A Wall Between the 'Public' and the 'Private': A Comment on Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall

Abstract

This case comment examines the Supreme Court of Canada’s recent decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall. The court ruled that a church’s decision to excommunicate a member could not be judicially reviewed. Rather, judicial review is reserved for decisions by state actors. Wall narrows the scope of judicial review such that many quasi-public actors — such as sports administrators and political parties — are no longer subject to judicial review. The author argues that Wall’s prima facie simplification of the law of judicial review masks deeper conceptual and practical tensions. Specifically, by immunizing quasi-public actors — who are integral to the administrative state — from judicial review, Wall raises questions of accountability. Moreover, the spread of Charter values among such actors is potentially thwarted by this decision. Finally, what is more problematic is that in arriving at its approach to judicial review in Wall, the Supreme Court misinterpreted a helpful body of cases on the public–private distinction and further complicated the question of when judicial review is available to litigants.

Keywords: Administrative Law, Judicial Review, Scope of Judicial Review, Judicial Review Jurisdiction of Courts, Public-Private Distinction, Judicial Review of Private Actors, Air Canada, Wall, Church, Religious Organizations