Executive Summary: Key Legal and Evidentiary Issues

• The appeal centred on whether Frank and Derrick Wiebe were entitled to an extension of time to file their notice of appeal under r 13.5(1)(a) of the Alberta Rules of Court.
   
• A preliminary question arose over whether permission to appeal was required under r 14.5(1)(b), given the pre-trial nature of a time-limit decision.
   
• Evidence regarding the Wiebes' former counsel's family emergency and broken leg was central to explaining the 12-day delay in filing.
   
• Farm Credit's cross-appeal raised whether the chambers judge should also have dismissed the appeal as moot.
   
• Contractual exclusions in the loan and security agreements barred the Wiebes from raising set-off, counterclaim, and improvident realization arguments.
   
• Improvident realization concerning the sale of the bison herd to a neighbour for $22,000, rather than the previously discussed $50,000, formed part of the Wiebes' proposed appeal.
   

Facts of the case

Frank and Derrick Wiebe obtained a loan of $134,557.98 from Farm Credit Canada on April 7, 2021, secured against their livestock, including breeding bison cows. By June 8, 2022, they owed $120,737.48 plus interest and had defaulted. Farm Credit sued to collect the debt, and default judgment was entered against Derrick Wiebe on July 22, 2022 in the amount of $121,291.82 plus costs. Frank Wiebe filed a defence admitting the loan and security agreements but pleading he had sought mediation under the Farm Debt Mediation Act; Farm Credit declined to attend. Farm Credit seized the Wiebes' bison herd on September 24, 2022. The Wiebes say they had arranged for a neighbour, Rod Loftstrom, to buy the herd for $50,000, but Farm Credit ultimately sold it to him for $22,000. Judgment was granted against Frank Wiebe on August 22, 2024, with quantum to be determined later. A garnishee summons against Derrick Wiebe yielded $66,076.02 on September 12, 2024, and Derrick made a voluntary payment of $57,061.15 on December 17, 2024. On December 18, 2024, an applications judge quantified the total owing at $134,348.93 as of August 22, 2024, less amounts received. The appeal period for that order expired January 2, 2025, but the Wiebes did not file their notice of appeal until January 14, 2025 — twelve days late. The balance owing to Farm Credit, other than costs, was paid in full on January 15, 2025, and Farm Credit then applied to strike the late notice of appeal or dismiss it as moot. A chambers judge dismissed the Wiebes' application to extend time on March 27, 2025, prompting the appeal to the Court of Appeal and Farm Credit's cross-appeal.

Policy and legislative provisions at issue

Central to the appeal was r 13.5(1)(a) of the Alberta Rules of Court, AR 124/2010, governing extensions of time to appeal, and r 6.14(2), which requires a notice of appeal from an applications judge to be filed and served within 10 days. The Court also considered r 14.5(1)(b), which requires permission to appeal "any pre-trial decision respecting adjournments, time periods or time limits." The five-factor test for extending time, first set out in Cairns v Cairns, [1931] 4 DLR 819, 826-827, [1931] 3 WWR 335 (Alta SC (AD)), asks whether the applicant held a bona fide intention to appeal, has an explanation excusing the delay, would cause no serious prejudice, took no benefit under the judgment, and has a reasonably arguable appeal. On the merits, the loan agreement provided that the Wiebes' obligations were "absolute and unconditional" and not subject to set-off, compensation, or counterclaim, while the security agreement's s 9(c) permitted Farm Credit to dispose of the bison in any "commercially reasonable way," and s 14(e) excluded liability for delay or failure to preserve rights.

Reasoning and analysis

The Court first addressed whether permission to appeal was required, concluding that the chambers judge's refusal to extend time was a discretionary pre-trial decision respecting a time limit under r 14.5(1)(b), consistent with the reasoning in Rath & Company Barristers & Solicitors v Sturgeon Lake Cree Nation, 2022 ABCA 373, and 26th Avenue River Holding Limited Partnership v Winspia Co Ltd, 2025 ABCA 384. Turning to the Cairns factors, the panel accepted that the Wiebes formed a bona fide intention to appeal, and found the delay excused by evidence of their former counsel's life-threatening family emergency and subsequent broken leg. No serious prejudice to Farm Credit was found, since claimed memory loss and employee turnover were not credible impediments, and the Wiebes took no benefit from the delay given they had paid the debt. However, the fifth factor — reasonable chance of success — proved decisive. The Wiebes sought to raise claims of improvident realization over the bison sale and set-off for unpaid feeding costs, but the Court held these claims had been contractually excluded by the loan and security agreements' absolute-and-unconditional and no-liability-for-delay clauses. Improvident realization, defined as an imprudent and commercially unreasonable method of selling collateral, was found not contractually arguable in these circumstances, referencing Smith v PricewaterhouseCoopers Inc, 2013 ABCA 288, para 28, 3 Alta LR (6th) 341. As a result, the Court found it was not in the interests of justice to extend time. On the cross-appeal, the Court held that because the appeal was dismissed on the timeliness ground, the separate question of mootness had no effect on the parties' rights and was itself moot, citing Borowski v Canada (Attorney General), [1989] 1 SCR 342, 353, 57 DLR (4th) 231.

Ruling and overall outcome

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the chambers judge's refusal to extend the time for the Wiebes to appeal the December 18, 2024 quantification order, and declining to address Farm Credit's alternative mootness argument. Farm Credit prevailed on the principal issue before the Court, successfully defeating the Wiebes' bid to revive their appeal. However, the Court ordered that success was divided and each party would bear its own costs, meaning no additional monetary award or costs order was made in this decision.