April 06, 2021 Practice Points

Failure to Implement Safety Technologies Raises Design Defect Claim

Design defect class action on behalf of mass shooting victims allowed to proceed against American gun manufacturer in Canada.

By David Elman and Samantha Bonanno

Following a tragic mass shooting event in Toronto on July 22, 2018, several victims and their families commenced a proposed class proceeding in Ontario, Canada, against the manufacturer of the firearm used by the perpetrator.

A bifurcated motion to certify the proposed class proceeding proceeded in July 2020. The gun manufacturer also brought a contemporaneous motion to strike the claim for failing to disclose a viable cause of action, which was heard at the same time. The claim pleaded causes of action in negligence, public nuisance, and strict liability. The outcome of both motions turned on whether the manufacturer owed a duty of care to persons who could be harmed by the use of the firearm to ensure that the gun was equipped with available safeguards.

For the purposes of the bifurcated certification motion and the manufacturer’s motion to strike, the facts set out in the plaintiffs’ claim were assumed to be true. The claim indicated that the gun used by the shooter was available for sale in Canada in 2013 and was reported missing from an out of province dealer a few years later. The gun was not equipped with “authorized user” or “smart gun” technology designed to prevent use of weapons by unauthorized persons. The allegations included that the manufacturer had been developing such technology years prior to the shooting and was committed to implementing such technology in their firearms. However, after the passing of the Protection of Lawful Commerce in Arms Act in the United States (which shielded manufactures, dealers, and sellers of firearms from civil actions resulting from unauthorized or unlawful misuse of a firearm), the manufacturer did not include this technology in its firearms. Canada has no comparable law, and the court pointed out the obvious fact that this law has no extra-territorial effect in Ontario or Canada.

The court noted that the firearms manufactured by the manufacturer in this case are apparently the most common make of stolen handguns in the United States. The court was also advised that in a 2012 report, the U.S. Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives and the National Crime Information Center stated:

Lost and stolen firearms pose a substantial threat to public safety and to law enforcement. Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms, including a market for those who are prohibited by law from possessing a gun.

The manufacturer argued that there was no cause of action in negligence because the relationship between a firearms manufacturer and a victim of a shooting does not fall with an established category of relationships giving rise to a duty of care. The manufacturer also argued that the plaintiffs cannot possibly rely on any prior commitment the manufacturer made to implement safety features because they did not know about this at the time of the shooting. The manufacturer also pointed out that the specific gun used by the shooter was manufactured for police and military purposes where such safety features may present a danger to the intended user. They argued that introducing the safety measures in that context would be a design defect.

The court concluded that the plaintiffs had pleaded a reasonable cause of action in negligent design that was not doomed to fail. The court was of the view that the manufacturer could have incorporated safety features but chose not to do so and noted that a manufacturer has a duty to make reasonable efforts to reduce risk to life and limb that may be inherent in the design of its product.  

The threshold as to whether the pleading discloses a cause of action is a low bar. A claim will be permitted to proceed unless the material facts pleaded in the claim are “patently ridiculous or incapable of proof.” Courts in Ontario are often hesitant to strike a claim and will only do so in the “clearest of cases”. The court’s response to the primary arguments raised by the manufacturer was that they were merits arguments on the very issues that were to be decided.

Although the claim has been permitted to proceed, the merits of the negligence or defect allegations have yet to be considered on a full evidentiary record. At the same time, the motion decision indicates that a decision not to adopt safety features that existed at the time of sale of a product in Canada may be sufficient to ground a negligent design claim by third parties injured through the intentional misuse of that product by another. Such circumstances appear to be at least sufficient to overcome a motion for judgment or to strike the claim. Manufacturers, both Canadian and American, will want to be aware of this decision and its implications, particularly where their products may be considered inherently dangerous or pose a risk of being misused to cause bodily harm or death.

It is not yet clear if the manufacturer is appealing this decision.


David Elman is a partner and Samantha Bonanno is an associate at Borden Ladner Gervais LLP in their Toronto, Canada, office.  

Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).