Survivors of a mass shooting in Toronto’s Greektown and their relatives can proceed with a class-action lawsuit against the gun manufacturer Smith & Wesson after Ontario’s top court overturned a ruling that had dismissed their motion to certify the claim.
Eighteen-year-old Reese Fallon and 10-year-old Julianna Kozis were killed, and 13 others injured, when a gunman went on a shooting rampage on Danforth Avenue in July 2018.
The gunman, who used a stolen semi-automatic handgun made by Smith & Wesson, then turned the weapon on himself.
Some of the survivors and their families brought a class action against the gunmaker for failing to implement technology that would prevent unauthorized use of the gun, but the claim failed at the certification stage.
The motions judge found that the plaintiffs’ negligence claim didn’t meet one of the criteria for certification, which requires them to propose issues that are common to the members of the class.
The Court of Appeal for Ontario has found the motions judge set the bar too high by essentially requiring the plaintiffs to prove their case on its merits at the certification stage.
“The plaintiffs were not required to demonstrate that their negligence claim would ultimately be successful, or even that there was a prima facie case,” the court said in a unanimous decision.
“Rather, they had to show some basis in the evidence that the defendant’s failure to include the authorized user technology constituted negligence and caused or increased the risk of harm to the members of the class. And that is very different than proving the case on a balance of probabilities at trial.”
The plaintiffs welcomed the ruling and said they are seeking justice through safer handguns and corporate accountability.
“Handgun manufacturers like Smith & Wesson have long known their products can be designed to prevent the type of unlawful use that led to the Danforth shooting,” they said in a statement.
Smith & Wesson did not immediately respond to a request for comment.
The Danforth attack marked one of the worst mass shootings in the city’s history, sending shockwaves across the country and spurring advocacy for stronger gun control measures.
