The Public/Private Distinction in Roncarelli v. Duplessis

McGill Law Journal ~ Revue de droit de McGill

THE PUBLIC/PRIVATE DISTINCTION IN

RONCARELLI V. DUPLESSIS

Derek McKee*

ideas

in

liberal

Roncarelli v. Duplessis is remembered for
the way it imposed limits on public power. But
in imposing these limits, it relied heavily on
public/private distinctions inherited from nine-
teenth-century classical liberalism. The judges
invoked public/private distinctions to identify
the damage Roncarelli suffered, to consider the
purposes for which discretion could be validly
exercised, and to determine whether Duplessis
had exceeded his authority.

The author argues that this proliferation of
public/private concepts echoes the general inde-
terminacy of these
legal
thought. Although the state/civil society distinc-
tion is central to liberal notions of public and
private, it coexists with parallel thought struc-
tures, such as market/family, civilization/state,
and, in Canada, dominion/province. These mul-
tiple meanings of the public and the private are
mutually reinforcing. They also underwrite
myths about the natural, consensual, and neu-
tral nature of the private sphere, making it
more difficult to think about controlling the ex-
ercise of private power. Although ideas about
the public and the private have changed since
the late nineteenth century (and since 1959),
they display a remarkable persistence. Pub-
lic/private distinctions can be observed at work
in contemporary administrative law, in debates
about which bodies are subject to judicial re-
view, and which kinds of decisions are subject to
judicial review on grounds of procedural fair-
ness.

On se souvient de laffaire Roncarelli c.
Duplessis pour les limites quelle a imposes au
pouvoir public. En imposant ces limites, toute-
fois, larrt sest largement bas sur des distinc-
tions public/priv hrites du libralisme classi-
que du dix-neuvime sicle. Les juges ont invo-
qu ces distinctions afin didentifier le prjudice
subi par Roncarelli, de prendre en considration
les raisons pour lesquelles le pouvoir discrtion-
naire pouvait valablement tre exerc et de d-
terminer si Duplessis avait excd son autorit.
Lauteur soutient que cette prolifration des
concepts public/priv reflte lindtermination g-
nrale sur ces ides dans la pense juridique lib-
rale. Bien que la distinction tat/socit civile soit
au cur des notions librales du public et du pri-
v, elle coexiste avec dautres distinctions telles
que march/famille, civilisation/tat et, au Can-
ada, dominion/province. Ces nombreux sens des
concepts de public et de priv se renforcent
mutuellement. Ils entretiennent galement des
mythes quant au caractre naturel, consensuel
et neutre de la sphre prive, faisant en sorte
quil est plus difficile de concevoir lexercice dun
contrle sur le pouvoir priv. Si les conceptions
du public et du priv ont volu depuis la fin du
dix-neuvime sicle (et depuis 1959), elles font
preuve dune persistance remarquable. Les dis-
tinctions public/priv sont luvre en droit
administratif contemporain et dans les dbats
cherchant dterminer quels organismes et
quelles dcisions sont susceptibles de rvision
judiciaire sur des bases dquit procdurale.

* S.J.D. Candidate, University of Toronto. Thanks to all of the symposium participants,
as well as Michael Fakhri, Howie Kislowicz, Claire Mumm, Kerry Rittich, and an
anonymous peer reviewer for their helpful comments. Mistakes are mine.

Citation: (2010) 55 McGill L.J. 461 ~ Rfrence : (2010) 55 R.D. McGill 461

Derek McKee 2010

462 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Introduction

I.

II.

The Public and the Private in Roncarelli
A. Damage: Is a Liquor Licence Public or Private?
B. Discretion: What Is Included in the Public Interest?
C. Jurisdiction: Did Duplessis Exceed His Authority?
D. Procedure: Did Duplessis Act within the Exercise

of His Functions?

E. The Mingling of Jurisdiction and Discretion for the

Purposes of Fault

Public/Private Distinctions and Critiques
A. Stability and Instability
B. State/Civil Society (and State/Market) in Classical

Liberalism

C. Market/Family
D. Civilization/State
E. Critique and Reinforcement
F. Transpositions
G. Dominion/Province: A Note on Federalism
H. Rights

III.

The Public and the Private in Administrative Law
A. Availability of Judicial Review
B. Judicial Review on Procedural Fairness Grounds

Conclusion

463

464
466
467
468

469

470

471
471

472
477
478
478
481
483
485

486
486
488

490

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 463

Introduction
The decision of the Supreme Court of Canada in Roncarelli v. Du-

plessis is largely remembered for the following dictum by Justice Rand:
In public regulation of this sort there is no such thing as absolute and
untrammelled discretion.1 The reasons of Justice Rand and the other
majority judges on the Court are centrally concerned with curtailing the
abuse of public power. Although Roncarelli took the form of an action for
delict under article 1053 of the Civil Code of Lower Canada, it is rarely
taught in courses on civil liability, and is more often encountered in
courses on public law (usually administrative law, and sometimes consti-
tutional law). It is often identified as the archetypal Canadian case on the
rule of law.
As Lorne Sossin shows, the project of controlling public discretion is
an unfinished one: important areas of discretionary public authority re-
main off limits to judicial review.2 The purpose of this article, however, is
to inquire into the limits that are already presupposed in Justice Rands
dictum through his use of the category public regulation. What work is
the word public doing here? How would we distinguish public from pri-
vate regulation? And why would we want to make this distinction?

I argue that, to the extent that the answers to these questions seem
self-evident, the power of Justice Rands dictum rests on a public/private
distinction that is characteristic of nineteenth-century liberal capitalism3
or classical legal thought.4 While Roncarelli is often presented as bold or
innovative, it actually replicates deeply ingrained patterns in liberal legal-
ism.
One key feature of liberal concepts of public and private is their versa-
tility. In Roncarelli, the public and the private have different meanings
for the purposes of different issues in the judgment. And in liberal legal
discourse more generally, the public and the private refer to different
things in different contexts. In his study of U.S. labour law, Karl Klare
identified an ever-renewed effort to refract the complexities of social life
through the basic conceptual prism comprising the set of fundamental

1 Roncarelli v. Duplessis, [1959] 1 S.C.R. 121 at 140, 16 D.L.R. (2d) 689, Rand J. [Ron-

carelli].

2 Lorne Sossin, The Unfinished Project of Roncarelli v. Duplessis: Justiciability, Discre-

tion, and the Limits of the Rule of Law (2010) 55 McGill L.J. 661.

3 Boaventura de Sousa Santos, Toward A New Legal Common Sense: Law, Globalization,

And Emancipation, 2d ed. (London, U.K.: Butterworths, 2002) at 39-61.

4 Duncan Kennedy, Three Globalizations of Law and Legal Thought: 18502000 in
David M. Trubek & Alvaro Santos, eds., The New Law and Economic Development: A
Critical Appraisal (Cambridge: Cambridge University Press, 2006) 19 [Kennedy, Three
Globalizations].

464 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

dualities like public/private.5 I would suggest, with Klare, that the multi-
ple meanings of the public and the private, while rendering these concepts
indeterminate, also make them resilient. Like most instances of pub-
lic/private discourse, Roncarelli at once destabilizes these concepts and re-
inforces them.
Although Klare saw the public and the private as indeterminate, he
explained that these concepts nevertheless performed an ideological func-
tion: justifying mainstream political positions and excluding more radical
alternatives. Such tendencies are less obvious in Roncarelli. Prime Minis-
ter Duplessis evidently had a lot of power, and it is hard not to sympa-
thize with efforts to limit that power. But in holding Duplessis account-
able, the majority judges nevertheless relied on an intellectual structure
that has helped to ensure that other, private forms of power are exempt
from any comparable form of accountability.

In Part I of this paper, I analyze the public/private distinctions at
work in Roncarelli. In Part II, I describe the multiple public/private dis-
tinctions in classical liberalism and explain how they constitute unstable
but resilient structures of thought. In Part III, I explore the persistence of
classical liberal ideas about the public and the private in contemporary
Canadian administrative law. Liberal structures of public/private thought
became dominant in the late nineteenth century. They underwent impor-
tant changes in the early twentieth century, and they have been further
transformed in the fifty years since Roncarelli was decided. But to a great
extent, they have also been preserved.

I. The Public and the Private in Roncarelli

The public and the private appeared in Roncarelli in multiple guises.
The overarching legal question was whether Duplessis had caused dam-
age by his fault to another, under article 1053 of the Civil Code of Lower
Canada. This question implied a number of sub-issues, including the na-
ture of the damage suffered by Roncarelli and the nature of Duplessiss
fault. The issue of fault was further mingled with a jurisdictional ques-
tionwhether Duplessis had exceeded his authority. Finally, the judges
faced a procedural question: Did Roncarellis failure to provide Duplessis
with one months advance notice of the action prohibit them from render-
ing judgment against Duplessis according to article 88 of the Civil Code of
Procedure? In answering each of these questions, the judges distinguished
between the public and the private.
Before turning to these legal issues, it is worth highlighting how the
facts of the case also pitted the public against the private. As David Mul-

5 Karl E. Klare, The Public/Private Distinction in Labor Law (1982) 130 U. Pa. L. Rev.

1358 at 1416.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 465

First, and most obviously, Duplessiss exercise of (public) state power

lan writes, Roncarellis victory has come to stand for the ultimate tri-
umph of the citizenry over unbridled government power exercised at the
very highest level; the operation of Diceyan principles in the very best
sense.6 The public and the private in Roncarelli generally reflect the lib-
eral distinction between state and civil society.7 But the state/civil-society
distinction appears in more than one form, and it coexists with other
meanings of the public and the private. Together, these contrasts produce
a powerful impression of public/private conflict.

clashed with Roncarellis (private) business interests.

Second, this was also a case about religion (which is, in the liberal tra-
dition, a private matter). The trial judge, Justice Mackinnon, suggested
that [t]he revocation of the licence appears to have been more as a blow
at the activities of the Witnesses of Jehovah than against the plaintiff
personally. It was indirectly an effort to discipline the Witnesses as a
group.8 The struggle between the Jehovahs Witnesses and the Quebec
state was always in the background.

Third, as understood by commentators at the time,9 the case impli-
cated the right of personal liberty. Duplessis had sought to punish Ron-
carelli for giving security bonds for Jehovahs Witnesses who had been ar-
rested. One senses the majority judges unease about the indirect threat
to personal liberty, most palpably in the judgment of Justice Rand, who
described the right to give a bond or bail as unchallengeable.10

Fourth, Roncarellis restaurant was also a family business, passed on
to him by his fathera fact mentioned in four of the seven sets of reasons.
The inheritance of the restaurant reinforces our sense of its private na-
ture: not only had the state clumsily meddled with a business, but it had
also, in effect, interfered with the family.

Fifth, the state had rudely interrupted private conversations. The
cases most memorable image is that of a physical, spatial invasion, most
vividly imagined by Sheppard:

Late diners are finishing their lunch at Frank Roncarellis fashion-
able caf on Crescent Street, in Montreal. It is almost two oclock in

6 David Mullan, Roncarelli v. Duplessis and Damages for Abuse of Power: For What Did
It Stand in 1959 and For What Does It Stand in 2009? (2010) 55 McGill L.J. 587 [Mul-
lan, Damages for Abuse of Power].

7 See Part II.B below.
8 Roncarelli v. Duplessis (1951), [1952] 1 D.L.R. 680 at 682 (Qc. Sup. Ct.) [Roncarelli

(Sup. Ct.)].

9 See e.g. Claude-Armand Sheppard, Roncarelli v. Duplessis: Art. 1053 C.C. Revolution-

ized (1960) 6 McGill L.J. 75 at 91-92, reprinted in (2010) 55 McGill L.J. v.

10 Roncarelli, supra note 1 at 141, Rand J.

466 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

the afternoon of this fourth day of December, 1946. Suddenly, the
comfortable hum in the room turns to consternation as burly consta-
bles of the Quebec Liquor Police erupt and proceed to the seizure
and removal of all the liquor they can find. Then, they vanish.11

The (private) restaurant raid sharply distinguishes Roncarelli from his co-
religionists, arrested for distributing literature in the (public) street.
Although Roncarelli sued on the basis of harm to his economic inter-
ests, he was able to link this claim to alleged state intervention into relig-
ion, personal liberty, the family, and even private conversations. These
arguments helped to reinforce the overall sense of violation, and to por-
tray the dispute as a clash between public power and private rights.

A. Damage: Is a Liquor Licence Public or Private?

In order to hold Duplessis liable, it was necessary to establish that
Roncarelli had suffered some private injury. But the dispute concerned a
licencea set of rights conferred under statutory authority. In his testi-
mony at trial, Duplessis tried to characterize the licence as a privilge
rather than a droit.12 The revocation of the licence would therefore have
been an entirely public matter. Duplessiss views found jurisprudential
expression in the dissenting reasons of Justice Cartwright, who alluded to
Duplessiss subjective view that the licence was a privilege in the gift of
the Province.13
Roncarellis legal team sought to recharacterize the licence as a pri-
vate matter whose revocation violated Roncarellis rights. The reasons
suggest that they employed two strategies. The first was to assimilate the
licence to Roncarellis quasi-natural economic interests. This satisfied the
majority judges. Justice Martland noted that Roncarelli could not operate
his business profitably without a liquor licence and had therefore closed it
and sold the building. Justice Rand made this argument most explicitly
and eloquently:

The continuance of the permit over the years, as in this case, not
only recognizes its virtual n[e]cessity to a superior class restaurant

11 Sheppard, supra note 9 at 75.
12 Roncarelli, supra note 1 at 134, Rand J. (citing testimony).
13 Ibid. at 164, Cartwright J. Compare Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567, 9 Alta. L.R. (5th) 1, McLachlin C.J.C. [Hutterian
Brethren] (Driving automobiles on highways is not a right, but a privilege at para. 98).
In administrative law, the rights/privileges distinction is associated with the judi-
cial/administrative distinction, one of the main criteria for procedural fairness require-
ments at the time (see Part III.B below). This association is also clear in Cartwright J.s
reasons. Cartwright J. held that the Liquor Commissions discretion in revoking per-
mits was administrative and not judicial or quasi-judicial and that Roncarelli there-
fore lacked procedural rights (Roncarelli, supra note 1 at 167).

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 467

but also its [i]dentification with the business carried on. … As its ex-
ercise continues, the economic life of the holder becomes progres-
sively more deeply implicated with the privilege while at the same
time his vocation becomes correspondingly dependent on it.14

The second strategy was to treat the licence itself as a form of prop-
erty. Anticipating, by several years, Reichs concept of the new prop-
erty,15 Roncarelli and his lawyers claimed $15,000 for [l]oss of property
rights in liquor permit.16 But no judge was willing to countenance this
move. The trial judge, Justice Mackinnon, summarily dismissed this
claim with the remark that he had no such rights.17 The Supreme Court
of Canada also declined to award any damages under this head, although
both Justice Martland and Justice Abbott acknowledged Roncarellis rea-
sonable expectation of renewal.18

B. Discretion: What Is Included in the Public Interest?

Despite Roncarellis private interest in the liquor permit, there could
be no liability if the permits cancellation had been a valid exercise of pub-
lic discretion. In this sense, none of the judges thought of the liquor li-
cence as entirely private. It was apparent to all of them that the liquor li-
censing scheme reflected some notion of the public interest. The debate
between majority and dissent, especially between Justice Rand and Jus-
tice Cartwright, thus became a debate over how to conceive of this public
interest.

The Alcoholic Liquor Act granted the Liquor Commission power to
cancel any permit at its discretion.19 For Justice Cartwright, this meant
that the Court could not examine the reasonableness of the exercise of
discretion, subject perhaps to a subjective good faith standard. The stat-
ute constituted the Liquor Commission and its discretion as a law unto
itself.20

14 Ibid. at 139-40, Rand J. Compare Hutterian Brethren, supra note 13, LeBel J., dissent-

ing:

I have difficulty understanding what is meant by a privilege in the context
of the provision of government services. As long ago as Roncarelli v. Du-
plessis, this Court recognized the profound significance a licence may have on
an individuals life or livelihood and that the government is required to exer-
cise its power in administering the licensing system in a fair and constitu-
tional manner (at para. 172 [reference omitted]).

15 See Charles A. Reich, The New Property (1964) 73 Yale L.J. 733.
16 Roncarelli, supra note 1 at 187, Abbott J.
17 Roncarelli (Sup. Ct.), supra note 8 at 703.
18 Roncarelli, supra note 1 at 159, Martland J. See also ibid. at 187, Abbott J.
19 Alcoholic Liquor Act, R.S.Q. 1941, c. 255, s. 35.
20 Roncarelli, supra note 1 at 168, Cartwright J.

468 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Justice Rand had much more to say about the interests served by the
grant of discretion. He considered the social importance of alcoholic bev-
erages, and their association with food and ritual. He discussed the pri-
vate interest of licence holders alongside the more general interest in the
integrity and impartiality of public administration, including purposive
limits on discretion.
One might be tempted to credit Justice Rand with overcoming the
public/private distinction in the way he blends together public and private
interests. But this would be too generous. For Justice Rand, the pur-
posiveness of the discretion flows from its publicness. And Justice Rand
situates this publicness against a background of private economic order-
ing that he imagines as normal and natural: the licensed restaurant busi-
ness is a calling which, in the absence of regulation, would be free and le-
gitimate.21

C. Jurisdiction: Did Duplessis Exceed His Authority?

Civil liability also hinged on whether Duplessis had exceeded his au-
thority. Under the prevailing Diceyan logic, legal authorization was re-
quired for any interference with private rights. Officials are civilly liable
for any actions beyond their statutory mandates.22 A state officials posi-
tion, or the fact that he was acting in an official capacity, is no defence.
The main substantive question in Roncarelli was therefore understood to
be a jurisdictional one.
All of the judges of the Supreme Court of Canada confronted this
question, but it was more determinative for some than for others. Answer-
ing the ultra vires question in the affirmative was an essential step in the
reasoning of all the majority judges. As Justice Rand put it, Duplessis’s
behaviour exceeded his authority and therefore converted what was done
into his personal act.23 The reasons of Justice Abbott come closest to such
a straightforward jurisdictional analysis. Justice Abbott cited Dicey for
the principle that a public officer is responsible for acts done by him
without legal justification.24 Passages in Justice Martlands reasoning
also seem to be framed this way: The respondent intentionally inflicted
damage upon the appellant and, therefore, in the absence of lawful justifi-

21 Ibid. at 140, Rand J.
22 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. by E.C.S.

Wade (London, U.K.: Macmillan, 1959) at 193.

23 Ibid. at 143, Rand J.
24 Ibid. at 184, Abbott J.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 469

cation, which I do not find, he is liable to the appellant for the commission
of a fault under art. 1053 of the Civil Code [of Lower Canada].25
Although Justice Rand described Duplessiss act as personal, he also,
paradoxically, insisted on its publicness. In Allen v. Flood,26 the House of
Lords had held that the malicious or vengeful infliction of economic harm
does not in itself give rise to liability. Justice Rand distinguished this case
by emphasizing, among other things, that [h]ere the act done was in rela-
tion to a public administration affecting the rights of a citizen to enjoy a
public privilege, and a duty implied by the statute toward the victim was
violated.27

D. Procedure: Did Duplessis Act within the Exercise of His Functions?
The Supreme Court of Canada grappled with an analogous question in

deciding whether to apply article 88 of the Civil Code of Procedure. That
provision required the plaintiff to give one months notice of any action
against a public official by reason of any act done by him in the exercise
of his functions28something Roncarelli and his lawyers had not done.
As Robert Leckey explains,29 the majority judges collapsed the analy-
sis of article 88 of the Code of Civil Procedure into their analysis of juris-
diction. They read it to mean that notice was not required where the pub-
lic official had exceeded his jurisdiction or otherwise acted illegally. In ex-
cusing Roncarellis failure to give notice, Justice Rand invoked a pub-
lic/private distinction: Duplessis had committed an act quite beyond the
scope of any function or duty committed to him, so far so that it was one
done exclusively in a private capacity, however much in fact the influence
of public office and power may have carried over into it.30 Conversely,
Justice Taschereau insisted on the publicness of Duplessiss functions and
actions.31 Only Justice Fauteux read article 88 in light of its legislative
and jurisprudential history, distinguishing its interpretation from that of
other concepts such as jurisdiction. But the majoritys jurisdictional read-
ing of article 88 prevailed.

25 Ibid. at 159, Martland J.
26 (1897), [1898] A.C. 1, [189599] All E.R. Rep. 52 (H.L.).
27 Roncarelli, supra note 1 at 143, Rand J.
28 Art. 88 C.C.P.
29 Robert Leckey, Complexifying Roncarellis Rule of Law (2010) 55 McGill L.J. 721.
30 Roncarelli, supra note 1 at 144, Rand J.
31 Ibid. at 127, 130, Taschereau J.

470 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

E. The Mingling of Jurisdiction and Discretion for the Purposes of Fault
The majority judges all held that Duplessis had exceeded his author-

ity. But in order to hold Duplessis liable, it was also necessary to establish
fault. As Roderick Macdonald has explained, Canadian courts have often
been called upon to conflate ultra vires with fault.32 In McGillivray v.
Kimber,33 the Supreme Court of Canada had done just that, holding liable
a pilotage authority that had revoked a pilots licence without following
the proper procedures. In that case, it was sufficient for the plaintiff to
show that the pilotage authority had breached its statutory duties; the
plaintiff was not required to show that the defendants fault met a higher
standard such as bad faith, malice, or fraud. But in Harris v. Law Society
of Alberta,34 the Supreme Court of Canada had applied a higher standard
of bad faith. The Law Society of Alberta had failed to follow statutorily re-
quired procedures in striking one of its members from the rolls. The Court
ordered the member reinstated, but declined to hold the Law Society civ-
illy liable.

In Roncarelli, we can see the majority judges struggling with the
standard of fault.35 Justice Rand appears to have been inclined to apply a
higher standard (malice), although he defines malice broadly as simply
acting for a reason and purpose knowingly foreign to the administra-
tion.36 On this view, fault is not equated with ultra vires; the improper
exercise of discretion is clearly relevant to the determination of fault (pace
Sheppard)37. Justice Rand made it clear that he would have considered
the revocation illegal even if the discretion had been exercised by the Liq-
uor Commission.38 Justice Abbott came closest to equating ultra vires
with fault, although he also noted (in obiter, it seems) that the licence was
cancelled on an irrelevant basis and therefore without legal justifica-
tion.39 Justice Martlands reasons also blur the jurisdiction and discretion
issues. Justice Martland framed the question as involving good faith,40

32 Roderick A. Macdonald, Jurisdiction, Illegality and Fault: An Unholy Trinity (1985)

16 R.G.D. 69.

33 (1915), 52 S.C.R. 146, 23 D.L.R. 189.
34 [1936] S.C.R. 88, [1936] 1 D.L.R. 401.
35 Macdonald, supra note 32 at 83-84.
36 Roncarelli, supra note 1 at 141, Rand J.
37 Sheppard argued that Rand J.s famous pronouncements about discretion are obiter
and that Duplessiss liability flowed largely from the fact that he had exceeded his ju-
risdiction. See Sheppard, supra note 9 at 90.

38 Roncarelli, supra note 1 at 141. For a helpful clarification of this point, see David
Dyzenhaus, The Deep Structure of Roncarelli v. Duplessis (2004) 53 U.N.B.L.J. 111 at
127-29.

39 Roncarelli, supra note 1 at 184, Abbott J.
40 Ibid. at 153, Martland J.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 471

and he emphasized that the Liquor Commission itself acted unlawfully,
both in exercising its discretion on irrelevant grounds, and by allowing its
discretion to be fettered by orders from a third party.41 But ultimately,
Justice Martlands decision on this point seems to rest on Duplessiss lack
of authority.42
The mingling of jurisdiction and discretion is mirrored in the dissent-

ing reasons of Justice Cartwright, who on both points reached the oppo-
site conclusion. For Justice Cartwright, the Liquor Commissions cancella-
tion of the licence had been lawful, and Roncarellis loss was therefore a
damnum sine injuria. Justice Cartwright concluded that Duplessis could
not be held liable for directing or approving an act that was itself not
wrongful.43
As David Mullan explains,44 discerning what was actually decided in
Roncarelli on the liability of office holders is a highly problematic exercise.
If it seems unclear which standard the majority judges meant to apply, it
may be (as Sheppard suggests) that they themselves were unclear on this
point.45 Sheppard interprets the majority reasons as having revolutionized
article 1053 of the Civil Code of Lower Canada by extending liability to
acts that involve directing another to cause damage.46 While it is possible
to extrapolate such a theory of private law from the judgment, I would ar-
gue that it is more appropriate to read the majority judges as trying to
craft a certain kind of public law outcome with the tools of private law,
with no concern for whether they were using these tools properly. The ma-
jority judgments in Roncarelli are more straightforwardly explained as
instrumentalist, result-oriented reasoning than as innovations in private
law.

II. Public/Private Distinctions and Critiques

A. Stability and Instability

The profusion of public/private concepts in Roncarelli reflects larger
patterns in liberal legal thought. In the twenty-first century, as in 1959,
the public and the private are both stable and unstable. They derive their
core meaning from the liberal-state/civil-society distinction. This associa-
tion is so strong that the two are often conflated so that the state/civil-

41 Ibid. at 155-57, Martland J.
42 Ibid. at 154-55, Martland J.
43 Ibid. at 169-70, Cartwright J.
44 Mullan, Damages for Abuse of Power, supra note 6.
45 Sheppard, supra note 9 at 95.
46 Ibid. at 96.

472 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

society distinction is frequently referred to as the public/private distinc-
tion. However, as critics have demonstrated, liberalism also involves sub-
sidiary public/private distinctions, notably those of market/family and
civilization/state. Tensions and contradictions are therefore already pre-
sent in liberal ideas of the public and the private.
Moreover, these tensions and contradictions have been exploited and
manipulated to such an extent that the public and the private sometimes
seem to lack any determinate meaning. As Klare has shown, the pub-
lic/private distinction is continuously invoked, refined, and reformu-
lated.47 We have had so much practice invoking the public/private dis-
tinction that these exercises have come to seem tedious and routine.48
And yet in spite of this indeterminacy, the public and the private con-
tinue to mean something. They bear the burden of various myths de-
scended from classical liberalism. These myths have been subjected to
compelling critiques, but they persist nonetheless. In this section, I argue
that such myths persist not only in spite of, but also because of the multi-
ple meanings of the public and the private. Although the meanings often
contradict one another, they may also be mutually reinforcing.

B. State/Civil Society (and State/Market) in Classical Liberalism

Although ideas of the public and the private can be observed through-
out history, their meanings have changed a great deal. Hannah Arendt
analyzed the ancient Greek distinction between the polis and the oikos
(household) and showed how these concepts had been transformed over
the course of history.49 Indeed, modern meanings of the public and the
private are in some respects the opposite of their ancient Greek meanings.
Our contemporary understandings of the public and the private have
been shaped by liberalism, a political philosophy centred on such ideas as
individual freedom, natural rights to property and religion, and the
state/civil-society distinction. Historically, liberalism can be understood as
a defensive move. Under feudalism, political power had been linked to
property relations. As early modern states centralized their power, how-
ever, various social actors tried to carve out spheres of immunity, and lib-
eral ideas provided one such defence.50

47 Klare, supra note 5 at 1418.
48 Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction (1982)

130 U. Pa. L. Rev. 1349.

49 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958).
50 Morton J. Horwitz, The History of the Public/Private Distinction (1982) 130 U. Pa. L.

Rev. 1423 at 1423-24. See also Arendt, supra note 49 at 34-35.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 473

Although there are many varieties of liberalism, in this paper I focus
on classical liberalism, which reached its political zenith in the late
nineteenth century. Classical liberalism combines political liberalism with
economic liberalism; it employs both intrinsic and instrumental justifica-
tions for individual rights. In classical liberalism, liberty thus implies
laissez-faire. The state/civil-society distinction doubles as a state/market
distinction, conducive to the marketization of economies and the accumu-
lation of capital. Classical liberalism is the form of liberalism that insists
most strongly on the state/civil-society distinction. To the extent that
other versions of liberalism are less categorical about this distinction, my
analysis would need to be qualified. However, all versions of liberalism
presume some form of state/civil-society distinction.

The state/civil-society distinction was an animating principle of nine-
teenth-century legal thought.51 A key dimension of this thought was the
separation of private law (to coordinate the relations among individuals)
from public law (to constitute the state and govern its relations with
citizens). Morton Horwitz wrote, Although … there were earlier anticipa-
tions of a distinction between public law and private law, only the nine-
teenth century produced a fundamental conceptual and architectural divi-
sion in the way we understand the law.52 Private law was reinterpreted
through the will theory, centred on individual autonomy. The will theory
had a basis in liberal theories of natural rights; it was also linked to the
celebration of formalistic, deductive modes of legal reasoning.53 This was
the age of the great codifications of private law, including the Civil Code
of Lower Canada, which formed the basis for Roncarellis lawsuit. Law
professors played a leading role in these changes, synthesizing private
law into codes and treatises. They were helped by judges and lawyers who
hoped to use law as a bulwark against democratic distributive politics.
In English public law (which was exported to Canada), classical liber-

alism is personified by A.V. Dicey. Dicey imagined a concept of the rule of
law built on three kindred conceptions: legality (no one should suffer in
body or goods except for a distinct breach of law established in the ordi-
nary legal manner before the ordinary courts of the land);54 equality be-
fore the law (understood to include the subjection of state officials to the
ordinary law);55 and the notion that constitutional rights were to be dis-

51 See generally De Sousa Santos, supra note 3 at 40-45; Kennedy, Three Globalizations,

supra note 4 at 25-31.

52 Horwitz, supra note 50 at 1424.
53 See generally P.S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon
Press, 1979) at 405-19; Vronique Ranouil, LAutonomie de la volont : naissance et vo-
lution dun concept (Paris: Presses universitaires de France, 1980).

54 Dicey, supra note 22 at 188.
55 Ibid. at 193.

474 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

tilled from individual cases by the courts.56 Although Dicey paid deference
to parliamentary sovereignty, his theory can best be understood as an at-
tempt to constitutionalize the private rights traditionally protected by the
common law, such as personal liberty, property, and freedom of discussion
and public meeting.57
Liberal thought imbues civil society and the market with three power-

ful myths.58 First, civil society is thought to be natural and spontaneous,
whereas the state is artificial. Hayek expressed this most succinctly: So-
cieties form but states are made.59 According to Locke, civil society pre-
exists the state; members of civil society come together to create a limited
form of government that is then bound to respect everyones liberty and
property.60
A second liberal myth is that civil society consists of free, consensual
human relations, whereas the state is coercive. In classical liberal
thought, freedom is understood in negative terms: each person should
have the maximum amount of freedom consistent with the freedom of
others; the state should administer its coercive laws only to the extent
necessary to guarantee this freedom.61
A third liberal myth involves the separation of economics (civil society
or the market) from politics (the state). Civil society is seen as a level
playing field where individuals can pursue their own ends; it is neutral
among individual preferences as well as among the interests of different
groups in society. The state should not try to privilege some ends over
others. This requires the state to avoid getting involved in production or
redistribution. Hayek therefore identified a tension between liberalism

56 Ibid. at 195.
57 Murray Hunt, Constitutionalism and Contractualisation of Government in the United
Kingdom in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart,
1997) 21 at 24-25. As has frequently been pointed out, Diceys book (supra note 22) is
less an accurate description of English law at the time than an attack on the nascent
British administrative state. See H.W. Arthurs, Rethinking Administrative Law: A
Slightly Dicey Business (1979) 17 Osgoode Hall L.J. 1 at 6-7 [Arthurs, Rethinking].

58 For an excellent discussion of these myths, see A. Claire Cutler, Private Power and
Global Authority: Transnational Merchant Law in the Global Political Economy (Cam-
bridge: Cambridge University Press, 2003) at 54-59. Cutler also refers to a fourth myth,
efficiency, which I leave aside because it was not explicitly invoked in Roncarelli.

59 F.A. Hayek, Law, Legislation and Liberty: A New Statement of Liberal Principles of Jus-
tice and Political Economy, vol. 3 (Chicago: University of Chicago Press, 1979) at 140
[Hayek, Law, Legislation and Liberty].

60 John Locke, The Second Treatise of Government: An Essay Concerning the True
Original, Extent, and End of Civil Government in Two Treatises of Government, 3d ed.
by Peter Laslett (Cambridge: Cambridge University Press, 1988) 265, 131.

61 F.A. Hayek, New Studies in Philosophy, Politics, Economics, and the History of Ideas

(Chicago: University of Chicago Press, 1978) at 132-34.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 475

and democracy, and warned that democracy was likely to lead to the cap-
ture of power by organized interest groups.62 To those who complained
about the power of large private corporations, Hayek replied that theirs
was a fundamentally different kind of powerone less objectionable than
that of governments.63
The majority opinions in Roncarelli were informed by all three of

these myths. Roncarellis business, together with his related interests in
religion and family, were seen as normal and natural, in contrast to the
exceptional nature of state regulation. It was presumed that in the ab-
sence of such regulation, Roncarellis business would have been free and
legitimate.64 Finally, the majority judges established that Roncarellis
business was non-political by distinguishing it from the Jehovahs Wit-
nesses allegedly seditious pamphleting campaign.65
Critics of classical liberalism have debunked these myths one by one.
First, whereas classical liberals have claimed that civil society and the
market are spontaneous and natural, critics have pointed out that these
social relations are constituted by laws (including the laws of property
and contract) that are promulgated and enforced by the state. As Polanyi
demonstrated, the rise of market economies in eighteenth- and nine-
teenth-century Europe can be traced to particular legal changes.66 Argu-
ments against state intervention in the market are therefore absurd. Po-
lanyi wrote, The accusation of interventionism on the part of liberal writ-
ers is thus an empty slogan, implying the denunciation of one and the
same set of actions according to whether they happen to approve of them
or not.67

Second, whereas classical liberals have imagined civil society and the
market as consensual, critics have identified their potential coerciveness.
One of the most powerful arguments to this effect comes from Karl Marx.
In his essay On the Jewish Question, Marx expressed his doubts about
the movement for Jewish emancipationa movement that involved rede-
fining religion as a private matter.68 Marx drew a parallel between this

62 Ibid. at 142-44.
63 Hayek, Law, Legislation and Liberty, supra note 59 at 80-83.
64 Roncarelli, supra note 1 at 140, Rand J.
65 There is no evidence that the appellant was at any time a distributor of this pamphlet
and his restaurant and caf in Montreal was not used for the distribution or storage of
these pamphlets by himself or by anyone else: Roncarelli, supra note 1 at 146, Mart-
land J.

66 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our

Time (Boston: Beacon Press, 2001) (Laissez-faire was planned at 147).

67 Ibid. at 156.
68 Man emancipates himself politically from religion by expelling it from the sphere of
public law to that of private law: Karl Marx, On the Jewish Question in The Marx-

476 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

privatization of religion and the privatization of property, warning that
both institutions (and their potentially oppressive qualities) could actually
be strengthened by their relegation to the private sphere. Marx added to
this a critique of liberal-rights discourse (including both freedom of relig-
ion and property rights), which he saw as turning the state into the guar-
antor of individual selfishness. He wrote, Thus man was not liberated
from religion; he received religious liberty. He was not liberated from
property; he received the liberty to own property. He was not liberated
from the egoism of business; he received the liberty to engage in busi-
ness.69

The American legal realist Robert Hale went even further than Marx
in explaining the coercive nature of private economic relations. Hale ar-
gued that in a market society, a propertyless person does not negotiate
her employment contract freely; rather, she is effectively coerced by prop-
erty owners.70 Hale linked this argument to the first critique, noting how
the rules of property and contract are created and enforced by the state.
The coercion in civil society is therefore inseparable from state coercion.
An extreme form of this critique is found in the writings of Morris Cohen,
who reasoned that the states legal protection of property amounts to a
delegation of sovereignty because it grants property owners a sphere of
power in which they can dispose of others labour. Cohen argued that it
would be more accurate to think of property rights as sovereign power
compelling service and obedience.71
Many critical writers have noted that the myth of consensual private
relations serves to insulate the market from democratic pressures. In lib-
eral states, citizens aspire to make their governments democratic and
participatory while tolerating discipline and authoritarianism in the rela-
tions of production. As Santos has argued,

the economy/politics dichotomy was essential to keep these two pic-
tures incomparable or incommensurable. It kept them separate in
such a way that the political form of social relations could never be-
come the model for the economic form of social relations.72

Third, whereas classical liberals have tried to separate economics from
politics, critics have shown the political choices that are implicit in eco-

Engels Reader, 2d ed. by Robert C. Tucker (New York: W.W. Norton, 1978) 26 at 35
[emphasis in original].

69 Ibid. at 45.
70 Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923)

38Pol. Sci. Q. 470. Hale tried to empty the concept of coercion of any sense of moral

judgment, turning it into an analytical tool that could be applied equally to the public
and the private.

71 Morris R. Cohen, Property and Sovereignty (1927) 13 Cornell L.Q. 8 at 12.
72 De Sousa Santos, supra note 3 at 368.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 477

nomic matters. Hale did this by highlighting how economic laws inevita-
bly favour some interests over others. Recalling the example of the prop-
ertyless person who is effectively coerced into working, Hale recognized
that workers may sometimes be in a position to withhold their labour
(just as customers may refuse to buy). Therefore, Hale did not claim that
property owners have all the power. People and social groups have vari-
ous bargaining resources. Their relative ability to coerce others depends
on the laws governing market transactions as well as other social and po-
litical factors.73 Hale argued that each persons income in the community
is likely to be a function of his or her relative coercive power, and since
this power is partially constituted by law, law has distributive effects.74

C. Market/Family

Although the state/civil-society distinction is the most important form
of public/private distinction in classical liberalism, it is not the only one.
Classical liberalism also distinguishes between the (public) market and
the (private) family or household.

In nineteenth-century Europe and North America, laws governing the
family were overwhelmingly conservative and patriarchal. Jurists gradu-
ally reconceptualized these laws as involving reciprocal rights and duties.
But these rights and duties were codified by the state rather than negoti-
ated by the parties. According to Kennedy, the will theory came to an end
at the family.75 On the periphery, European colonial regimes also distin-
guished between the market and the family, applying European legal
forms to the market while recognizing religious or customary systems of
family law.76
Olsen showed how the market/family distinction forms another pub-
lic/private distinction nestled within that of state/civil society. From the
perspective of the state, the market is private, but from the perspective of
the family, the market is public. Both private spheres are to some extent
imagined as natural and autonomous, and analogous arguments are
made against intervention in each.77

73 For a helpful discussion of the Halean analysis of markets and coercion, see Duncan

Kennedy, The Stakes of Law, or Hale and Foucault! (1991) 15 Legal Stud. F. 327.

74 Hale, supra note 70 at 477.
75 Kennedy, Three Globalizations, supra note 4 at 32.
76 See generally M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-
Colonial Laws (Oxford: Oxford University Press, 1975); Lauren Benton, Law and Colo-
nial Cultures: Legal Regimes in World History 14001900 (Cambridge: Cambridge Uni-
versity Press, 2002).

77 Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform

(1983) 96 Harv. L. Rev. 1497.

478 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

D. Civilization/State

Another classical liberal public/private distinction can be observed in
the separation between civilization (the international realm) and the in-
ternal affairs of states.78 Under what came to be known as the West-
phalian paradigm, only states could possess sovereignty and thus interna-
tional legal personality.79 Moreover, state jurisdiction was to be territorial:
states could legislate, adjudicate, and enforce only within their territory,
and they were not to intervene in others affairs. The liberal rights of in-
dividuals thus stopped at the border. But in the nineteenth century, most
African, Asian, and Pacific polities, as well as those of the indigenous peo-
ples of the Americas, were considered uncivilized. They were not recog-
nized as states, and they were therefore open to colonization or various
forms of unequal treaties involving extraterritorial jurisdiction.80 Interna-
tional law, including its concept of sovereignty, has been shaped by these
unequal relationships.81 But in the twentieth century, Westphalian sover-
eignty was universalized, at least in form.82 The civilization/state distinc-
tion is thus another level of the public/private distinction, operating in a
manner analogous to the state/civil society and family/market distinc-
tions. All three private spheres are set up against intervention.

E. Critique and Reinforcement

As discussed above, many scholars have critiqued the public/private
distinction and the myths associated with it. These critiques are hardly
new. I have discussed Marxs critique of the state/civil-society distinction,
which dates from 1843, and critiques by Hale, Cohen, and Polanyi from
the early twentieth century. In 1982, Horwitz remarked,

By 1940, it was a sign of legal sophistication to understand the arbi-
trariness of the division of law into public and private realms. No
advanced legal thinker of that period, I am certain, would have pre-
dicted that forty years later the public/private dichotomy would still
be alive and, if anything, growing in influence.83

78 Although international law has complex origins and precursors, not until the nine-
teenth century did it become a profession and legal subdiscipline: Martti Koskenniemi,
The Gentle Civilizer of Nations: The Rise and Fall of International Law, 18701960
(Cambridge: Cambridge University Press, 2001).

79 I follow Anghies use of Westphalian as a critical label for the classical international
legal paradigm. See Antony Anghie, The Evolution of International Law: Colonial and
Postcolonial Realities (2006) 27 Third World Quarterly 739 at 740.

80 Ibid. at 745-46.
81 Ibid. at 741-42.
82 Ibid. at 748-49.
83 Horwitz, supra note 50 at 1426-27.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 479

Almost thirty years later, Horwitzs comment remains just as appropri-
ate.84 It is tempting to ask, as did Santos, [I]f the state/civil society dis-
tinction has always been so pregnant with contradictions, why is it so
widely accepted, so self-evident and even commonsensical?85

In order to answer this question, it may be helpful to review the struc-
ture of the critiques. Critiques of the public/private distinction have often
taken the form of assimilating the private to the public. This is illustrated
in the critiques of the state/civil-society distinction by Cohen, Hale, Marx,
and Polanyi.86 These authors exposed the myths that civil society is natu-
ral, consensual, and economic or apolitical. They showed that private law
can be just as artificial, coercive, and political as public law can.
While intellectually compelling, such critiques are politically vulner-
able to the reverse move: the assimilation of the public to the private. A
good example of this can be found in Dicey. As noted above, Diceys rule of
law included the subjection of state officials to the ordinary law of civil
liability.87 No distinction was to be made between public officials and pri-
vate citizens in this regard. For this reason, Dicey is sometimes given
credit for overcoming the distinction between public law and private law.88
But Dicey did not seek to overcome the public/private distinction so much
as to shrink the sphere of the public, and to subject all state institutions
to the logic of private ordering.89

This reverse movethe assimilation of the public to the privatemay
at times be a critical one. But it tends to draw its strength from the liberal
myths already discussed, especially the myth that the private is natural
whereas the public is artificial. Whereas the assimilation of the private to
the public calls attention to the artificiality and socially constructed na-
ture of both categories, the assimilation of the public to the private tends
to reinforce the myth of naturalness. Some commentators have portrayed

84 Likewise, in 1938, Felix Frankfurter lamented the persistence of Diceyan thinking in
administrative law and popular understandings of government. See Felix Frankfurter,
Foreword, (1938) 47 Yale L.J. 515 at 517-18. Quoting Frankfurter forty years later,
Harry Arthurs added that Frankfurters remarks might have been written today (Ar-
thurs, Rethinking, supra note 57 at 4). I would only add, another thirty years later,
that they might have been written today as well. For an outrageous example from the
popular media, see Editorial, Judge Marshall and the Rule of Law The Globe and
Mail (10 August 2006) A14.

85 De Sousa Santos, supra note 3 at 365.
86 See supra note 66ff. and accompanying text.
87 Dicey, supra note 22 at 193.
88 See e.g. Carol Harlow, Public and Private Law: Definition Without Distinction

(1980) 43 Mod. L. Rev. 241.

89 Macdonald, supra note 32 at 74.

480 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

these moves as equal and opposite forms of critique.90 But only the former
helps to challenge liberal myths.

In the fifty years since Roncarelli, this reverse move has been pursued
with a vengeance. It is probably best represented by Hayek and the
movement generally known as neo-liberalism. Hayek reaffirmed the
premise that civil society and markets are natural, whereas states are ar-
tificial. For Hayek, law preserves the freedom of individuals to engage in
economic competition, which allows for the optimum use of information
and thus economic efficiency.91 Hayek drew on Diceys concept of the rule
of law and his antipathy toward collectivism.92
Neo-liberal economic ideas such as those of Hayek were accompanied
by a particular view of politics, generally known as public choice theory.93
On this view, public institutions are composed of individual actors who
engage in self-interested, rationally maximizing behaviour. Economic
game theory could then be applied to the processes of state institutions.94
Neo-liberal thought therefore involves not only a reaffirmation of liberal
principles, but also an expansion of the private and the assimilation of the
public to the private. Public choice theory combines with neo-liberal eco-
nomics to produce a set of arguments for a particular kind of state.95

In the 1980s and 1990s, these patterns of thought contributed to a
global political trend toward privatization, the ostensible withdrawal of
the state from economic matters, and the celebration of civil society as a
counterweight to the state.96 Whereas for some countries these changes
reflected indigenous policy choices, in many Southern countries they were
imposed by international actors, led by the International Monetary Fund
and the World Bank. Until the 1990s, these institutions had refrained

90 See e.g. Jody Freeman, The Private Role in Public Governance (2000) 75 N.Y.U. L.
Rev. 543 at 561-63 (discussing how in public choice theory, the public sphere is assimi-
lated into the private sphere).

91 See generally F.A. Hayek, The Use of Knowledge in Society (1945) 35 Am. Econ. Rev.

519.

92 See Friedrich A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press,

1944) at 80-96.

93 See e.g. Michael J. Trebilcock et al., The Choice of Governing Instrument (Ottawa: Min-

ister of Supply and Services Canada, 1982).

94 Ibid.
95 For a helpful analysis of this aspect of neo-liberal thought, see Kerry Rittich, Recharac-
terizing Restructuring: Law, Distribution and Gender in Market Reform (The Hague:
Kluwer Law International, 2002) at 99-125.

96 See generally Michael Taggart, The Nature and Functions of the State in Peter Cane
& Mark Tushnet, eds., The Oxford Handbook of Legal Studies (Oxford: Oxford Univer-
sity Press, 2003) 101 [Taggart, Nature and Functions]; H.W. Arthurs, The Adminis-
trative State Goes to Market (and Cries Wee, Wee, Wee All the Way Home) (2005) 55
U.T.L.J. 797 [Arthurs, Administrative State].

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 481

from undertaking law reform projects on the basis that such projects were
matters of politics rather than economics. But in the 1990s the World
Bank began to view many areas of law in economic terms.97

F. Transpositions

In the preceding section of this paper, I explained how public/private
distinctions can be reinforced by assimilating the public to the private.
Another way they can be reinforced is through transpositions. In liberal
thought, ideas about the public and the private are frequently transposed
from one level to another. And while such transpositions can reveal con-
tradictions, they can also provide the impression of stability.

The best analysis of such transpositions is found in Olsens study of
the family and the market.98 Olsen observed that the family is private vis-
-vis the market, but that both family and market are part of civil society
and therefore private vis–vis the state:

The classic laissez-faire arguments against state regulation of the
free market find a striking parallel in the arguments against state
interference with the private family … Both are constructed of simi-
lar elements and subject to similar attacks; our understanding of
each is enriched by our understanding of the other.99

Thus, in Olsens analysis, the supposed naturalness and autonomy of the
market indirectly bolsters the idea that the state should refrain from in-
tervening in the family, and vice versa. Images and values of the public
and the private are thus shifted from one level to another in ways that re-
inforce the overall structure.
As discussed above,100 there are at least three public/private distinc-
tions in classical liberal thought: the state/civil-society and market/family
distinctions discussed by Olsen, as well as a third, civilization/state dis-

97 Kerry Rittich, The Future of Law and Development: Second-Generation Reforms and
the Incorporation of the Social in David M. Trubek & Alvaro Santos, eds., The New
Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge Univer-
sity Press, 2006) 203; Alvaro Santos, The World Banks Use of the Rule of Law Prom-
ise in Economic Development in David M. Trubek & Alvaro Santos, eds., The New Law
and Economic Development: A Critical Appraisal (Cambridge: Cambridge University
Press, 2006) 253.

98 Olsen, supra note 71. Reichs new property (supra note 15) is another example of a
creative use of the public/private distinction that ultimately serves to reinforce the di-
chotomy. Reich largely ignored the legal realist critiques that had shown the role of the
state in constituting even the old property. Instead, Reich relied on an essentialized,
libertarian image of property and tried to expand the application of this image. Reich
highlighted the blurring of public/private categories in the administrative state, but in a
way that assumed that these once had some determinate meaning.

99 Olsen, supra note 71 at 1502.
100 See Parts II.B, II.C, and II.D above.

482 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

tinction. It may be helpful to imagine these three distinctions as concen-
tric circles corresponding to different geographical scales, with the civili-
zation/state distinction on the outside and the market/family distinction
at the centre.

Thus, in addition to transpositions from family to civil society and vice
versa, we can observe transpositions from family to state. It is telling that
we use the same word domestic to refer to both family and state, in op-
position to market or civilization respectively. Catharine MacKinnon
draws a parallel between the international communitys toleration of war-
time rape in Bosnia and the states toleration of marital rape and spousal
abuse. In both cases, crimes against women are characterized as domes-
tic.101
Even when different levels of the public and the private are subjected
to critical comparisons, the comparisons may perpetuate the overall
thought structure. For example, Olsen notes that the critique of selfish
individualism in the market has often relied on an essentialized view of
altruism within the family. Conversely, the critique of hierarchy in the
family has often relied on an essentialized version of freedom and formal
equality in the market.102 Olsen suggests that liberation from the fam-
ily/market and state/civil-society dichotomies, if it were to occur, must oc-
cur simultaneously.103

These multiple levels of the public/private distinction produce complex
and contradictory political positions. Perhaps this is best exemplified in
the liberal ambivalence toward international trade. Because civil society
and its economic activity are considered private (vis–vis the state), they
are thought to be contained within the state, which is also private (vis–
vis civilization). Economies are therefore seen as essentially local or na-
tional, and states are seen as sovereign over their economies. But since
the state is also seen as public (vis–vis civil society), state regulation is
considered an artificial barrier to economic activity. Even at the global
scale, the state is believed to be the main threat to freedom.104
The Western powers tried to resolve these tensions in the postWorld

World II embedded liberal compromise: stable national welfare states
were to coexist with a multilateral system for promoting non-

101 Catharine A. MacKinnon, Rape, Genocide and Womens Human Rights (1994) 17
Harv. Womens L.J. 5 at 15. See also Anne Orford, Locating the International: Military
and Monetary Interventions after the Cold War (1997) 38 Harv. Intl L.J. 443.

102 Olsen, supra note 71 at 1524-25.
103 Ibid. at 1568.
104 Stanley Hoffmann, The Crisis of Liberal Internationalism Foreign Policy, No. 98

(Spring 1995) 159.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 483

discrimination in trade.105 Both Keynesian and classical liberals under-
stood this arrangement to involve state intervention in the market.
Keynesian liberals considered this intervention legitimate. But classical
liberals such as Rpke challenged this intervention, arguing instead for
the separation of imperium and dominium, i.e., the largest possible de-
politisation of the economic sphere with everything that goes with it.106
On this view, property everywhere must be independent of state control
and left in the hands of a cosmopolitan civil society.107 For Rpke, national
collectivism (which would have included embedded liberalism) was in-
compatible with the world economy.108

G. Dominion/Province: A Note on Federalism

In Canada, federalism adds another layer to the public/private distinc-
tion, making possible an additional set of transpositions.109 Under the
prevailing constitutional logic, matters of Parliaments legislative power
are seen as public whereas provincial matters are seen as private.110 In-
deed, subsection 92(16) of Canadas Constitution assigns the provincial
legislatures power over Generally all Matters of a merely local or private
Nature in the province.111

Such transpositions are evident in the Constitutions handling of trade
and economic activity. The federal system reproduces, in miniature, the

105 See John Gerard Ruggie, International Regimes, Transactions, and Change: Embed-

ded Liberalism in the Postwar Economic Order (1982) 36 Intl Organization 379.

106 Wilhelm Rpke, Economic Order and International Law (1954) 86 Rec. des Cours 203

at 224.

107 Ibid. at 228-29. Some might argue that Rpkes vision was realized in a diminished
form of sovereignty granted to African and Asian states. See Antony Anghie, Colonial-
ism and the Birth of International Institutions: Sovereignty, Economy, and the Man-
date System of the League of Nations (2002) 34 N.Y.U. J. Intl L. & Pol. 513.

108 Rpke, supra note 94 at 240.
109 See R.C.B. Risk, Constitutional Scholarship in the Late Nineteenth Century: Making
Federalism Work (1996) 46 U.T.L.J. 427. [T]he spheres of power and their sharp lim-
its that defined the relation between the Dominion and the provinces were shaped by
ideas about the relation among individuals in the liberal state (ibid. at 442).

110 See R.C.B. Risk, Canadian Courts Under the Influence (1990) 40 U.T.L.J. 687. Risk
explains that the earliest Canadian judgments on the division of powers reflected an
understanding that the dominion government would be given large and general pow-
ers, especially for dealing with the economy and defence, and that the provinces would
have responsibility for their local affairs and distinctive cultures (ibid. at 698-99).
Compare Albert S. Abel, The Neglected Logic of 91 and 92 (1969) 19 U.T.L.J. 487 at
497ff. Abel argues that (with a few notable exceptions) the division of powers reflects a
distinction between economic and social matters.

111 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 92(16), reprinted in R.S.C. 1985,
App. II, No. 5 [emphasis added]. See also A.S. Abel, What Peace, Order and Good Gov-
ernment? (1968) 7 West. Ont. L. Rev. 1.

484 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

liberal ambivalence over international trade. Subsection 92(13) of the
Constitution provides for provincial legislative power over Property and
Civil Rights in the Province,112 thus codifying the transposition of (pri-
vate) civil society to (private) province. But Subsection 91(2), providing for
parliamentary power over The Regulation of Trade and Commerce,113
ensures that civil society (including capital) will not be contained within
provincial borders.
When deciding cases of jurisdiction over trade and economic matters,
Canadian courts have often conflated international and interprovincial
disputes, transposing rules and principles between the two contexts.114
For example, in Morguard Investments Ltd. v. De Savoye, a case about the
recognition of an Alberta judgment in British Columbia, Justice La Forest
for the Supreme Court of Canada based his reasoning on the growth of in-
ternational trade and the need for principles of comity and fairness in in-
ternational relations.115 He then held that these international trade prin-
ciples must apply at the interprovincial level in concentrated form.116 In
Beals v. Saldanha, a case about the recognition of a Florida judgment in
Ontario, the Supreme Court of Canada made the reverse move, extrapo-
lating the Morguard doctrine so that it would apply to international cases
as well.117

The transposition from civil society to province has a particularly
powerful history in Quebec. Since 1774, Quebec private law has been ex-
pressed in terms of French civil law, but public law has been based on
English models. Thus, according to a stylized and oversimplified view,
civil law governs civil society and the market, whereas common law gov-
erns the state. Following the work of Justice Pierre-Basile Mignault in the
early twentieth century, Quebec civil law came to be seen as a bulwark of
national identitya defence against assimilation into English Canada.118
This transposition from civil society to province is reinforced by other
transpositions in legal and popular culture, such as the transposition from

112 Ibid., s. 92(13).
113 Ibid., s. 91(2).
114 See generally Robert Wai, In the Name of the International: The Supreme Court of
Canada and the Internationalist Transformation of Canadian Private International
Law (2001) 39 Can. Y.B. Intl Law 117 at 188-92; Nathan Hume, Four Flaws: Reflec-
tions on the Canadian Approach to Private International Law (2006) Can. Y.B. Intl
Law 161 at 207-11, 224-45.

115 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1096-98, 76 D.L.R.

(4th) 256 [Morguard].

116 Ibid. at 1098-103.
117 Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, 234 D.L.R. (4th) 1.
118 David Howes, From Polyjurality to Monojurality: The Transformation of Quebec Law,

18751929 (1987) 32 McGill L.J. 523.

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 485

household to civil society to province evident in Premier Jean Lesages
slogan, Matres chez nous.119
Critical scholars have taken aim at some of these transpositions. For
example, Belleau notes that some Quebec feminists have focused their
critical energy on Quebec private law.120 This is because they hope to de-
velop a distinctly Qubcoise approach to feminism. Belleau applauds
their efforts to struggle for womens equality while at the same time tak-
ing up the issue of Quebecs national-cultural identity. But she critiques
their willingness to accept the public-law/private-law distinction, arguing
that it is incumbent upon them to challenge this dichotomy along with all
the others.

H. Rights

Finally, a discussion of the public/private distinction would be incom-
plete without an account of rights. Rights are integral to liberal thought,
and rights-based approaches to law draw on the formalistic modes of legal
reasoning characteristic of classical legal thought. But there are various
approaches to rights within liberalism. Some liberal thinkers, like Dicey,
have used rights to emphasize the protection of individuals and groups
against state power, and have thus reinforced the state/civil-society dis-
tinction. But other liberal rights theorists have attended to the way lib-
erty and dignity may be threatened by private actors, e.g., in the market
or in the family. Rights-based legal reasoning therefore does not necessar-
ily reinforce the public/private distinction. It depends on which rights are
protected, as well as for and against whom such rights are protected.
As Eric Adams shows, Roncarelli was celebrated in 1959 as a contri-
bution to a Canadian jurisprudence of human rights.121 However, as dis-
cussed above, Roncarelli was largely understood as a conflict between
state and civil society.122 The rights at stake were therefore consistent
with the kind emphasized by classical liberals.

The role of rights in Canadian law has of course vastly expanded since
1959. In some instances, Canadian courts have approached human rights
in ways that perpetuate a classical liberal state/civil-society distinction.123
On other occasions, courts have been more sensitive to the way power is

119 See John Dickinson & Brian Young, A Short History of Quebec, 3d ed. (Montreal:

McGill-Queens University Press, 2003) at 319.

120 Marie-Claire Belleau, La dichotomie droit priv/droit public dans le contexte qubcois

et canadien et lintersectionalit identitaire, Note, (1998) 39 C. de D. 177.

121 Eric M. Adams, Building a Law of Human Rights: Roncarelli v. Duplessis in Canadian

Constitutional Culture (2010) 55 McGill L.J. 437.

122 See Part I.A above.
123 See e.g. R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174.

486 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

exercised by other social actors.124 Perhaps the most significant develop-
ment, however, is that we have now become accustomed to situating
rights-based formalism alongside policy analysis including proportional-
ity, creating tensions that can be resolved only through adjudication.125

III. The Public and the Private in Administrative Law

The Canadian legal systems approaches to the public and the private
have changed since 1959, but they have also endured. In this section, I il-
lustrate the persistence of the public/private distinction with examples
drawn from contemporary Canadian administrative law. I focus on two is-
sues: (1) which institutions are subject to judicial review, and (2) which
rights and interests provide a basis for review on procedural fairness
grounds.

A. Availability of Judicial Review

In Canadian administrative law, there is no clear test to determine
which bodies decisions are subject to judicial review. On one hand, courts
have often made these determinations according to factors other than the
public/private distinction. For most of the twentieth century, the avail-
ability of judicial review on natural justice grounds depended largely on
whether a bodys function could be characterized as judicial rather than
administrative.126 And common law judges have a long history of review-
ing the procedural decisions of entities that might be understood as pri-
vate: social clubs, trade unions, sports organizations, and churches.127 On
the other hand, the state/civil-society distinction has clearly played a role.
Courts have considered the publicness of institutions in determining
whether their decisions should be reviewable. They may use formalistic
criteria (the presence or absence of a statutory mandate) or functional
ones (ideas about quintessentially governmental activities). In making
such decisions, courts have sometimes relied on essentialized versions of
the state/civil-society distinction.128

124 See e.g. R. v. Mills, [1999] 3 S.C.R. 668, 244 A.R. 201; Dunmore v. Ontario (A.G.), 2001

SCC 94, [2001] 3 S.C.R. 1016, 207 D.L.R. (4th) 193.

125 Compare Kennedy, Three Globalizations, supra note 4 at 63-71.
126 See Part III.B below.
127 David Mullan, Administrative Law at the Margins in Michael Taggart, ed., The Prov-
ince of Administrative Law (Oxford: Hart, 1997) 134 at 137-40 [Mullan, Administrative
Law]. For a dramatic example from contemporary Canadian jurisprudence, see Lake-
side Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, 81 Man. R. (2d) 1.

128 Allan C. Hutchinson, Mice under a Chair: Democracy, Courts, and the Administrative
State (1990) 40 U.T.L.J. 374. Discussing the case of R. v. Panel on Take-overs and
Mergers, Ex parte Datafin PLC ((1986), [1987] Q.B. 815, [1987] 2 W.L.R. 699 (C.A.)),
Hutchinson states that such a decision reinforces the hold that the public/private dis-

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 487

I noted earlier, the neo-liberal politics of the 1980s and 1990s pro-
claimed the need to privatize, deregulate, and otherwise reduce the
role of the state.129 Indeed, since the rise of neo-liberalism, large parts of
the administrative state have been downsized, sold, corporatized, or con-
tracted out. These changes have recharacterized certain institutions and
functions as private. Just as Reichs nightmare of the joyless landscape of
the public interest state now seems dated,130 Justice Rands reference to
expanding administrative regulation of economic activities131 now looks
overly simplistic.
To the extent that judicial review is reserved for public bodies, neo-

liberal institutional reforms have often diminished the availability of judi-
cial review. Such changes have also limited the availability of other proc-
esses applicable to public authority, such as access to information, finan-
cial audits, or legislative or ombudman oversight.132
However, since there is no general test for determining the availability
of judicial review with respect to a particular institution, the privatization
of a state function or entity does not necessarily remove it from the prov-
ince of administrative law. Courts have sometimes reviewed the adminis-
trative decisions of bodies whose status is ambiguous.133 Moreover, some
administrative law values may be migrating into private law, as for ex-
ample in general procedural fairness requirements in employment law.134
Beyond judicial review of administrative action, there may be other ways
of ensuring the public accountability of privatized entities. Some adminis-
trative lawyers have pondered expanding the applicability of laws on ac-
cess to information, granting third parties the right to enforce contracts,
or developing new kinds of informal regulation.135 These lawyers accept
the mixed or interdependent public/private nature of governance and
prefer to approach it through more context-specific questions of institu-
tional design.136

tinction has on the judicial imaginationthe idea that the government is the prime
threat to individual liberty and social justice (Hutchinson, supra at 390).

129 See Part II.E above.
130 Reich, supra note 15 at 778, cited in Mark Aronson, A Public Lawyers Response to
Privatisation and Outsourcing in Michael Taggart, ed., The Province of Administrative
Law (Oxford: Hart, 1997) 40 at 40-41.
131 Roncarelli, supra note 1 at 142, Rand J.
132 See Taggart, Nature and Functions, supra note 96; Arthurs, Administrative State,

supra note 96.

133 Mullan, Administrative Law, supra note 127 at 146-50. See also Hutchinson, supra

note 119 at 386-96.

134 Mullan, Administrative Law, supra note 127.
135 Aronson, supra note 130.
136 Ibid. See also Freeman, supra note 90.

488 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Some legal scholars have pointed out that governments are rarely ea-
ger to cede control over important areas of policy.137 The privatization and
outsourcing of government functions has often been accompanied by more
aggressive regulation. Some public lawyers argue that neo-liberal institu-
tional changes have really only empowered the state and particularly the
executive, helping it to better hide its operations.138

I tell this story mainly to illustrate the power of public/private con-
cepts. Although judges and lawyers have found other ways of drawing the
boundaries of administrative law, the state/civil-society distinction still
plays an important role. The availability of judicial review and other legal
mechanisms of accountability depend, to a significant extent, on whether
an institution is characterized as public or private.

B. Judicial Review on Procedural Fairness Grounds

In the late nineteenth century and for most of the twentieth century,
the principles of natural justice applied only to decisions that were judi-
cial rather than administrative. This distinction was closely related to a
rights/privileges distinction. In order to be considered judicial, a decision
had to affect pre-existing rights and liabilities, whereas an administra-
tive decision acted upon policy and expediency.139 Judicial review was
thus restricted to those rights traditionally protected by the common law,
such as property rights.140 Privileges granted under statutory powers
were excluded.141 A boundary was thus drawn between state and civil so-
ciety, although contemporary concepts of property included interests like
university degrees, government offices, and membership in clubs and so-
cieties.142

In 1979, following a British precedent,143 the Supreme Court of Can-
ada collapsed the judicial/administrative distinction.144 Administrative de-

137 See e.g. David Mullan & Antonella Ceddia, The Impact on Public Law of Privatization,
Deregulation, Outsourcing, and Downsizing: A Canadian Perspective (2003) 10 Ind. J.
Global Legal Stud. 199 at 211-22. Mullan and Ceddia conclude that privatization and
deregulation do not go hand in hand (ibid. at 222).

138 Carol Harlow, The Hidden Paw of the State and the Publicisation of Private Law in
David Dyzenhaus, Murray Hunt & Grant Huscroft, eds., A Simple Common Lawyer:
Essays in Honour of Michael Taggart (Oxford: Hart, 2009) 75.

139 D.M. Gordon, Administrative Tribunals and Courts (1933) 49 Law Q. Rev. 94 at 107.
140 The classic case of Cooper v. The Board of Works for the Wandsworth District ((1863),

143 E.R. 414 (Common Pleas)) is paradigmatic in this regard.

141 Nakkuda Ali v. Jayaratne, [1951] A.C. 66 (P.C.).
142 See Mullan, Administrative Law, supra note 127 at 138.
143 Ridge v. Baldwin (1963), [1964] A.C. 40, [1963] 2 W.L.R. 935 (H.L.).
144 Nicholson v. Haldimand-Norfolk Regional Police Commissioners (1978), [1979] 1 S.C.R.

311, 88 D.L.R. (3d) 671 [Nicholson].

THE PUBLIC/PRIVATE DISTINCTION IN RONCARELLI V. DUPLESSIS 489

cisions involving government-granted privileges thus were brought into
the realm of procedural fairness review. Canadian courts now review ad-
ministrative decisions for procedural fairness whenever the rights, privi-
leges or interests of an individual are affected.145
Although the collapse of the judicial/administrative distinction might
appear to have overcome one aspect of the state/civil-society distinction,
this statement requires several qualifications. First, a distinction is still
drawn between administrative and legislative decisions.146 Second, and
more important for the purposes of my argument, state institutions may
be exempt from the duty of procedural fairness when they undertake cer-
tain kinds of activities, such as employment and the procurement or man-
agement of property. Although these functions are carried out by state in-
stitutions, the activities involved are thought of as more characteristic of
(private) civil society. While the scope of procedural fairness review has
been broadened, many activities are thus still excluded and subject to the
ordinary (private) law. While we no longer draw the public/private
boundary according to which individual rights, interests, or privileges are
affected, we may continue to draw it according to what kind of function
the state is performing.
But this latter statement, too, must be qualified. In some cases, courts
have held that duties of procedural fairness apply to government pro-
curement decisions.147 Moreover, courts have had a hard time drawing a
public/private capacity boundary in the context of government employ-
ment.148 However, it also seems plausible to suggest that our notion of the
procedural fairness threshold continues to be affected, albeit in a subter-
ranean way, by our notions of property rights. This suggestion was given
counterfactual confirmation in a recent Supreme Court of Canada deci-
sion concerning dismissal from public office.149 As one reason for holding
that procedural fairness was not owed in that case, the majority empha-

145 Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 653, 24 D.L.R. (4th) 44

[references omitted].

146 Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, 115 D.L.R. (3d) 1. For a
critical appraisal of that view, see Genevive Cartier, Procedural Fairness in Legisla-
tive Functions: The End of Judicial Abstinence? (2003) 53 U.T.L.J. 217.

147 See e.g. Shell Canada Products Ltd. v. Vancouver (City of), [1994] 1 S.C.R. 231, 110

D.L.R. (4th) 1.

148 See e.g. Nicholson, supra note 144; Indian Head School Division No. 19 v. Knight,
[1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489; Wells v. Newfoundland, [1999] 3 S.C.R. 199,
177 D.L.R. (4th) 73; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 291
D.L.R. (4th) 577 [Dunsmuir]. On this score, it is interesting to note that Rand J. made a
point of excluding ordinary governmental employment from the scope of his dicta on
discretion (Roncarelli, supra note 1 at 142, Rand J.).

149 Dunsmuir, supra note 148.

490 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

sized that government employment is no longer understood as a property
right.150
When we move from the threshold into the content of procedural fair-
ness, [t]he importance of a decision to the individuals affected becomes
one factor to be balanced against several others.151 It is therefore more dif-
ficult to determine the impact of judges perceptions of the different kinds
of interests involved. But it seems plausible to suggest that the collapse of
the rights/privileges distinction, and the openness to procedural fairness
whenever any rights, privileges, and interests are at stake, leave judges to
fall back on uncritical commonsense assumptions about which kinds of in-
terests are more important than others. To the extent that judges are still
influenced by common law conceptions of rights, administrative law may
still be geared toward their protection.

Conclusion

The enduring interest of Roncarelli depends on a complex of ideas
about the public and the private. Roncarelli draws on the meanings that
the public and the private had acquired in earlier eras, notably those of
classical liberalism. And in the twenty-first century, these meanings re-
main pervasive, taken-for-granted features of our legal consciousness.
Roncarelli demonstrates not only the persistence of these concepts,
but also their flexibility. And it is this very flexibility that makes the con-
cepts of the public and the private so resilient. Our ways of thinking about
rights and about the administrative state have changed a great deal since
Justice Rands time, and even more since Diceys. Our ideas about the
public and the private have changed accordingly.152 But Roncarelli and its
legacy demonstrate how much they have also remained the same.

150 Ibid. at para. 99.
151 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at

para. 26, 174 D.L.R. (4th) 193.

152 For an excellent contemporary exploration, see Law Commission of Canada, ed., New

Perspectives on the Public-Private Divide (Vancouver: UBC Press, 2003).