3.15: Originating application for judicial review

Case Summary

The Appellant filed an Originating Application to set aside a decision of the Appeals Commission for Alberta Workers' Compensation (the “Appeals Commission”). The Appellant served the Appeals Commission and the Workers’ Compensation Board (the “WCB”) within the six-month period prescribed by Rule 3.15 but failed to serve his employer or the Minister of Justice within the required time. As a result, the WCB successfully applied to strike. The Appellant appealed.

The central question in the Appeal was whether the Appellant’s employer was “directly affected” by the Originating Application, so as to necessitate service pursuant to Rule 3.15. The Court held that the words “directly affected” should be given their ordinary meaning, applied to the particular facts of each case. However, in the case of Judicial Review of a decision of the Appeals Commission, the employer is always "directly affected" since an employee's entitlement to benefits may increase the employer’s premium for participation in the worker’s compensation scheme. In the present case, the employer was further affected by allegations of discriminatory behaviour included in the Originating Application. The employer’s participation in the underlying proceedings was further evidence, though the Court clarified that non-participation in the underlying proceedings would not have removed the employer’s affected status.

In reply to the Appellant’s argument that the WCB should have informed him of his obligation to serve his employer, the Court held that it was likely open to the WCB to have done so, but the WCB was not obligated to do so. In obiter, the Court commented that, given the uncontroversial nature of the requirement to serve an employer, the WCB may wish to consider offering that advice.

Finally, the Court noted that relief from forfeiture was not available since section 10 of the Judicature Act, RSA 2000, c J-2, did not apply to time limits imposed by a statute or the Rules.

In the result, the Appeal was dismissed.

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