issues > volume 1, issue 1
ORIGINAL RESEARCH ARTICLE
Published: August 11, 2023
Navigating the Interplay Amongst Public Interest Standing, Prematurity, Abuse of Process, and Facts and Evidence
Abstract: This article considers how the public interest standing test should be applied when a litigant challenges legislation that has not yet been invoked, on the basis that the mere existence of the legislation chills Charter rights and freedoms. The Supreme Court of Canada has directed that the public interest standing test should be applied generously and liberally, to ensure robust protection for Charter rights and freedoms. The recent Alberta Court of Appeal decision of Alberta Union of Public Employees v Alberta illustrates that in cases involving legislative chill, the breadth of the public interest standing test can be restricted by interweaving concepts of prematurity, abuse of process, and facts and evidence. Alberta Union of Public Employees is a problematic precedent, but it also provides a rich opportunity for considering how litigants and courts should approach public interest standing in cases involving Charter claims based on legislative chill. This article teases out how the Alberta Court of Appeal narrowed the test for public interest standing by combining the concepts of prematurity, abuse of process, and facts and evidence, and provides guidance on how these concepts can be navigated to ensure litigants can turn to courts for relief when legislatures enact statutes that threaten democratic practices and institutions.
Cite as: (2023) 1:1 TMU L Rev 32.