The Court of Appeal for Ontario has certified a class action against the manufacturer of a stolen handgun used to carry out the 2018 mass shooting on Danforth Avenue in Toronto, reversing in part the motion judge’s decision below.
In Price v Smith & Wesson Corp, 2025 ONCA 452 (Price), the Court of Appeal allowed the plaintiffs—victims of the shooting and their families—to proceed on a common basis with the claim that Smith & Wesson had negligently designed the M&P40 handgun, designed for military and police use but criminally misused by the perpetrator of the Danforth Avenue shooting. The plaintiffs allege that the M&P40 handgun is negligently designed because it does not feature technology to prevent unauthorized use, known as “smart gun” or “authorized user” technology.
Price clarifies the evidentiary burden on plaintiffs in proposed negligent design class actions in making out the “some basis in fact” standard at the certification stage. It also represents a meaningful development in product liability law generally, and potentially in the ability of the victims of mass shootings to use tort law and class action procedure to seek redress from the manufacturers of criminally misused weapons.
In 2020, the motion judge bifurcated the certification motion in Price into two phases:
Two earlier blog posts unpack the Phase 1 and 2 decisions by the Superior Court motion judge:
In his Phase 1 decision, the motion judge found that the plaintiffs’ strict liability and public nuisance claims were doomed to fail. But the motion judge accepted that the negligent design claim was not doomed to fail. In Phase 2, the motion judge then declined to certify a class action in relation to negligent design, finding that the plaintiffs had not shown “some basis in fact” that the proposed common issues could be answered in common across the class and actually exist.
To prove negligent design, along with the usual elements of negligence, plaintiffs must:
Focusing on the third criterion, the motion judge found that the plaintiffs had shown no basis in fact for both a safer and an economically feasible way of manufacturing the M&P40 handgun.
Noting that the plaintiffs had provided no expert evidence on handgun design, the motion judge found some evidence of a technologically feasible way of incorporating authorized user technology of which Smith & Wesson was aware. But he found:
On the certification motion record, the motion judge therefore concluded that the plaintiffs had not established some basis in fact for “commercially viable design choices that would not impair the utility or the safety of the M&P40”.
Both sides appealed from different aspects of the Phase 1 and 2 decisions.
Reversing the motion judge’s decision on this point, the Court of Appeal concluded that, by faulting the plaintiffs for failing to provide expert evidence on the identified matters, the motion judge had asked too much of the plaintiffs on the merits of their claim at the certification stage.
The Court of Appeal considered that expert evidence of the type that the motion judge described may well prove important at an eventual trial of the plaintiffs’ negligent design claim. But “some basis in fact” under the certification test existed without that expert evidence—and, therefore, so too did a basis to certify a class action.
In reaching this conclusion, the Court of Appeal pointed to evidence before it at certification that Smith & Wesson had obtained patents related to authorized user technology and had entered into a preliminary agreement with the US Federal Government in 2000 to implement “smart gun” features for the purpose of, among other things, “reduc[ing] the criminal misuse of firearms”. Smith & Wesson did not ultimately comply with the agreement because the US Congress passed legislation effectively immunizing firearms manufacturers from civil liability to the victims of the unauthorized use of firearms.
The Court of Appeal reiterated that, when it comes to the applicable evidentiary threshold, “a certification motion is not a summary judgment motion”. Proving “some basis in fact” means providing “some evidentiary foundation” or “some minimal evidence” to support the claim and the existence of proper common issues.
As a result, the Court of Appeal found that the plaintiffs had not been required to lead expert evidence on every issue that might arise at trial—or even on issues that would be necessary to prove their negligent design claim, such as the existence of a safer yet economically feasible alternative product design. As the Court of Appeal stated: “The ultimate commercial viability and utility of an M&P®40 with authorized user technology may be relevant to a trial on the merits, but the plaintiffs need not establish it to cross the low threshold of the common issues criterion.”
The Court of Appeal thus found some basis in fact for the negligent design claim. On the certification record, some evidence showed:
The Court of Appeal also certified a common issue on punitive damages, finding that Smith & Wesson’s “commitment to implementing authorized user technology” and its later “retreat in the face of legislative immunity” provided at least “some minimal evidence” of “malicious, oppressive and high-handed misconduct”.
The Court of Appeal found that the plaintiffs had sufficiently pleaded a duty of care owed by Smith & Wesson to the class members. The Court of Appeal made clear that, while duties of care may be recognized based on established categories, those categories should be applied cautiously and not “overextend[ed]”. This caution, following the Supreme Court of Canada in Deloitte & Touche v Livent Inc and Rankin v JJ, applied not only to economic loss cases (as in Livent), but also to personal injury cases (as in Rankin and Price). Rather, “where an established category [of duty] fits a new set of facts imperfectly, courts should undertake a full Anns/Cooper analysis”.
That is what the Court of Appeal in Price went on to do. It considered whether the kind of injury alleged was reasonably foreseeable, whether Smith & Wesson was in a proximate relationship with the class members, and whether any policy considerations should negate any prima facie duty of care owed. On a preliminary basis, the Court of Appeal determined that the kind of injury alleged in Price was reasonably foreseeable “because of what guns do” (i.e., “once in the hands of unauthorized users, [guns] are often used to harm other people”). It also found that, because it was reasonably foreseeable that the M&P40 might be stolen, it “automatically” follows that it was reasonably foreseeable that those firearms might be used to injure or kill third parties because “there is not much reason to have a stolen gun besides to use it to hurt other people”.
From this, the Court of Appeal held, proximity follows, mainly because the impugned act—i.e., manufacturing a firearm without technology preventing its use if stolen—was a positive act, not a failure to act. As the Court of Appeal stated, proximity follows more directly from reasonable foreseeability when conduct is “overt”.
In addition, the intermediary role of the Danforth Avenue shooter between Smith & Wesson’s conduct and the class members’ injuries does not negate proximity because, the Court of Appeal held, the shooter’s intervening act was “the very kind of thing likely to happen” if the M&P40 did not incorporate authorized user technology.
The Court of Appeal found no policy reasons that should negate the prima facie duty. It found “[t]he class to whom [the] duty is owed [i.e., everyone “injured by a stolen gun”] is well-defined and unambiguous”. As a result, liability is not indeterminate, even if it “may not be clear in advance who will eventually belong to [the] class”.
Reaffirming the two-step test under the common issues criterion, according to which plaintiffs must show some basis in fact both that the proposed common issues could be answered in common across the class and actually exist, the Court of Appeal found some basis in fact.
In considering the proposed common issue of whether Smith & Wesson acted negligently by not incorporating authorized user technology into the M&P40 product design, the Court of Appeal held that the plaintiffs had shown some basis in fact that Smith & Wesson: (i) knew of the risks related to the unauthorized use of lost or stolen handguns; and (ii) had developed technically—if not necessarily economically or practically—feasible technologies to address those risks.
In considering another proposed common issue on whether not incorporating authorized user technology caused, contributed to, or harmed or increased the risk of harm to the class members, the Court of Appeal found that the US agreement provides some basis in fact that incorporating authorized user technology would have prevented unauthorized users from wielding the M&P40. In particular, the US agreement describes its purposes, among others, as “to reduce the criminal misuse of firearms” and “combat the illegal acquisition, possession and trafficking of firearms”.
The Court of Appeal’s decision in Price contains lessons and insights for anyone engaged or interested in product liability proposed class actions based on personal injuries, or in negligence class actions practice and procedure generally.
The Court of Appeal cautioned that established categories of duties of care should not be inappropriately stretched or extended. If an established category is a poor fit for a new set of facts, courts should undertake the well-established analysis for finding a novel duty of care.
In Price, the Court of Appeal readily accepted, on its novel duty of care analysis, that the nature and context of firearms, as such, combined with the fact that the theft of firearms is reasonably foreseeable, support a proximate relationship between Smith & Wesson and the class members for the purposes of a novel duty of care.
The Danforth Avenue shooter’s intervening criminal conduct, which directly caused the class members’ alleged injuries, did not prevent a finding of proximity in the circumstances of Price, because that violent criminal misuse of the M&P40 handgun was the very consequence of the unauthorized use of the M&P40 that the Court of Appeal had found was reasonably foreseeable.
At the same time, the intervening criminal conduct was enough to doom the public nuisance and strict liability claims to failure. In reaching that conclusion, the Court of Appeal maintained the strict parameters of both torts. On public nuisance, the Court of Appeal noted that manufacturing firearms “is a regulated and permitted activity”, distinguishing between that activity and “the actions of people who misuse firearms”. On strict liability, the Court of Appeal identified “sound reasons” not to impose strict liability on manufacturers. It held that extending strict liability to Smith & Wesson would be inappropriate, “particularly when the damages were caused by a third party while committing a crime”. It observed that manufacturers “cannot guarantee that all items are incapable of harming people, particularly when they are not used in accordance with instructions”, and do “not insure someone who suffers injury while using [their products]”.
As for the evidence required at the certification stage, Price highlights that, while plaintiffs must provide some basis in fact that the proposed common issues exist (not only that they can be determined on a class-wide basis), the evidentiary burden remains low. Plaintiffs need not lead expert evidence on every issue that may arise at trial. Depending on the case, they may not need evidence on some issues—even if that evidence will be needed to prove their claim on the merits.
Price underscores the high level at which courts will approach claims at certification, and what can make out the requirement for “minimal evidence” of negligent design. In appropriate cases, summary judgment can be pursued concurrently with certification, as in Dussiaume v Sandoz Canada Inc, 2023 BCSC 795, in which Bennett Jones successfully sought summary judgment for its client, the defendant Pharmascience Inc. But Price reaffirms that “a certification motion is not a summary judgment motion”.
For more information about this case, or class actions generally, please contact a member of the Bennett Jones Class Action Litigation group.