Judicial Review
Introduction to Judicial Review
Challenge of Public vs. Private Entities
Difficulty in clearly identifying whether an entity is public or private.
Example: Government actions versus private actions and the extent to which these actions are subject to judicial review.
Questions Arising from Public-Private Distinction
Question 1: To what extent are the activities of entities that straddle the public-private line judicially reviewable?
Question 2: Is everything that a state actor does subject to judicial review, even if it pertains to actions typically associated with private entities?
Example given: Canada Revenue Agency (CRA) and its procurement of office supplies.
The Public-Private Distinction in Historical Context
Historically significant actors related to this debate include:
Political Parties
E.g., Conservative Party, Liberal Party: Internal rules exist but are they public acts?
Churches
Many have statutory authority, such as the United Church of Canada Act.
Sports Associations
Often have formal processes and constitutions, but not government-created.
Example Case: The Hockey Dad Incident
A father was barred from attending hockey games due to misconduct, which led to judicial review.
The court ruled that it was overly harsh to bar the father from attending games, illustrating the complexities of public-private distinctions in sports associations.
Authority: The Air Canada Case
Court's Decision: Changing which airline gets the landing spots at Billy Bishop Airport is a private, commercial decision, not subject to judicial review.
Air Canada Factors for Judicial Review:
Character of the Matter: Disputes resembling government action are more likely to be reviewable.
Nature of Decision Maker: Are they a government or private actor?
Decision Founded on Law: Is the decision grounded in a statute?
Relationship with Other Statutory Actors: Are they connected to governmental entities?
Suitability of Public Law Remedies: Should the court intervene?
Exceptional Cases: Situations where actions have a serious public dimension.
Notably, the court indicated that not every factor applies in each case and some may be ignored.
Impact of Air Canada on Subsequent Cases
Air Canada established a precedent for public-private considerations, but was criticized for creating ambiguity in its factors, particularly regarding their applicability.
The Wall Case (2018)
Facts of Wall: Morgan Wall, a Jehovah’s Witness member, was disfellowshipped, impacting his livelihood as a real estate agent. He sought judicial review based on procedural fairness.
Court's Finding: The church’s internal processes, even though formal, did not equate to public action for the purpose of judicial review.
Emphasized that judicial review is limited to legalities of state action and that internal church decisions were private disputes.
Key
Introduction to Judicial Review
Challenge of Public vs. Private Entities
Difficulty in clearly identifying whether an entity is public or private.
Example: Government actions versus private actions and the extent to which these actions are subject to judicial review.
Questions Arising from Public-Private Distinction
Question 1: To what extent are the activities of entities that straddle the public-private line judicially reviewable?
Question 2: Is everything that a state actor does subject to judicial review, even if it pertains to actions typically associated with private entities?
Example given: Canada Revenue Agency (CRA) and its procurement of office supplies.
The Public-Private Distinction in Historical Context
Historically significant actors related to this debate include:
Political Parties
E.g., Conservative Party, Liberal Party: Internal rules exist but are they public acts?
Churches
Many have statutory authority, such as the United Church of Canada Act.
Sports Associations
Often have formal processes and constitutions, but not government-created.
Example Case: The Hockey Dad Incident
A father was barred from attending hockey games due to misconduct, which led to judicial review.
The court ruled that it was overly harsh to bar the father from attending games, illustrating the complexities of public-private distinctions in sports associations.
Authority: The Air Canada Case
Court's Decision: Changing which airline gets the landing spots at Billy Bishop Airport is a private, commercial decision, not subject to judicial review.
Air Canada Factors for Judicial Review:
Character of the Matter: Disputes resembling government action are more likely to be reviewable.
Nature of Decision Maker: Are they a government or private actor?
Decision Founded on Law: Is the decision grounded in a statute?
Relationship with Other Statutory Actors: Are they connected to governmental entities?
Suitability of Public Law Remedies: Should the court intervene?
Exceptional Cases: Situations where actions have a serious public dimension.
Notably, the court indicated that not every factor applies in each case and some may be ignored.
Impact of Air Canada on Subsequent Cases
Air Canada established a precedent for public-private considerations, but was criticized for creating ambiguity in its factors, particularly regarding their applicability.
The Wall Case (2018)
Facts of Wall: Morgan Wall, a Jehovah’s Witness member, was disfellowshipped, impacting his livelihood as a real estate agent. He sought judicial review based on procedural fairness.
Court's Finding: The church’s internal processes, even though formal, did not equate to public action for the purpose of judicial review.
Emphasized that judicial review is limited to legalities of state action and that internal church decisions were private disputes.
Key Takeaways from Highwood Congregation v. Wall
State Action Requirement
Judicial review is reserved for the legality of state action. For a decision to be reviewable, it must be of a public nature.
Private Voluntary Associations
Private organizations (like clubs or churches) are generally not subject to judicial review unless they are exercising delegated statutory power or have a significant public dimension.
Justiciability
Courts will not intervene in matters that are not justiciable. In the context of religious groups, this means courts avoid adjudicating matters of religious dogma or theology.
No Freestanding Right to Procedural Fairness
Procedural fairness is not a standalone right in the private sphere. It only applies where there is a underlying legal right, such as a contract or a property interest, being affected.