In Astolfi v Alberta Labour Relations Board, 2026 ABKB 45 (Kubik), the Alberta Court of King’s Bench determined it had jurisdiction to hear a judicial review application respecting a discretionary decision to refuse reconsideration of a Disciplinary Action Complaint (“DAC”). The Court went on to dismiss the judicial review application, upholding the reconsideration decision.
This case is important because it decides a novel jurisdictional argument regarding DAC’s and confirms that the standard of judicial review for DAC reconsideration decisions is reasonableness.
The reconsideration decision under judicial review is cited as 2024 ABOHSAB 1.
Facts
The following was the pertinent procedural history. Some of this was summarized by the Court of King’s Bench, and some comes from the written reconsideration decision that was under review:
- The complainant Astolfi was employed as a senior project manager of Stone Creek Resorts Inc. There were challenges on a project. During a meeting, the CEO shouted at him and pounded a fist on the table. The complainant considered this harassment and later told the CEO it would be unhealthy for him to return to the office and he would continue his duties at home until the situation had been investigated and resolved. Stone Creek told him to report to work, but he did not do so. He had been told on previous occasions that working from home was not acceptable
- The complainant’s employment was terminated. He filed a Disciplinary Action Complaint (“DAC”) against Stone Creek under the Occupational Health and Safety Act, SA 2020, which alleged harassment in the workplace and that there was a connection between the alleged harassment (and later DAC complaint) and his termination of employment
- An OHS officer investigated and found there was no causal connection between the harassment / DAC and his termination of employment, but rather, that his employment was terminated for failing to report to work as required. Accordingly, the DAC was dismissed
- The complainant appealed to the Alberta Labour Relations Board (sitting as appeal body), who upheld the OHS officer decision
- He filed for reconsideration, and the ALRB (as appeal body) exercised its discretion to refuse reconsideration. In its reasons for refusing reconsideration, the appeal body noted that there was no substantial error with the lower decisions, in part because at the time the complainant refused to show up for work he did not say it was because of an imminent danger of violence. His complaint about feeling unsafe was an “act of compliance”, but his refusal to attend was not an act of compliance because there was no “imminent danger” alleged or found. Since his termination of employment was found to be for refusing to show up for work, it did not satisfy the DAC requirements
- He filed in Court of King’s Bench for judicial review of the reconsideration decision. Stone Creek took the position that ABKB did not have jurisdiction to judicially review a DAC reconsideration decision
Analysis / Conclusion
Justice Kubik found that the ABKB did have jurisdiction of judicial review of a DAC reconsideration decision, pointing to the following sections of the OHS Act:
[9] Pursuant to s.46(11), the Appeal Body has exclusive jurisdiction to hear, consider and decide any matter before it, and may at any time reconsider any order made and vary, revoke or affirm the order.
[10] Section 46(13) provides a right of judicial review, in the nature of certiorari or mandamus, of any order of the Appeal Body (emphasis added).
[…]
[13] On its plain reading, the provisions of s. 46(11) allow an application for reconsideration to be considered by the Appeal Body. A decision to reconsider, or not reconsider, is an order of an Appeal Body because it either dismisses or allows an application for reconsideration. Therefore, by virtue of s. 46(13), such a reconsideration decision is subject to judicial review.
Justice Kubik confirmed that the standard of review of the DAC reconsideration decision was reasonableness.
The Court cited Wilson v Grande Yellowhead Public School Division as the test for whether an OHS appeal decision ought to be reconsidered:
[25] […]
- Whether the Appeal Panel assessed the fairness of the Officer’s process.
- Whether the Appeal Panel applied the appropriate standard of review.
- Whether the Appeal Panel erred in applying the standard of review.
Justice Kubik went on to find the reconsideration decision – i.e. to not reconsider the appeal panel decision – was reasonable, as it analyzed the appeal panel’s conclusions about the OHS Officer findings and found it had been procedurally fair, and provided clear, cogent and comprehensive reasons.
Accordingly, the reconsideration decision which had dismissed the DAC complaint appeal, was upheld.
My Take
I am still trying to decide what this case tells us about Disciplinary Action Complaints. For now, I will only say that it appears the section was narrowly construed and applied here, and this may limit the efficacy of this type of complaint to more egregious situations. Workers will need to assess whether the situation is serious enough to qualify as “imminent danger”, and if it does, to say this in writing. Still, I think there may be better options in some cases and workers should try to get legal advice before trying this kind of complaint if possible.
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