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Justiciability II

. Wellman v. Telus Communication Company

In Wellman v. Telus Communication Company (Div Ct, 2021) the Divisional Court issued what I think is an unusual and questionable order. The parties disagreed about the interpretation of a Supreme Court of Canada (SCC) order with respect to costs, so - after they moved at trial level to resolve it (leading to the present appeal) - the Divisional court ordered (it wasn't simply a suggestion) that they make an application to the SCC to resolve the issue. The required application appears to be within the SCC's jurisdiction, but it bothers me that parties could be ordered to make what is normally highly-deferred-to tactical decision:
[6] As a result, this court orders that the parties jointly apply to the Supreme Court of Canada pursuant to Rule 81 and Rule 6 of the Rules of the Supreme Court of Canada, SOR/2002-156. The parties are to apply for clarification of the terms of the costs order issued by the Supreme Court, and an extension of time if necessary. The decision of Morgan J. is to be included in the application. Although directed as a joint application, the relief sought by each party may differ. This application must be made within 45 days.
. Restoule v. Canada (Attorney General)

In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered basics of justiciability (there's a telling reference to the political nature of 'homelessness' in para 209):
The Governing Principles Concerning Justiciability

[209] The doctrine of justiciability imposes limits on judicial review of executive action. It is based on the sense that there are public policy issues that are beyond the jurisdiction of the courts. Stratas J.A. noted:
In rare cases … exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers.[133]
Examples of such rare cases would include the deployment of military assets, entering into foreign treaties, and addressing homelessness.

[210] The issue of addressing homelessness was raised in Tanudjaja, where the court found that there was “no sufficient legal component to engage the decision-making capacity of the courts”, and that “[i]ssues of broad economic policy and priorities are unsuited to judicial review.”[134] The application in that case asked the court “to embark on a course more resembling a public inquiry into the adequacy of housing policy.”[135] The court noted, “the issue is one of institutional competence [and] whether there is a sufficient legal component to anchor the analysis” and concluded that the application was not justiciable.[136]



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