In Price v Smith & Wesson Corporation (Price),[1] the Court of Appeal for Ontario recently certified a negligence class action against a gun manufacturer arising from a tragic mass shooting in 2018 in the City of Toronto. The plaintiffs, who were victims and their family members, alleged that the defendant, Smith & Wesson Corporation (Smith & Wesson), failed to implement anti-theft technology that could have prevented the unauthorized use of the stolen gun by the gunman. In overturning the motion judge’s decision on this issue, the Court of Appeal determined that the plaintiffs had met the “some basis in fact” evidentiary threshold required for certification, thereby allowing the action to proceed on its merits. In addition to clarifying the evidentiary bar for certification, the decision in Price provides helpful guidance on the duty of care analysis for novel negligence claims.
Factual background
The underlying action arose from a 2018 mass shooting on Toronto’s Danforth Avenue, where a gunman used a stolen Smith & Wesson M&P40semi-automatic handgun to kill two people, and injure thirteen more. Some of the victims and their families commenced a proposed class action against Smith & Wesson, alleging that the manufacturer negligentlydesigned the M&P40 by failing to incorporate authorized user or “smart gun” technology that could have prevented unauthorized use. The plaintiffs argued that had this technology been implemented, the gunman would not have been able to use the gun to commit the shooting.
In the court below, the motion judge bifurcated the plaintiffs’ certification motion as follows:
- Phase 1 assessed whether the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, 1992[2] (the CPA). On a motion by Smith & Wesson, the motion judge struck out the plaintiffs’ strict liability and public nuisance claims, but held that the negligent design claim was not bound to fail.
- Phase 2 evaluated whether the plaintiffs had shown “some basis in fact” for certification under ss. 5(1)(b)–(e) of the CPA. The plaintiffs identified available smart gun features but provided no expert evidence on firearm design or commercial feasibility. Specifically, the motion judge concluded that the plaintiffs failed to satisfy the common issues criterion by failing to provide a plausible methodology for providing their claim and by failing to lead expert evidence showing that:
- designing the handgun with authorized user technology was feasible and could have been implemented at a reasonable cost;
- authorized user technology would make the handgun safer for intended consumers or non-consumers;
- the defendant’s prototypes were effective, and that they would not impair the utility or safety of the gun if implemented;
- a reasonably competent gun designer would incorporate the authorized user technology;
- the technology was commercially available, and that it would not impair the utility or safety of the gun if implemented;
- incorporating authorized user technology would reduce gun accidents and crimes;
- authorized user technology reduces the nefarious use of firearms; and
- the absence of authorized user technology allowed the shooter to carry out the shooting.
In the final result, the motion judge declined to certify the negligence claim. Both parties appealed.
Court of Appeal finds a viable duty of care
While the Court of Appeal agreed with the motion judge that the plaintiffs’ claim disclosed a cause of action in negligence (and that the claims in strict liability and public nuisance were doomed to fail), it arrived at this conclusion by conducting a full Anns/Cooper analysis to determine whether proximity and foreseeability were present, rather than relying on established analogous duty of care categories, as the motion judge did.
Citing Supreme Court of Canada jurisprudence inRankin[3] and Livent[4], the Court of Appeal reiterated that established duty of care categories must not be applied “in an overly broad manner.”[5] It emphasized that judges must examine the factors that originally justified recognizing the duty in the first place and assess whether the relationship at issue is truly analogous.
A full duty of care analysis (also commonly referred to as the Anns/Cooper test) proceeds in two stages. The first stage examines reasonable foreseeability and proximity. Reasonable foreseeability asks whether the harm was a reasonably foreseeable result of the defendant’s negligence. Proximity asks whether the plaintiff and defendant were in a close and direct relationship such that it would be fair to impose a duty of care. The second stage considers whether any policy considerations negate the proposed duty.
At the first stage, the Court of Appeal concluded that harm to the victims was reasonably foreseeable. As the Court of Appeal stated, “there are few reasons to unlawfully possess a firearm other than to use it to hurt people.”[6] The Court of Appeal also found proximity between Smith & Wesson and the class members “[b]ecause physical harm is reasonably foreseeable with the unlawful possession of a handgun.”[7] The fact that the shooter was an intervening actor did not break the chain of proximity, as the harm caused was “the very kind of thing likely to happen” if authorized user technology was not incorporated.[8]
No residual policy considerations were found at the second stage of the analysis. The Court of Appeal rejected the argument that recognizing a duty would create indeterminate liability, noting the Supreme Court of Canada’s caution in Livent that “indeterminate liability should not be confused with significant liability.”[9] In Price, the Court of Appeal found that the potential class of claimants is well-defined and unambiguous, even though it may not be clear in advance “who will eventually” belong to the class [emphasis in original].[10]
Court of Appeal confirms low evidentiary threshold for certification
On the certification question, the Court of Appeal allowed the appeal, in part, finding that the plaintiffs had met the “some basis in fact” threshold for certification, which the Court described as a “low bar.”[11] While the motion judge faulted the plaintiffs for lack of expert evidence on the issues noted above (though the plaintiffs did serve seven other expert affidavits in support of certification), the Court of Appeal found that the motion judge’s scrutiny of the expert evidence far exceeded the “some-basis-in-fact standard’s minimal requirements” and was tantamount to a requirement that the plaintiffs prove their case on their merits.[12]
The Court of Appeal also pointed to evidence that the defendant had obtained patents for authorized user technology and had previously entered into a “tentative” agreement with the U.S. federal government to implement safety features aimed at reducing the criminal misuse of firearms (which the defendant never complied with as the US federal government subsequently passed legislation that effectively immunized gun manufacturers from civil liability). Taken as a whole, the Court of Appeal found that the minimal evidence requirement was met at this stage.
Key takeaways
The Court of Appeal’s decision in Price offers important guidance for parties facing product liability and negligence-based class actions, and for manufacturers of guns and other inherently dangerous products.
When dealing with novel duty of care claims that do not fall neatly within established categories, the Court of Appeal made it clear that those categories ought not to be applied in an overly broad manner. Instead, parties should be aware that Ontario courts will likely require an Anns/Cooper analysis to determine whether a novel duty should be recognized.
Having determined that a full duty of care analysis was warranted, Price indicates that parties should be mindful that foreseeability may be established where a defendant has previously acknowledged a risk and could have taken steps to mitigate it. Here, the Court of Appeal held that harm from stolen firearms was reasonably foreseeable, citing evidence of Smith & Wesson’s prior commitment to developing user-restriction technology, its patent filings, and its agreement with the US government.
Parties should also be aware that where the alleged harm is a reasonably foreseeable result of the defendant’s affirmative conduct, proximity will often follow. In Price, the Court of Appeal rejected arguments that third-party criminal acts severed the relational link, finding instead that the harm fell squarely within the risk the defendant failed to guard against.
At the policy consideration stage, the Court of Appeal made clear that parties should be cautious when invoking indeterminate liability as a basis for defeating a duty of care. The Court of Appeal rejected the argument that recognizing a duty would expose manufacturers to unbounded liability, emphasizing that significant liability is not the same as indeterminate liability. Additionally, the Court of Appeal dismissed the suggestion that firearm regulation forecloses any common law duty, clarifying that broad statutory oversight does not preclude tort obligations unless explicitly stated in the legislation.
Finally, parties should remember that the certification threshold is not intended to serve as a merits test. In Price, the Court of Appeal confirmed that an action may proceed where there is some factual foundation for the common issues, even without expert input on every point, provided the claim is grounded in a coherent and plausible theory supported by the record, and otherwise satisfies the criteria for certification under the CPA.
Thank you to Bankole Alade for his contributions to the insight.
For more information on the topic, please contact the author, Amer Pasalic.
[1] Price v. Smith & Wesson Corporation, 2025 ONCA 452 [Price].
[2] Class Proceedings Act, 1992, SO 1992, c 6.
[3] Rankin’s Garage & Sales v J.J., 2018 SCC 19 [Rankin] .
[4] Deloitte & Touche v Livent Inc. (Receiver of), 2017 SCC 63 [Livent] .
[5] Price, supra note 1 at para 35.
[6] Ibid at para 48.
[7] Ibid at para 48.
[8] Ibid at para 61.
[9] Livent, supra note 4 at para 43.
[10] Price, supra note 1at para 68
[11] Ibid at para 90.
[12] Ibid at para 102.
