“We do not really know why this approach was taken”: Explaining and Modifying the Supreme Court’s Approach to the Indirect Horizontal Effect of Charter Rights

Abstract

This short comment is not a direct reflection on the case of Cool World v Twitter, which is the animating focus of this special issue. Rather, it takes the Cool World litigation as a cue for a more general reflection on the role that the Charter ought to play in such cases, where a private litigant is relying on the common law to inflict “contra-constitutional” harms on another private litigant. In this regard, the comment’s premise is that Cool World provides us with a much-needed opportunity for reconsidering the line drawn in RWDSU v Dolphin Delivery between private law legislation (to which the Charter is fully applicable) and the private common law (to which the Charter is weakly applicable). Ultimately, the comment suggests that this line is unsustainable, and that the Court should respond to this unsustainability by modifying its approach to cases where common law rights collide with Charter rights. In conclusion, I suggest that this modification should be guided by the Court’s own recent decision in Dickson v Vuntut Gwitchin First Nation, which provides a useful template for the management of conflicts between constitutionally prioritized and non-prioritized rights.