Wednesday, June 26, 2019

When is private not public but private; the SCC limits Judicial Review

A few years ago the SCC concluded that a private relationship could be public as far as human rights legislation was concerned.  I blogged about this at https://www.blogger.com/blogger.g?blogID=3594190566163194511#editor/target=post;postID=5842064387760127297;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=18;src=postname .

Subsequent to this the Alberta Court of Queens Bench applied the SCC’s construct of a public within a private relationship and I blogged about this here https://www.blogger.com/blogger.g?blogID=3594190566163194511#editor/target=post;postID=5958271185328470025;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=2;src=postname .

In a more recent decision related to the availability of Judicial Review the SCC has concluded that there is a clear and important distinction between public and private; the SCC stated in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall 2018 SCC 26 found at https://www.canlii.org/en/ca/scc/doc/2018/2018scc26/2018scc26.pdf :

“These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense. In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making.”

I query if these two streams of legal thought are consistent and if not whether they can be reconciled?