The lawsuit against Smith & Wesson was filed by victims of a 2019 shooting in Toronto's Greektown
The Ontario Court of Appeal has agreed to certify a class action that victims of a Toronto mass shooting brought against gun manufacturer Smith & Wesson, ruling that the plaintiffs satisfied the criteria for bringing their negligence claim as a class proceeding.
Monday’s decision overturned a lower court judgment, which found that while the plaintiffs’ lawsuit against Smith & Wesson met some criteria to proceed as a class action, it did not meet other criteria required under the Class Proceedings Act.
In a statement on behalf of the plaintiffs, potential class members, and the plaintiffs’ counsel from Gowling WLG, Paliare Roland, and Michel Drapeau, Gowling partner Malcolm Ruby told Law Times, “The plaintiffs seek access to justice to advance their claim and for safer handguns and corporate accountability.
“The Court of Appeal’s decision reflects that handgun manufacturers have long known their products can be designed to prevent the type of unlawful use that led to the Danforth shooting,” Ruby added. “The plaintiffs look forward to preparing their case for trial.”
The tragedy that spurred the lawsuit occurred in July 2018, when a man named Faisal Hussain shot 15 people on Toronto’s Danforth Avenue, killing two of them. He used a gun manufactured by Smith & Wesson.
In 2019, victims and their family members filed the proposed class action against Smith & Wesson, alleging the US gun manufacturer failed to implement a feature that would have prevented unauthorized users from firing the semiautomatic pistol Hussain used the previous summer. According to the plaintiffs, Smith & Wesson had pledged to implement such a feature in 2000 to settle civil claims arising out of gun violence in the US. The company said it would incorporate authorized user technology in its handguns by 2003.
However, the plaintiffs said the company never followed through on its promise. In 2005, the US Congress passed legislation that more or less immunized gun manufacturers from civil liability to victims in cases involving the unauthorized use of a firearm. This legislation passed despite evidence that significant numbers of firearms were stolen each year.
A motion judge decided the plaintiffs’ bid for class certification in two stages. In the first stage in 2021, the judge ruled that the plaintiffs’ negligence claim against Smith & Wesson satisfied the cause of action criterion under the Class Proceedings Act. However, in the second stage last year, the judge found that the lawsuit only satisfied two of the four remaining criteria. The judge dismissed the certification bid.
The plaintiffs and Smith & Wesson both appealed. The plaintiffs argued that other claims they wanted to pursue against the gun manufacturer were also viable, while the gun manufacturer argued that the plaintiffs’ negligence claim had no reasonable prospect of success.
The OCA agreed with the motion judge’s ruling on the plaintiffs’ negligence claim.
“The motion judge was not tasked with deciding whether the claim would be successful on its merits. He had to decide whether the claim was capable of success,” the OCA’s decision read. The appellate court said the motion judge’s decision not to strike the negligence claim was based on a so-called Anns/Cooper analysis, which looks at whether harm to a plaintiff was a reasonably foreseeable consequence of a defendant’s negligent action, whether the plaintiff and defendant are in a “close and direct” enough relationship that there is a duty of care; and whether there are policy considerations that could negate that duty of care.
“When the facts of the case are subjected to that analysis, it is not plain and obvious that the defendant owed the plaintiffs no duty of care,” the OCA said.
“The defendant could reasonably have foreseen that the handguns it manufactured might be stolen, and that if they were, they might be used to harm other people. The foreseeability of that injury placed the defendant and the plaintiffs in a proximate relationship. And no policy considerations negate the resulting duty of care.”
The court added, “At the very least, it is not plain and obvious that these conclusions are false. It follows that the plaintiffs’ claim in negligence is not doomed to fail.”
Unlike the motion judge, the OCA ruled that the plaintiffs satisfied all of the Class Proceedings Act criteria, paving the way for their lawsuit to receive class certification.
Counsel for Smith & Wesson did not respond to a request for comment.
