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

Abstract

In Highwood Congregation of Jehovah’s Witnesses v. Wall, [2018] 1 SCR 750, the Supreme Court of Canada defined the boundaries of judicial review on the basis of a public/private distinction. This decision attracted criticism, notably for its ambiguity with regard to the review of institutions at the margins of the public sector. This article reviews the impact of Wall in the three years since the Supreme Court of Canada issued its decision. It shows that some criticisms of the decision were warranted. It also shows that lower courts have overcome some of the difficulties of Wall by relying on the multi-factor test set out by the Federal Court of Appeal in Air Canada v Toronto Port Authority et al, 2011 FCA 347. Nevertheless, Wall’s imposition of a strict public/private distinction at times appears to be in tension with its stated purpose of ensuring that judicial review responds to rule of law concerns.

Keywords: administrative law, judicial review, public law, Canada