Executive Summary: Key Legal and Evidentiary Issues

• The Court held that a reconsideration decision made by the Alberta Labour Relations Board (ALRB) under s. 46(11) of the Occupational Health and Safety Act (OHS Act) is an “order of the Appeal Body” and is therefore subject to judicial review under s. 46(13).

• The standard of review applied to Reconsideration Decision No. 2 was reasonableness, and the Court found that a considerable degree of deference is owed because the OHS Act grants broad appeal and reconsideration powers to the Appeal Body.

• The Appeal Body refused to admit an email thread between Astolfi and the Minister of Jobs, Economy and Trade as new evidence, finding it was not an appropriate interpretive aid for the legal question of whether harassment is a workplace hazard.

• The Appeal Body followed its prior decision in Wilson and considered only whether there were substantial errors, procedural fairness concerns, or admissible new evidence, and it treated reconsideration as having a narrower scope than appeal or judicial review.

• The Court concluded that the Appeal Body reasonably decided not to exercise its discretion to reconsider the original Appeal Decision and that its reasons were transparent, logical, internally coherent and consistent with the record.

• The judicial review application was dismissed, and Stone Creek was awarded costs of $3,375 plus disbursements, with the Court declining Stone Creek’s request for enhanced costs.

Background and facts of the case

Jon Astolfi (“Astolfi”) was a Senior Project Manager employed by Stone Creek Resorts Inc. (“Stone Creek”). His employment was terminated on April 23, 2018. On August 16, 2019, he filed a Disciplinary Action Complaint against Stone Creek related to allegations of harassment in the workplace. An Occupational Health and Safety Officer (“Officer”) investigated the complaint. The Officer concluded that Astolfi had complied with the Occupational Health and Safety Act, SA 2020, c 0-2.2 (“OHS Act”), and that disciplinary action was taken against him, but found no causal connection between his act of compliance and his termination. The Officer found instead that he was terminated because he failed to report to work at the company office as required.

Appeal to the Alberta Labour Relations Board and reconsideration history

Astolfi appealed the Officer’s decision to the Alberta Labour Relations Board (“ALRB”), which was the “Appeal Body” under the OHS Act. The panel that heard that appeal (referred to in the judgment as the “Appeal Panel”) dismissed his appeal (the “Appeal Decision”). Astolfi then applied for reconsideration of the Appeal Decision under s. 46(11) of the OHS Act. His application was first denied (Reconsideration Decision No. 1). The ALRB recognized an error in the filing and processing of the reconsideration application and resubmitted it to a second panel, referred to in the judgment as the “Appeal Body.” This second panel dismissed his reconsideration application (Reconsideration Decision No. 2). Astolfi did not seek judicial review of the original Appeal Decision. The application before the Court was a judicial review of Reconsideration Decision No. 2.

Preliminary issue: whether a reconsideration decision can be judicially reviewed

Stone Creek raised a preliminary issue that there was no right to judicial review of a reconsideration decision. It argued that the power of reconsideration rested exclusively with the Appeal Body, was wholly discretionary, and that a decision to reconsider or not reconsider was not subject to judicial review. The Court reviewed ss. 45 and 46 of the OHS Act, which render the ALRB the Appeal Body with respect to decisions under the OHS Act. Section 46(11) gives the Appeal Body exclusive jurisdiction to hear, consider and decide any matter before it and to reconsider any order made, and to vary, revoke or affirm that order. Section 46(13) provides a right of judicial review, in the nature of certiorari or mandamus, of any order of the Appeal Body. Applying modern principles of statutory interpretation and citing Ruth Sullivan and Rizzo v Rizzo Shoes Ltd. (Re), the Court concluded that a decision to reconsider or not reconsider is an order of the Appeal Body because it either dismisses or allows an application for reconsideration. The Court therefore found that such a reconsideration decision is subject to judicial review under s. 46(13).

Positions of the parties on judicial review

Astolfi argued that the Appeal Body approached Reconsideration Decision No. 2 too narrowly. He said it failed to follow the causal chain between his complaint and termination, failed to consider the harassment complaint in the broader context of workplace violence, and failed to frame the consequences to him within this context. He effectively argued that the Appeal Body failed to properly consider the legal and factual matrix, making the decision unreasonable and the process unfair. Stone Creek argued that the Appeal Body rendered a reasonable decision focused on the narrow issue of whether to reconsider the Appeal Decision and that it was guided by the relevant provisions of the OHS Act and by tribunal jurisprudence.

Standard of review and deference to the Appeal Body

The Court applied the framework from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”). The Court held that the presumptive standard of review is reasonableness and that neither of the recognized exceptions applied. There was no statutory language in the OHS Act ousting reasonableness review, and the case did not involve a constitutional question, a question of central importance to the legal system, or a question about jurisdictional boundaries between administrative bodies. The standard of review was therefore reasonableness. The Court noted that, in this case, the OHS Act provided statutory authority for Reconsideration Decision No. 2 and, in the context of already broad appeal powers, conferred discretionary power on the Appeal Body to reconsider its own decisions, including to vary, revoke or affirm any orders. The Court concluded that a considerable degree of deference was owed to the Appeal Body on judicial review.

Tribunal’s approach to reconsideration and reliance on Wilson and Ledcor

The Court found that the Appeal Body was aware of the case law guiding its discretion to reconsider. The Appeal Body specifically quoted from Wilson v Grande Yellowhead Public School Division (Board File No. OHS2019-5) (“Wilson”), which had considered the OHS Act reconsideration provisions in the context of similar provisions in the Labour Relations Code, RSA 2000, c L-1. The Appeal Body summarized the principles from Wilson: that reconsideration is discretionary; that its scope is narrower than appeal or judicial review; that reconsideration is not a pre-requisite to a judicial review; and that the Appeal Body may exercise its discretion to reconsider if it is appropriate to correct substantial errors or address procedural fairness concerns or new evidence, with a substantial error being one grounded in a failure to select or apply the appropriate standard of review. It also noted that reconsideration would be rare in the absence of such a substantial error. The Appeal Body recognized that the Appeal Panel had been engaged in a reasonableness review of the Officer’s decision, based on the standard of review as set out in Ledcor Pipe & Infrastructure v Alberta Occupational Health and Safety, Decision 2109 (Board File No. OHS 2020-6) (“Ledcor”).

New evidence issue and the Minister’s email thread

The Appeal Body first decided whether to admit new evidence that Astolfi sought to introduce. The new evidence was an email thread between Astolfi and the Minister of Jobs, Economy and Trade (the “Minister”). The Appeal Body applied the reasoning in Wilson and concluded that this new evidence was not admissible. It determined that whether harassment was a workplace hazard was a legal question based on statutory interpretation, not on the Minister’s opinion. It acknowledged that extrinsic evidence could serve as an interpretive aid in construing the term “harassment” but concluded that the informal email exchange was not the type of interpretive aid described in Driedger on the Construction of Statutes, 3rd ed. [Butterworths: 1994] at 469. The Court held that the Appeal Body’s reasons on this point were transparent, logical and internally coherent, that they justified the conclusion reached, and that this aspect of the decision was therefore reasonable.

Assessment of fairness and standard of review in Reconsideration Decision No. 2

Following Wilson, the Appeal Body addressed three main issues on reconsideration. It considered: (1) whether the Appeal Panel assessed the fairness of the Officer’s process; (2) whether the Appeal Panel applied the appropriate standard of review; and (3) whether the Appeal Panel erred in applying the standard of review. The Court held that, assessed on the reasonableness standard, the Appeal Body’s decision was reasonable. The Appeal Body assessed each ground in accordance with Wilson and Ledcor.

In relation to fairness, the Appeal Body considered the reasons of the Appeal Panel in its review of the Officer’s process, described the nature of the fairness complaint, and analyzed the Appeal Panel’s conclusion that the Officer’s investigation process was procedurally fair. The Court stated that the Appeal Body provided clear, cogent and comprehensive reasons which accorded with the record before it. In relation to whether the Appeal Panel applied the appropriate standard of review, the Appeal Body noted the Appeal Panel’s application of the Ledcor standard, which required it to determine whether the Officer’s report was reasonable on the record before him. The Appeal Body rejected Astolfi’s argument that the Appeal Panel should have applied a correctness standard and gave detailed reasons as to the applicable standard of review. The Court held that the Appeal Body’s reasons were transparent, intelligible and justified, and that they provided a rational chain of analysis consistent with the conclusion. Finally, with respect to whether the Appeal Panel had erred in applying the standard of review, the Appeal Body gave an overview of the grounds for reconsideration and of the Appeal Panel’s decision. It recognized that its role was not to function as an appellate body but to exercise its discretionary power on a narrow basis. It limited its role to the narrow issue of reconsideration of the Appeal Panel’s decision and concluded that it should not exercise its discretion to reconsider the Appeal Decision.

Ruling, outcome of the judicial review, and costs

The Court concluded that the Appeal Body’s decision and process met the reasonableness and procedural fairness requirements. The Court held that the Appeal Body’s conclusion—that it should not exercise its discretion to reconsider the Appeal Decision—was reasonable and that its process was procedurally fair. The Court emphasized that the Appeal Body’s role was not to step into the shoes of the Appeal Panel and reconsider the evidence at the original hearing, but to assess whether the Appeal Panel acted fairly, chose the correct standard of review, and properly applied that standard. On this basis, the Court dismissed the application for judicial review.

Stone Creek was awarded costs of the judicial review. The Court ordered Stone Creek its costs calculated under Column 1 of Schedule C in the total amount of $3,375 plus disbursements incurred. Stone Creek had requested enhanced costs in the range of Column 3 to Column 5. The Court reviewed the factors in r. 10.33 of the Alberta Rules of Court and found that this was a non-complex action, that Astolfi was pursuing a remedy available to him under the OHS Act, and that there was no misconduct that prolonged or delayed the judicial review application. The Court acknowledged that the matter had been before the Board on multiple occasions but held that the exercise of statutory rights, in the absence of delay or misconduct, did not justify an enhanced costs award. The Court ordered that the costs be payable forthwith. The matter was heard on November 25, 2025, and the decision was dated January 20, 2026, at Calgary, Alberta.