Dans Price c. Smith & Wesson, 2021 ONSC 114 (« Price »), les victimes de la fusillade de masse sur l'avenue Danforth à Toronto en 2018 ont obtenu gain de cause dans leur action collective proposée de 150 millions de dollars pour conception négligente contre un fabricant d'armes de poing qui demandait une annulation.

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In Price v. Smith & Wesson, 2021 ONSC 1114 ("Price") victims of the 2018 Danforth Avenue mass shooting in Toronto successfully defended their proposed $150 million negligent design class action against a handgun manufacturer's motion to strike.

Key Take-Aways

  • For the first time in Canada, a court has recognized a duty of care between a firearms manufacturer and the victims of a shooting.
  • Manufacturers of products that are dangerous in themselves owe a duty of care to those who will come into proximity of those products (and not just the purchasers and/or intended users) and should give careful consideration to ensure that they are taking reasonable precautions.
  • Plaintiffs may be able to sustain claims for negligent design of a product where they identify specific alleged design defects; a substantial likelihood of harm which could be caused by those defects; and that there were safer and economically feasible ways of manufacturing the product.

Background

The Plaintiffs in Price were victims and the parents of victims of a tragic mass shooting ("Danforth Shooting"), which occurred on the Danforth Avenue in Toronto on July 22, 2018. The Defendant manufactured the stolen semi-automatic handgun ("Handgun"), which was used by the perpetrator of the Danforth Shooting.

The Plaintiffs commenced a proposed class action against the Defendant to hold the Defendant liable for the injuries suffered in the Danforth Shooting.

The Plaintiffs' central allegation in this case was negligence. The Plaintiffs alleged that the Defendant, as the designer, manufacturer and distributor of a product intended to be used as a weapon, owed a duty of care to persons who would come into proximity with that product to ensure that the weapon included safety mechanisms sufficient to deter significant and foreseeable harm. The Plaintiffs further alleged that, although the Defendant both developed and patented technology ("Safety Mechanisms") that could deter unauthorized individuals from using its weapons, it unreasonably elected not to incorporate the Safety Mechanisms into the design of the Handgun. On this basis, the Plaintiffs claimed that the harm inflicted by the Handgun was preventable, and that the Defendant should be held liable as a result.

The Plaintiffs' claim is groundbreaking in Canada, but mirrors a long line of cases brought by victims of shootings against firearms manufacturers in the United States. The prevailing practice among firearms manufacturers in the U.S. has been to move quickly to have the plaintiffs' claims dismissed on the ground that there is no possible basis on which the victims of a shooting could establish that a manufacturer owes a duty of care to persons injured in the illegal use of its products. In the vast majority of these American cases, the plaintiffs' claims have failed to survive pre-trial dismissal or summary judgment.

In line with the common practice in the United States, the Defendant in Price moved to strike the Plaintiffs' negligence claim (along with claims for strict liability and public nuisance) and to have the proposed class action dismissed. The Defendant submitted that there was no possible basis for a claim in negligence against it on the basis that the relationship between a firearms manufacturer and a victim of a shooting:

  • did not fall within any of the established categories of duties of care that have been recognized in the jurisprudence; and
  • did not satisfy a duty of care analysis whereby a new category of duty of care could be recognized.

Furthermore, the Defendant argued that the Plaintiffs' claim in negligence was doomed to fail because the Plaintiffs did not plead material facts to establish causation. Specifically, the Defendant claimed that the cause of the harm was the independent criminal acts of the perpetrator of the Danforth Shooting, rather than any purported act or omission of the Defendant, and that the Plaintiffs neglected to plead material facts which could establish otherwise.

The motion judge ordered that the certification motion for the proposed class action would proceed in two stages: first, a hearing would occur to address the Defendants' motion to strike the Plaintiffs' claim and whether the Plaintiffs had properly disclosed a cause of action in their pleading (which overlaps with the first part of the certification test, i.e. whether the pleadings disclose a cause of action). If the Ontario Superior Court of Justice (the "Court") held in favour of the Plaintiffs, a second hearing would be held in order to address the remaining four certification criteria. On December 3-4, 2020, the first hearing was held.

The Decision

The motion judge dismissed the Defendant's motion to strike and held that the Plaintiffs' certification motion will proceed to a second hearing.

The "cause of action" criterion and motions to strike

In order to establish that the claim did not disclose a reasonable cause of action, the Defendant bore the onus of convincing the motion judge that it was plain and obvious that the claim could not succeed:

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

The motion judge acknowledged that this is a high standard. While a motion to strike a pleading for lack of a reasonable cause of action is an important means for achieving judicial efficiency, the overriding principle, as repeatedly endorsed by the Supreme Court of Canada, is that cases should generally be disposed of on their merits.

The motion judge held that it was not plain and obvious that the Plaintiffs' claim in negligence would not succeed at trial. Interestingly, the motion judge determined that not only did the Plaintiffs' claim fall within an established category of negligence, the proof was to be found in the seminal 1932 "snail in a bottle of ginger beer" decision of the House of Lords in Donoghue v. Stevenson ("Donoghue").

The two established categories of duties of care

The motion judge held that the relationship between the firearm manufacturer and the victims of a shooting fell within not one, but two recognized categories of duties of care: (1) products dangerous per se; and (2) general product liability. Both of these categories arose in Donoghue and appear to remain applicable to the manufacture of products nearly a century later.

Products dangerous per se

Donoghue acknowledged that a duty of care exists for the manufacturers of goods that are dangerous in and of themselves (per se) to take reasonable precautions to avoid foreseeable harm to proximate parties. In fact, it was this centuries-old duty of care which Lord Atkin analogized in order to establish the general product liability category for which the decision's legacy is mostly attributed.

The Defendant argued that the action must fail because the proximate cause of the harm was the criminal act of the shooter not the alleged negligence of the firearms manufacturer. The motion judge rejected this argument as a basis to strike the claim, holding that although the volition of the perpetrator of the Danforth Shooting clearly contributed to the harm, there appear to have been precautions which the Defendant could have taken to protect against the risk of that volition (i.e. implementing the Safety Mechanisms into the Handgun's design). The motion judge concluded that there is an established duty of care relationship in the immediate case and it was not plain and obvious that the negligence claim was destined to fail.  

Product liability

The motion judge also held that the relationship between the parties fell within the general product liability duty of care.

The motion judge agreed with the Defendant that the Plaintiffs' claims for negligent manufacture and negligent distribution were deficient, as the Plaintiffs had failed to plead material facts regarding negligence in the manufacturing of the Handgun, or in its distribution. However, the motion judge held that the crux of the negligence claim, being the claim for negligent design, was not doomed to fail.

The Plaintiff had pled, inter alia, that the Defendant manufactured a product that was dangerous by its nature, that the Defendant had actual knowledge of a method of manufacturing the product which would prevent foreseeable harm, and that the Defendant had unreasonably decided not to adopt this method and had caused preventable harm. If taken as true, the Court held that these facts could give rise to a successful product liability claim: "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."

The Defendant's arguments regarding negligent design (chiefly, that it had designed the Handgun for use by a police officer only, and that the design was not negligently designed for use by a police officer) spoke to the merits of the Plaintiffs' claim in negligence and not to whether a legally viable cause of action had been pled. This argument, held the Court, may prove relevant in the risk-utility analysis (of implementing the Safety Measures), which would likely arise later in the litigation, but did not render such a risk-utility analysis obsolete. Rather, it affirmed that such a risk-utility analysis was necessary, and that the negligent design claim should not be struck.

It is important to emphasize that in reaching these conclusions, the motion judge was simply making a determination as to whether there were established duties of care in relation to the relationship between the parties and was not making any conclusions as to whether the Defendant had breached those duties. The Plaintiffs had simply established that they should not be denied a day in court - not that they were likely to succeed on that day.

Conclusion

Price provides guidance with respect to what must be pled in order to sustain a claim for negligent design, and when it may and may not be appropriate for a defendant to attempt to strike a claim before certification. The decision reinforces the high threshold for a motion to strike and that manufacturers of products that are dangerous in themselves (i.e. handguns) owe a duty of care to parties who will come into proximity of those products, and not just the purchasers and/or intended users of those products. A number of questions naturally arise from this: how are products categorized as being dangerous per se and not dangerous per se? What does it mean to take reasonable precautions in the design of a potentially dangerous per se product? As the proceeding progresses to a second hearing, hopefully Price may offer answers to these questions and more.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.