ATWOOD v MACEWAN UNIVERSITY, 2026 ABKB 643

The University applied for an Order striking or, in the alternative, dismissing an Application for Judicial Review of a decision of the University Provost. The Applicant argued that the Respondent had served the Minister of Justice after the expiry of the 6-month time limit established by Rule 3.15(2). The Respondent acknowledged that the Application was not served on the Minister within the required time limit, but argued that the Minister had waived the requirements under Rule 3.15(2).

The Court reviewed Rules 3.15(2), 3.15(3), and 3.17 and the test for waiver: the Minister must have, with full knowledge of their right, intended to unequivocally and consciously abandon it.

The Respondent had received a letter acknowledging that the Minister had been "duly" served and advising that the Minister would not be participating in the proceedings. The Court held that the letter was not sufficient to waive the 6-month service requirement. In particular, Justice Martin found that the use of the word "duly" did not meet the test for waiver. The Minister's office's refusal to backdate the Notice of Service upon the Respondent’s request demonstrated its intention not to waive its right.

The Court held that Rule 3.15 is a substantive requirement that the Minister does not have authority to waive. Martin J. recited case law for the principle that a failure to provide a statutory mechanism to waive a requirement does not amount to a gap in the legislation which might permit the Court to make such an Order. Further, previous case law had established that Rule 3.15 could not be waived.

Justice Martin held that the Respondent’s failure to comply with Rule 3.15(2) was fatal to his Application for Judicial Review, in accordance with the governing authorities. The Application for Judicial Review was therefore struck.