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

DATE: 20240305

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, Adam Bazak, Emily Oladosu, Michel W. Drapeau, and Joshua Juneau for the Plaintiffs

Scott Maidment, Jennifer Dent, Connor Campbell and Anthony Labib for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: January 22-25, 2024

Contents

A. Introduction and Overview.. 2

B. Procedural and Evidentiary Background. 4

1. Procedural History. 4

2. Class Definition. 9

3. Common Issues. 9

C. Negligence in Design. 10

D. Factual Background. 12

1. The Danforth Shooting. 12

2. Handgun Use and Regulation in Canada. 12

3. Handgun Misuse in Canada. 13

4. The Authorized User Technology Agreement 14

5. The M&P®40 and the Expert Evidence of Drs. Harrison and Edmonson. 16

(a) Smith & Wesson’s M&P®40. 16

(b) Smith & Wesson’s Patents. 17

(c) Dr. Harrison’s Evidence. 18

(d) Dr. Edmonson’s Evidence. 18

6. The Negligent Design Evidence. 19

7. The Causation Evidence. 19

E. Certification General Principles. 20

F. Cause of Action Criterion. 22

G. Class Definition Criterion. 22

H. Common Issues Criterion. 22

1. General Principles. 22

2. Common Issue No. 1: Was the Defendant negligent in failing to incorporate authorized user technology in the Handgun used in the Danforth Shooting?. 23

3. Common Issue No. 2: Did the failure to incorporate authorized user technology in the Handgun cause, contribute to or individually harm or increase the risk of harm to the members of the Classes 1 and 2? 27

4. Common Issue No. 3: Is the Defendant liable to family members within the meaning of s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, of all persons in Classes 1 and 2?. 30

5. Common Issue No. 4: Is this an appropriate case to award punitive damages against the Defendant? 30

6. Common Issue No. 5: Is this an appropriate case for the Court to order an aggregate assessment of damages under s. 24 of the Class Proceedings Act, 1992?. 31

I. Preferable Procedure Criterion. 33

1. General Principles. 33

2. Discussion and Analysis – Preferable Procedure Criterion. 34

J. Representative Plaintiff Criterion. 35

1. General Principles – Representative Plaintiff Criterion. 35

2. Discussion and Analysis. 35

K. Conclusion. 36

PERELL, J.

A. Introduction and Overview

[1] This is a proposed class action under the Class Proceedings Act, 1992.[^1] The Plaintiffs are: (a) Samantha Price, (b) her father, Kenneth Price, (c) her mother, Claire Smith, (d) Skye McLeod, (e) her father, Patrick McLeod, and (f) her mother, Jane McLeod. The Defendant is Smith & Wesson Corp., the manufacturer of the M&P®40 semi-automatic handgun.

[2] The tragic events giving rise to this proposed class action, which events have come to be known as the “Danforth Shooting,” were that an M&P®40, which does not utilize “authorized user” or “smart gun” technology was stolen. The M&P®40 came into the hands of 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 and injured others, some of whom were shot and some of whom were injured fleeing 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.

[3] In 2019, the Plaintiffs commenced this action and after they moved for certification, I bifurcated the Certification Motion. In 2021, in Phase 1, I held that the Plaintiffs had satisfied the cause of action criterion for certification for an action in design negligence.[^2] The cause of action criterion is determined without any evidence and on the assumption that the material facts pleaded in the Statement of Claim are capable of proof.

[4] In Phase 2 of the Certification Motion, the Plaintiffs now move to satisfy the remaining four certification criteria. Unlike Phase 1, these four certification criteria require evidence in order to be satisfied.

[5] As I shall explain below, based on the evidence, the Plaintiffs satisfy the Class Definition Criterion, and they satisfy the Representative Plaintiff Criterion. However, the Plaintiffs do not satisfy the Common Issues Criterion and the Preferable Procedure Criterion, (which is to be determined using the test developed before the 2020 amendments to the Class Proceedings Act, 1992). Accordingly, with two unsatisfied certification criteria, I must dismiss the Certification Motion.

[6] By way of an overview, to satisfy the Common Issues Criterion, the Plaintiffs needed to establish that there is some basis in fact for a design negligence products liability cause of action. As the discussion below will demonstrate, this proof entails a great deal more than the assertion that the manufacturer of an inherently dangerous product does not have the right to manufacture an inherently dangerous article when a method exists of manufacturing the same article without risk of harm. Amongst other things, the Plaintiffs needed to show some basis in fact that the M&P®40 has a design defect, which is a vastly more difficult matter to prove than proving that Smith & Wesson had already developed patents for a prototype of a gun with authorized user technology.

[7] For Phase 2 of the Certification Motion, the Plaintiffs did not proffer evidence from an expert in firearm design, and it cannot be inferred from the expert and observation evidence that the Plaintiffs did proffer that there is some basis in fact for the allegation that the M&P®40 has a design defect. In the immediate case, the Plaintiffs established some basis in fact that Smith & Wesson had the capability of designing a prototype of a firearm with authorized user technology; however, there was no basis-in-fact evidence to show that there were any common issues about design negligence in the M&P®40 that was designed and then manufactured without authorized user technology.

[8] At its core, negligence in product design involves determining whether the designer made careless decisions about the composition of his or her product. Design thinking involves empathy for the product user’s needs and creativity in meeting those needs. Determining whether there is a design defect involves a multifaceted analysis of the purpose of the product and an analysis of the choices available to the designer as to how a product with those purposes could and should be manufactured. Determining how a product can and should be designed involves decisions about the product’s capabilities, characteristics, components, technology, energization, dependencies, materials, shape, size, weight, quality, flexibility, strength, durability, density, porosity, dangers, safety, etc. An analysis of design defects involves an analysis and testing of the consequences of the design choices on the needs of the user. An analysis of design defects involves an analysis and testing of the consequences of the design choices to the utility, efficiency, durability, safety, and expense of manufacturing the product for its intended purposes.

[9] In the immediate case, it can obviously be inferred that the M&P®40 creates a substantial risk of harm; however, it cannot be inferred that there is some basis in fact that the Plaintiffs’ proposed alternative designs for an M&P®40 utilizing authorized user technology would have minimized that risk of harm at a reasonable cost without impairing the utility of the M&P®40 for its intended use as a military and police weapon or even for just its use as a handgun for whatever purposes.

[10] The Plaintiffs were correct in asserting that a certification motion is not a determination of the merits. However, the merits of the cause of action are not irrelevant to the certification criteria. For other than the cause of action criterion, there is some non-determinative probing of the merits at least to the extent of determining whether there is some basis in fact to having the merits determined. In the immediate case, the Plaintiffs did not establish some basis in fact to have the case move forward for a determination on the merits.

[11] In the immediate case, the Plaintiffs have a public policy argument that all handguns should have authorized user technology as a product standard, but a public policy argument is not the same thing as a design negligence cause of action against a handgun manufacturer who made design decisions to not incorporate authorized user technology in a handgun that it was manufacturing as a military and police weapon. In the immediate case, the Plaintiffs offered polemic but not proof of the Common Issues Criterion and the Preferable Procedure Criterion.

[12] It is a remarkable feature of the immediate case that unlike most if not all products liability class action Certification Motions, Smith & Wesson did not call any expert evidence on the critical issue, which in this case was handgun design. I will return to this remarkable feature in the discussion below, but this aspect of the case does not alter the circumstance that the Plaintiffs did not satisfy the very low standard of establishing some basis in fact for the Common Issues Criterion and for satisfying the Preferable Procedure Criterion.

B. Procedural and Evidentiary Background

1. Procedural History

[13] On December 16, 2019, the Plaintiffs commenced this action with a Statement of Claim.

[14] The Plaintiffs’ lawyers of record are Gowling WLG (Canada) LLP and Michel Drapeau Law Office.

[15] The Plaintiffs have obtained assistance from the Ontario Class Proceedings Fund, which has agreed to provide disbursement funding. There is a contingency fee retainer, and the Plaintiffs have an indemnity for adverse costs consequences in relation to this proceeding from the Class Proceedings Fund.

[16] Smith & Wesson’s lawyer of record is McMillan LLP.

[17] Smith & Wesson has not delivered a Statement of Defence.

[18] On July 6, 2020, I issued a File Direction Order bifurcating the Certification Motion. Phase 1 of the Certification Motion would determine the cause of action criterion of the certification test under the Class Proceedings Act, 1992, and Phase 1 would also decide the Rule 21 motion brought by Smith & Wesson, which sought to strike the Plaintiffs’ action as not disclosing a reasonable cause of action. If the cause of action criterion was satisfied, then Phase 2 would address the remaining four certification criteria.

[19] On August 20, 2020, the Plaintiffs delivered an Amended Statement of Claim dated August 17, 2020. 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 Statement of Claim asserted that Smith & Wesson was negligent in failing to incorporate any kind of safety mechanism in the M&P®40 that would prevent unauthorized users, like the gunman, from firing the weapon.

[20] Authorized user technology involves “personalized firearm safety” measures that prevent unauthorized users from firing lost or stolen weapons. The Amended Statement of Claim alleges that Smith & Wesson’s familiarity with authorized user technology is reflected in the Authorized User Technology Agreement that Smith & Wesson signed with the U.S. government in 2000.

[21] The Amended Claim alleged that it was reasonably foreseeable that Smith & Wesson products without authorized user technology, like the M&P®40 that was used in the Danforth Shooting, would, in the hands of unauthorized users, cause substantial harm to members of the public. In support of this contention, the Amended Claim cites published statistical information showing a high rate of illegal handgun diversion and the use of illegally diverted handguns to harm innocent third parties.

[22] In Phase 1 of the Certification Motion, by reasons for decision dated February 11, 2021, I struck out the Plaintiffs’ claims for public nuisance and strict liability. I concluded that the Plaintiffs’ cause of action for design negligence satisfies the cause of action criterion for the certification of their class action. In Phase 1 of the Certification Motion, I dismissed Smith & Wesson’s Rule 21 motion to strike the design negligence cause of action.

[23] On June 30, 2021, the Plaintiffs delivered their motion record for the completion of the Certification Motion.

[24] The Plaintiffs’ Certification Motion was supported by the 412-page affidavit of the Plaintiff Kenneth R. Price dated June 28, 2021.

[25] On October 5, 2021, Smith & Wesson brought a motion for an order striking out certain paragraphs and exhibits in Mr. Price’s affidavit. The impugned evidence proffered by Mr. Price was 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”).

[26] 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 sought to proffer Mr. Chapman’s evidence to respond to any potential technical concerns regarding admitting U.S. patent documents through a lay witness like Mr. Price.

[27] On December 24, 2021, I granted Smith & Wesson’s motion to strike various paragraphs of Mr. Price’s affidavit, and I granted 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.[^3] I said 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.

[28] On March 31, 2022, the Plaintiffs delivered a Supplementary Motion Record (488 pages) comprised of the following:

a. The affidavit dated March 29, 2022 of Najma Ahmed. Dr. Ahmed has a BSc. (1988) in Physiology from Western University, a Ph.D. (1991) and a M.D.C.M. (1992) from McGill University. From 2001, she has been a Trauma Surgeon at St. Michael’s Hospital in Toronto, and she is now Surgeon-in-Chief at the Hospital. She has held various academic positions at the University of Toronto. She has considerable experience and scholarship in the treatment of the victims of gun violence, including the treatment of victims of the shooting that occurred on July 22, 2018 on Danforth Avenue in Toronto. She has co-authored three peer-reviewed articles relating to the study, treatment, and prevention of gunshot wounds. She has made presentations and spoken about gun violence before bodies like the American College of Surgeons and the American Surgical Association.

b. The affidavit dated March 30, 2022 of Ralph Blake Brown. Professor Brown, of Halifax, Nova Scotia is a Professor of History at Saint Mary’s University, and an adjunct professor at the Schulich School of Law at Dalhousie University. He has a BA (Hon.) in History from Acadia University, an MA in History from York University, an MA in Criminology from the University of Toronto, an LLB from the University of Toronto, and a Ph.D. in History from Dalhousie University. His main field of research is Canadian legal history. He has authored numerous articles about guns and gun control in Canada and was an author or co-authored: A Trying Question: The Jury in Nineteenth-Century Canada (2009); Arming and Disarming: A History of Gun Control in Canada (2012); and A History of Law in Canada, Volume 1: Beginnings to 1866 (2018). He taught a course at Saint Mary’s University on the history of firearm use and regulation entitled “Guns, Violence and the Law.” He has published articles addressing the history of gun control and firearm policy in numerous newspapers. He is a member of the Royal Society of Canada.

c. The affidavit dated November 26, 2021 of Mark A. Chapman. Mr. Chapman is a U.S. lawyer whose law practice focuses on patent infringement lawsuits. He has a B.Sc. in Engineering Physics (1991) from Queen’s University, an LL.B and a B.C.L. (1995) from McGill University. He has been called to the bar in Ontario and in New York State. He clerked for Justice Major in the Supreme Court of Canada. In the U.S., he has worked with Sullivan & Cromwell, Kenyon & Kenyon, and he joined his current firm Haug Partners in 2021.

d. The affidavit dated March 29, 2022 of Peter Edmonson. Dr. Edmonson is an electrical engineer. He has a diploma in electronics technology from Mohawk College and between 1975 and 1995 he received BEng., MEng., and PhD degrees, all in Electrical Engineering, from McMaster University. He is a Member of the Professional Engineers of Ontario and a Senior Member of the Institute of Electrical and Electronic Engineers. He has contributed to 30 patents granted in the United States. The subject-matter of the patents includes mobile telecommunications techniques, small antenna design, detection methods, and biosensor and RFID designs. He has been a faculty member with the Department of Electrical Technology at Mohawk College and also a lecturer in Electrical and Computer Engineering at McMaster University. In 1994, he joined Research in Motion Limited ("RIM") and developed applications incorporated into BlackBerry devices. From 2005 to 2016, he was employed in both a Canadian manufacturing company and a U.S. biotechnology biosensor company.

e. The affidavit dated March 29, 2022 of Pamela Goode. Ms. Goode is a retired lawyer, who during her thirty-year career worked for the Ministry of the Attorney General. Amongst other things, she was a member of the Ministry's Guns & Gangs Initiative and legal counsel to the Chief Firearms Officer of Ontario providing legal advice respecting the Firearms Act, and the firearms and weapons provisions of the Criminal Code. She was a co-author of four editions of the Annotated Firearms Act & Related Legislation published by Butterworths and LexisNexis.

f. The affidavit dated March 28, 2022 of Joshua C. Harrison. Dr. Harrison has a B.Sc. in Mechanical Engineering from the University of Southern California (1987) and an MSc. (1989) and a Ph.D. (1992) in Mechanical Engineering from the University of California. He worked as a practising professional engineer and as a tenure-track academic at the Dept. of Mechanical Engineering of the University of Queensland. He is the inventor of ten U.S. patents. In 2002, he graduated with a J.D. from Stanford Law School and was admitted to practise law before the United States Patent & Trademark Office as a patent attorney. He was a member of the U.S. Marine Corps and was a commissioned officer in the U.S. Army Reserve. He is certified by the National Rifle Association as a pistol instructor, was formerly certified by the California Dept. of Justice as a firearms safety instructor and is licensed to carry a concealed handgun in the State of California since 2014.

g. The affidavit dated March 24, 2022 of Dennis Henigan. Mr. Henigan is a U.S. lawyer who formerly worked for the Center to Prevent Handgun Violence. He was called to give evidence as a witness to the signing of a settlement agreement dated March 17, 2000 between several U.S. cities and Smith & Wesson and other firearm manufacturers.

h. The affidavit dated March 31, 2022 of Jooyoung Kim Lee. Dr Lee is an Associate Professor of Sociology at the Munk School of Global Affairs at the University of Toronto. He is also a fellow at Yale University, Urban Ethnography Project. Since 2018, he has been an International Scholar at the Penn Injury Science Center at the University of Pennsylvania. He has a B.A. in Political Science from the University of California at Berkeley (2003), and an MA (2006) and a Ph.D. (2009) in sociology from the University of California at Los Angeles. A focus of Dr. Lee’s writing, and teaching, is gun violence, particularly within ethnic urban communities in the United States. He has published articles about gun violence in various media outlets. He has been the recipient of several grants that relate to the study of gun violence and the medical treatment of gunshot victims in Canada. Dr. Lee’s affidavit provides statistics concerning gun tracing and lost and stolen guns used in crimes.

[29] In July 2022, the Plaintiffs delivered supplementary affidavits dated July 5, 2022 (6 pages) and July 29, 2022 (24 pages) from Dr. Edmonson.

[30] In October 2022, the Plaintiffs delivered a supplementary affidavit (70 pages) dated October 17, 2022 from Dr. Lee. For this affidavit, the Plaintiffs’ Counsel provided Dr. Lee with previously unavailable information that they had obtained from the RCMP pursuant to the federal Access to Information Act and from the Solicitor General pursuant to the provincial Freedom of Information Act. The statistical information was about firearms used in crimes including lost and stolen firearms.

[31] Also in October 2022, the Plaintiffs delivered an affidavit dated October 5, 2022 from Ernst Mauch of Dunningen, Germany. Mr. Mauch has a Mechanical Engineering degree (1978) from Furtwangen University. In 1978, he joined Heckler & Koch GmbH, and by 1995, he was the Managing Director of R&D. He was responsible for researching, designing, developing, producing, and marketing various small arms. He is the inventor of twelve patents including a patent for electronic authorized user technology. In 2006, he became CEO of Armatix GmbH, a startup that was developing radio-frequency identification (“RFID”) smart technology for handguns. While at Armatix, until his retirement in 2015, he was involved in the research, design, development, and sale of the Armatix iP1, a .22 calibre semi-automatic pistol that could be fired only if the user was wearing a wristband with a wireless RFID connection to the handgun. He is the inventor of two Armatix patents relating to authorized user technology devices.

[32] As I shall explain further below, due to unfortunate circumstances, Mr. Mauch’s affidavit was withdrawn.

[33] On December 2, 2022, the Plaintiffs delivered a second supplementary affidavit (11 pages) dated December 2, 2022 from Dr. Lee. For this affidavit, the Plaintiffs’ Counsel provided Dr. Lee with previously unavailable information that counsel had obtained from the RCMP pursuant to the federal Access to Information Act and from the Solicitor General pursuant to the provincial Freedom of Information Act. The statistical information was about tracing stolen firearms that are used in crimes.

[34] In March 2023, Smith & Wesson delivered affidavits dated March 15, 2023 and March 21, 2023 from Dorota Smolarz. Ms. Smolarz was then a law clerk at McMillan LLP, counsel for Smith & Wesson. Her affidavits attached the following documents without comment: (a) news articles and a YouTube video; (b) corporate documents of German arms maker Armatix GmbH; (c) a report by the Attorney General of New Jersey; and (d) excerpts from two versions of the Manual of Patent Examining Procedure published by the United States Patent and Trademark Office.

[35] In May 2023, the Plaintiffs delivered the third supplementary affidavit of Dr. Lee, an affidavit dated May 12, 2023 (29 pages). The information in this supplementary affidavit was similar to information in the other supplementary affidavits in that it provided statistical information on lost and stolen firearms. The information had been obtained in late 2022 and early 2023 from responses to Access to Information Act and Freedom of Information Act requests.

[36] Smith & Wesson elected not to cross-examine Dr. Lee on any of his four affidavits but planned to cross-examine Mr. Mauch, after the formalities of a Letter of Request to the German Court were finalized. For unfortunate reasons involving Mr. Mauch’s health and the health of members of his family, which for present purposes, I need not discuss, the cross-examination of Mr. Mauch did not occur. As noted above, Mr. Mauch’s affidavit was withdrawn, and his evidence does not form part of the record for the Certification Motion, save that some of Mr. Mauch’s deposition was mentioned in cross-examinations of other affiants.

[37] On July 31, 2023, Smith & Wesson cross-examined Mr. Chapman and Ms. Goode.

[38] On August 1, 2023, Smith & Wesson cross-examined Dr. Harrison.

[39] On August 9, 2023, Smith & Wesson cross-examined Dr. Edmonson, and the Plaintiffs cross-examined Ms. Smolarz.

[40] On October 2, 2023, Dr. Lee affirmed another affidavit (140 pages). The information in the fourth supplementary affidavit derives from a report released in early 2023 by the United States Bureau of Alcohol, Firearms, Tobacco, and Explosives that Dr. Lee only became aware of in August 2023.

[41] Also on October 2, 2023, the Plaintiffs brought motions for: (a) an Order granting them leave to file the Third and Fourth Supplementary Affidavits of Dr. Lee dated May 12, 2023 and October 2, 2023; and (b) for an Order that the Defendant Smith & Wesson provide answers and documents in response to questions taken under advisement or refused by Ms. Smolarz during her cross-examination on August 9, 2023. I dismissed the Plaintiffs’ motions.[^4]

[42] It is a remarkable feature of the immediate case that for Phase 2 of the Certification Motion, Smith & Wesson did not deliver any expert evidence.

2. Class Definition

[43] The Plaintiffs propose the following class definitions:

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&P®40 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&P®40handgun.

Class 3: Family Members

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

3. Common Issues

[44] The Plaintiffs originally proposed the following five 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 s. 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 s. 24 of the Class Proceedings Act, 1992?

[45] On the fourth day of the Certification Motion, for reasons that I shall come to below, the Plaintiffs withdrew Question No. 2, and substituted the following question:

2. Did the failure to incorporate authorized user technology in the Handgun cause, contribute to or individually harm or increase the risk of harm to the members of the Classes 1 and 2?

C. Negligence in Design

[46] In their factum, the Plaintiffs describe the theory of their case as follows:

The essence of the cause of action is that Smith & Wesson was aware of the risks posed by lost and stolen handguns yet sold products in Canada without any safety devices, mechanical or electronic, to prevent unauthorized use. Safety devices were not included even though the company’s products were frequently lost and stolen in Canada, recovered at Canadian crime scenes, and the subject of crime gun traces by Ontario law enforcement agencies. The Agreement Smith & Wesson made with government authorities in the United States, the patents obtained by Smith & Wesson for authorized user technology, and the actual sale of M&P®40 products in the United States with internal locking mechanisms, all show that Smith & Wesson recognized the risk of unauthorized use and developed technology to make its products less susceptible to unauthorized use. There is a basis in fact before the court for five proposed common issues, all of which depend on the Defendant’s conduct in exporting the Handgun to Canada without including any device, mechanical or electronic, to address the risk of unauthorized use and the later theft and misuse of the Handgun to cause devastating harm in the Danforth Shooting.

[47] The predominant and fundamental common issue in the immediate case is whether Smith & Wesson was negligent in designing the M&P®40 by failing to adopt authorized user technology.

[48] Since this case is exclusively a design negligence case, it is helpful to understand the law associated with negligence in design before analyzing whether there is some basis in fact to satisfy the common issues and preferable procedure criterion in the immediate case.

[49] 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.[^5]

[50] 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.,[^6] 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.

[51] 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 are safer and more economically feasible ways to manufacture the product.[^7]

[52] 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.[^8]

[53] 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.[^9] 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.[^10] At the heart of a negligent design claim is that the defendant unreasonably favoured his or her design choice for the alternative design choices identified by the plaintiff.[^11]

[54] 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.[^12]

[55] In Kreutner v. Waterloo Oxford Co-Operative Inc.,[^13] the Ontario Court of Appeal noted that to succeed in a claim of design negligence, the plaintiff must establish, among other things that there exists an alternative design that is safer and economically feasible. Feasibility in this context means more than that it is possible to manufacture a safer product; it means that the safer product can be manufactured without unduly impairing the utility of the product and without greatly increasing the product’s cost.[^14]

[56] In Rentway v. Laidlaw,[^15] 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.

[57] A Certification Motion is not a merits decision, but for a design negligence case to be certified, typically the plaintiff must show usually with expert evidence that: (a) there is a plausible methodology to prove on a class wide basis that the impugned design could cause the harms alleged to have occurred from the use of the product; and (b) there was an alternative and economical design that would have avoided the harms alleged.[^16]

D. Factual Background

1. The Danforth Shooting

[58] The M&P®40 that was used in the Danforth Shooting was manufactured by Smith & Wesson in Springfield, Massachusetts and lawfully exported to Toronto in 2013. It was registered on July 19, 2013 to North Sylva Co., a division of Parklands Manor Inc.

[59] On March 11, 2014, North Sylva Co. lawfully transferred the M&P®40 to Thomas Darren Treble, of 104 Main Street, Avonlea Saskatchewan, which is the address for Prairie Gun Traders.

[60] On September 14, 2016, Mr. Treble reported that the M&P®40 along with several other handguns had been stolen in a break and enter in the early morning hours of that day.

[61] Almost two years passed and somehow, the stolen M&P®40 came into the possession of Faisal Hussain.

[62] On Sunday July 22, 2018, around 10:00 p.m., 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 others, and to injure dozens as they fled the active shooter scene (the “Danforth Shooting”). The Danforth Shooting ended when, after exchanging gunfire with police officers, Mr. Hussain used the M&P®40 to kill himself.

[63] During the Danforth Shooting, Samantha Price (then 17 years old) was shot in the hip. Ms. Price’s friend, Reese Fallon (then 18 years old) was killed. Julianna Kozis, a 10-year-old child was killed. Danielle Kane (another teenager) was shot; the bullets shattered two of Ms. Kane’s vertebrae. She is now paraplegic and confined to a wheelchair. Ms. Price’s friend, Skye McLeod, (another teenager) was injured while fleeing the shooting. Eight victims of the rampage were treated at the trauma unit at St. Michael’s Hospital. Three of these victims were critically injured by gunshot wounds and required immediate, lifesaving, surgery.

[64] There are at least 34 persons within the proposed class definition of persons killed, shot, or otherwise injured, and the family members of those killed or injured.

2. Handgun Use and Regulation in Canada

[65] The Criminal Code[^17] and the Firearms Act,[^18] along with their subordinate regulations, govern the control of firearms in Canada. 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.”

[66] 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 license. Acquiring or possessing a restricted firearm like the M&P®40 is subject to stringent licensing requirements.

[67] The Canadian Firearms Registry is the national gun registry managed by the Canadian Firearms Program (CFP), which is a division of the Royal Canadian Mounted Police (RCMP). The CFP requires the registration of all prohibited and restricted firearms.

[68] 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. Under the Firearms Act,[^19] the storage regulations for individual firearm owners contemplated “secure locking devices” that could “only be opened or released by the use of an electronic, magnetic, or mechanical key.”

[69] In 2019, there were about 900,000 privately owned handguns in Canada, of which 99%, are restricted to gun collectors or target shooters.

3. Handgun Misuse in Canada

[70] 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.

[71] Each year since 2009, about 60% of firearm-related violent crime has involved handguns. In 2017, 145 homicides were committed in Canada with handguns.

[72] For 2018, Statistics Canada reported a 42% 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% was attributable to increases in firearm-related violence in Toronto.

[73] 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.

[74] In his supplementary affidavits, Dr. Lee reviewed Access to Information Act responses from the RCMP that tabulated the number of handguns seized during criminal investigations between 2012 and 2022. The responses indicated that 4,035 Smith & Wesson products (including 948 M&P®40s) were seized during criminal investigations between 2012 and 2022, making Smith & Wesson the most common handgun seized (15% of all firearms reported in the data set) of any handgun manufacturer.

[75] Dr. Lee also reviewed information from the Ministry of the Solicitor General of Ontario pertaining to “Top 10 Manufacturers of Crime Guns traced in Ontario” from 2000 to 2021. Dr. Lee observed that Smith & Wesson was on the list of the “Top 10 Manufacturers of Crime Guns traced in Ontario” for each of the 19 years for which data was collected between 2001 and 2021. It was ranked number 1 in 9 of the 19 years.

[76] Based on this data, Dr. Lee concluded that Smith & Wesson appears to have been the predominant manufacturer of “Crime Guns traced in Ontario” for the years between 2001 and 2015.

[77] An RCMP Report entitled “Firearms Analysis & Strategic Summary for 2020” dated July 30, 2021 reported that 1,405 registered Smith & Wesson firearms were reported lost or stolen in Canada between 2016 and 2020, which amounted to just over 19% of 8,963 registered firearms reported lost or stolen during that timeframe.

[78] The RCMP Report indicates that registered firearms manufactured by Smith & Wesson were the most common make to be reported as lost or stolen in Canada between 2016 and 2020. Further, the Report indicates that 451 Smith & Wesson restricted handguns and 196 Smith & Wesson prohibited handguns, for a total of 647 Smith & Wesson handguns, were seized out of 2,331 in 2020 as part of criminal investigations. Smith & Wesson handguns comprised 27.7% of the total number of handguns seized in criminal investigations in 2020.

[79] 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% of stolen guns and Smith & Wesson handguns are the most common make of stolen handguns 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.

[80] During oral argument, I asked the Plaintiffs’ counsel whether there were statistics about how many crimes are committed by authorized gun owners. I was told that the case at bar is just about available technology that would reduce crimes committed by unauthorized users.

[81] Because I was curious about the extent of gun violence committed by authorized users compared to unauthorized users, I reviewed the publicly available information for 2022 from Statistics Canada. Using homicides as the example, I learned that approximately 50% of the firearms used in homicides were firearms used by their legal owners; i.e. by authorized users.

[82] For firearm-related homicides in 2022 for which information was available (113 homicides), the firearm initially had been obtained legally in approximately half of the cases (58 of 113 homicides). From the other statistics, it appears that gun violence is perpetrated approximately equally by authorized and unauthorized users of handguns.

4. The Authorized User Technology Agreement

[83] 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. This litigation, however, never went forward to a trial determination.

[84] In March 2000, in part to settle outstanding litigation, 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.

[85] 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.

[86] 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

A. Each firearm make and model sold by each manufacturer party to this Agreement shall be tested by ATF or an agreed upon proofing entity against the following standards. Existing makes and models shall meet these standards. […] New makes and models shall not be manufactured and sold after the execution of this Agreement unless they conform to these standards.

1. STANDARDS APPLICABLE TO ALL HANDGUNS;

a. SECOND “HIDDEN” SERIAL NUMBER. The gun must have both a visible serial number on the exterior of the frame or receiver, as well as a second serial number hidden on the interior of frame or receiver (e.g., under the grips) or visible only with the aid of an optical instrument.

b. EXTERNAL LOCKING DEVICE. As an interim measure, until the implementation of I.A.1.c, within 60 days of execution of the Agreement, each firearm shall be supplied with an external locking device that effectively prevents the operation of the firearm when locked.

c. INTERNAL LOCKING DEVICE. Within 24 months of execution of the Agreement, each firearm shall have a built-in, on-board locking system, by which the firearm can only be operated with a key or combination or other mechanism unique to that gun.

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. This requirement does not apply to existing designs currently in production.

If the eight firearms manufacturers and/or importers with the largest United States firearms sales volume agree to incorporate authorized user technology in all firearms, the manufacturer parties to this Agreement will incorporate authorized user technology in all firearms.

CHILD SAFETY. Within 12 months of execution of the Agreement, each firearm shall be designed so that it cannot be readily operated by a child under the age of 6. Such mechanisms include: making the trigger pull resistance at least ten pounds in the double action mode; or designing the firing mechanism so that an average five year old's hands would be too small to operate the gun; or requiring multiple, sequenced actions in order to fire the gun.

MINIMUM BARREL LENGTH. Each firearm make and model must have a barrel length of at least 3", unless it has an average group diameter test result of 1.7" or less at seven yards, 3.9" or less at 14 yards, and 6.3" or less at 21 yards. The average group diameter test result is the arithmetic mean of the results of three separate trials, each performed on a different sample firearm of the make and model at issue. For each trial, the firearm shall fire five rounds at a target from the specified distance and the largest spread in inches between the center of any of the holes made in a test target shall be the result of the trial.

B. LAW ENFORCEMENT AND MILITARY EXCEPTION. An exception to a requirement of paragraph A may be granted for firearm manufactured or imported for sale to a law enforcement agency or the military if the law enforcement agency or military organization certifies to the manufacturer party to this Agreement that the exception is necessary for official purposes. […]

[87] The Authorized User Technology Agreement, however, was never implemented. In 2005, the United States Congress passed the Protection of Lawful Commerce in Arms Act 15 U.S.C. § § 7901-7903, 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.

[88] Smith & Wesson permitted its authorized user patents to lapse, and it never adopted authorized user technology.

[89] I will return to the topic of the Authorized User Technology Agreement later in these Reasons for Decision but foreshadow to note that it shall be helpful to keep in mind the following aspects of the agreement.

[90] Some of the gun manufacturers’ promises were unconditional; however, other promises were provisional, conditional, or subject to exceptions.

[91] Some of the standards would be easy to implement; however, other standards required investment, research, development, and the agreement of a collective of gun manufacturers.

[92] Some of the manufacturing standards for the design of handguns had the purpose of the safety of the gun as a product, while some of the manufacturing standards for the design of handguns had the purpose of public safety from the unauthorized use of the gun.

[93] The manufacturing standards for gun design imposed on gun manufacturers were of different types for different purposes; i.e.:

a. Some of the standards were made to enhance law enforcement and the ability to apprehend criminals using handguns.

b. Some standards were to make the handgun safer for the user.

c. Some standards were made to reduce the unauthorized use of handguns.

d. Some standards were to reduce the use of handguns by children under the age of six [Sigh; Only in America].

5. The M&P®40 and the Expert Evidence of Drs. Harrison and Edmonson

(a) Smith & Wesson’s M&P®40

[94] In 2005, Smith & Wesson designed and manufactured the M&P (or Military and Police) 40 series, and it introduced the M&P®40 into the marketplace.

[95] The M&P®40 is a .40-calibre semi-automatic pistol for military and police use. It is not designed for hunting.

[96] The M&P®40 has a barrel length of 4.25 inches (107.95mm) and fires a 40-calibre cartridge. In Canada, it is a “restricted firearm.”

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

[98] Smith & Wesson later introduced an internal locking device in some M&P®40 models that were sold in the United States that were not intended for military or police use.

(b) Smith & Wesson’s Patents

[99] Smart gun or authorized user technology, which is designed to prevent criminal use of weapons by unauthorized persons, has existed since the 1970s. By 2005, there were more than 100 patents dealing with authorized user related technology, including patents describing internal locks incorporating the smart gun technology.

[100] As early as 1998, Smith & Wesson began developing “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.

[101] Authorized user technology or smart gun technologies have one or more systems that allow the weapon to fire only when activated by an authorized user; visualize: (a)miscellaneous technologies utilizing internal and external locking or disabling devices; (b) automated identification technologies, including radio-frequency identification (RFID), proximity tokens, and magnetic rings; and (c) biometric technologies, including fingerprint or palm-print recognition, dynamic grip recognition; electronic signature authentication; vascular biometrics, and voice identification.

[102] Smith & Wesson filed at least seven patent applications with respect to authorized user technology with the United States Patent and Trademark Office; 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).

[103] In the United States, patent applications must include a written description of the invention for which the patent is sought and of the manner and process of making the invention. 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.

[104] Mr. Chapman, the Plaintiffs’ witness about American patent law confirmed that no inference of negligent design can be drawn from the issuance of a patent. He confirmed that a patent is no guarantee that the invention will work reliably, or work under all conditions or be commercially successful. He confirmed that the existence of a patent does not address the commercial viability of the claimed invention and that there is no obligation on a patentee when applying for a patent to establish that the invention will be commercially successful. Further, he confirmed that a risk-utility analysis is not part of the U.S. law that addresses patentability and that the United States patent office does not evaluate whether a patented device conforms to any industry safety standard or to the requirements of its intended users.

[105] Smith & Wesson did not develop any prototypes from its patents. Smith & Wesson’s patents have lapsed, and there is no evidence that any person or entity has attempted to commercialize any invention disclosed in the Smith & Wesson patents.

(c) Dr. Harrison’s Evidence

[106] Dr. Harrison is a mechanical engineer. He was qualified to opine about the feasibility of manufacturing the M&P®40 with authorized user technology.

[107] Dr. Harrison is not qualified to provide evidence about whether the design of a handgun or firearm without authorized user technology would be negligent having regard to the risk benefit analysis that measures design negligence. He is not a design engineer.

[108] In his affidavit, Dr. Harrison included photographs of prototypes of handguns with authorized user technology.

[109] Dr. Harrison opined that it was feasible to incorporate an internal locking device into the design of the M&P®40 when that product was made available in Canada in 2013. He said that he was aware that Smith & Wesson had sold some models with internal locking devices as an optional feature.

[110] Dr. Harrison said that “Radio frequency identification” (RFID) is a mature and practical technology that has been in widespread commercial use for inventory control and in automobiles since the mid-1980s. He identified several gun manufacturers that had developed firearm prototypes with RFID-based locking devices to restrict the use of the gun to only an authorized user.

[111] Relying in part on the patents that Smith & Wesson had developed, Dr. Harrison opined that it would have been feasible for Smith & Wesson to have developed a pistol prototype for the M&P®40 incorporating RFID-based authorized user enablement or disablement before 2013.

[112] Based again largely on the patents that Smith & Wesson had filed and also on knowledge of the projects of other gun manufacturers, Dr. Harrison opined that it would have been feasible for Smith & Wesson to utilize biometric recognition technology as an authorized user feature for its handguns.

[113] Dr. Harrison acknowledged that adding authorized user technology to a firearm would alter key attributes of the firearm, such as size and weight. In his report, he stated that placing any authorized user technology into a firearm would greatly impact the cost, complexity, battery life, weight and balance of the firearm making the firearm’s reliability uncertain.

[114] Dr. Harrison did not opine, nor did he have the qualifications to opine, whether an M&P®40 with authorized user technology would provide safe and reliable use for the military or police personnel. He offered no opinion, nor would he have been qualified to give an opinion about the commercial feasibility of M&P®40 with authorized user technology.

(d) Dr. Edmonson’s Evidence

[115] Dr. Edmonson is an electrical engineer. He was qualified to opine about the feasibility of manufacturing the M&P®40 with authorized user technology.

[116] Dr. Edmonson is not qualified to provide evidence about whether the design of a handgun or firearm without authorized user technology would be negligent having regard to the risk benefit analysis that measures design negligence. He is not a design engineer.

[117] In his affidavit, Dr. Edmonson included photographs of prototypes of handguns with authorized user technology.

[118] From an examination of Smith & Wesson’s patents and based on his knowledge about how authorized user technology had been used in other types of products, Dr. Edmonson opined that between 1999 to 2013, it was feasible for Smith & Wesson to have manufactured a firearm with authorized user technology.

[119] Dr. Edmonson acknowledged that adding authorized user technology to a firearm would alter key attributes of the firearm, such as size and weight. In his report, he stated that: “[…], although the miniaturization sufficient for prototype integration of the foregoing additional pistol components was feasible by Smith & Wesson before 2013, some increase in the resulting pistol’s size, weight, and manufacturing cost would have been inevitable.”

[120] Dr. Edmonson did not opine, nor did he have the qualifications to opine, whether an M&P®40 with authorized user technology would provide safe and reliable use for the military or police personnel. He offered no opinion, nor would he have been qualified to give an opinion about the commercial feasibility of M&P®40 with authorized user technology.

6. The Negligent Design Evidence

[121] Based on the evidence of Mr. Chapman and Drs. Harrison and Edmonson, the Plaintiffs have identified three forms of “authorized user technology” that they say should have been incorporated into the design of the Handgun: (1) a mechanical internal lock; (2) radio frequency identification (“RFID”); and (3) biometric technology.

[122] The Plaintiffs, however, did not call any evidence from an expert qualified to opine about the design of handguns.

[123] The Plaintiffs’ witnesses identified an M&P®40 with authorized user or smart gun technology as the alternative design, but there was no evidence that an M&P®40 prototype designed with authorized user technology had been tested and none of the witnesses had tested any form of authorized user or smart gun technology.

[124] There was no evidence that an M&P®40 designed with authorized user technology was reliable, safe, safer, or commercially feasible.

[125] There was no evidence that an M&P®40 utilizing authorized user or smart gun technology would maintain its utility for military and police use or any use for that matter.

[126] There was no opinion that a reasonable firearms manufacturer in the position of Smith & Wesson would have chosen a different design for the M&P®40.

7. The Causation Evidence

[127] The Plaintiffs originally did not propose a useful general causation common issue and their corresponding some-basis-in-fact evidence was correspondingly useless. There was no some-basis-in-fact explanation of how an alternative design for the M&P®40 might have prevented the tragedy of the Danforth Shooting.

[128] The causation question originally proposed by the Plaintiffs was: “Did the Plaintiffs and the proposed Classes suffer compensable harm resulting from the use of the Handgun in the Danforth Shooting?”. This was an improper and useless question because it begs a positive answer.

[129] In the immediate case, the evidence was that Mr. Hussain used a stolen M&P®40 that did not have authorized user technology and that the stolen M&P®40 without authorized user technology was used to harm the Class Members. The associated initially proposed causation question does not causatively connect a design defect with the M&P®40. The originally proposed causation question in the immediate case conflated the unanswered question about Smith & Wesson’s liability with the undoubted liability of Mr. Hussain causing harm with the M&P®40. The initially proposed causation question was of the “where were you standing when you murdered your wife” type of question, which is improper because it assumes murder in the guise of a question about the location of an event.

[130] During oral argument when the disconnect of the proposed causation question was pointed out, the Plaintiffs withdrew Question No. 2, and substituted the following question:

Did the failure to incorporate authorized user technology in the Handgun cause, contribute to or individually harm or increase the risk of harm to the members of the Classes 1 and 2?

[131] I will return to this topic below, but I foreshadow to say that this is a proper and meaningful causation question. However, unfortunately for the Plaintiffs based on the absence of the design evidence, listed above, there is no basis in fact for this question being a common issue.

E. Certification General Principles

[132] With this procedural, factual, and evidentiary background, I turn now to whether the Plaintiffs’ action should be certified as a class action under the Class Proceedings Act, 1992 as it has been amended in 2020.

[133] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test found in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) 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 (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[134] 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.[^20]

[135] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^21] That said, in Pro-Sys Consultants Ltd v. Microsoft Corp.,[^22] the Supreme Court of Canada stated that although not a merits determination, certification was meant to be a meaningful screening device, that does not “involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny”.

[136] 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.[^23] 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.[^24] Although the evidentiary burden on a certification motion is the low, i.e., the some basis in fact standard, that burden must be discharged by evidence that is admissible in accordance with the normal law of evidence.[^25]

[137] In particular, there must be a basis in the evidence to establish the existence of common issues.[^26] 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.[^27]

[138] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions exist and are common to all the class members.[^28]

[139] 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.[^29]

[140] Given that the certification motion is a procedural motion and not a motion to determine the merits of the action, where expert evidence is proffered on a motion for certification, if the evidence is otherwise admissible it is not scrutinized as would be required at a merits determination and on a certification motion the court will not resolve a battle between competing experts.[^30]

F. Cause of Action Criterion

[141] In my Phase 1 decision, I decided that the Plaintiffs satisfied the cause of action criterion for a design negligence case.

G. Class Definition Criterion

[142] There was no dispute and I am satisfied that the Plaintiffs satisfy the class definition criterion.

H. Common Issues Criterion

1. General Principles

[143] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim.[^31]

[144] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^32]

[145] An issue is not a common issue, if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^33] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^34]

[146] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^35]

[147] The common issue criterion presents a low bar.[^36] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^37] Even a significant level of individuality does not preclude a finding of commonality.[^38] A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^39]

[148] As noted in the discussion above of the general principles on a certification motion, 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.[^40]

2. Common Issue No. 1: Was the Defendant negligent in failing to incorporate authorized user technology in the Handgun used in the Danforth Shooting?

[149] Common Issue No. 1 about design negligence in handguns is the critical common issue upon which the viability of the Plaintiffs’ proposed class action utterly depends.

[150] The immediate case is about the design of the M&P®40, which like all handguns has lethal capability. The Plaintiffs allege that the M&P®40 was designed for military and police use and was intended to injure or kill people. The phraseology used by the Plaintiffs’ attributing intent to the M&P®40 is problematic because guns, being objects, have no mental states, including intentionality. What the Plaintiffs obviously mean is that the M&P®40 was: (a) designed to be used by the military and the police, and (b) it was designed to enable those users to injure or kill people. This observation is not to embroil this case in the slogans of the American NRA (National Rifle Association); rather, as will become evident from the discussion and analysis below, to be fair to the arguments of both parties, it is necessary to be precise about the purpose, capability, feasibility, risks, benefits, costs, associated with designing the M&P®40 as a manufactured product with purposes not intentions.

[151] Smith & Wesson submits the Plaintiffs’ proposed class action is stillborn and there can be no basis in fact for this critical common issue without an expert qualified to opine about design to opine that there was an alternative design for the M&P®40 that: (a) would have minimized the risk of criminal misuse of the M&P®40; (b) could have been adopted at a reasonable cost; and (c) would not have impaired the utility of the M&P®40.

[152] Smith & Wesson submits that since the Plaintiffs did not have any experts qualified to provide the required evidence, the Plaintiffs failed to satisfy the common issues criterion for Common Issue No. 1.

[153] In contrast, the Plaintiffs submitted that notwithstanding the absence of a design expert, they had satisfied the design negligence common issue. The Plaintiffs submitted that detailed evidence regarding a risk/utility analysis is not necessary at the certification motion stage to establish a common issue that Smith & Wesson was negligent in failing to incorporate authorized user technology in the M&P®40.

[154] The Plaintiffs submitted that all they needed to do at the Certification Motion was to prove that there is some basis in fact that: (a) Smith & Wesson knew that lost and stolen guns were frequently used by criminals; (b) Smith & Wesson knew that authorized user technology would make the M&P®40 a less dangerous product; (c) it was feasible for Smith & Wesson to incorporate some form of authorized user technology in the design of the M&P®40 and (d) for Canada, the incorporation of authorized user technology would not adversely impair the utility or the functionality of the M&P®40 by private users because under Canadian law the use of handguns in the private sector is limited for target shooting and for gun collecting.

[155] The Plaintiffs submitted that the vast majority of Canadian gun owners would be minimally impacted if the feasible authorized user features had been incorporated into the M&P®40 and Smith & Wesson could have and ought to have incorporated this technology.

[156] Boldly, in their factum, the Plaintiffs asserted that more detailed evidence relating to a risk/utility analysis cannot be required at the certification stage because in a products liability case there is an inherent informational imbalance that favours the manufacturer, who has yet to have been exposed to documentary and oral discovery. The Plaintiffs submitted that it is unfair to require a plaintiff to provide evidence that relates to matters exclusively within the manufacturer’s specialized knowledge.

[157] In the immediate case, there is some basis in fact that (a) there was a risk of unauthorized use of lost or stolen weapons; (b) Smith & Wesson was aware of the risk; (c)Smith & Wesson had developed technologies to address the risk; (d) the technologies were feasible; and (e) implementing the technologies in Canada would have a limited impact on the utility of handguns to target shooters and collectors, but as I shall explain below, these facts are insufficient to satisfy the common issues criterion for the critical, fundamentally necessary, design negligence question.

[158] For somewhat different reasons than argued by Smith & Wesson, I agree that the common issues criterion has not been satisfied. In the immediate case, the evidentiary threshold that the Plaintiffs needed to meet was to have an expert opine that: (a) an M&P®40 without authorized user technology was a design defect that could have caused the harm suffered by the Class Members; (b) an M&P®40 with authorized user technology was a feasible alternative that could have been implemented at a reasonable cost; and (c) the implementation of authorized user technology would not have impaired the utility of the M&P®40 for its intended users.

[159] Even at the low some basis in fact standard, the Plaintiffs do not satisfy the evidentiary threshold for the critical design negligence common issue.

[160] A design negligence case ultimately requires evidence from an expert in design. Evidence about the consequences of alleged bad design just begs the question of whether the design was bad. The Plaintiffs are not required to prove the merits of their design negligence case with expert evidence at certification, but they are required to show some basis in fact for the rudimentary elements of a design negligence claim that has some possible merit. The Plaintiffs must show a plausible methodology to prove their design negligence cause of action.

[161] Typically, in a design negligence proposed class action, the plaintiff will call a design expert to show some basis in fact for the common issues about negligence in design. The plaintiff may suffer an information deficit about why, when, where, and how the defendant made the design decisions that it made and about whether the defendant met the standard of care in making its design decision that it made, but the plaintiff does not suffer any information deficit in identifying what is the common design defect. And moreover, there is no information deficiency in at least establishing the methodology for making a risk-benefit analysis.

[162] I agree with the Plaintiffs that on a certification motion, courts do and should take into account the information imbalance between the plaintiff and the defendant. Indeed, this is true not just in products liability actions.[^41] However, it does not follow that the plaintiffs are relieved of the onus on them to show some basis in fact for the common issues nor does it explain in the immediate case why the evidentiary record is bereft of any expert evidence about matters that are not exclusively within the manufacturer’s specialized knowledge.

[163] In the immediate case, there was no evidentiary problem for the cause of action criterion because for this criterion, it is assumed that the material facts are capable of proof. The court cannot make a similar assumption for the common issues criterion. In the immediate case, the Plaintiffs are incorrect that a risk/utility analysis cannot be required of them at the certification stage.

[164] That the cause of action criterion is satisfied does not mean that the task of the Plaintiffs to have their action certified would be satisfied on assumed facts. In the immediate case some basis in fact for a risk/utility analysis was required. The Plaintiffs were required to show some basis in fact for the major elements of a design negligence products liability action and they did not do so.

[165] In my Phase 1 decision, I differentiated the cause of action criterion from what would be required to satisfy the other certification criteria. I stated at paragraphs 102-104 that a risk-utility analysis was required in the immediate case. I stated:

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.

[166] For Phase 2 of the Certification Motion, the Plaintiffs did not provide some basis in fact for a risk-benefit analysis.

[167] In the immediate case, the alleged defect in the M&P®40 was the absence of authorized user technology, which technology is alleged to provide a means to make a dangerous product less dangerous; i.e., it is a technology that makes the M&P®40 safer. However, in the immediate case, the matter of whether authorized user technology is a safety feature is a contentious matter that requires an expert’s opinion.

[168] Authorized user technology does not make the use of a handgun safer for the user. It is essentially a safety feature against the handgun being stolen. This is true of authorized user technology generally, which is incidental to the purposes for which the product is designed. For example, a cell phone equipped with authorized user technology does not affect the use of the cell phone as a cell phone but prevents the cell phone being used by others and discourages theft of the cellphone. For another example, authorized user technology is used in vehicles to prevent theft, but it does not make the cars safer on the road. And even in minimizing the crime of car theft, authorized user technology is not fail proof. For example, cars are frequently stolen notwithstanding the presence of authorized user technology, and stolen cars may be used to perpetrate other crimes including vehicular homicides.

[169] Sadly, in Canada, and particularly in the United States, authorized users of guns use their guns to kill and maim. Authorized user technology undoubtedly makes the guns less attractive to thieves and criminals, but there was no design expert or other expert in the immediate case to explain why designing the M&P®40 with authorized user technology to reduce the attractiveness of guns to be stolen makes the use of the gun safer for its intended consumers, and there was no design expert - or other expert - to explain how authorized user technology would make guns safer to non-consumers.

[170] The problem of the absence of a design expert in the immediate case was a multifarious problem. There were three types of authorized user technology that were presented as feasible alternative designs for the M&P®40. However, the feasibility of these technologies was largely theoretical feasibility based on the existence of patents and by the use of authorized user technology in other products such as cell phones and automobiles.

[171] In the immediate case, there was the possibility of prototypes and some prototypes had been manufactured by other gun manufacturers; however, there was no evidence that the prototypes were effective and no evidence that effective authorized user technology would not impair the utility or the safety of the handgun.

[172] Moreover, there was no evidence from a design expert about whether or not a decision to not incorporate authorized user technology was a decision that would not be made by a reasonably competent gun designer when the gun was designed or perhaps when the gun was manufactured and sold. There is a temporal aspect to the standard of care. In all events, it does not follow that because something can be designed, even something beneficial, that it is careless or below the standard of care not to implement the design.

[173] Further still, there was no expert evidence to show some basis in fact that radio frequency identification (“RFID”) and biometric technology were commercially viable design choices that would not impair the utility or the safety of the M&P®40.

[174] There was no expert evidence to show some basis in fact that the authorized user technology could be incorporated without impairing the utility of the M&P®40 for the user for whom the M&P®40 was designed. There was no expert evidence to show some basis in fact that authorized user technology would make the M&P®40 safer for use by the owner of the handgun or make the M&P®40 safer for the public that might be affected by a criminal using the M&P®40.

[175] Another problem for the Plaintiffs was that design thinking involves empathy for the product user’s needs and creativity in meeting those needs. Smith & Wesson designed the M&P®40 for the police and the military. The thrust of the Plaintiffs’ case was that the M&P®40 should be designed with authorized user technology even though this handgun was designed for the police and the military because the M&P®40 was sold and could be obtained and used by persons other than the police and the military. This argument, which might be a good public policy argument, is not a good legal argument because design negligence requires a risk benefit analysis that does not ignore meeting the needs of the intended user for whom the product is being designed.

[176] Ironically, in the immediate case, there was some basis in fact that internal and external locking systems were feasible and could be incorporated into the M&P®40 or other handguns. Indeed, the evidence was that there was a model of the M&P®40 that had an internal locking system and that it sold at the same price as the model designed for the police and the military. The problem for the Plaintiffs, however, was that there was no expert evidence to show some basis in fact that all M&P®40s would be safer for all users or for the public by the incorporation of internal or external locking systems. There was also the problem that the evidence from the Plaintiffs’ experts indicated that incorporating internal locking mechanisms was not a design necessity because there were readily available external locking systems that could be utilized for users inclined to making their weapon unusable by others.

[177] The Authorized User Technology Agreement and the events associated with it do not establish some basis in fact for a design negligence cause of action. Put shortly, the design standards set by this agreement are good public policy independent of design negligence but they do not provide some basis in fact for design negligence. To the extent that the agreement does set standards for the safety of the gun as a product, the agreement justifies the standards on public policy grounds.

[178] As a matter of design negligence, a legal not a political issue, the agreement does not show some basis in fact that: (a) an M&P®40 without authorized user technology was a design defect that could have caused the harm suffered by the Class Members; (b) an M&P®40 with authorized user technology was a feasible alternative that could have been implemented at a reasonable cost; (c) the implementation of authorized user technology would not have impaired the utility of the M&P®40 for its intended users; and (d) a reasonably competent gun designer would have chosen to incorporate authorized user technology in an M&P®40 designed for police forces and the military.

[179] I conclude that Common Issue No. 1 is not certifiable as a common issue. There is no basis in fact for it.

3. Common Issue No. 2: Did the failure to incorporate authorized user technology in the Handgun cause, contribute to or individually harm or increase the risk of harm to the members of the Classes 1 and 2?

For the want of a nail the shoe was lost,

For the want of a shoe the horse was lost,

For the want of a horse the rider was lost,

For the want of a rider the battle was lost,

For the want of a battle the kingdom was lost,

And all for the want of a horseshoe-nail.”

[Benjamin Franklin - Poor Richard’s Almanac]

[180] Because there is no basis in fact for the critical common issue No. 1, the design negligence question, it necessarily follows that common issue No. 2, whether the design negligence caused harm, is also not certifiable. Because of the likelihood of appeals, I will assume that there was a design negligence common issue and consider whether there is an associated general causation common issue.

[181] Where a plaintiff seeks to address questions of causation on a class-wide basis as the foundation for his or her class action, there must be some evidence of a methodology that will enable the plaintiff to prove causation on a class-wide basis.[^42]

[182] The “but for” test of causation is the test that would apply in the circumstances of the Danforth Shooting. In Donleavy v. Ultramar,[^43] at paras. 62 and 72, Justice van Rensburg noted:

62. The "but for" test is generally applied in establishing causation in the tort of negligence. It requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one or more of the defendants, the injury would not have occurred. A defendant's negligence is thus a necessary factor to bring about the injury. […]

63. [...] Causation is made out under the "but for" test if the negligence of a defendant caused the whole of the plaintiff's injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained. Causation requires a "substantial connection between the injury and the defendant's conduct."

[183] In the immediate case, applying the but for test, there is no basis in fact for common issue No. 2. Once again, what is missing is expert evidence, although this time what is missing is a criminologist to demonstrate that there is some basis in fact for concluding that adding authorized user technology to the M&P®40 would reduce gun accidents and gun crimes of the nature that occurred on the Danforth. There needs to be some basis in fact to connect Smith & Wesson’s negligence – which is not equivalent to a Smith & Wesson weapon being used by Mr. Hussain – to the harm suffered by the Class Members.

[184] In the immediate case, the Plaintiffs did not proffer the evidence of a criminologist to provide some basis in fact to show that the presence of authorized user technology reduces the nefarious use of handguns. In the immediate case, for some basis in fact for the causation question, the Plaintiffs principally relied, once again, on the Authorized User Technology Agreement that was signed by Smith & Wesson along with some statistical evidence about the misuse of stolen guns in Canada.

[185] The problem, however, for the Plaintiffs was that: (a) while the Authorized User Technology Agreement may show that there is some basis in fact for concluding that the incorporation of authorized user technology will reduce children using their parents’ handguns, (b) the Authorized User Technology Agreement does not provide some basis in fact for the more general proposition that incorporating authorized user technology in handguns other than handguns for the police, military, and the like, will necessarily reduce the occurrence of crimes like the rampage on the Danforth or that this technology will reduce gun crimes generally. As I discussed below, the Authorized User Technology Agreements were driven by public policy considerations not legal policy considerations.

[186] In the immediate case, no expert provides any explanation for how the alleged defect of the absence of authorized user technology is related to what Mr. Hussain did.

[187] Common sense does not fill the evidentiary void. Common sense might suggest that the presence of authorized user technology would be a cure for the nefarious use of handguns. This might be true for a child’s use of his or her parent’s handgun; however, in Canada all private sector owners of guns, including parents of children, are already required to keep handguns secure from the use of others. Thus, in terms of child safety, authorized user technology, while an added safety, is somewhat superfluous. But the point remains that common sense does not explain why the absence of authorized user technology is a cause for what evilly happened on the Danforth.

[188] The Plaintiffs’ causation argument is that since there is some basis in fact that Mr. Hussain used an M&P®40 handgun without authorized user technology to harm the Class Members, all of whom were injured by Mr. Hussain’s use of the M&P®40 handgun, and since Mr. Hussain would not have been able to use the M&P®40 if it had incorporated authorized user technology, therefore, there is some basis in fact that the proposed Class Members suffered compensable harm caused by Mr. Hussain’s use of the M&P®40.

[189] The logical fallacy in this argument is that the harm caused by Mr. Hussain was his using a handgun and while he happened to be using an M&P®40 without authorized user technology that is an incidental fact but not a causal fact that connects Smith & Wesson to the harm done by Mr. Hussain. The harm to the Class Members was caused by what Mr. Hussain did and it was not caused by an aspect of how he did it.

[190] As I mentioned above, gun crimes are committed approximately equally by authorized users and unauthorized users. In the absence of some evidence which in this case would be expert evidence, it cannot be said that but for the want of authorized user technology that Mr. Hussain would not have perpetrated his evil crimes.

[191] We happen to know that Mr. Hussain acquired an M&P®40 without authorized user technology, but while the presence of authorized user technology might have deterred him from using a gun with that technology, it would not necessarily have deterred Mr. Hussain, whose circumstances are not known, from having been an authorized user of an M&P®40 for the purposes permitted in Canada and then misusing that gun, or it would not necessarily have deterred Mr. Hussain from circumventing any authorized user technology if the gun had been equipped with that technology. Or, Mr. Hussain might not have been deterred from his evil deeds because he could have obtained one of the hundreds of millions of guns manufactured before the invention of authorized user technology. In Mr. Hussain’s case all the authorized user technology might do is alter the means of his misdeeds but not the occurrence of his wicked use of a handgun.

[192] For the purposes of the cause of action criterion based on the assumed truth of the facts in the Amended Statement of Claim it could be assumed that the absence of authorized user technology was a cause or a contributing cause to what occurred on the Danforth, but the common issues criterion requires evidence to the very low some-basis-in-fact standard and that evidence is missing in the immediate case.

[193] I, therefore, conclude that Common Issue No. 2 is not certifiable as a common issue.

[194] One final observation may be made about the effects of authorized user technology. I repeat that independently of the law of design negligence, as a matter of politics and public policy, making authorized user technology a product standard for handguns may be a good idea. Politics and public policy were the animating force of the 2000 Authorized User Technology Agreement in the United States. However, politics and a different public policy then animated the Protection of Lawful Commerce in Arms Act 15 U.S.C. § § 7901-7903 in the United States.

[195] The point is that in the immediate case, while the Plaintiffs are to be praised for their aspirations to find a means to prevent others from suffering as they have suffered, it is for Parliament or the Legislatures not the courts to legislate public safety product standards.

4. Common Issue No. 3: Is the Defendant liable to family members within the meaning of s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, of all persons in Classes 1 and 2?

[196] Common Issue No. 3 is not certifiable because it is dependent and derivative of Common Issues 1 and 2, which are not certifiable. Moreover, had those common issues been certifiable, Common Issue No. 3 would have been a matter for the individual issues stage of the class action and not the common issues stage.

[197] A Family Law Act claim is a derivative claim predicated on the injury or death of the victims of the tortfeasor, in which family members of the victim are entitled to some compensation. In the context of a class action, a Family Law claim is an individual issues claim that is dependent upon the primary class member being successful in his or her personal injury or death claim”[^44]

[198] In the immediate case, the Family Law Act claims are entirely matters for individual issues trials and there is no commonality. I conclude that Common Issue No. 3 is not certifiable.

5. Common Issue No. 4: Is this an appropriate case to award punitive damages against the Defendant?

[199] In the immediate case, punitive damages are not certifiable as a common issue for three different reasons. First, where neither the entitlement to compensatory damages nor the quantum of such damages can be determined without individual trials, the entitlement to punitive damages cannot be properly certified as a common issue.[^45] Second, if there are no other common issues, punitive damages standing alone does not satisfy the common issues test and would not justify certifying the proposed class action.[^46] Third, there is no basis in fact for a common issue about putative damages.

[200] The first two reasons follow from my conclusion that questions Nos. 1, 2, and 3 are not certifiable.

[201] As for the third reason, an award of punitive damages is based on exceptional circumstances demonstrating “malicious, oppressive, and high-handed misconduct that offends the court’s sense of decency.”[^47] The assessment of whether to award punitive damages requires an analysis of: (a) the degree of misconduct; (b) the amount of harm caused; (c) the availability of other remedies; (d) the quantification of compensatory damages; and (e) the adequacy of compensatory damages to achieve the objectives of retribution, deterrence, and denunciation.[^48]

[202] In Palmer v. Teva Canada Ltd.,[^49] I endorsed the approach to punitive damages in class actions that has been developed in British Columbia. In several judgments, the British Columbia Court of Appeal held that a court should not certify punitive damages as a common issue based solely on the allegations contained in the pleadings.[^50] The Court held that the plaintiffs must point to material facts beyond the pleadings to establish a basis in fact for the certification of a common issue on punitive damages.

[203] In the immediate case, the Plaintiffs do not point to material facts beyond the pleadings to establish a basis in fact for the certification of a common issue on punitive damages.

[204] I, therefore, would not certify punitive damages in the immediate case had I otherwise certified the class action(s). What I would have done is to make the order without prejudice to the Plaintiffs applying after examinations for discovery to certify the issue of punitive damages.

6. Common Issue No. 5: Is this an appropriate case for the Court to order an aggregate assessment of damages under s. 24 of the Class Proceedings Act, 1992?

[205] The Plaintiffs propose a common issue about aggregate damages pursuant to s. 24 of the Class Proceedings Act, 1992.

[206] The Class Proceedings Act, 1992 is a procedural statute, and it does not create a new type of damages known as aggregate damages. All that s. 24(1) of the Class Proceedings Act does is that it recognizes that in certain circumstances depending upon the nature of the class members’ claims, it may be possible to avoid individual assessments of damages and arrive at a calculation of damages equal to what the defendant would have to pay if there were individual assessments.

[207] In Fulawka v. Bank of Nova Scotia,[^51] Chief Justice Winkler described the nature of aggregate damages at paragraph 122 as follows:

122. Finally, s. 24(1)(c) states that the aggregate of the defendant’s liability “can reasonably be determined without proof by individual class members.” This provision is directed at those situations where the monetary liability to some or all of the class is ascertainable on a global basis and is not contingent on proof from individual class members as to the quantum of monetary relief owed to them. In other words, it is a figure arrived at through an aggregate assessment of global damages, as opposed to through an aggregation of individual claims requiring proof from individual class members. I would describe the latter calculation as a “bottom-up” approach whereas the statute envisages that the assessment under s. 24(1) be “top down”.[^52]

[208] To certify a common issue about aggregate damages, a plaintiff must show that it is reasonably likely that the preconditions in s. 24(1) of the Class Proceedings Act, 1992 can be satisfied.[^53] Section 24(1)(c) sets out the condition that the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members. Under s. 24(1) of the Class Proceedings Act, 1992, a court may award aggregate damages where: (i) monetary relief is claimed on behalf of some or all class members; (ii) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined; and (iii) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members. A plaintiff must be able to prove all the elements of his or her cause of action at the common issues trial to have a common issue about aggregate damages.[^54]

[209] For there to be an award of aggregate damages, the plaintiff must advance a methodology or show that there is a reasonable likelihood of assessing the defendant’s aggregate liability to the class without proof by individual class members. Aggregate damages cannot be ordered where “individual questions of fact relating to the determination of each class member’s damages remain to be determined”, or where there is no available data to determine what individual class members were owed.[^55] Aggregate damages are not appropriate where the use of non-individualized evidence is not sufficiently reliable, or where the use of that evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability for damages.[^56] In other words, the Plaintiff must present a methodology that offers a realistic prospect of establishing aggregate damages on a class-wide basis.[^57]

[210] Section 24(1)(c) requires that “the aggregate or part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.” Where these prerequisites would not be satisfied even if the common issues were decided in favour of the plaintiff, the court ought not to certify any question relating to aggregate damages.[^58] Section 24(1)(c) will not be satisfied where each individual claim will require proof of the essential element of causation.[^59]

[211] In the immediate case, sections 24(1)(b) and 24(1)(c) are not satisfied because liability will be dependent on individual issues trials to determine injury causation and quantum of damages. The present case is not a systemic negligence action, and it lacks the “base level of harm” identified in cases of institutional abuse or Charter breaches, such as in Good v. Toronto Police Services Board,[^60] Brazeau v. Canada (AG),[^61] Reddock v. Canada (AG)[^62] or Francis v. Ontario.[^63]

[212] The present case is analogous to Carter v. Ford Motor Company of Canada,[^64] where aggregate damages were not common to the class in a design negligence claim, since liability depended on the determinations to be reached at individual issues trials.

[213] In the immediate case, aggregate damages is not a certifiable common issue.

I. Preferable Procedure Criterion

1. General Principles

[214] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[^65]

[215] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient, and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^66]

[216] The determination of preferable procedure involves two major tests. The first test is whether a class proceeding would be a fair, efficient, and manageable procedure. The second test is whether a class proceeding is preferable to any alternative method of resolving the class members’ claims. Both tests are measured through the lens of the purposes of the class proceeding legislation; namely: (a) access to justice; (b) behaviour modification; and (c) judicial economy.

[217] Alternatives to a class proceeding include: (a) individual actions; (b) joinder; (c) consolidation, (d) test cases; (e) quasi-judicial or administrative proceedings; and, (f) remedial scheme or program outside of a proceeding.

[218] In AIC Limited v. Fischer,[^67] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^68]

[219] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[^69]

[220] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^70]

2. Discussion and Analysis – Preferable Procedure Criterion

[221] It is axiomatic that if there is no basis in fact for common issues, then there is no basis in fact for a class action satisfying the preferable procedure criterion.[^71] That is the situation in the immediate case.

[222] Because there may be appeals, I will briefly say that had the common issues criterion been satisfied in the immediate case, the Plaintiffs would have satisfied the preferable procedure criterion.

[223] Briefly, my analysis and explanation for that conclusion would have been as follows. The analysis begins by observing that the first three certification criterion would have been satisfied for a quite small sized class. As a class action, the action would have been manageable including both the common issues phase and the individual issues phase.

[224] The only viable alternative to a class action would be a joinder action of the small number of class members. A joinder action would not be more manageable than a class action and indeed might be less manageable because a class action might end at the common issues phase. A class action and a joinder action would both provide access to justice and both would provide a meaningful means for behaviour management if that was warranted. Thus, this far in the analysis of preferability, there is little to differentiate the class action from the joinder action.

[225] The preferability analysis, however, tips in favour of the class action based on the access to justice factor. The class size is small but for the majority of the class, a joinder action is not preferable to a class action, where they are protected from adverse costs consequences until it is determined whether they should proceed on to individual issues trials. For the majority of the class, the common issues trial is where the most significant forensic and juridical work needs to be done.

[226] For the minority of the class that has quite substantial personal injury claims, a class action also is the preferable route to access to justice.

[227] The immediate case is an extraordinarily complex products liability case against a formidable foe and the class members with significant claims have a more accessible route to justice along the class action road where they have the benefits of a contingency fee arrangement with Class Counsel and protections (in this case from the Class Proceedings Fund) for an adverse costs award. The outcome of the common issues trial will be determinative of whether they need or should invest further resources at individual issues trials.

[228] In the immediate case, a class proceeding is also the preferable procedure for Smith & Wesson to achieve access to justice. It has by all appearances quite strong defences and a common issues trial will provide an opportunity to test the merit of those defences without the time and expense of the individual assessments of damages.

[229] Therefore, in the immediate case, had the Plaintiffs satisfied the common issues criterion, I would have certified their action as a class proceeding.

J. Representative Plaintiff Criterion

1. General Principles – Representative Plaintiff Criterion

[230] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^72]

[231] The proposed representative plaintiff must present a workable litigation plan. The litigation plan is important because, amongst other things, it helps the court to assess the relationship between common and individual issues, to compare the proposed class proceeding with alternative procedures that may be available, to decide whether there is a methodology for advancing the proceeding through its various stages including discovery, common issues trials, and individual issues trials, if those are necessary to provide the class members with access to justice.[^73] At the certification motion stage, the plan need not be perfect, and it will be a malleable work in progress subject to revision in accordance with how the particular case develops.[^74]

[232] If all of the other certification criteria are satisfied and the litigation plan is deficient, then a common order is to conditionally certify the action as a class action subject to the court settling the litigation plan.

2. Discussion and Analysis

[233] In the immediate case, I agree with Smith & Wesson’s argument that the Plaintiffs’ litigation plan is unworkable. However, if the common issues criterion had been satisfied, the inadequacies of the litigation plan would not have foreclosed the certification of the action as a class action. Rather, the inadequacies of the plan would and could have been addressed and resolved.

[234] If this action were certifiable, and if the Plaintiffs were successful at the common issues trial, then the action would inevitably proceed to individual issues trials where some very heavy forensic lifting would be required to prove individual causation of damages, and quantification of damages. As currently presented, the Plaintiffs’ plan does not account for or glosses over the procedural ways and means for what will be very challenging personal injury claims.

[235] Under the heading “Claims Process,” the Plaintiffs just propose that, following the common issues trial, the next step will be for the Plaintiffs to “propose the most appropriate method for assessing damages on a class wide or individual basis, subject to Court approval.”

[236] In the circumstances of the immediate case where a great deal would have to be determined after the common issues trial, this is an inadequate litigation plan. A litigation plan will not be workable if it fails to explain how the individual issues that remain, after the determination of the common issues, are to be addressed.[^75]

[237] The litigation plan does not provide such an explanation in this case, because the Plaintiffs do not have a plan to resolve the individual issues. The clearest indication of that is that the headings of the litigation plan skip from “Notice of Resolution of the Common Issues” to “Claims Process,” without consideration for liability issues that will remain following the common issues trial.

[238] The absence of details of the procedural protocols and mechanisms for the individual issues phase, however, is not an irreparable problem. I am confident that they could be resolved and they could be resolved as late as after a common issues trial.

[239] Had the other certification criteria been satisfied in the immediate case, the Representative Plaintiff Criterion would also have been satisfied.

K. Conclusion

[240] For the above reasons, the Plaintiffs’ Certification Motion is dismissed.

[241] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Smith & Wesson’s submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days.

Perell, J.

Released: March 5, 2024.

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

DATE: 202400305

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

REASONS FOR DECISION

PERELL, J.

Released: March 5, 2024.

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

[^2]: Price v. Smith & Wesson Corp., 2021 ONSC 1114.

[^3]: Price v. Smith & Wesson Corp., 2021 ONSC 8471.

[^4]: Price v. Smith & Wesson Corp., 2023 ONSC 6062.

[^5]: 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 CanLII 1905 (ON SC), 42 O.R. (2d) 86 (H.C.J.).

[^6]: (1986), 1986 CanLII 2502 (ON SC), 58 O.R. (2d) 53 at p. 60 (S.C.J.).

[^7]: 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 CanLII 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.).

[^8]: Daishowa-Marubeni International Ltd. v. Toshiba International Corporation, 2010 ABQB 627; Tabrizi v. Whallon Machine Inc., 1996 CanLII 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 CanLII 2502 (ON SC), 58 O.R. (2d) 53 (S.C.J.).

[^9]: Burr v. Tecumseh Products of Canada Ltd., 2023 ONCA 135; Price v. Smith & Wesson Corp., 2021 ONSC 1114; St Isidore Co-op Ltd. v. AG Growth International Inc., 2020 ABCA 447, aff’g 2019 ABQB 763; Kuiper v Cook (Canada) Inc., 2018 ONSC 6487, aff’d on design negligence, rev’d on duty to warn, 2020 ONSC 128 (Div. Ct.); Vester v. Boston Scientific Ltd., 2015 ONSC 7950; O’Brien v. Bard Canada Inc., 2015 ONSC 2470; Andersen v. St. Jude Medical Inc., 2012 ONSC 3660; Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095; Daishowa-Marubeni International Ltd v. Toshiba International Corp., 2010 ABQB 627; Kreutner v. Waterloo Oxford Co-Operative Inc., (2000), 2000 CanLII 16813 (ON CA), 50 O.R. (3d) 140 (C.A.); Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 CanLII 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.); Gallant v. Beitz (1983), 1983 CanLII 1905 (ON SC), 42 O.R. (2d) 86 (H.C.J.).

[^10]: Andersen v. St. Jude Medical Inc., 2012 ONSC 3660 at para. 62.

[^11]: Price v. Smith & Wesson Corp., 2021 ONSC 1114; Vester v. Boston Scientific Ltd., 2015 ONSC 7950; Kreutner v. Waterloo Oxford Co-Operative Inc., (2000), 2000 CanLII 16813 (ON CA), 50 O.R. (3d) 140 (C.A.).

[^12]: O’Brien v. Bard Canada Inc., 2015 ONSC 2470 at para. 15; Andersen v. St. Jude Medical Inc., 2012 ONSC 3660 at para. 61.

[^13]: (2000), 2000 CanLII 16813 (ON CA), 50 O.R. (3d) 140 (C.A.).

[^14]: Rentway v. Laidlaw, [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.); Motor Co. v. Nowak, 638 S.W.2d 582 (Tex App.).

[^15]: [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.).

[^16]: Kibalian v. Allergan Inc., 2022 ONSC 7116 at paras. 35-36; Price v Smith & Wesson Corp., 2021 ONSC 114 at para. 92; Kirsh v. Bristol Myers Squibb, 2020 ONSC 1499 at para. 63; Vester v. Boston Scientific Ltd., 2017 ONSC 1095, at para. 64.

[^17]: Criminal Code, R.S.C., 1985, c. C-46.

[^18]: Firearms Act, S.C. 1995, c. 39.

[^19]: S.C. 1995, c. 39.

[^20]: Hollick v. Toronto (City), 2001 SCC 68 at para. 16.

[^21]: Hollick v. Toronto (City), 2001 SCC 68 at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 26 to 29.

[^22]: Pro-Sys Consultants Ltd v. Microsoft Corp., 2013 SCC 57at para. 103.

[^23]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 99-105; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).

[^24]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.

[^25]: Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3692; Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63; Stewart v. General Motors of Canada Ltd., [2007] O.J. No. 2319, (S.C.J.); Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540, leave to appeal to SCC ref’d [2005] S.C.C.A. No. 545.

[^26]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 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.).

[^27]: There must be some basis in fact that the issue exists and is an issue common to the class: LaSante v. Kirk, 2023 BCCA 28; Engen v. Hyundai Auto Canada Corp., 2021 ABQB 740, aff’d (on this point) 2023 ABCA 85; Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89; Canada (Attorney General) v. Nasogaluak, 2023 FCA 6; Nissan Canada Inc. v. Mueller, 2022 BCCA 338; Ewert v. Canada (Attorney General), 2022 BCCA 131; Simpson v. Facebook, 2021 ONSC 968, aff’d 2022 ONSC 1284 (Div. Ct.); Simpson v. Goodyear Canada Inc., 2021 ABCA 182; Canada v. Greenwood, 2021 FCA 186; MacInnis v. Bayer Inc., 2020 SKQB 307; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.); Lin v. Airbnb, Inc., 2019 FC 1563; Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d 2017 ONSC 6098 (Div. Ct.); Shah v. LG Chem Ltd., 2015 ONSC 6148, aff’d 2017 ONSC 2586 (Div. Ct), rev’d on other grounds 2018 ONCA 819; Sherry Good v. Toronto Police Services Board, 2014 ONSC 4583 aff’d 2016 ONCA 250; Gould v. Western Coal Corporation, 2012 ONSC 5184; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Dumoulin v. Ontario, [2005] O.J. No. 3961 (S.C.J.).

[^28]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.

[^29]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.

[^30]: Griffin v. Dell Canada Inc., 2009 CanLII 3557 (ON SC), [2009] O.J. No. 418 (S.C.J.); Stewart v. General Motors of Canada Ltd., [2007] O.J. No. 2319 (S.C.J.).

[^31]: Hollick v. Toronto (City), 2001 SCC 68 at para. 18.

[^32]: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.

[^33]: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3 and 6 (Div. Ct.).

[^34]: McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 at para. 126 (S.C.J.), leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.); Nadolny v. Peel (Region), [2009] O.J. No. 4006 at paras. 50-52 (S.C.J.); Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 at para. 51 (B.C.S.C.), var’d on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.).

[^35]: Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d, 2017 ONSC 6098 (Div. Ct.), leave to appeal refused (28 February 2018) (C.A.); Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572 at para. 48; McCracken v. CNR, 2012 ONCA 445 at para. 183; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 512; 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; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 40.

[^36]: 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 CanLII 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).

[^37]: Cloud v. Canada (Attorney General), (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[^38]: Hodge v. Neinstein, 2017 ONCA 494 at para. 114; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 112; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 54.

[^39]: Harrington v. Dow Corning Corp., 2000 BCCA 605, [2000] B.C.J. No. 2237 (C.A.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21.

[^40]: LaSante v. Kirk, 2023 BCCA 28; Engen v. Hyundai Auto Canada Corp., 2021 ABQB 740, aff’d (on this point) 2023 ABCA 85; Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, aff’g 2021 FC 1185; Canada (Attorney General) v. Nasogaluak, 2023 FCA 6; Nissan Canada Inc. v. Mueller, 2022 BCCA 338; Ewert v. Canada (Attorney General), 2022 BCCA 131; Simpson v. Facebook, 2022 ONSC 1284 (Div. Ct.); Simpson v. Goodyear Canada Inc., 2021 ABCA 182; Canada v. Greenwood, 2021 FCA 186; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.); Lin v. Airbnb, Inc., 2019 FC 1563; Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d 2017 ONSC 6098 (Div. Ct.); Shah v. LG Chem Ltd., 2015 ONSC 6148, aff’d 2017 ONSC 2586 (Div. Ct), rev’d on other grounds 2018 ONCA 819; Sherry Good v. Toronto Police Services Board, 2014 ONSC 4583 aff’d 2016 ONCA 250; MacInnis v. Bayer Inc., 2020 SKQB 307; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140.

[^41]: Engen v Hyundai Auto Canada Corp., 2021 ABQB 740, aff’d 2023 ABCA 85; Miller v. Merck Frosst Canada Ltd, 2015 BCCA 353; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57.

[^42]: O’Brien v. Bard Canada Inc., [2015 ONSC 2470](https://www.canlii.org/en/on/onsc/doc/