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Torts - Pleadings in Intentional Torts. Hartman v. Canada (Attorney General)
In Hartman v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought where "the motion judge struck the Claim [SS: under R21.01(1)(b)] in its entirety on the basis that it was plain and obvious that the Claim had no reasonable prospect of success, even if supplemented with amendments proposed by the appellant".
The court considers the law of 'misfeasance in public office', here specifically the need for particularity in pleadings in intentional torts:1. Legal principles governing claims for misfeasance in public office
[56] In order to make out a claim for misfeasance in public office, the plaintiff must establish two elements: (1) a public officer was engaged in deliberate and unlawful conduct in their capacity as a public officer; and (2) the public officer was aware both that their conduct was unlawful and that it was likely to harm the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23.
[57] The rationale behind the imposition of this form of tortious liability is that “in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes”: Odhavji Estate, at para. 26, citing Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, at p. 1230. The tort is not directed at public officers who fail to adequately discharge their public duties through inadvertence or negligence, but rather at public officers who “could have discharged his or her public obligations, yet wilfully chose to do otherwise”: Odhavji Estate, at para. 26 (emphasis in original omitted).
[58] Significantly, the tort of misfeasance in public office requires an element of bad faith. Thus, 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”: Odhavji Estate, at para. 28. A claim for misfeasance can only arise where an officer “blatantly disregards his or her official duty … [and] demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question” Odhavji Estate, at para. 29. The alleged misconduct by the public officer must be deliberate and unlawful, with some awareness of harm to the plaintiff as an individual: Odhavji Estate, at paras. 24-25, 29.
[59] Since misfeasance in public office is an intentional tort requiring bad faith or dishonesty, r. 25.06(8) of the Rules demands the pleading contain “full particulars”: see Robson v. The Law Society of Upper Canada, 2018 ONCA 944, at paras. 17-20; Conway, at para. 39; and Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 101 O.R. (3d) 321, at paras. 88-89. This court has held that pleadings alleging intentional torts must meet a “stringent standard of particularity”: Ceballos v. DCL International Inc., 2018 ONCA 49, at para. 12.
[60] While acknowledging the inherent limitations on pleadings at the early stages of litigation, this court has recognized and endorsed the policy concern underlying the stringent standard of particularity in the case of misfeasance claims, as expressed in St. John’s Port Authority v. Adventure Tours Inc., 2011 FCA 198, 335 D.L.R. (4th) 312, at para. 63: “it is all too easy for a plaintiff who is aggrieved by governmental conduct to assert, perhaps without any evidence at all, that ‘the government’ acted, ‘knowing’ it did not have the authority to do so, ‘intending’ to harm the plaintiff”: see Trillium Power, at paras. 60-61. Therefore, a bald plea that a public officer’s conduct was improper is insufficient. There must be circumstances, particulars, or facts pleaded upon which a trier of fact could infer or conclude that the public officer’s conduct was deliberate and unlawful, with knowledge of the potential consequence to the plaintiff.
2. The Claim baldly alleged awareness of unlawful conduct without pleading material facts
[61] The Claim makes allegations against Health Canada and the Minister personally relating to their responsibilities concerning approval, oversight, monitoring, and promotion of the Vaccine. For example, the Claim asserted that they were recklessly indifferent or wilfully blind in: failing to reasonably and accurately review, interpret, and report on the clinical data provided by the Vaccine manufacturer regarding efficacy and safety; approving the Vaccine; failing to monitor and report on new data as it became available; failing to revoke the Vaccine’s approval following the release of data showing that the risks outweighed the Vaccine’s minimal efficacy; and representing that the Vaccine was safe and effective despite possessing data to the contrary.
[62] Clearly, the appellant’s pleadings concerning the respondents’ “unlawful conduct” rest on an assertion that the Vaccine was minimally effective. The difficulty is that the only fact pleaded in support of this allegation was that Study 2 showed the incidence of COVID-19 among vaccinated participants in the Clinical Study was only “3.6%” lower than among participants who received the placebo. As we explained above in para. 19 of these reasons, the appellant appears to calculate this figure by comparing the rate of COVID-19 cases observed in the placebo group (4.0%) with the vaccinated group (0.4%), to arrive at a “difference” of “3.6%”.
[63] Far from demonstrating the minimal efficacy of the Vaccine, the data which the appellant cited in his Claim actually tends to show the opposite. The fact that 4.0% of placebo participants contracted COVID-19 as compared with only 0.4% of vaccinated participants meant that participants who received the placebo were 10 times more likely to contract COVID-19 than those who received the Vaccine. The 3.6% figure that the appellant cites merely represents the difference in percentage points between the two rates, which does not assist him in establishing the allegation of minimal efficacy on which the Claim rests. The data which the appellant relies on in fact demonstrated an efficacy of 91.3% which, as we explained above in para. 12, means that the vaccinated group had a 91.3% lower risk of developing COVID-19 than the unvaccinated placebo group. This is the material figure to assess whether the Vaccine was “minimally effective”.
[64] Moreover, the respondents’ Impugned Statements that the Vaccine was highly effective in combatting COVID-19 were based not only on the fact that it appeared to significantly reduce incidence of the disease, but also that it dramatically lessened the severity of the disease in those who were vaccinated and nevertheless contracted it. Study 2 showed that participants who received the placebo were 30 times more likely to develop severe COVID-19 as compared with those who received the Vaccine. It was the combined impact of a reduction in both the incidence and severity of the disease which led to the respondents’ concluding that the Vaccine was highly effective. Therefore, even accepting the appellant’s pleaded facts as true, he has not pleaded any material facts to support the assertion that the Vaccine was “minimally effective”. Without pleading minimal efficacy, the appellant cannot possibly establish the necessary element that the respondents were engaged in deliberate and unlawful conduct, much less that they were aware their conduct was unlawful and exhibited either bad faith or dishonesty.
3. The Claim baldly asserts awareness of harm to the plaintiff without pleading material facts
[65] An even more fundamental problem with the appellant’s Claim is that it does not in any way allege, beyond the bald assertion, that the respondents were aware their purportedly unlawful conduct was likely to harm Sean Hartman. There are no material facts pleaded that could establish subjective awareness or imputed knowledge through recklessness or willful blindness. The motion judge correctly noted that this requirement engages many of the same considerations as the proximity analysis in the negligence claim. Some nexus between the parties is required to conclude that the public official breached an obligation they owe to the plaintiff as an individual: Odhavji Estate, at para. 29.
[66] There is certainly no suggestion in the Claim that the respondents were aware their conduct could harm Sean Hartman individually. Nor does the Claim 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 who received the Vaccine. As noted above, although Study 2 showed that about 24% of Vaccine recipients experienced some form of related adverse side effects, less than 1% experienced serious adverse side effects, only 3 participants experienced serious adverse side effects related to the Vaccine, and none of the deaths that occurred among participants to that point were considered by investigators to be related to the Vaccine. Study 2 did not show any increased risk of myocarditis among participants who received the Vaccine among any age group.
[67] In short, there are no material facts pleaded from which it could be inferred that the respondents knew, ignored, or were wilfully blind to evidence that the risks associated with the Vaccine outweighed its alleged minimal efficacy. There are also no material facts pleaded from which it could be inferred that the respondents knew that their approval, oversight, or promotion of the Vaccine was likely to cause harm to Sean Hartman or any population group of potential vaccine recipients that he was a member of. These allegations of subjective bad faith or dishonesty were bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts, which are not assumed to be true for purposes of a motion to strike: Imperial Tobacco, at paras. 19-22; Das, at para. 74; Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 58 C.C.L.T. (4th) 1, at para. 11, leave to appeal refused, [2019] S.C.C.A. No. 409.
[68] The motion judge therefore did not err in finding that the Claim failed to plead the necessary elements of the tort of misfeasance in public office and thus it was bound to fail. . Ceballos v. DCL International Inc.
In Ceballos v. DCL International Inc. (Ont CA, 2018) the Court of Appeal held that in order to support a claim of intentional tort, that pleadings must be particular:[10] There is no question that, if sufficiently and adequately pleaded, allegations of conspiracy, fraudulent misrepresentation and other tortious conduct may form the basis of a reasonable cause of action against an officer or a director of a corporation: see, for example, 1175777 Ontario Ltd. v. Magna International Inc., 2001 CanLII 8529 (ON CA), [2001] O.J. No. 1621 (C.A.).
[11] However, to invoke those exceptions that permit the piercing of the corporate veil, the claim must be specifically pleaded. As Carthy J.A. said in ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101 (C.A.), at para. 39:The operative portion of this paragraph is the final sentence which confirms that, where properly pleaded, officers or employees can be liable for tortious conduct even when acting in the course of duty. [Emphasis added.] [12] Bald or vague assertions of intentional tortious conduct are insufficient to defeat a r. 21 motion. The pleading of intentional torts must meet a stringent standard of particularity, that is, they must be pleaded with “clarity and precision”: Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 144.
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