There’s no question that governments make mistakes, and sometimes pretty big ones.  But can you sue them for it?

Yes, you can … sometimes.

In personal injury world we sue the government all the time.  We sue the municipal government more often than the provincial and federal governments.  Typically were suing because of injuries caused by substandard maintenance on roads and sidewalks, and municipalities have far more roads and sidewalks in their jurisdiction than the other levels of government.

As you might expect, there are special rules that make it harder to sue the government than it is to sue a private individual.  Depending on the context, there could be a short window of time to give them notice of your claim, or extra steps you must take before a claim can be commenced.

There is also one big exemption for governmental liability:  The government cannot be liable for core policy decisions.

The Supreme Court of Canada defined core policy decisions as “a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith”.

In the recent case of Hartman v. Attorney General of Canada et al., 2025 ONSC 1831 (CanLII), the Court reviewed the circumstances when the Government is protected from liability in the context of core policy decisions.

In Hartman, a 17-year-old young man died after receiving the COVID-19 vaccine.  His family sued the Federal government for promoting the vaccine without warning people (like the plaintiff) of potentially harmful side-effects.

The Court ultimately struck the Hartman claim, saying that it was plain and obvious the claim could not succeed.

In so doing, the Court reviewed the law on “core policy decisions”.  For those cases where a duty of care was found (or a claim was allowed to proceed) there was typically direct and specific interaction with the government authority, or a regulators failures that cause harm to discrete and identifiable segments of the community (para 60).

For a “direct and specific interaction” example, in the case of Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, a person died in transit with a land ambulance when a specific request for an air ambulance was made to the government.  The Court did not dismiss that claim.

For a “discrete and identifiable individuals” example, in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, the Court held that the Government of Canada owed a duty of care to miners that were murdered after several months of violent conflict between striking miners and replacement workers. The court found that the requirements of foreseeability and proximity were met where the government knew of the ongoing issues and violence at the mines. They had identified specific and serious risks to an identified group of workers and knew that the steps being taken by management to maintain safe working conditions were not effective

The Court in Hartman distinguished Heaslip and Fullowka, saying that this was a core policy decision regarding the handling of health emergencies which impact the general population.  The Court also observed that there was no direct interaction between Hartman and the Government.

ROBERT MURPHY

Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020.  He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario.  During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side.  After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023.