Charter Horizontality, the Public/Private Divide, and Responding to Injustice

Abstract

The aim of this article is to explore the ways in which private law theory bears on the question of the horizontal effect of the Charter and the promises and limits of horizontality as a way of responding to injustice. Specifically, I ask whether the strategy pursued by the applicants in Cool World is likely to be effective in securing the progressive vision of social justice which Joel Bakan — co-counsel for the applicants — defended in his earlier work on the Charter. I offer a response to this question by showing how private law theorists understand the relationship between private law and “public” forms of distributive and social justice, specifically by framing private law in a way that insulates the practice of private law from public law values like those in the Charter. The concern that I raise, ultimately, is whether the horizontality argument in the Cool World case implicitly accepts broadly the same inadequate institutional response to injustice endorsed by these private law theories. That is, it focuses on the effects of unequal private power rather than reconfiguring private law relations to alter the power of the parties.