Written By Mike Eizenga, Michael Smith, Gannon Beaulne and Gita Keshava

An Ontario Superior Court judge has accepted, in a preliminary decision in Price v Smith & Wesson Corp, 2021 ONSC 1114, that gun manufacturers may have civil liability in Canada for losses caused by mass shootings when feasible safety measures could have prevented the harm but were not used.

The Danforth Shooting

In summer 2018, a mass shooting on Danforth Avenue in Toronto involving a stolen handgun claimed the lives of two people and injured many others. The stolen handgun was an M&P®40, designed and manufactured by the U.S. company Smith & Wesson Corp in 2005 and made available for sale in Canada in 2013. The M&P®40 is a semi-automatic pistol for military and police use and is not designed for hunting. It did not incorporate any so-called “smart gun” technology to thwart criminal acts by unauthorized users. Justice Paul Perell in his decision made reference to Canadian and U.S. statistics indicating that lost and stolen firearms pose a substantial threat to public safety and law enforcement.

Smart-gun technologies take many forms, including biometric technologies (such as finger-print or palm-print recognition), automated identification technologies (such as proximity tokens and magnetic rings), and internal or external locking devices. Such measures have existed since the 1970s. By the 1990s, many manufacturers were integrating these technologies into their firearms. Smith & Wesson itself filed at least seven relevant patent applications between 1998 and 2001. Authorized user technologies allow the weapon to fire only when activated by an authorized user and, accordingly, “reduce accidental shootings, neutralize the impact of gun thefts, and prevent criminal use of weapons by unauthorized persons”.

In 2000, Smith & Wesson (and other gun manufacturers) entered into an agreement with the U.S. government under which it made certain undertakings with respect to the introduction and use of authorized user technology. In 2005, the U.S. Congress passed legislation granting gun manufacturers, and others, immunity from civil liability for the unauthorized or unlawful use of their weapons. Justice Perell’s decision notes that, after enactment of the legislation, Smith & Wesson never complied with the 2000 agreement.

Smith & Wesson never adopted authorized-user technology for its M&P®40 handgun. In Canada, no law comparable to the U.S. immunity statute exists. In 2019, after the Danforth shooting, victims and their family members started Price v Smith & Wesson Corp, a proposed class action, alleging that Smith & Wesson owed a duty of care to those who were harmed by the misuse of the stolen M&P®40 handgun, and that it was negligent not to incorporate available safety measures into the product.

Intrinsically Dangerous or Defective Goods

Smith & Wesson moved to strike the plaintiffs’ claims as failing to disclose a reasonable cause of action. It argued that the plaintiffs’ negligence claim does not fit within any existing category of recognized duty of care, requiring a novel duty of care analysis, and that a myriad of legal and policy factors preclude recognizing the duty.

Justice Perell of the Ontario Superior Court of Justice heard the motion to strike as the first part of a bifurcated certification proceeding to decide whether the case should be certified as a class action. He dismissed Smith & Wesson’s motion to strike, locating the alleged duty within previously recognized categories:

• the duty of the manufacturer of a good dangerous in itself to those who necessarily come within the good’s proximity, which he called the “goods dangerous per se” category; and
• the duty of the manufacturer of a good with a design defect to those who are injured because of the defective good, which is the modern products liability category.

Justice Perell traced a centuries-old line of authority from England to Canada which, he found, recognizes “a peculiar duty to take precaution imposed upon those who send forth or install [goods dangerous in themselves] when it is necessarily the case that other parties will come within their proximity”. Accepting that firearms naturally qualify as per se dangerous, he concluded that the “more dangerous the product, the greater is the care that must be taken in manufacturing [it]”, making a duty to integrate available safety measures arguable.

Turning to the products liability category, Justice Perell characterized the recognized duty of care related to defective products as requiring manufacturers to “avoid safety risks and to make the product reasonably safe for its intended purposes”, including by “mak[ing] reasonable efforts to reduce any risk to life and limb that may be inherent in its design”. He found that this duty may be engaged if the product creates a “substantial likelihood of harm” and there is a “safer” and “economically feasible” design, matters to be determined with a fact-sensitive, multi-factorial “risk-utility analysis” (to be performed in the context of a merits hearing, not a motion to strike).

Justice Perell could not rule out that a risk-utility analysis might show 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”.

Having found that recognized duties could encompass the plaintiffs’ negligence claim, Justice Perell declined Smith & Wesson’s invitation to analyze the proposed duty from first principles. Thus, he did not review afresh whether the proposed duty meets the foreseeability and proximity requirements of the novel duty of care test, nor engage with policy factors that can negate a duty.

The plaintiffs had also advanced claims for public nuisance and strict liability, and for negligent manufacture and distribution (along with negligent design), but Justice Perell did not find any reasonable chance of success for those claims.

Possible Impacts of the Decision

Justice Perell was clear that “all that is presently being decided is that there is an established duty of care relationship in the immediate case and it remains to be determined whether or not there was culpable carelessness”.

What role should criminal acts play in the analysis? Smith & Wesson will likely assert the volition of the third-party shooter as the overwhelming cause of and explanation for the harm. On the other hand, the plaintiffs’ assertion will be that the actual defect in design was that Smith & Wesson failed to address that very issue. The safer alternative design would have prevented the firearm from being used by the shooter in this case. In Justice Perell’s words: “[T]here was a precaution that could have been taken [by Smith & Wesson] to avail itself against the volition of [the third-party shooter] shooting those innocents on the Danforth. The precaution that could have been taken is the implementation of authorized user technology.”

As noted, Justice Perell found only that the plaintiffs’ claim was not bound to fail, but the decision suggests that gun manufacturers could potentially be responsible, under Canadian tort law, for losses caused by the criminal misuse of their weapons when feasible safety measures may have prevented the harm but were not used. As Justice Perell put it, paraphrasing the 1909 decision of the Privy Council in Dominion Natural Gas Co, Ltd v Collins and Perkins, “those who send forth a handgun have a duty to take care imposed on them when it is necessarily the case that other parties will come within proximity of the handgun”.

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