Not Bakan Down, Part 1: Cool World v Twitter and the Charter’s Application to Private Litigation
- ccsedu
- Apr 25
- 9 min read
by Krystin Hoffart, J.D. Candidate 2026
April 25, 2025
Imagine you’re a first-year law student studying for your constitutional law final. You listen to Eye of the Tiger, chug a coffee, then start a practice exam dealing with the Charter of Rights and Freedoms.[1] Flow-charts and checklists are your best friend in this class, and after carefully reading the fact pattern you begin at step one: is the Charter even engaged?
You know that per section 32(1), the Charter only applies to governments,[2] and doesn’t bind private businesses[3] unless they’re administering a government objective.[4] Seems easy enough. You pen a quick sentence saying the Charter is/is not involved in the exam scenario and move on to the trickier parts of your analysis, half-daydreaming about the A+ you’re sure to receive.
Sound right? For now, maybe. But the Charter’s reach could soon become more complicated thanks to an interesting case making its way through the Ontario courts: Cool World Technologies v Twitter.[5] Cool World is a law student’s dream. It has a punchy name; it involves movies and Twitter spats; and it’s a David and Goliath-esque legal matchup that has the potential to deter corporate conduct some have deemed to be troublesome. What’s not to love?
This article kicks off a two-part exploration of how the Charter applies to private litigants, using the Cool World case to illuminate the complexity of this issue. Part 1 provides an overview of Cool World and the cases baked into the plaintiff’s argument. Part 2 will then investigate Bakan v Attorney General of Canada,[6] Cool World’s now-defunct companion case which attempted to saddle the federal government with a duty to regulate the protection of high-value speech on Twitter.
Pre-Cool World Precedents
No discussion of Cool World is complete without first returning to the 80’s to consider the landmark section 32 case, RWDSU v Dolphin Delivery.[7]
Dolphin Delivery involved a dispute between a trade union and a BC courier company called Dolphin Delivery. The union was representing employees of another courier company, Purolator, and was threatening to picket the premises of Dolphin Delivery on the allegation that Dolphin were acting as allies of Purolator by making deliveries for them during an ongoing dispute between Purolator and the union. The problem was that picketing in this scenario was governed by the common law (judge-made rules), which allowed Dolphin Delivery to secure an injunction against it.
Not one to give up, the trade union appealed the case all the way to Canada’s highest court: the Supreme Court of Canada. They argued that Dolphin Delivery’s injunction should be overturned because the court decision granting it — which relied on the common law — infringed union members’ Charter right to free expression.[8] At the time, it was clear that the Charter applied to statutes, but not whether it extended to the common law.
The Supreme Court of Canada rejected the union’s claim. The majority held that the Charter does not apply to litigation between purely private parties (like a trade union and a courier company).[9] The Charter does apply to the common law,[10] the Court said, but only where the common law supports a government action that potentially violates a Charter provision.[11] The Court declined to provide a complete list of government actions that would fit this bill,[12] but made it clear that a court decision does not qualify.[13] If court rulings did count as government actions, the Charter would apply to all litigation all the time, making courts potential parties in legal disputes rather than “neutral arbiters.”[14] With the logic in place, the result of the case was essentially settled: Dolphin Delivery involved two private parties and no government action, so the injunction was ultimately upheld.
In some ways, Dolphin Delivery is the one that got away: the case that could have brought private law directly into the Charter’s orbit, but didn’t. But it came with an important silver lining: according to Justice McIntyre (who penned the majority decision), courts “ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution.”[15] Basically, the Court said that the Charter doesn’t directly apply to private litigation with no government party or action, but it indirectly applies because the common law should align with Charter values.[16]
If you’re confused, you’re not alone — commentators have flagged Dolphin Delivery’s inconsistencies too.[17] The takeaway is that Justice McIntyre’s puzzling obiter comment has not faded into obscurity; it’s morphed into law. A range of cases decided by the Court have reinforced the notion that Charter values are a valid consideration in private litigation lacking government actors and actions.[18] What remains to be seen, however, is how different Charter values stack up against the common law in individual cases.
Cool World v Twitter
More than 30 years after Dolphin Delivery was decided, there’s a new epicentre for debate around the Charter’s application to private businesses: the aforementioned Cool World case.
Cool World involves a documentary called The New Corporation: The Unfortunately Necessary Sequel,[19] which argues that large companies have eroded democracy by taking on governmental functions. The film’s predecessor — The Corporation[20] — ruffled feathers by claiming that corporations meet the official criteria for psychopathy. The Corporation and The New Corporation are based on books written by Joel Bakan, a professor of law at the University of British Columbia who served as a producer for both films and directed The New Corporation. He’s also a litigator taking Twitter to court alongside his co-counsel, Sujit Choudhry.
How did The New Corporation become embroiled in a lawsuit? According to court documents,[21] the trouble began in November of 2020 when Cool World — a firm hired to advertise the documentary— tried to purchase a promoted Tweet that included the film’s trailer. Twitter’s representatives rejected the request six times, referencing violations of the company’s policies regarding political content, inappropriate content, and targeting of sensitive categories.
If the government engaged in this type of censorship, Cool World could have sued them for violating the Charter’s free expression rights. In a recent interview with the Centre for Constitutional Studies, however, Bakan explained why this isn’t possible here: Twitter may be government-like in that it’s frequently used by citizens and state actors for democratic discourse, but it doesn’t neatly fit with how the Court has interpreted section 32. As Bakan emphasized, Twitter “is not a government entity, and it is not an entity acting on behalf of a government.”[22] How, then, can the Charter limit Twitter’s actions if the company isn’t bound by it?
The short answer: indirectly. Bakan explained that Cool World’s argument is based on two lines of cases. The first, which stems from Dolphin Delivery and has been concentrated in tort law, says that private litigants are subject to the Charter’s influence because Charter values should inform the common law. The second line pertains to discriminatory trusts, which have been “found to violate public policy because, among other things, they offend Charter values.”[23] Combining them gives you Cool World’s main claim: that Twitter’s “User Agreement” — which is governed by the common law of contracts — violates the Charter value of free expression and, thus, violates public policy.
The novelty of this case, according to Bakan, lies in the fact that there’s no case law applying the Charter-values approach to a contract-specific case. But in his view, this isn’t a huge issue; a court is unlikely to say that Charter values — core tenets underpinning Canada’s legal system — matter in some areas of the law but not others. Had the Cool World litigation team been concerned about this, they could have chosen other, non-Charter sources of public policy to base their argument around. But for Bakan, “it’s a risk not to take account of constitutional and Charter values in giving content to public policy. Logically, if it’s not a violation of public policy to encroach upon the nation’s most fundamental values, what is?”[24]
Part of the excitement surrounding Cool World relates to the decision’s potential to upend the corporate status quo. The New Corporation highlights the growing impact large companies have on our lives and the harmful outcomes — like climate emergencies and financial crises — that can flow from their actions/inactions. Suing private entities for violating Charter values might be one way to rein in undesirable business practices; if an industry titan like Twitter can be forced to comply with the Charter (albeit indirectly), why not other companies? After all, there are many advocates with a bone to pick and an assortment of Charter values that corporations may fail to observe when making and enforcing contracts.[25]
Indirectly infusing the Charter into the private realm might benefit society, but if Cool World succeeds, it won’t necessarily set a precedent that’s a catch-all solution to unwelcome corporate behaviour. Bakan notes that if a court sides with Cool World, Twitter will still have discretion over speech on the platform; it would only be prevented from banning “informed, educational, non-harmful social and political speech” deemed to be high-value.[26] He also emphasized the fact that courts would still have to weigh multiple Charter and non-Charter values when assessing the common law for public policy issues. Knowing that the Charter value of free expression for high-value speech beats Twitter’s freedom of contract and free speech interests doesn’t tell us how courts would resolve other combinations of competing values. Thus, Cool World could inspire companies to tweak their practices, but it doesn’t mean that courts won’t permit any Charter-value infringements.
Conclusion
Despite Twitter’s best efforts, Cool World is pushing ahead with its suit. In December 2022, Justice F L Myers of the Ontario Superior Court denied Twitter’s motion to strike Cool World,[27] affirming the idea that there is a serious cause of action to be pursued. For some, this might be cause for celebration. But Cool World wasn’t the only weapon in Bakan and Choudhry’s original legal arsenal; that same day, Justice Myers granted Twitter’s motion to strike Bakan v Attorney General of Canada.[28] While both suits shared the same goal of allowing Cool World to promote The New Corporation, the Bakan case looked to the federal government for pre-emptive regulation. This case helps illuminate the limits of the Charter’s application to private litigation and will be explored in Part 2 of this article.
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Ibid, s 32(1).
[3] Government of Canada, “Guide to the Canadian Charter of Rights and Freedoms” (last modified 2 August 2024), online: <Canada.ca> [perma.cc/39Y8-LDUU].
[4] Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC).
[5] Cool World Technologies Inc. v Twitter Inc., 2022 ONSC 7156 [Cool World]. Note that Cool World was launched in early 2022 — a year before the social media platform Twitter was acquired by X Corp and renamed “X.” For clarity, this article will refer to the company that is now X as Twitter.
[6] Bakan v Attorney General of Canada, 2022 ONSC 7090 [Bakan].
[7] RWDSU v Dolphin Delivery Ltd., 1986 CanLII 5 (SCC).
[8] Ibid at para 5.
[9] Ibid at para 33.
[10] Ibid at para 25
[11] Ibid at para 39.
[12] Ibid.
[13] Ibid at para 36.
[14] Ibid.
[15] Ibid at para 39.
[16] Brian Slattery, “The Charter’s Relevance to Private Litigation: Does Dolphin Deliver?” (1987) 32:4 McGill LJ 905 at 921.
[17] See e.g. ibid; Peter Hogg, “The Dolphin Delivery Case: The Application of the Charter to Private Action” (1986) 51:2 Sask L Rev 273.
[18] Cool World Technologies Inc. v Twitter Inc., 2022 ONSC 7156 (Factum of the Respondents at para 19) [perma.cc/F5AC-MQLL].
[19] The New Corporation: The Unfortunately Necessary Sequel (Sacramento, CA: Grant Street Productions, 2020).
[20] The Corporation (Vancouver, BC: Big Picture Media Company, 2003).
[21] Cool World Technologies Inc. v Twitter Inc., 2022 ONSC 7156 (Notice of Application) [perma.cc/6YLB-PMLC].
[22] Centre for Constitutional Studies, “Q&A with Professor Joel Bakan: Horizontality and the Charter” (24 April 2025), online (blog): <sevenfiftyblog.ca> [“Bakan Interview”].
[23] Ibid.
[24] Ibid.
[25] See e.g. Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 88, which established other Charter values including “liberty, human dignity, equality, autonomy, and the enhancement of democracy.”
[26] “Bakan Interview”, supra note 22.
[27] Supra note 5.
[28] Supra note 6.