Those interested in the borderline between private and public law will
want to read today's decision of the Supreme Court of Canada in Canada
v. TeleZone Inc.:

http://scc.lexum.umontreal.ca/en/2010/2010scc62/2010scc62.html

The plaintiff had sued the federal government in negligence and unjust
enrichment. The government's response was that the suit was really
just a veiled collateral attack on a Minister's decision and that the
proper route was to seek judicial review. The court unanimously held
for the plaintiff. There were a couple of companion cases decided at
the same time that followed the same approach.

The following 3 paragraphs sum it up:

[76] Where a plaintiff?s pleading alleges the
elements of a private cause of action, I think the provincial superior
court should not in general decline jurisdiction on the basis that the
claim looks like a case that should be pursued on judicial review. If
the plaintiff has a valid cause of action for damages, he or she is
normally entitled to pursue it.

[77] In the U.K., a similar position has been
expressed by the House of Lords in Roy v. Kensington and Chelsea and
Westminster Family Practitioner Committee, [1992] 1 A.C. 624, per Lord
Bridge, at pp. 628-29:

[W]here a litigant asserts his entitlement to a subsisting right in
private law, whether by way of claim or defence, the circumstance that
the existence and extent of the private right asserted may
incidentally involve the examination of a public law issue cannot
prevent the litigant from seeking to establish his right by action
commenced by writ or originating summons, any more than it can prevent
him from setting up his private law right in proceedings brought
against him.

It is generally true here, as it is in the U.K., that a plaintiff is
not required to bring an application for judicial review so long as
private rights are legitimately engaged by the action. Under the
English authorities, as in Canada, there is a special concern where
the availability of judicial review depends on special leave, or is
restricted by an abbreviated limitation period, or where the relief
available on judicial review is discretionary (Roy, per Lord Lowry, at
p. 654). See also P. P. Craig, Administrative Law (6th ed. 2008), at
p. 869. These considerations echo the concerns already canvassed in
rejecting the Grenier approach.

[78] To this discussion, I would add a minor
caveat. There is always a residual discretion in the inherent
jurisdiction of the provincial superior court (as well as in the
Federal Court under s. 50(1) of its Act), to stay the damages claim
because in its essential character, it is a claim for judicial review
with only a thin pretence to a private wrong. Generally speaking the
fundamental issue will always be whether the claimant has pleaded a
reasonable private cause of action for damages. If so, he or she
should generally be allowed to get on with it.


Happy holidays to all,
vb