragraphs in pleadings, or documents filed on an application, the court may strike out paragraphs in an affidavit that are frivolous, scandalous, or vexatious or that may prejudice or delay the fair hearing of a motion.[^20] Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out.[^21]

[57] Evidence may be excluded if its probative value is overborne by its prejudicial effect, including the tendencies: to yield irrational conclusions; to confuse, mislead, or distract the trier of fact's attention from the main issues; to unduly occupy the trier of fact's time; and to surprise the opponent unfairly and to impair a fair hearing.[^22]

[58] While a certification motion has a unique standard of proof, it remains a normal interlocutory motion with respect to the admissibility of evidence, including hearsay evidence. While the evidentiary burden on a certification motion is the low some-basis-in-fact test, that burden must be discharged by admissible evidence; the evidence tendered on a certification motion must meet the usual criteria for admissibility.[^23] On a certification motion, the court has an important gate-keeping role with respect to the admissibility of evidence, and it is not appropriate or fair to shirk that responsibility by saying let it in, and the objections will go to weight rather than admissibility.[^24]

3. The Role of Experts on a Certification Motion

[59] As background information to explain my decision to strike Mr. Price’s evidence, the third matter to discuss is the role of experts on a certification motion.

[60] As a general rule, opinion evidence is not admissible; witnesses testify as to the facts which they perceived, not as to the inferences -- that is, the opinions -- that they drew from their perceptions.[^25] There is, however, an exception for witnesses duly qualified to express an expert’s opinion.[^26] A witness that is qualified by education or experience to provide the trier of fact with an opinion that is outside the trier of fact’s knowledge and experience may provide an opinion to assist the trier of fact to come to his or her own conclusion.[^27] For a witness to be qualified as an expert, his or her opinion must be relevant and necessary to assist the trier of fact and not precluded by an exclusionary rule. To be qualified as an expert witness, the witness must be independent, objective and unbiased, and the witness should not be or become the advocate for the litigant who retained and called him or her to testify.[^28]

[61] As confirmed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co.,[^29] there is a two-stage test for the admission of opinion evidence. In the first stage, (the threshold stage), the party proffering expert evidence must satisfy the four factors from R. v. Mohan,[^30] which are: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of an exclusionary rule; and (4) qualification as an expert. There is a fifth factor in cases in which the expert’s opinion is based on novel or contested science or science used for a novel purpose and in these cases, the reliability of the underlying science for that purpose must be established.[^31]

[62] In the second stage, (the gatekeeper stage), the court makes a cost-benefit discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence including the consumption of time, prejudice, and the risk of confusing the trier of fact.

[63] The court must take seriously the role of gatekeeper and scrutinize the expert evidence at the time it is proffered, and not allow too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.[^32]

[64] There are many genres of class proceedings, and it is not possible to be categorical about whether an expert’s testimony is required to establish some basis in fact for the certification criteria. It can, however, be said that an expert’s testimony is a frequent occurrence in many types of class proceedings and in some genres of class proceeding a very frequent occurrence approaching inevitability. This frequency of expert testimony is not surprising because class proceedings, regardless of their genre, require some factual theory for a cause of action to be advanced on behalf of a group of class members. Theories typically require theorists, which is to say the factual theories for class proceedings typically require an expert to explain the theory of the case.

[65] There are some genres of class proceedings where an expert’s testimony for the certification motion may not be necessary, and even in genres of class proceedings where an expert’s testimony is regarded as de rigueur, there may be cases where an expert’s testimony is proffered out of an abundance of caution.

[66] In many class actions, tactically, it may be useful for a plaintiff to proffer an expert’s testimony regardless of whether it is strictly necessary or advanced out of an abundance of caution to draw out the defendant to show its own cards with expert evidence of its own.

[67] While the scrutiny of expert evidence will be rigorous when an action reaches the stage where the onus of proof is on the balance of probabilities, on a certification motion, the scrutiny is much attenuated under an evidentiary microscope dialed to the some-basis-in-fact standard.

4. The Elements of a Design Negligence Cause of Action

[68] As background information to explain my decision to strike Mr. Price’s evidence, the fourth matter to discuss is the elements of a design negligence cause of action.

[69] 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.[^33]

[70] 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.[^34]

[71] 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.,[^35] Justice Smith 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.

[72] 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.[^36] 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.[^37]

[73] 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.[^38] 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.[^39] 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.[^40]

[74] In Rentway v. Laidlaw,[^41] Justice Granger 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.

[75] In the immediate case, in the context of the cause of action analysis of Phase 1 of the certification motion, I stated the following about the design negligence cause of action in the immediate case at paragraphs 102 - 109:[^42]

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[^43] 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.

5. Design Negligence, Patents, and Authorized User Technology for Firearms

[76] With the above background, it is now possible to address, Smith & Wesson’s submissions that Mr. Price’s evidence about design negligence, patents, and authorized user technology should be struck.

[77] Smith & Wesson submits that:

a. the foreign patents referred to in Mr. Price’s affidavit cannot and should not be interpreted in the absence of an expert skilled in the art to which the patents relate;

b. in the absence of expert evidence of the legal principles that govern the issuance and interpretation of a patent in the United States, the court will have no assistance in determining any issues related to negligent design;

c. the court cannot reasonably and properly infer from the existence of the U.S. patents that there is some basis in fact for any common issues of negligent design;

d. in the absence of an expert’s testimony, the U.S. patents have no probative value on the certification motion;

e. in addition to the U.S. patents lacking any probative value, the foreign patents are highly prejudicial to a fair hearing of the certification motion because in the absence of an expert to proffer the patents into evidence, the patents would have a tendency to yield irrational conclusions, to confuse, mislead, or distract the trier of fact's attention from the main issues, to unduly occupy the trier of fact's time, and to impair a fair hearing; and

f. the patent documents ought, therefore, to be excluded because their prejudicial effect outweighs their probative value.

[78] I do not agree with every aspect of Smith & Wesson’s submissions, but I do agree with the spirit of those submissions. Ultimately, if this design negligence case is certified, it will require an expert skilled in the design of handguns to explain why Smith & Wesson was negligent in designing the M&P^®40 handgun by failing to adopt authorized user technology.

[79] During, the argument of the motion to strike, the Plaintiffs’ counsel conceded that should the action be certified, there would be an expert testimony about the design defect. However, Plaintiffs’ counsel submitted that at this pre-certification stage of the action, Mr. Price’s layperson's evidence about the existence of the patents establishes some basis in fact for the common issue that there was design negligence. However, as I noted in the introduction to the analysis and discussion portion of these Reasons for Decision, I cannot make a determination of whether the mere existence of the patents establishes some basis in fact for the common issue that there was design negligence.

[80] Mr. Price’s layperson’s evidence is valuable only in proving that there are alternate designs for handguns some of which utilize authorized user technology. Although the existence of these patents might be relevant to the determination of whether there was design negligence in the manufacture of the M&P^®40 handgun, Mr. Price’s testimony does not and cannot carry the probative analysis into the territory for which he has something meaningfully say about design negligence. An allegation of design negligence involves much more than the availability of alternative designs. The risk-utility analysis of a design negligence case raises complex engineering issues beyond the experience and knowledge of a lay person.

[81] In other words, in the immediate case, it has to be someone other than a layperson to provide the factual logic and theory to explain why Smith & Wesson’s having seven patents that utilized authorized user technology is some basis in fact that there is a common issue about design negligence. In the immediate case, an expert is required to connect the some-basis-in-fact dots about the design negligence common issue.

[82] In this last regard, I need to make it clear that although I conclude it has to be someone other than Mr. Price to be the medium to provide the evidence to explain why Smith & Wesson’s having seven patents that utilized authorized user technology is some basis in fact for a common issue of design negligence, I am making no final conclusion as to whether Mr. Chapman’s expertise in patents is the required expertise to show some basis in fact of design negligence.

[83] My tentative view, however, is that although Mr. Chapman’s evidence may be relevant and helpful to the some-basis-in-fact determination, his expertise may be just ancillary to the expertise that is actually required for the certification of the action and that ultimately will be required if the action is certified. At first blush, it strikes me that while Mr. Chapman may be qualified to be an expert, he would not be qualified to be an expert about design defects and about the risk-benefit analysis associated with whether a manufacturer designed a product negligently. That analysis typically involves engineering expertise and some economic or commercialization expertise.

[84] As already mentioned above, Plaintiffs’ counsel conceded during argument that should the action be certified, then there would be expert testimony about the design defect at the common issues trial. I understood this concession to be an allusion to an expert in the design of handguns and not an expert in construing patents. If this action is certified it is already obvious that Mr. Chapman’s evidence will not be the only word about design negligence.

[85] During argument, Plaintiffs’ counsel submitted that it was premature to retain an expert pre-certification and rather the expert would be briefed with the benefit of Smith & Wesson having made documentary discovery and having been examined for discovery.

[86] I disagree with this submission. Pre-certification the plaintiff must meet the some-basis-in-fact standard, which is undoubtedly low, but as I noted in another case, it is not subterranean.[^44] In the immediate case, there is nothing unfair and it is normative in class actions to have the plaintiff provide some expert’s testimony to establish the some-basis-in-fact theory of the case and about whether the expert has a methodology to prove that theory.

[87] It may take documentary discovery and examinations for discovery to provide the data to test the theory of the case. However, it is not asking too much of a plaintiff to demonstrate some scientific basis in fact for the theory of his or her class action as a prerequisite to certification of the common issues.

[88] However, in saying that I disagree with the Plaintiffs’ counsel submission in the immediate case, I hasten to add that I do not necessarily agree with Smith & Wesson’s submissions as to what precisely is required in the immediate case to establish some basis in fact for a design negligence case.

[89] In its factum, Smith & Wesson makes elaborate and lengthy submissions about, amongst other things, the evidentiary value, if any, of the existence of patents with a handgun design that differs from the design of the M&P^®40 handgun to the risk-benefit analysis that underlies a design negligence case. Smith & Wesson’s submissions will undoubtedly be repeated at the certification motion at which time it will be appropriate to decide whether the Plaintiffs have proffered the evidence they need to meet the some-basis-in-fact standard of proof.

[90] Once again, this is not the time on this motion to give weight to the testimony; this is the time to determine whether the testimony is admissible, and in the immediate case, this involves an examination of the reliability of the witness to provide the evidence. In the immediate case, Mr. Price is reliable about many things relevant to certification; however, he does not have the expertise to help the court determine whether there is a common issue about design negligence.

[91] In the result, I strike paragraphs 29 to 34 of Mr. Price’s affidavit. I grant the Plaintiffs leave to file additional expert’s or experts’ opinions, as they may be advised, in addition to Mr. Chapman’s affidavit, with respect to the design aspects of their negligence claim.

6. Mark A. Chapman’s Evidence

[92] Strictly speaking, I do not have to grant the Plaintiffs leave to deliver Mr. Chapman’s late arriving affidavit. Smith & Wesson has not delivered any responding material for the certification motion and Mr. Chapman’s affidavit is simply supplemental to Mr. Price’s affidavit.

[93] I have already provided above, my tentative view that Mr. Chapman’s evidence is ancillary to the some-scientific-basis-in-fact evidence that the certification motion actually requires.

7. The Evidence about Firearm-Related Crime Statistics

[94] For essentially the same reasons that I struck Mr. Price’s evidence about the patents, I strike his evidence about firearm-related crime statistics. Mr. Price is not the person to give this hearsay evidence.

[95] I leave it to the Plaintiffs to proffer the appropriate witness, if necessary.

[96] I add the adverbial “if necessary” because for the purposes of the certification motion, the evidence about firearm-related crime statistics may be peripheral to the determination of the certification criteria.

[97] The Plaintiffs submit in their factum that this evidence is relevant to the duty of care issues associated with Smith & Wesson having foreseen the harm of not designing the M&P^®40 handgun with authorized user technology. Accepting for the sake of argument that that submission is correct, it seems preferable to simply ask one of Smith & Wesson’s witnesses for the certification motion what Smith & Wesson actually knew about gun crime and its connection to authorized user technology.

8. The Authorized User Technology Agreement Signed in 2000

[98] Lastly, for much the same reasons that I struck Mr. Price’s evidence about firearm-related statistics, I strike his evidence about the Authorized User Technology Agreement signed in 2000. This topic is better addressed by directly asking Smith & Wesson’s witnesses during cross-examinations relevant questions about the Authorized User Technology Agreement.

[99] I appreciate that Smith & Wesson may refuse to answer, but if it does refuse to answer, then the merits of its refusal in the context of a certification motion can be appropriately dealt with on a refusals motion.

[100] At the present time, what I can properly decide is that Mr. Price is not the one to give hearsay evidence about the Authorized User Technology Agreement and he is not the person to establish the relevance of this agreement to the design negligence common issues.

E. Conclusion

[101] For the above reasons, Smith & Wesson’s motion is granted. On consent, costs of this motion are to be in the cause of the certification motion.

Perell, J.

Released: December 24, 2021

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Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 31177 (ON SC), [2009] O.J. No. 2531 at para. 21 (S.C.J.); Dumoulin v. Ontario, [2005] O.J. No. 3961 at para. 25 (S.C.J.). [^10]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110. [^11]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102. [^12]: 2013 SCC 57 at para. 111. [^13]: Cloud v. Canada (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 at para. 50 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at paras. 16-26. [^14]: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744; Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3692 (Div. Ct.); Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 at para.13; Ernewein v. General Motors of Canada Ltd. 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545. [^15]: Griffin v. Dell Canada Inc., 2009 3557 (ON SC), [2009] O.J. No. 418 at para. 76 (S.C.J.). [^16]: Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.). [^17]: R.R.O. 1990, Reg. 194. [^18]: Orbixa Technologies Inc. v. Ribeiro, 2015 ONSC 4821, leave to appeal refused, 2015 ONSC 7184; Ontario v. Rothmans Inc., 2011 ONSC 5356; Airia Brands Inc. v. Air Canada, 2011 ONSC 4003; Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.); Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), [2001] O.J. No. 750 (Div. Ct.); Canada Post Corp. v. Smith (1994) 1994 10544 (ON SC), 20 O.R. (3d) 173 (Div. Ct.); Cameron v. Taylor (1992), 1992 7575 (ON SC), 10 O.R. (3d) 277 (Gen. Div.). [^19]: Nacierio v. McLarty, 2020 ONSC 6803 at paras. 43-46; Jacobson v. 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Canon Canada Inc., 2011 ONSC 6571 at para. 68, aff’d 2012 ONSC 3692 (Div. Ct.) [^25]: Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819. [^26]: R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24. [^27]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24. [^28]: Moore v. Getahun, 2015 ONCA 55, leave to appeal refused [2015] S.C.C.A. No. 119; Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297 leave to appeal refused [2012] S.C.C.A. No. 309; Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600. [^29]: 2015 SCC 23. [^30]: 1994 80 (SCC), [1994] 2 S.C.R. 9. [^31]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 23; R. v. Trochym, 2007 SCC 6; R. v. J.-L.J., 2000 SCC 51. [^32]: R. v J.-L.J., 2000 SCC 51. [^33]: Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.); Gallant v. Beitz (1983), 1983 1905 (ON SC), 42 O.R. (2d) 86 (H.C.J.). [^34]: Cantlie v. Canadian Heating Products Inc., 2017 BCSC 286 at para. 197; Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 at paras. 135-137, aff'd 2013 ONSC 1169 (Div. Ct.); Kreutner v. Waterloo Oxford Co-operative Inc. (2000), 2000 16813 (ON CA), 50 O.R. (3d) 140 at para. 8 (C.A.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.). [^35]: (1986), 1986 2502 (ON SC), 58 O.R. (2d) 53 at p. 60 (S.C.J.). [^36]: Daishowa-Marubeni International Ltd. v. Toshiba International Corporation, 2010 ABQB 627; Tabrizi v. Whallon Machine Inc., 1996 3532 (BC SC), [1996] B.C.J. No. 1212 at paras. 28-42 (B.C.S.C.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.); Nicholson v. John Deere Ltd., (1986), 1986 2502 (ON SC), 58 O.R. (2d) 53 (S.C.J.). [^37]: Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603 (S.C.J.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.). [^38]: Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095. [^39]: Andersen v. St. Jude Medical Inc., 2012 ONSC 3660 at para. 61. [^40]: Andersen v. St. Jude Medical Inc., 2012 ONSC 3660 at para. 62. [^41]: [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.). [^42]: Price v. Smith & Wesson Corp., 2021 ONSC 1114 at paras. 102-109. [^43]: 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 (Rockport Publishers Inc., Beverly, Mass., 2003). [^44]: Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487 at para. 134, rev’d but not on this point, Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 at para. 27 (Div. Ct.)