Firearms are inherently dangerous and demand a high standard of care. However, when an injury arises not from an accident but from an intentional act of a third party, questions about liability become more complex. The Alberta Court of Appeal’s decision in Mackie v Drewes, 2025 ABCA 218, clarifies the standard of care expected of firearm owners and how liability is assessed when a third party commits a wrongful act.
This case involved a serious and life-altering injury caused by the intentional discharge of a firearm by someone who was not the gun’s owner. The injured party pursued a negligence claim against the owner of the gun, arguing that he failed to secure the weapon adequately. Ultimately, the Court concluded that the owner was not liable, highlighting key principles in Alberta negligence law that shape how similar cases may unfold.
A Tragic Incident at a Remote Cabin
In May 2014, the appellant, Colin Mackie, was seriously injured after being shot with a .22-calibre rifle. The shot was fired not by the gun’s owner, Brent Drewes, but by a third party, Donald Anderson, in what the Court described as a “misguided attempt to scare” Mackie. Anderson later pleaded guilty to unlawfully causing bodily harm and was noted in default in the civil action.
The shooting occurred at a remote cabin, where Mackie, Drewes, Anderson, and a fourth individual had gathered following a work assignment. All four men were licensed firearm users and experienced in handling guns. After practicing with the rifle earlier, the group returned to the cabin deck to eat. Drewes placed the gun, unloaded and in plain view, on a bench alongside its ammunition. He later climbed to the roof of the cabin with Mackie, leaving the firearm behind and out of sight.
While they were on the roof, Anderson took the rifle, loaded it, and fired a shot through the cabin’s roof, striking Mackie and causing significant injuries.
The Legal Proceedings: Negligence and Summary Dismissal
Mackie brought a negligence claim against Drewes, arguing that a firearm owner owes a high duty of care to prevent misuse, even by others. Drewes successfully applied for summary dismissal, which a chambers judge upheld. Mackie then appealed to the Alberta Court of Appeal, arguing that the chambers judge had erred in several respects, including the handling of the factual record, the foreseeability of harm, and the interpretation of firearm storage regulations.
The Court of Appeal dismissed the appeal, affirming that Drewes had not breached his duty of care. The ruling explores several essential facets of negligence law, including the legal threshold for summary dismissal, the foreseeability of third-party actions, and the reasonable expectations imposed on firearm owners.
Summary Dismissal: Was a Full Trial Necessary?
One of the appellant’s key arguments was that the matter was too complex for summary dismissal and should have proceeded to a full trial. The Court rejected this view, finding that the evidentiary record—comprising affidavits and cross-examinations—was sufficient to determine the facts and apply the relevant legal standards.
Citing the Supreme Court of Canada’s decision in Hryniak v Mauldin, the Court reiterated that summary disposition is appropriate when it offers a fair and proportionate means to resolve the dispute. The judges found no error in concluding that the case could be resolved without a trial, noting that no additional facts would likely emerge that would change the outcome.
Was the Rifle Loaded? Inferring Facts from Habitual Practice
The appellant also challenged the chambers judge’s finding that the rifle was unloaded when Drewes left it on the bench. Drewes testified that, based on his standard practice, he believed the gun was not loaded. On cross-examination, he admitted he could not be certain.
The Court found no error in the chambers judge’s inference. On a balance of probabilities, the standard for civil cases, the evidence supported the conclusion that the firearm was unloaded. The Court emphasized that absolute certainty is not required and that a judge’s factual inferences are entitled to deference absent a palpable and overriding error.
Duty of Care: The Legal Relationship Between Gun Owners and Others
The Court accepted that Drewes owed Mackie a duty of care. When firearms are present at a social gathering, particularly in proximity to others, there is a foreseeable risk of harm if those firearms are mishandled. The gun owner is responsible for taking reasonable precautions to prevent such damage.
However, identifying a duty of care is the first step in a negligence analysis. The key issue in this case was whether Drewes breached the standard of care expected in the circumstances.
Standard of Care: What Is Reasonable with Firearms?
To determine whether Drewes met the standard of care, the Court applied the test from Ryan v Victoria (City), which requires individuals to act as a reasonable and prudent person would under similar circumstances. The Court must consider the likelihood of foreseeable harm, the gravity of that harm, and the effort required to prevent it.
The chambers judge and the Court of Appeal agreed that the standard of care did not require Drewes to supervise the rifle constantly. All individuals present were experienced with firearms, and there was no indication that Anderson posed a danger. The act of loading and firing the gun was deliberate and unforeseen. As such, the respondent’s actions did not fall below the standard of care.
Should the Rifle Have Been Locked or Disabled?
Mackie also argued that Drewes breached firearm storage regulations under the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209. These regulations generally require that non-restricted firearms be unloaded and rendered inoperable or locked when stored.
While the rifle was unloaded, it was neither disabled nor stored in a locked receptacle. However, the Court accepted the chambers judge’s interpretation that Section 5(3) of the Regulations provides exceptions for remote wilderness areas not incompatible with hunting. The setting of the incident—a secluded cabin—fell within this exception.
Even if the storage did not fully comply with the Regulations, the Court held that regulatory standards are only one factor in determining the standard of care. They do not automatically establish negligence, particularly in a fact-specific inquiry.
Foreseeability of Harm: The Limits of Responsibility
Mackie argued that the chambers judge had erred by focusing too narrowly on the specific circumstances of the injury rather than on the general foreseeability of harm. He maintained that, given the inherent danger of firearms, it should have been foreseeable that leaving a rifle and ammunition unattended, even briefly, could lead to injury.
The Court disagreed. While general foreseeability is relevant at the duty of care stage, the standard of care requires more specific foreseeability: whether a reasonable person would anticipate the actual risk that materialized. In this case, Anderson’s decision to take the rifle, load it, and intentionally fire it was an unexpected criminal act. The Court found it unreasonable to expect Drewes to anticipate such behaviour from someone with no prior indication of dangerous conduct.
Do Firearms Require a Stricter Standard of Care?
The appellant also argued that the chambers judge erred by applying the “general rules of negligence” to a firearms situation. He proposed that a heightened standard should be used due to the unique dangers posed by guns.
The Court acknowledged that firearms are inherently dangerous, which should be considered when setting the standard of care. However, it affirmed that the core elements of negligence law still apply: duty, breach, causation, and damage. The presence of a firearm may raise the level of caution required, but it does not transform negligence into strict liability. The analysis must still consider the totality of circumstances and whether the respondent acted reasonably.
When a Third Party Is to Blame
A key feature of this case was that the injury resulted from the intentional act of a third party. Generally, Canadian negligence law does not impose liability on individuals for failing to prevent criminal acts by others, unless special circumstances create a duty to do so.
The Court compared the case to Fullowka v Pinkerton’s of Canada Ltd, where the Supreme Court found a duty of care existed to prevent intentional harm due to the contractual relationship between a security firm and a group of miners. In contrast, there was no special relationship between Drewes and Anderson that would impose a similar duty. Drewes had no reason to anticipate criminal conduct and no responsibility to guard against it.
Final Outcome: Appeal Dismissed
The Alberta Court of Appeal ultimately dismissed Mackie’s appeal. The Court affirmed that while the consequences of Anderson’s actions were tragic, Drewes did not breach his duty of care and could not reasonably have foreseen or prevented the incident. The summary dismissal of the claim was upheld.
Lessons for Personal Injury Law and Firearm Safety
Mackie v Drewes underscores the nuanced application of negligence principles when firearms are involved. While gun owners do owe a duty of care to those around them, that duty does not require perfection or constant supervision. Liability is not imposed simply because an injury occurred; it depends on whether the harm was foreseeable and preventable in the circumstances.
For Albertans injured in incidents involving third parties, this case also reinforces the difficulty of proving negligence against individuals who did not directly cause the harm. Victims may have legal recourse against those who commit criminal acts, but establishing liability against others, particularly property owners or firearm owners, requires strong evidence of foreseeability, breach, and causation.
Alberta Catastrophic Injury Lawyers: Get Legal Guidance After a Tragic Incident
When a serious injury or the loss of a loved one occurs due to the negligence of another, the legal complexities can be overwhelming. As the Mackie v Drewes decision highlighted, proving liability requires a deep understanding of negligence law, especially when a third party is involved. If you or someone you know has suffered a catastrophic injury in a tragic incident in Alberta, the experienced personal injury lawyers at Cuming & Gillespie LLP can help you navigate this intricate legal landscape. We focus solely on serious personal injury cases, providing dedicated support to secure the compensation you need. Contact us today at (403) 571-0555 or online for a consultation. Let us use our award-winning experience to benefit you.