Court of King’s Bench of Alberta Citation: WW v Alberta (Human Rights Tribunal), 2023 ABKB 340 Date: 20230605 Docket: 2303 00441 Registry: Edmonton Between: W.W.

Applicant - and - Human Rights Tribunal of Alberta and the Law Society of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice Donald Lee _______________________________________________________ [ 1 ] This is an Application to determine whether this Court can extend the time for filing and service of the Applicant’s Originating Application and the Amended Original Application on the Alberta Human Rights Commission (“ AHRC ”), and the Law Society of Alberta (“LSA”) Affected Party, notwithstanding the provisions of Rule 3.15.

Pursuant to Rule 3.15(2), an Originating Application for judicial review must be filed and served on all the parties within six months after the date of the subject decision, and the Rule specifically states that Rule 13.5 which allows a Court or the parties to vary times set out in the Rule s, does not apply. [ 2 ] In this case the Applicant who is a lawyer and member of the Law Society of Alberta acknowledges that Rule 3.15(2) required that his Originating Application for judicial review of the AHRC decision was to be filed and served by January 6, 2023, however the AHRC was not served with the initial Originating Application until January 19, 2023, and the LSA was served after that.

Analysis

[3] The Applicant submitted his Originating Application for judicial review on January 3, 2023, but argues that his filing wasdelayed by a major power outage at the Courthouse commencing January 3. Four business days after submitting his documents, theApplicant received his documents back with a January 9, 2023 filing date. I understand that this was a normal filing delay irrespective ofthe power failure for documents not marked for “urgent” filing which was the case here.

As a result of certain subsequentcorrespondence the Applicant initiated with the Court, the Applicant received a backdated filed documents as a “courtesy” to him, butstill did not serve the documents until January 19 at the earliest.

He acknowledges there was a delay between January 9 to January 19,2023 while he waited for a backdated filing record, but he says he filed and served immediately after receiving the backdated document.The Applicant now argues that the AHRC and the LSA have not been prejudiced in any way by this delay, and that the Court has thejurisdiction to extend the time for service of his Application for judicial review on the parties. [4] It appears that as a result of certain communication between the Applicant and the Court, he received a backdated filing dateof January 3, 2023 as he requested with respect to his Application for judicial review by January 19, 2023.

However, it is clear thanwhen he submitted the Application for judicial review on January 3, 2023, it was already only three days before his six-month limitationexpired.

When the documents were returned on January 9, 2023 from the Court filed, the Applicant was already beyond his six-monthlimitation time. [5] Therefore, clearly the Applicant served his documents for judicial review after the required six-month period which endedon January 6, 2023. [6] I conclude that the problem related to the power failure of the Courts was secondary to the Applicant simply taking too longto submit his Application for judicial review to the Court for filing.

The fact that the documents were eventually backdated to be filed asof January 3, 2023 as a “courtesy” to him after the power failure is largely irrelevant. I also note that the filing of documents was notaffected by the power failure in any material way. Additionally, court filing dates do not determine whether Rule 3.15 deadlines havebeen met. The Applicant had to serve his documents no later than January 6, 2023, which he failed to do so, the Rule 3.15 six-monthdeadline was not met. [7] The

Interpretation Act at para 22(2) does not apply either because while the Court Building may have been physically closedat the time temporarily as a result of the power failure, the court itself was still active and functioning. [8] Our Court of Appeal has been very clear and consistent in determining that Rule 3.15 deadlines cannot be extended under anycircumstances as it is to be a strictly construed six-month limitation that runs from the date of the ARHC decision in this case in July2022. [9] Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29 at paras 2, 3, 18, 27 states: [2] The leases at issue were granted on November 29, 2006, January 10, 2007 and March 21, 2007.

ACFN filed its OriginatingNotice on December 10, 2008. The respondents then sought

summary dismissal from the appointed case management judge of most ofthe Originating Notice on the basis that it was filed out of time. Rule 753.11 requires aggrieved parties to file and serve applicationsfor judicial review within six months after the decision or act to which the judicial review relates. The case management judge grantedsummary dismissal of all of the Originating Notice except for ACFN’s request for a declaration that the Minister is under a continuingduty to consult with ACFN. [3] In granting

summary dismissal, the case management judge noted that Rule 753.11(2) excludes the courts’ ability to enlargeor abridge times. He held that was a clear signal that the six month time limit is fixed and cannot be extended. He observed that somerequests for declaratory relief may be made outside the six month time limit, but if the declaratory relief sought has the effect of settingaside an administrative decision, it is subject to the six month limit in rule 753.11. In reaching this conclusion he relied on this court’sdecisions in Alberta Union of Provincial Employees v.

Alberta, 2001 ABCA 309, 303 A.R. 1, Simlote v. Alberta, 1989 ABCA 236, [1989] A.J. No. 818 (C.A.), and Lameman v. Canada (Attorney General), 2006 ABCA 392, 66 Alta. L.R. (4th)243 [Lameman (ABCA)], rev’d 2008 SCC 14, [2008] 1 S.C.R. 372 [Lameman (SCC)]. [18] With respect to the declaratory relief, the case management judge ruled that it was inextricably tied to ACFN’s request thatthe leases be set aside or stayed. He therefore held that rule 753.11 applied.

Rule 753.11 states: 753.11(1) Where the relief sought is an order to set aside a decision or act, the application for judicial review shall be filed and servedwithin six months after the decision or act to which it relates. [emphasis added]

(2) Rule 548 does not apply to this Rule. [27] In Alberta, Rule 753.11 has been strictly construed. Unless there is a clear and stated obligation to provide notice of a decision,the six-month limitation runs from the date of the decision. If there is a clear obligation to provide notice then the limitation runs fromthe date notice is given: Babiuk; AUPE; Urban Development; Johannesson v. Alberta (Workers’ Compensation Appeals Commission)(1995), (AB KB), 175 A.R. 34 (Q.B.); Edmonton (City) v. Gaffney (1999) 1999 ABQB 649 , 313 A.R. 161,[1999] 4 M.P.L.R. (3d) 99 (Q.B.). In Peixeiro v.

Haberman, (SCC), [1997] 3 S.C.R. 549, the Supreme Courtconfirmed that when a limitation runs from an event which clearly occurs, without the regard to the injured party’s knowledge, thediscoverability principle does not apply. [10] The six-month limitation period for filing and serving an Originating Application under Rule 3.15 was once again veryrecently strictly applied and enforced when our Court of Appeal ruled this Court has no discretion or inherent jurisdiction that allowed itto extend the six-month time limit.

Julien v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 8, atparas 2, 6, 8, 9, 13 and 15 reads as follows: [2] The Appeals Commission dismissed Mr. Julien’s appeal on February 9, 2021. While Mr. Julien served the Workers’Compensation Board (WCB) and the Appeals Commission with his Originating Application exactly six months later (August 9, 2021),he did not serve his employer until August 17, 2021, having been advised on August 13, 2021 by the Appeals Commission to do so. He

failed to serve Alberta’s Minister of Justice at all. [6] As the chambers judge noted, compliance with Rule 3.15 is mandatory, and the six-month time period to file and serve cannot be extended: Baker v Drouin , 2017 ABQB 204 at paras 11-17 ; ENMAX Corporation v Alberta (Labour Relations Board) , 2018 ABQB 431 at para 13 ; Boll v Woodlands County , 2021 ABQB 406 at para 68 ; Neilson v Leduc (County) , 2021 ABQB 735 at paras 26- 27 . [8] The words “directly affected” in Rule 3.15(3)(

c) must be given their ordinary meaning, applied to the particular facts of each case. In the case of judicial review from a decision of the Appeals Commission, however, an employer is always “directly affected” simply by virtue of its financial interest in the outcome. This is because the workers’ compensation scheme is funded by employers through payment of premiums, meaning that an employee’s entitlement to benefits may affect the premium an employer is charged: Yuill v Alberta (Workers’ Compensation Appeals Commission) , 2016 ABQB 369 [ Yuill ] at paras 63-78 .

This alone is sufficient to require that an employer be served. [9] In the present case, additional reasons exist. Mr. Julien’s application levies numerous allegations against his employer, including discriminatory behaviour against him. Moreover, the Originating Application suggests that the employer participated in proceedings both before the WCB and the Appeals Commission, further evidencing that it is directly affected by the application for judicial review.

However, to be clear, the fact that an employer does not participate in the administrative proceedings leading to judicial review, as was the case in Yuill , is not determinative of whether the employer is directly affected: Stephen v Alberta (Director of Alberta Human Rights Commission) , 2022 ABCA 390 at paras 2-4 . [13] That having been said, there is no legal obligation to do so, and any failure on the part of the WCB in this case to inform Mr. Julien that his employer should be served (or the Appeals Commission not to have done so earlier) cannot justify appellate intervention.

As recognized by the chambers judge, Rule 3.15 is a harsh and inflexible rule, but self-represented litigants are presumed to know the law and the Rules of Court . It is incumbent upon every applicant, or litigant, to ensure they are compliant with all filing and service requirements, and if there is any doubt whether a person or body is “directly affected”, they should be served with notice of the Originating Application. [15] In particular, and contrary to the suggestion of Mr.

Julien, courts have no jurisdiction under s 10 (“Relief against forfeiture”) of the Judicature Act to extend, or otherwise provide relief from, a time limit imposed by a statute or the Rules of Court . Equitable jurisdiction under s 10 does not apply to penalties or forfeitures imposed by statute, or to questions of civil procedure: Tamglass American Inc. v Richter, Allen & Taylor, Inc. , 2005 ABCA 341 at paras 20-24 ; Post v Kellogg Brown & Root (Canada) Company , 2005 ABCA 390 at para 7 ; Hansraj v Ao , 2004 ABCA 223 at para 64 .

Conclusion [ 11 ] Accordingly, while I am somewhat sympathetic to the Applicant’s arguments that no one was prejudiced by this delay in serving documents in this matter, the Application to extend the six-month time period under Rule 3.15 is dismissed. Heard on the 17 th day of April, 2023. Dated at the City of Edmonton, Alberta this 5 th day of June, 2023. Donald Lee J.C.K.B.A. Appearances: WW On his own behalf for the Applicant Melissa L. Luhtanen,

for the Human Rights Tribunal of Alberta Joe D. Spelliscy, for the Law Society of Alberta