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A memorial to the victims of a shooting on Toronto’s Danforth Avenue in July, 2018.

The Canadian Press

The survivors of a Toronto mass shooting have won an early challenge to their proposed class-action lawsuit against the manufacturer of a stolen handgun used to kill two people and injure 13 others along Danforth Avenue in July, 2018.

The gunmaker, Smith & Wesson, had filed a motion to have the suit tossed out, arguing that there was no basis to the survivors’ claim that the company owed shooting victims a duty of care.

But Justice Paul Perell of the Ontario Superior Court of Justice dismissed the motion, allowing the suit’s novel argument of negligent design in Smith & Wesson handguns to proceed to the certification stage.

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“We’re obviously quite happy about the decision and look forward to the next stage,” said Patrick McLeod, a plaintiff and father of Skye McLeod, who narrowly escaped the shooter’s gunfire on the night of July 22, more than 2½ years ago.

Smith & Wesson did not respond Friday to requests for comment.

The decision comes as Ottawa is poised to introduce a gun-control bill as early as next week that would enable a mass purchase of tactical-style rifles currently in civilian hands, bring in stricter storage provisions and target gun smuggling.

Trudeau government poised to introduce new gun-control legislation

Filed in December, 2019, the Danforth lawsuit claims damages of $150-million and alleges that Smith & Wesson failed to incorporate an array of safety features into the design of its guns that could have prevented the bloodshed.

Those safety features are broadly referred to as authorized user technology, which could be integrated into a firearm to ensure that a lawful user is the one pulling the trigger. The recognition technology ranges in sophistication from fingerprint and voice identification to internal locking devices.

The suit states that Smith & Wesson has developed a number of authorized user systems and entered an agreement with the U.S. government in 2000 to equip all its guns with the technology by March, 2003. That commitment disintegrated, the claim states, when George W. Bush came into office and backed a law shielding gun makers from liability lawsuits.

No such shield laws exist in Canada. Although Canadian courts have no authority to enforce the U.S. agreement, the lawyer representing the families, Malcolm Ruby, says the document shows that Smith & Wesson recognized the public-safety risk of its products in the hands of unauthorized users and has done little to mitigate it.

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None of the claims have been tested in court.

Smith & Wesson’s motion to strike the claim faced a difficult test. Courts are hesitant to toss claims without hearing the matter on merits. The company had to demonstrate that it was “plain and obvious that the claim was doomed to fail. Justice Perell struck two lesser arguments in the suit based on strict liability and public nuisance, but allowed the case’s main allegation of “design negligence” to proceed.

“I think it’s important for families to know that Ontario courts will entertain these types of claims,” said Mr. Ruby. “These families suffered terrible losses an they’d like to see such tragedies avoided for other families.”

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