Not Bakan Down, Part 2: Bakan v Attorney General of Canada and the Charter’s Application to Private Litigation

by Krystin Hoffart, J.D. Candidate 2026

April 25, 2025

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Litigation between Cool World and Twitter (now "X") is raising the question of whether the Charter can apply to private companies.

This article is the second in a two-part exploration into recent attempts to extend the Charter of Rights and Freedoms[1] to private litigants. As noted in Part 1, the Charter’s applicability is generally limited to Parliament, legislatures, and governments,[2] with private entities largely spared from direct Charter influence.[3] The ongoing lawsuit of Cool World v Twitter,[4] however, seeks to bring private business into the Charter’s path — albeit via a roundabout, somewhat meandering route.

To get us back up to speed, a quick recap of Cool World is in order. In response to Twitter’s refusal to promote a tweet about the documentary The New Corporation: The Unfortunately Necessary Sequel,[5] the advertising firm Cool World filed a lawsuit against Twitter.[6] Their legal team — Joel Bakan and Sujit Choudhry — drew on a line of thought first expressed in RWDSU v Dolphin Delivery[7] to argue that the common law of contracts governing Twitter’s user agreement must align with the Charter value of free expression for high-value democratic speech. As Bakan noted in a recent interview with the Centre for Constitutional Studies, Twitter would lose absolute discretion over speech on the platform if Cool World succeeds, which would be the first time that a corporation’s freedom of contract would be constrained by Charter values. 

In addition to Cool World, Twitter’s refusal to advertise The New Corporation set off a second, lesser-known and now defunct lawsuit: Bakan v Attorney General of Canada.[8] Bakan — the focus of this piece — asked whether the Canadian government has a positive obligation to protect free expression rights in the Twittersphere. In other words, does the government have to regulate Twitter before free expression is infringed?

Bakan v Attorney General of Canada

Let’s begin with the case law. The Supreme Court of Canada recognized a positive right to free expression in Baier v Alberta[9] and set out the legal test in Toronto (City) v Ontario (Attorney General).[10] Showing that a positive right is warranted is no walk in the park; the absence of government regulation must be such a significant barrier to freedom of expression that it blocks (or attempts to block) meaningful communication.[11] This happens only in “extreme and rare cases.”[12]

In Bakan, Bakan and Choudhry asserted that Twitter’s unique role warrants proactive legislation. They reasoned that even though Twitter is a private corporation, it has taken on the unique function of a “town square.”[13] As evidence of this, they note that governments and politicians frequently rely on the platform to connect with the public, which reflects the extent to which it’s become a site of highly valued democratic discourse.[14] Since the government already regulates other private entities with a public dimension (e.g. monopolies), Bakan and Choudhry argue they should regulate Twitter too — and in a way that prevents political conversations, which are protected by the Charter, from being stifled.[15] 

Justice F L Myers — the same Ontario Superior Court judge who denied Twitter’s motion to strike Cool World[16] — disagreed with Bakan and Choudhry and held that the City of Toronto test was not met.[17] He noted that freedom of expression is a right to be heard, not a right to be heard by as broad of an audience as one desires.[18] Although Twitter refused to promote The New Corporation trailer, Twitter did not stop Cool World (or anyone else) from tweeting about it organically or using other platforms to spread word about the film and its political messages.[19] Thus, the lack of government regulation of Twitter’s policies did not substantially interfere with freedom of expression, no positive obligation to protect freedom of expression exists, and the suit was dismissed.

Why bother talking about a case that failed for want of a cause of action? Think of Bakan and Choudhry as scientists researching how the Charter might influence private conduct. Bakan and Cool World provide two alternate hypotheses, and systematically ruling out Bakan helps clarify what the ultimate answer could be.

The first lesson from Bakan relates to responsibility: if the Charter indirectly applies to private actors, which parties are tasked with safeguarding it? Bakan tested whether the burden could fall squarely on the federal government. Had the suit succeeded, it would have suggested that the government must recognize when a private company has taken on a public function and then spend public resources regulating it to safeguard expressive freedom. Some people might be understandably pessimistic about the government’s capacity to adequately complete these tasks — can a body that requires re-election to stay in power regulate political speech in a neutral way?[20]

Unlike Bakan, Cool World suggests Charter guardianship in the private sphere is better suited to the judiciary, which has already been charged with keeping the common law in line with Charter values.[21] If the court sides with Bakan and Choudhry, the case will also place some onus on individuals: people interacting with companies governed by the common law must be willing and able to take legal action to uphold these values.

On this front, one problem with the Cool World approach is that waging a legal battle against a billion-dollar company like Twitter comes with unique and often insurmountable financial challenges. According to Bakan, there are two main hurdles to overcome. First, a litigant must have enough money to launch the action in the first place (he notes that Charter cases like this usually require free lawyers or the generous financial support of an interest group). The other obstacle is the cost award penalty litigants must risk. Bakan is aware that if Cool World loses its case, they might be in for a very, very rainy day.[22] 

Cool World is doing its best to mitigate the monetary difficulties baked into their suit. In his interview with the CCS, Bakan explained that the company is fortunate to have two constitutional lawyers — Bakan and Choudhry — working on the case for free. They’re also crowdfunding to pay for expert witnesses, researchers, any potential cost award against them, and the many other miscellaneous fees that go hand-in-hand with pursuing a lawsuit. But it may not be enough, and the future of the case is currently in jeopardy. Bakan feels that this reflects a “huge access to justice problem.”[23] 

Another key takeaway from Bakan relates to the potential scope of the Charter’s application to private parties. Let’s say that Justice F L Myers had agreed with Bakan and Choudry and held that the government does have a positive obligation to regulate Twitter. This fictional decision would probably only lead to the regulation of Twitter and a few similar platforms (e.g. Facebook/Meta); there are only so many communication corporations popular enough to meet the City of Toronto[24] requirements.

At first glance, Cool World might seem to have a broader potential application than Bakan. It centres around Charter values — which go beyond freedom of expression to include other ideals like “liberty, human dignity, equality, autonomy, and the enhancement of democracy.”[25] The case also relies on public policy, which is applicable to contract law in general, regardless of whether the parties have governmental qualities.[26] As such, one might think that if Cool World succeeds, it will set a precedent that — unlike Bakan — might not limit the Charter’s influence on private litigation to cases involving mega-companies infringing free expression.

Keep in mind, however, Bakan’s caution that Cool World is still asking courts to weigh multiple Charter and non-Charter values when assessing the common law for public policy issues.[27] Government regulation has the advantage of being able to impact all eligible businesses (and any that crop up in the future) all at once; Cool World’s approach, if successful, will require a case-by-case judicial assessment that might feel glacial in comparison.

Conclusion

Where does all of this leave us? Bakan’s dismissal places all of Cool World’s eggs into one remaining basket: the Cool World suit. At time of writing, the Cool World team is still awaiting their day in the Ontario Superior Court of Justice, and the Charter-values approach has not been tested in the realm of contracts. Even if Bakan and Choudhry are successful, the Court’s eventual decision could be appealed. Realistically, then, it could be years before the dust settles and we have a clear picture of how Cool World impacts the Charter’s indirect application to private litigation. Some folks (and corporations) will be waiting on bated breath.

Until then: stay cool, world.  

[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] “Guide to the Canadian Charter of Rights and Freedoms” (last modified 2 August 2024), online: <Canada.ca> [perma.cc/39Y8-LDUU].

[4] Cool World Technologies Inc. v Twitter Inc., 2022 ONSC 7156 [Cool World]. Note that Cool World and Bakan v Attorney General of Canada were launched 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.

[5] The New Corporation: The Unfortunately Necessary Sequel (Sacramento, CA: Grant Street Productions, 2020).

[6] Supra note 4.

[7] RWDSU v Dolphin Delivery Ltd., 1986 CanLII 5 (SCC) [Dolphin Delivery].

[8] Bakan v Attorney General of Canada, 2022 ONSC 7090 [Bakan].

[9] Baier v Alberta, 2007 SCC 31.

[10] Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [City of Toronto]. 

[11] Ibid at paras 25, 27.

[12] Ibid at para 27.   

[13] Supra note 8 at para 6.

[14] Ibid.

[15] Ibid.

[16] Supra note 4.

[17] Supra note 8 at para 23.

[18] Ibid at paras 16-20.

[19] Ibid at para 23.

[20] This notion was pointed out in a recent interview between the author of this blog and Joel Bakan; the full response has been omitted for length. See Centre for Constitutional Studies, “Q&A with Professor Joel Bakan: Horizontality and the Charter” (24 April 2025), online (blog): <sevenfiftyblog.ca> [“Bakan Interview”].

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Supra note 10.

[25] Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 88.

[26] CED 4th, Conflict of Laws, “Particular Issues — Public Policy” at § 38 (September 2023).

[27] “Bakan Interview”, supra note 20.