The Hartman Appeal, Part 1: Looking At The Notice

The Court of Appeal for Ontario will review the case of Dan Hartman, either late this year, or early next year. Back in March, the Ontario Superior Court struck the case without an opportunity to amend the pleadings.

This is a wrongful death suit filed after his son, Sean, passed away shortly after taking the injections. A similar one was filed against Pfizer.

Although there is considerable overlap in the facts pleaded, the case is argued 2 ways:

1. Malfeasance of public office
2. Negligence

The first tort implies intentional, while negligence implies carelessness.

However, Justice Antoniani threw the case out completely, despite offers to expand the pleadings. It was ruled that the proposed amendments — while they added more information — it wouldn’t help. The necessary elements for malfeasance weren’t pleaded. Nor was there “sufficient proximity” to establish a private law duty of care.

The Appeal seeks to overturn this ruling.

Malfeasance Of Public Office Explained

The Statement of Claim argues that the Defendants acted with “reckless indifference or willful blindness” when they pushed the vaccines on Canadians.

56. As a department, Health Canada is responsible for administering acts and regulations, and for implemening government-wide regulatory initatives. Health Canada was responsible for discharging the operational role of regulatory approval, monitoring, and compliance of Covid-19 vaccinations for use in Canada.

57. The Plaintiff pleads that Health Canada was recklessly indifferent or willfully blind in discharging its responsibilities of regulatory approval and oversight of the Pfizer-BioNTech COVID- 19 vaccination by, inter alia:

Starting on paragraph 61, it’s specified:

• Issuing a certificate of compliance to Pfizer
• Failing maintain oversight and control over Health Canda in relation to their regulatory responsibility for oversight, monitoring, evaluation, and assessment
• Representing to Canadians in public statements and press releases that the Covid-19 vaccination was safe and effective, despite the Minister and Minister’s Department of Health possessing data to the contrary
• Failing to revoke the certificate of compliance issued

However, the Judge gave an interesting take on the malfeasance claims, stating that the following details were required:

[81] To prove misfeasance in public office, the Plaintiff must show:
a) Deliberate, unlawful conduct in the exercise of public functions;
b) Awareness that the conduct is unlawful and likely to injure the Plaintiff’s son;
c) Harm;
d) A legal causal link between the tortious conduct and the harm suffered; and
e) An injury that is compensable in tort law.

Presumably, the Defendants know few, if any of the people who were harmed by these injections. This seems unreasonably narrow in scope.

Negligence Claim Explained: No Private Duty Of Care

While arguing intent can be tricky, the Statement of Claim also pushed variations of “negligence” as alternative torts.

77. The Plaintiff pleads that the Defendants breached the standard of care and negligently misrepresented the safety of the vaccine and did not disclose the risks associated with the vaccine which include but not limited to myocarditis and pericarditis. The particulars include:
.
(a) Failed to disclose that individuals under 40 had an increased risk of myocarditis after receiving the mRNA COVID-19 vaccine;
(b) Failed to disclose that rates of myocarditis were higher in adolescent males;
(c) Inadequate testing was performed to ensure the safety and efficacy of the vaccine;
(d) The Defendants failed to complete post market surveillance and inform the public of the results;
(e) The Defendants failed to accurately, candidly, promptly and truthfully disclose the issues with the COVID-19 vaccine;
(f) The Defendants failed to identify, implement, and verify that the procedures in place to address post market surveillance risks were in place to address issues, complaints, and timely notification of concerns; and,
(g) The Defendant failed to change the public recommendations of the COVID-19 vaccine being that it was safe and effective.

The Judge ruled that the duties of the Defendants are to the public at large, and not to individual members of the public. But really, who is the public, if not a collection of individuals?

[91] The necessary elements to ground an action in negligence are not present. The duties of the Defendants under the legislative scheme are to the Canadian public. Sufficient proximity is not established and there is no private law duty of care. Other policy considerations militate against finding such a duty. As such, it is plain and obvious that the claim cannot succeed.

One would think that when public officials make decisions, especially coercive ones, that there would be some duty of care to the people impacted. But it seems not.

Looking At The Notice Of Appeal

The Notice of Appeal alleges a number of serious errors made. Keep in mind, at this stage, the Court is to assume that all facts pleaded are true, or capable or being proven.

• The misapplied the “plain and obvious” test applicable on a motion to strike. In particular, the judge failed to read the pleading generously and assume the facts pleaded to be true, as required.
• The Appellant submits that this analysis was flawed. The Statement of Claim pleaded that the Respondents knew of specific risks (e.g. heightened myocarditis risk in adolescent males) and nonetheless targeted the youth population (including Sean) with assurances of safety. Facts, if proven, could establish a relationship of proximity despite the broad public context.
• Misfeasance in public office is an intentional tort aimed at wrongful exercises of public power by officials who either intend to harm or act with knowledge that they are exceeding their lawful authority and that their conduct will likely harm the plaintiff.
• On a Rule 21 motion, the court must assume the truth of the facts pleaded. Here, the facts pleaded (e.g. that the Minister knew of specific dangers and knowingly misled the public or ignored legal duties) should have been taken as true for the purposes of the motion. If so assumed, the misfeasance claim is legally tenable.
• Error in Denying Leave to Amend the Pleading: The judge erred in law by denying the Appellant leave to amend the Statement of Claim.

What will happen at the Court of Appeal? It’s unclear, but there’s a chance to get this claim restored.

***Note: follow-up both with this case, and with Pfizer, are coming. This isn’t anywhere near the complete record as far as the documents go.

AGC COURT DOCUMENTS:
(1) Hartman AGC Statement Of Claim (September, 2023)
(2) Hartman AGC Reasons For Decision (March, 2025)
(3) Hartman AGC Notice Of Appeal (April, 2025)

PFIZER COURT DOCUMENTS:
(1) Hartman Pfizer Statement Of Claim (September, 2023)
(2) Hartman Pfizer Fresh As Amended Statement Of Claim (March, 2025)