Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs failed to name and serve the Director of Employment Standards within the required six-month timeframe.

• Section 96(2) of the Employment Standards Code mandates the Director be a party to proceedings resulting from a Board decision.

• A Consent Order adding the Director was granted without NE2’s consent and beyond the service deadline.

• Rule 3.15 of the Alberta Rules of Court requires timely service on all directly affected parties.

• The Director’s lack of position in the judicial review did not negate the statutory requirement for service.

• The Court held that failure to serve the Director rendered the Originating Notice fatally defective and granted NE2’s application to strike.

Background and employment dispute

This matter involved Charles Dunphy Douglas and Ryan David Beckwermert (the plaintiffs/respondents), former employees of NE2 Canada Inc. (the defendant/applicant). Following the termination of their employment, the Director of Employment Standards awarded the plaintiffs approximately $1 million. NE2 appealed this decision to the Alberta Labour Relations Board (the Board), which reduced the award to roughly $400,000. The plaintiffs subsequently filed for judicial review of the Board’s decision.

Procedural missteps and application to strike

The plaintiffs filed their Originating Notice of Application on February 21, 2024, naming NE2 and the Board but omitting the Director. They served NE2, the Board, and the Minister of Justice on the same date. However, under Rule 3.15 of the Alberta Rules of Court, the notice must be filed and served within six months of the Board’s decision, which was issued on January 22, 2024.

On August 30, 2024, the Board identified the omission of the Director. The plaintiffs then sought and obtained a Consent Order on January 17, 2025, to add the Director as a party—without notice to or consent from NE2. NE2 applied to strike the Originating Notice based on this non-compliance.

Legal interpretation and ruling

Justice M.H. Hollins found that the failure to name and serve the Director within six months was fatal. Section 96(2) of the Employment Standards Code states that the Director is a party to every appeal and every proceeding resulting from a decision of the appeal body. The judicial review was considered such a proceeding. The Court held that service requirements under Rule 3.15 apply regardless of whether the Director took a position in the proceedings.

The plaintiffs’ arguments—that the Director was not directly affected and could be added later—were rejected. The Court emphasized that the statutory requirement to name and serve the Director is not discretionary. Prior case law, including ENMAX Corporation v Alberta (Labour Relations Board) and Kyambadde v Calgary Police Service, supported this strict interpretation.

Outcome

Justice Hollins granted NE2’s application to strike the Originating Notice of Application due to the plaintiffs’ failure to comply with mandatory procedural rules. She noted that while the result was harsh, the Court had no discretion in the matter. Costs were left open, subject to counsel’s agreement.

No monetary award or costs were ordered in this decision. The judicial review itself was dismissed on procedural grounds.