Dr. Eksteen filed an Originating Application seeking Judicial Review of the University of Calgary’s decision which resulted in the termination of his employment. In response, the University of Calgary made an Application to strike the Originating Application under Rule 3.68.

Justice Ashcroft applied the test from Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 where it the Court noted that “judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” Upon review of the circumstance, Justice Ashcroft found that the University of Calgary’s impugned decisions did not meet this test and were matters of private law and contract. As a result, Justice Ashcroft struck Dr. Eksteen’s Originating Application pursuant to Rule 3.68.