The Boundaries of Judicial Review Since Highwood Congregation of Jehovah's Witnesses v. Wall.

• Author: McKee, Derek
• Position: Canada

Introduction

1. Wall and Its Successors at the Supreme Court of Canada

2. Public/Private and Other Ways of Circumscribing Judicial Review

3. Wall's Impact

4. Public/Private and the Purposes of Judicial Review

   Conclusion

   Introduction

   In the 2018 case of Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, the Supreme Court of Canada made some of its most sweeping pronouncements about administrative law. Writing for a unanimous Court, Rowe J declared that "[t]he purpose of judicial review is to ensure the legality of state decision making". (1) In keeping with this purpose, Rowe J defined the boundaries of judicial review on the basis of a public/private distinction. Rowe J declared that "[j]udicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character." (2)

   However, distinguishing between "public" and "private" is rarely as simple as in Wall. Wall arose from the decision of a Jehovah's Witness congregation to excommunicate one of its members. As other commentators observed, this decision was rather easy to characterize as a private matter and to exclude from judicial review on this basis. (3) Soon after it was issued, Wall was criticized for failing to provide clear guidance, especially as to the review of quasi-public institutions such as hospitals and universities. (4) Indeed, in other cases, the boundaries of judicial review may depend on multiple factors that are not straightforwardly captured by a public/private distinction. (5)

   This article reviews the impact of Wall in the three years since the Court issued its decision. It shows that the aforementioned criticisms were warranted. The test set out in Wall contains various ambiguities, particularly with regard to its institutional criterion. Wall does, admittedly, provide a quick and effective way of rejecting many judicial review applications. But it provides little guidance in harder cases.

   The experience since Wall also shows that lower courts have overcome these difficulties to some extent. On one hand, they have often supplemented the Wall test with other elements, notably the contextual approach set out in the 2011 Air Canada v Toronto Port Authority et al case. (6) And in Quebec, courts have held Wall's institutional criterion to be inconsistent with provincial legislation, thus avoiding it altogether.

   However, on closer examination, the problems with Wall go beyond these ambiguities. There are also reasons to doubt that Wall's public/private distinction truly works as advertised--as a means of safeguarding the rule of law. Arguably, the pursuit of that goal means that judicial review should be available even in some "private" settings.

   The article proceeds as follows. In Part I, I review the Wall case and its central dicta. I explain Wall's two-part test for the availability of judicial review, centred on a public/private distinction (as applied to the institution at issue as well as the function it performs). I also examine how the Supreme Court of Canada has doubled down on this test in subsequent cases.

   In Part II, I analyze the use of the public/private distinction as a way of circumscribing judicial review and consider various alternatives. Contemporary public administration involves many institutions and functions that are difficult to characterize as straightforwardly "public" or "private". This ambiguity gives rise to considerable uncertainty at the boundaries of judicial review. One way of mitigating this uncertainty--indeed, one with a solid historical pedigree--is to impose a formal criterion, such as a statutory source for the power in question. Such a criterion still has a role to play in some statutory judicial procedure codes. Alternatively, or as a complement, it is possible to draw the boundaries of judicial review on a holistic, contextual basis. Such an approach is epitomized by the Federal Court of Appeal's 2011 decision in Air Canada. (7)

   In Part III, I survey the case law since Wall. This analysis shows that Wall has allowed Canadian courts to banish certain kinds of cases from the realm of administrative law--most notably, those dealing with religious institutions, clubs, and other bodies easily characterized as private. But it also shows that in harder cases, courts have found Wall difficult to apply, and have turned to Air Canada. In some cases, judges have looked to Air Canada to flesh out the details of the rather schematic Wall test--a "nested" approach. In other cases, courts have prioritized the Air Canada analysis and marginalized Wall. These cases reveal some of the shortcomings of the Wall test and confirm certain criticisms. Concluding the review of post-Wall case law, I discuss how Quebec courts have essentially rejected Wall's institutional criterion as incompatible with provincial legislation.

   In Part IV, I consider Wall's reliance on a public/private distinction in light of the purpose of judicial review. According to Wall, judicial review is meant to keep state power in check and thus uphold the rule of law. However, even if one accepts this account of judicial review, a narrow public/private distinction does not serve that purpose very well. Moreover, there are alternative accounts of the purpose of judicial review that would recognize its application to some "private" institutions. These considerations give further reasons to doubt the Wall approach.

   In brief, the experience since Wall confirms that a simple public/private distinction is of limited use as a way of drawing the boundaries of administrative law. Canadian courts will continue to look to other factors in order to circumscribe judicial review. They may do so on the basis of formal elements as implied by statute. Or, they may employ multi-factor, contextual analyses of the kind set out in Air Canada. While such tests are more laborious and may be unpredictable for litigants, any certainty provided by a simple, all-or-nothing test is likely to be illusory.

1. Wall and Its Successors at the Supreme Court of Canada

   In 2014, Calgary's Highwood Congregation "disfellowshipped" Randy Wall, expelling him from the Jehovah's Witnesses and obliging others to shun him. The panel of elders that made the decision was apparently preoccupied by two episodes of "drunkenness" during one of which Wall had verbally abused his wife. (8) Wall initially pursued a series of appeals to other Jehovah's Witness bodies. When these failed, Wall brought an application for judicial review before the Court of Queen's Bench of Alberta. (9)

   Wall, representing himself, appears to have framed his case as one about natural justice in the private sphere. Wall was a real estate broker who had previously drawn about half of his clients from the Jehovah's Witness community. He noted that he had suffered financial losses, as Jehovah's Witnesses would no longer use his services. This argument appears to have been sufficient to convince a chambers judge that the Court had jurisdiction over the matter. (10)

   These arguments were inspired by a recognition that procedural unfairness can sometimes play a role in a private law claim. A classic example can be found in the 1992 Lakeside Colony of Hutterian Brethren v Hofer case, in which a majority of the Supreme Court of Canada reviewed--and set aside--a Manitoba Hutterite community's decision to expel a group of members. (11) In that case, it appears that the Court ultimately grounded its review powers on the contractual arrangements among the members of the colony and the collective property rights attached to membership. Nevertheless, the Court framed its decision in administrative law terms, and applied concepts--in particular that of natural justice--in a manner indistinguishable from the review of a public body's decision. The Court also made extensive reference to the private Act under which the Hutterite Church was incorporated, implying that the Church's activities were a matter of public concern. In brief, Hofer implied the possibility of a porous approach to the public/private distinction.

   In Wall, the Court of Appeal of Alberta's majority extrapolated from Hofer, declaring that "a court has jurisdiction to review the decision of a religious organization when a breach of the rules of natural justice is alleged". (12) Justice Wakeling, dissenting, argued that courts could only review the decisions of religious bodies where legal rights were at stake, and pointed out that Wall's economic interest in maintaining his client base did not amount to a legal right. (13) Justice Wakeling also held that judicial review is only available against public, not private actors. Justice Wakeling added that even if the decision was subject to judicial review, it did not raise a justiciable issue, and that fundamental constitutional principles (notably freedom of religion and freedom of association) militate against the judicial review of religious bodies membership decisions.

   Justice Rowe's reasons, on behalf of a unanimous Supreme Court of Canada, clearly took some of their inspiration from Wakeling JA's dissent. Justice Rowe agreed with Wakeling JA that the decisions of religious bodies are not reviewable unless a legal right was at stake. (14) Justice Rowe clarified that mere membership in a religious group (or other "voluntary association") does not necessarily imply the presence of a contractual right. (15) In obiter, Rowe J endorsed some of Wakeling JA's holdings as to the non-justiciability of matters of religious doctrine. (16)

   What is most notable about the Supreme Court of Canada decision, however, is that Rowe J frames the non-applicability of judicial review in even broader terms. Justice Rowe begins his analysis by declaring that "[t]he purpose of judicial review is to ensure the legality of state decision making." (17) He then sets out, as a general proposition, that "[j]udicial review is only available where there is an exercise...