Hunt McDonald J

3.15: Originating application for judicial review

Case Summary

In April 2016, the Canadian Union of Public Employees Local 38 (“CUPE 38”) and the International Brotherhood of Electrical Workers Local Union 254 (collectively, the “Unions”) successfully applied to the Alberta Labour Relations Boards (“ALRB”) for a determination that engineers-in-training (“EITs”) employed by ENMAX are “employees” under section 1(1) of the Labour Relations Code, RSA 2000, c L-1 (the “Original Application”).

ENMAX filed an Originating Application for Judicial Review of the Original Application (the “ENMAX Application”). The Unions sought an Order striking the ENMAX Application, or alternatively, summarily dismissing the ENMAX Application on the grounds that ENMAX had failed to comply with Rule 3.15.

The Unions asserted that ENMAX failed to serve the Association of Professional Engineers and Geoscientists of Alberta (“APEGA”) and the EITs at ENMAX as required by Rule 3.15. Justice Hunt McDonald considered Rule 3.15 and if the ENMAX Application directly affected APEGA and the EITs. Hunt McDonald J. noted that both the EITs and APEGA had been granted intervenor status in the Original Application and that both parties had a “direct legal interest in the outcome” of the Original Application. ENMAX argued that APEGA and the EITs were not directly affected by the ENMAX Application because both parties only had a limited role in the Original Application and, while not having been formally served with the ENMAX Application, both Parties had knowledge of the general nature of the ENMAX Application but chose not to participate.

Justice Hunt McDonald noted that the limitation period of six months in Rule 3.15 has been strictly applied by the Courts and cannot be extended. The fact that APEGA and the EITs had knowledge of the general nature of the ENMAX Application did not satisfy the mandatory service requirement in Rule 3.15(3). Hunt McDonald J. determined that whether or not formal service would have altered the interest or participation level of APEGA or the EITs was irrelevant. The strict interpretation of the Rules imposes a mandatory obligation on the Applicant which cannot be waived by an affected party. Hunt McDonald J. concluded that ENMAX had failed to serve APEGA and the EITs as required by Rule 3.15 and that the limitation period had expired. Accordingly, Justice Hunt McDonald granted the Union’s Application for Summary Dismissal of the ENMAX Application.

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