Case: Hartman v. Canada (Attorney General), 2026 ONCA 270 (CanLII)
Keywords: COVID-19; vaccination; myocarditis; misfeasance; duty of care; leave to amend
Synopsis:
The Appellant’s 17-year-old son Sean Hartman receives a Pfizer-BioNTech COVID-19 vaccine and dies 33 days later. The Appellant sues the Attorney General of Canada and the Minister of Health pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, alleging negligence and misfeasance in public office (i.e., that negligent approval, monitoring, and promotion of the vaccine caused a foreseeable death which was the “proximate result” of the Respondents’ conduct). (See paras. 1, 18). Clinical trial data shows that approximately 27% of participants receiving the vaccine experienced an “adverse event”; there is a lack of information on the long-term safety and efficacy of the vaccine. (See para. 50). At the same time, the data shows “the vaccinate group had a 91.3% lower risk of developing COVID-19 than the unvaccinated placebo group”. (See para. 63).
The Motion Judge (Antoniani J.) strikes the claim in its entirety without leave to amend. (See paras. 2, 22-25). The Court of Appeal (Miller, Monahan, and Pomerance JJ.A.) dismiss the appeal. (See paras 4, 75).
Importance:
The Court of Appeal described the standard of review of applicable to the Motion Judge’s determination (i.e., to strike the claim pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194) as correctness. Regarding the decision to deny leave to amend, that is considered “discretionary” and owed deference on appeal absent palpable and overriding error of fact or law. (See para. 27).
The Court of Appeal helpfully summarized the “essential principles” governing motions to strike at para. 28:
- The test for striking a pleading is whether, assuming the facts pleaded are true, it is plain and obvious that it does not disclose a reasonable cause of action and cannot possibly succeed. This is a stringent test and the moving party must satisfy a very high threshold in order to succeed: PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at paras. 30-31, leave to appeal [dismissed], [2022] S.C.C.A. No. 407; Fernandez Leon v. Bayer Inc., 2023 ONCA 629, at para. 8;
- The claim should be read as generously as possible erring on the side of permitting an arguable claim to proceed to trial, since cases should, if possible, be disposed of on their merits: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at paras. 87-88, per Karakatsanis J. (dissenting, but not on this point); Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16;
- The facts set out in the claim must be accepted as true unless they are manifestly incapable of being proven: The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, at para. 45; PMC York Properties, at para. 31;
- Bare conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not assumed to be true for purposes of a motion to strike: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at para. 31; Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 74, leave to appeal [dismissed], [2019] S.C.C.A. No. 69;
- The motion judge is entitled to examine documents incorporated by reference into the pleading as part of the material facts that are pleaded and accepted for purposes of the motion: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 32; Das, at para. 74; and
- The court should always consider whether a deficiency in the pleadings can be addressed through an amendment, and leave to amend should only be denied in the clearest of cases where it is clear that the deficiencies in the pleading cannot be cured: Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296, 401 D.L.R. (4th) 318, at paras. 35-37; Fernandez Leon, at para. 5. However, although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings and the court has a residual right to deny amendments where appropriate: Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19; McFadden v. Psutka, 2024 ONCA 203, at para. 12.
The Court of Appeal also provided a detailed description of the legal principles governing the negligence liability of public authorities – useful for a range of matters in future which engage the “Anns/Cooper” analysis. (See paras. 30-35). For the Court, “proximity” arises in circumstances where the plaintiff has demonstrated the government created a special relationship with them through its conduct. (See para. 34). Regarding the statutory duty in this case, s. 4(1) of the Department of Health Act, S.C. 1996, c. 8 extends the Minister’s powers, duties, and functions to “the health of the people of Canada”; the Court of Appeal found this created a general duty to the public, but not to individuals such as the Appellant’s son. (See paras. 36-38).
For example, when the Prime Minister said “let me remind everyone that every vaccine administered in Canada is safe and effective, as evaluated by Health Canada” or when the Chief Public Health Officer of Canada urged “all people in Canada to get vaccinated”, these statements do not create a sufficient relationship of proximity between the Respondents and the Appellant’s son – even though he was, unquestionably, a young person living and residing in Canada and received authoritative advice/direction from the government. (See para. 52).
The Court of Appeal emphasized that “the Minister’s difficult responsibility was to balance the myriad (and in some respects, competing) interests and determine what was in the best interests of Canadians as a whole.” (See para. 48). Citing Abarquez v. Ontario, 2009 ONCA 374 (CanLII) – a case concerning the impact of the 2003 SARS outbreak on healthcare workers – the Court observed “the fact that some individuals might be negatively affected by a government decision cannot in itself give rise to a private law duty of care, since that would amount to prioritizing the interests of particular individuals or groups over the interests of the public as a whole. In summary, there is no doubt that the legislative scheme did not give rise to a private law duty of care.” (See para. 51).
However, even if a plaintiff succeeds in establishing a prima facie duty of care, residual policy considerations can limit or negate the existence of that duty (e.g., the potential for the creation of unlimited liability to an indeterminate class and/or the chilling effect on the ability of government to perform statutory duties). (See para. 35). In this case, the Court of Appeal determined that, although it was “inevitable that some members of the public would be adversely affected” and it was “impossible to predict in advance the extent or severity of these adverse impacts”, “subjecting government actions to liability in tort” would “impair the ability of government decision-makers to make difficult but necessary decisions that advance the general public interest”. (See para. 53).
Ultimately, the Court of Appeal concluded the Motion Judge made no error in finding it was “plain and obvious” that the Respondents did not owe a private law duty of care to the Appellant’s son and that the cause of action in negligence was “bound to fail”. (See para. 54).
Regarding misfeasance in public office, the Court of Appeal outlined the key elements at para. 56:
- a public officer was engaged in deliberate and unlawful conduct in their capacity as a public officer; and
- the public officer was aware both that their conduct was unlawful and that it was likely to harm the plaintiff (See Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), at para. 23).
The Court of Appeal also described the need to show “bad faith”, explaining “the mere fact that the public officer is aware that a decision may cause harm to certain individuals does not, in itself, give rise to a claim of misfeasance since ‘[i]n a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens’”. (See para. 58; Odhavji Estate at para. 28). The Court emphasized the “stringent standard of particularity” – that, pursuant to Rule 25.06(8) of the Rules, pleadings must contain “full particulars” for intentional torts requiring a plaintiff to show bad faith or dishonesty. (See paras. 59-60).
In this case, the Court of Appeal found the Appellant’s claim did not allege, beyond “bald assertion”, that the Respondents were aware their conduct was likely to cause harm to the Appellant’s son; there were no material facts pleaded to establish subjective awareness or imputed knowledge. (See para. 65). In particular, the Court observed that the claim did not allege any material facts in support of the allegation that the Minister was “aware of, recklessly indifferent to, or willfully blind of, a risk of myocarditis among young people and/or adolescent males”. (See para. 66). Therefore, for the Court, the Motion Judge made no error in finding the claim failed to plead the necessary elements of the tort. (See para. 68). It would appear that a plaintiff in these circumstances is required to plead facts from which it could be inferred that government actors “knew, ignored, or were willfully blind to evidence that the risks associated with the Vaccine outweighed its alleged minimal efficacy”. (See para. 67).
Finally, the Court of Appeal declined to interfere with the Motion Judge’s decision refusing the Appellant’s motion for leave to amend the claim; finding the Appellant failed to plead material facts upon which it could be concluded the Respondents had a private law duty of care and/or subjective awareness their actions were unlawful and likely to injure. (See para. 69).
At para. 74, the Court acknowledged that the decision “will be disappointing” to the Appellant; that the death of Sean Hartman was “unquestionably a tragic event”. (See para. 74). It remains to be seen whether the Appellant will test the Court of Appeal’s approach to this “tragic event” at the Supreme Court of Canda. Alternatively, if the decision herein closes one particular door, might a window be available to affected Canadians, including the Appellant? If one suspects to have been injured by a vaccine, consider an application to Canada’s Vaccine Impact Assistance Program (“VIAP”)?
Counsel for the Appellant: Umar Sheikh (Umar Sheikh Professional Corporation, Victoria)
Counsel for the Respondent: Mahan Keramati and Adrian Zita-Bennett (Justice Canada, Toronto)