Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether Naber Holdings validly exercised a contractual option to repurchase farmland despite missing a written notice deadline in the Buy Back Agreement.
• Central question arose as to whether the written notice requirement in clause 5.1 was waived through an alleged oral representation by a supposed agent, Alec Ferguson, on behalf of Leif Snethun.
• The Court scrutinized whether Mr. Ferguson ever had authority—actual or apparent—to act as Mr. Snethun’s agent for waiving or altering contractual rights.
• Interpretation of the Buy Back Agreement required determining if the November 1 written notice requirement was a material term and a condition precedent to exercising the option at a given year’s price.
• Evidence, including contemporaneous emails and inconsistencies in the applicant’s affidavit, undercut the claim that the notice provision was orally waived or treated as unimportant.
• The Court ultimately held that the notice provision was a material, bargained-for term inserted for Mr. Snethun’s benefit and that he was entitled to rely on it to refuse the 2025 option price, leading to dismissal of Naber Holdings’ application.

Facts and contractual framework
The dispute arose out of a structured farmland financing arrangement between Naber Holdings Ltd. (Naber Holdings) and an individual investor, Leif Snethun. Naber Holdings needed to raise capital in 2023 to deal with property division issues stemming from the breakdown of the principal’s parents’ relationship. To accomplish this, Naber Holdings worked with Alec Ferguson of Cascade Capital Advisors Ltd. (Cascade), who approached an investment firm, Avenue Living, regarding seven quarter sections of farmland owned by Naber Holdings. Avenue Living declined, but its principal, Mr. Snethun, chose to invest personally.
In late 2023, the parties put in place three interconnected agreements: a Farm Contract of Purchase and Sale (Sale Agreement), a Farmland Lease Agreement (Lease), and a Right to Buy Back Agreement (Buy Back Agreement). Under the Sale Agreement, title to the seven quarter sections of farmland transferred to Mr. Snethun. Under the Lease, he leased the same farmland back to Naber Holdings for a five-year term from December 21, 2023 to December 21, 2028, with annual rent due each December 20 and an immediate termination right for non-payment.
The Buy Back Agreement granted Naber Holdings an option to buy back all of the farmland en bloc, in a single transaction, after the 2024 crop season, with the option expiring on December 20, 2027. The purchase price increased year-by-year, and in any year in which the option was exercised the closing had to occur on or before December 20 of that year. Crucially, clause 5.1 required Naber Holdings to give written notice of its intention to exercise the option to Mr. Snethun on or before November 1 of the year in which it intended to exercise. Clause 7.1 allowed termination of the Buy Back Agreement by Mr. Snethun upon any default by Naber Holdings under the Lease, including late rent. Clause 9.6 set out the formal method and addresses for notice, and clause 9.8 stipulated that any amendments to the Buy Back Agreement had to be in writing and signed by both parties.
These documents collectively structured the parties’ relationship: Naber Holdings obtained immediate capital while continuing to farm the land under lease, and Mr. Snethun acquired an income-producing farmland asset but remained exposed to the possibility of a buyback at prices specified in the Buy Back Agreement.

Events leading to the option dispute
In late 2024, Naber Holdings explored exercising the buyback option. In or around October 2024, its principal, Todd Naber, contacted Mr. Ferguson and asked him to notify Mr. Snethun that Naber Holdings intended to exercise the option in 2024. On October 31, 2024, Mr. Ferguson emailed Mr. Snethun, stating he had heard from “Naber” that financing was being arranged to “take you out” and suggesting Naber should contact him directly.
Later that same day, in reply, Mr. Snethun expressly underscored the significance of the contractual notice requirement. He wrote that under the agreement Naber “must advise me in writing by November 1 that he is going to make that one-time election,” explaining that the deadline was designed to give him time to organize his own finances if Naber Holdings did or did not proceed. He also indicated that if written notice were given but the deal did not close by December 20, he would regard the buyback option and lease as both expired. In other words, he reaffirmed strict compliance with clause 5.1 and linked it to the broader structure of the relationship.
No written notice under clause 5.1 was given by Naber Holdings in 2024, and the Buy Back Agreement was not amended in writing in any way. Separately, Naber Holdings missed the December 20, 2024 rent payment for 2025. Exercising his contractual rights, yet giving some indulgence, Mr. Snethun emailed on December 21, 2024 demanding payment by December 31, 2024 or he would terminate the Lease. He allowed this one-time late payment and warned it would not be repeated. Naber Holdings paid, and the Lease remained in force.

Financing efforts and the 2025 notice deadline
Through 2024 and 2025, Cascade and Mr. Ferguson continued to work with Naber Holdings to source financing for a buyback. An engagement letter in September 2025 formalized Cascade’s role as liaison with lenders and provided for a work fee and a success-based fee, reinforcing that Cascade had a financial interest in a completed transaction.
On October 7, 2025, Mr. Naber emailed a Union Lending representative, enclosing an appraisal and stating that the immediate focus was raising approximately $4.2 million to exercise the buyback option on seven quarter sections, “to be confirmed on November 1 and needs to be funded by December 10th.” The figure roughly matched the 2025 buyback price under clause 3.1 ($4,140,720), indicating Naber Holdings fully understood both the price and the importance of the November 1 confirmation date in the contract.
Ultimately, financing was arranged only in December 2025. On or about December 12, 2025, Naber Holdings secured the necessary funding. On December 15, 2025, Mr. Naber emailed Mr. Snethun a letter dated December 14, 2025. In that letter, he candidly acknowledged that Naber Holdings had not provided notice of its intention to exercise the option by November 1, 2025, explaining that this was done “to be respectful” of Mr. Snethun’s time because financing had not been assured earlier. He then purported to treat the December 14 letter as “formal notice” of exercise at the 2025 price of $4,140,720.
The letter did not refer to any prior waiver or agreement altering the notice period. Instead, it effectively tried to convert late notice into valid notice based on courtesy considerations and the late confirmation of financing.

Communications between counsel and framing of the litigation
Upon receipt of the December 15, 2025 email and letter, Mr. Snethun was surprised that Naber Holdings sought to exercise the option at the 2025 price after missing the November 1 written notice deadline. Counsel then became involved.
On the owner’s side, the position was that the option could not be exercised at the 2025 price because the express condition precedent in clause 5.1—written notice by November 1, 2025—had not been met. On the purchaser’s side, Naber Holdings advanced a very different theory: it claimed that on or about November 1, 2024, Mr. Ferguson, as alleged agent for Mr. Snethun, had represented to Mr. Naber that what really mattered was having financing in place by the December 20 closing date, not the formal November 1 written notice, and that any penalties arising from late notice would be borne by Naber Holdings.
Naber Holdings paid the 2026 rent “under protest” around December 19, 2025 and then commenced this originating application in February 2026. It sought, among other things, an order interpreting the Buy Back Agreement in light of the alleged waiver, directing the transfer of title at the 2025 price under The Land Titles Act, 2000, and reallocating or refunding the 2026 rent. During argument, counsel for Naber Holdings also floated an alternative remedy—transfer at the 2026 price but with the 2026 rent credited—but the Court declined to consider this new theory because it was not pleaded or reflected in the draft order and would be procedurally unfair to the respondent.

Alleged waiver and the role of agency
A central evidentiary issue was whether the November 1 written notice requirement had been waived by or on behalf of Mr. Snethun. The only direct evidence for Naber Holdings was paragraph 12 of the affidavit of Mr. Naber. He asserted that on or about November 1, 2024, he spoke with Mr. Ferguson regarding clause 5.1, that Mr. Ferguson was acting as representative for both parties, and that Mr. Ferguson told him that the notice date was being treated as waived so long as financing was in place and any penalties would be covered by Naber Holdings.
The Court identified several problems with this account. First, the affidavit language was internally inconsistent: it referred to a conversation “on or about November 1, 2024” concerning exercising the option “prior to November 1, 2024,” which did not fit temporally and raised reliability concerns. Second, if the notice provision had truly been understood as waived in 2024, it was difficult to reconcile that with the October 7, 2025 email to Union Lending expressly referring to confirmation by November 1. Third, the December 14, 2025 letter itself admitted that the November 1 deadline had not been met and offered a courtesy-based explanation for delaying notice, but did not assert any earlier waiver or modified understanding.
Most importantly, there was no affidavit from Mr. Ferguson to support the alleged waiver or to explain his authority. For Naber Holdings’ version of the conversation to be admissible as evidence of a waiver by the landowner, the Court would have had to find, on a balance of probabilities, that Mr. Ferguson was acting as agent for Mr. Snethun within the scope of his authority when he supposedly waived the notice provision. The Court found that the evidence on agency was “scant at best.”
By contrast, the respondent provided clear evidence that Mr. Ferguson was never authorized to waive contractual rights or make enforcement representations. While Mr. Ferguson had brokered the original deal, he was not empowered to contradict the written Buy Back Agreement. The October 31, 2024 email from Mr. Snethun to Mr. Ferguson, put in evidence, expressly insisted on strict written notice by November 1 and explained why that date mattered for his financial planning. The Court accepted this evidence and concluded that Mr. Ferguson lacked actual authority to waive the clause, and there was no adequate foundation for apparent authority either.
In light of these factors, the Court held that Naber Holdings had not proven either that Mr. Ferguson was acting as agent for Mr. Snethun in waiving rights, or that he in fact communicated a waiver of the November 1 notice requirement. Accordingly, there was no effective waiver of clause 5.1.

Materiality of the notice provision and contractual interpretation
Beyond waiver, the Court considered whether the November 1 written notice requirement was a material term of the Buy Back Agreement and, more specifically, a condition precedent to exercising the option at the specified price for a given year. Although Naber Holdings’ originating application focused primarily on waiver, its later brief argued that the notice provision was not material and provided no real benefit to the landowner. The respondent opposed this, noting the late timing of this new argument and the requirement that grounds for relief be properly pleaded. However, because both parties addressed the point substantively in their briefs, the Court proceeded to analyze it.
Applying modern principles of contractual interpretation, the Court read the Buy Back Agreement as a whole, giving the words their ordinary meaning in light of the surrounding circumstances known to both parties at the time of contracting. The Sale Agreement, Lease and Buy Back Agreement were treated as an integrated set of instruments structuring both a sale-leaseback and a time-limited repurchase option. Timing was repeatedly emphasized: the Lease set fixed payment dates with an immediate termination right for non-payment; the Buy Back Agreement tied the option price to specific years, stipulated that time was of the essence, set a December 20 closing deadline in each year, and expressly forbade amendments except in writing.
Within this context, clause 5.1 appears directly after the core economic and timing terms (description of land, requirement to purchase en bloc, price schedule, and December 20 closing deadline), alongside other obviously important provisions such as a bar on assignment without consent and a right to terminate the option for lease defaults. Its placement, content and interaction with the “time is of the essence” and amendment clauses all pointed to it being a material term.
The surrounding circumstances also supported materiality. Evidence showed that the November 1 date was chosen by the landowner precisely because the period immediately after harvest is the optimal time to arrange farmland sales, and he wanted a clear window in which to decide whether to keep the land or sell and reinvest if the option was exercised. For the farmer, the October 7, 2025 email to Union Lending demonstrated an operational understanding that confirmation by November 1 was central to the agreed timing framework. Both sides, therefore, understood that timely written notice served a real commercial function.
The Court rejected Naber Holdings’ argument that the notice clause was immaterial or conferred no benefit. It held that the notice provision was a condition precedent to exercising the option at a particular year’s price and that it had been deliberately bargained for in the landowner’s interest. There was nothing unreasonable or bad faith about insisting on the benefit of such a term, especially in a commercial context where both parties were advancing their own financial interests.

Outcome and consequences for the parties
In the result, the Court held that Naber Holdings failed to establish that the November 1 written notice requirement in clause 5.1 had been waived, and it further found that the notice provision was a material term and condition precedent to exercising the option at the 2025 price. Because no timely written notice was given in 2025, Naber Holdings could not compel a transfer of the farmland at the 2025 option price of $4,140,720. The Court therefore dismissed Naber Holdings’ application in its entirety and declined to entertain unpleaded alternative relief such as a transfer at the 2026 price with a credit for 2026 rent.
The successful party in this proceeding was the respondent, landowner Leif Snethun. He was awarded his costs on Column 1 of the Tariff of Costs as against Naber Holdings. The decision does not specify a fixed dollar amount for those costs, nor does it grant any quantified damages or monetary award beyond the Tariff-based costs entitlement, so the total amount ordered in his favour cannot be determined from this judgment alone.