The Plaintiffs, former employees of NE2 Canada Inc. (“NE2”), were awarded approximately $1 million by the Director of Employment Standards (the “Director”) for wrongful termination. NE2 appealed this decision to the Alberta Labour Relations Board (the “Board”), which reduced the award. The Plaintiffs sought judicial review of the Board's decision but failed to name and serve the Director as a party within the required six-month period. Two questions arose in this matter: (1) was the Director a party "directly affected" by the Plaintiffs' application for Judicial Review, requiring service under Rule 3.15(3); and (2) did the Plaintiffs' failure to name and serve the Director within the six-month deadline render the Originating Notice of Application a nullity.

The Plaintiffs argued that they were not required to serve the Director because the Director was not “directly affected by the application”. The Plaintiffs further argued that the requirement to name the Director as a party does not make the Director a party “directly affected by the Application” because: (1) the Director took no position on the judicial review; and (2) because it was a review of the Board’s decision, not the Director’s decision and so the latter was not directly affected by the outcome. NE2 argued that the Director was a necessary party to the judicial review by operation of Section 96(2) of the Employment Standards Code, which states that the Director is a party to every appeal to the appeal body and to every proceeding resulting from an order or resulting from a decision of the appeal body.

The Court found that the Judicial Review was a proceeding resulting from a decision of the Board. Further, the Court stated that the caselaw is abundantly clear that, where service is required by the Rules, the fact that the party to be served expresses no interest or intention to participate in the proceedings is irrelevant to compliance with the Rules. Justice Hollins found that that fact that the naming of the Director is mandated as a party to the judicial review makes the Director a party “directly affected”. Though the Director may waive the right to participate or may not participate, this does not impact whether they are to be named, and consequently, if they must be served. The Court acknowledged that the Rule is harsh and inflexible but also recognized that the Court has no discretion in these circumstances. Therefore, failure to name the Director was fatal and the Application to Strike the Originating Notice of Application was granted.