Danforth shooting victims clear first hurdle in class-action suit against gun maker

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TORONTO — The victims of a mass shooting in Toronto's Greektown have cleared their first legal hurdle in a proposed class-action suit against the manufacturer of the gun used by the killer.

An Ontario judge dismissed a motion Thursday to toss the case by Smith & Wesson, the maker of the M&P40 handgun that was used in the shooting rampage on July 22, 2018.

Samantha Price and her friend, Skye McLeod, were out with six other friends on Danforth Avenue that night when Faisal Hussain opened fire on them with a handgun.

Two people were killed - Price's friend Reese Fallon, 18, and 10-year-old Julianna Kozis - and 13 others were injured in the shooting, before Hussain killed himself as police closed in.

Price was shot and McLeod was injured fleeing the gunman. The pair launched the suit along with their parents on behalf of all the victims in December 2019.

Police have said the gun Faisal used was stolen from a gun shop in Saskatchewan. But the force said it did not know how it ended up in Hussain's hands.

The suit alleges Smith & Wesson was negligent for not including technology that would have prevented the weapon from being used by anyone but its authorized owner. Such technology ensures the gun can only be fired once unlocked with the registered owner’s fingerprint or a chip embedded in a wristband worn by the user.

Justice Paul Perell dismissed a motion Thursday by Smith & Wesson, which sought to have the case tossed.

The U.S. arms manufacturer argued the cause of the incident "was not due to its alleged negligence, but was due to the criminal acts of Mr. Hussain," wrote Perell.

"The difficulty, however, for Smith & Wesson in advancing this argument is that in the immediate case, there was a precaution that could have been taken to avail itself against the volition of Mr. Hussain shooting those innocents on the Danforth."

"The precaution that could have been taken is the implementation of authorized user technology."

Perell said it was not obvious that the victims' claim was doomed to fail, as asserted by Smith & Wesson.

"There are issues to be tried and the putative class members should not be instantly denied a day in court," the judge said.

A lawyer for Smith & Wesson did not immediately respond to a request for comment.

Samantha Price's father, Ken, said he was pleased with the judge's decision.

"Nothing will bring back our girls, nor erase the injury and memories of that horrible night," he said.

"Our goal is to see Smith & Wesson held accountable for the tragedy that affected our families and to help avoid similar tragedies for other families in the future."

The class-action certification motion will continue to the second stage, the judge said.

This report by The Canadian Press was first published Feb. 12, 2021.

Liam Casey, The Canadian Press