ATB FINANCIAL v 1719091 ALBERTA LTD

The Applicants sought permission to appeal a prior decision that denied them extensions of time to appeal two earlier Court Orders: (1) a Restricted Access Order limiting their ability to initiate court proceedings without permission, and (2) a Receivership Order appointing a receiver over one of the corporate Applicants.

Mr. Coe owned the Applicant companies, which defaulted on a loan from ATB Financial secured by an industrial property. After obtaining a Consent Judgment, ATB proceeded with foreclosure. The Applicants attempted to avoid payment through “Organized Pseudolegal Commercial Argument” (OPCA) strategies, which were rejected.

This Application for permission to appeal to a three-member panel from a decision of a single Appeal Judge came before the Court pursuant to Rules 14.5(1)(a) and 14.5(2) of the Rules. Permission must be obtained from the same judge who made the decision that is to be appealed: Rule 14.5(2).

Permission to appeal a decision of a single judge of the Court of Appeal is granted only in rare instances. It is an “extraordinary exercise” of judicial authority, and the Applicants needed to demonstrate “compelling reason to require the applicant and respondent to reargue and three judges of the Court of Appeal to decide an issue”. Permission will not be granted where the Applicants merely seek a rehearing of the same arguments that were previously rejected.

The Applicants did not address the required legal factors for obtaining permission to appeal, focusing instead on rearguing the merits of their proposed appeal grounds. They failed to engage with the key issues underlying the earlier refusal to grant extensions of time. This included their lack of special circumstances for significant delay and the resulting prejudice to ATB. Further, because the prior decision was discretionary, it was entitled to deference.

The Court rejected numerous arguments advanced by the Applicants, including that: the Court improperly relied on an unsworn receiver’s report (because receivers routinely provide unsworn reports, and the Receivership Order expressly authorized such reports to serve as evidence); that they were not properly served and did not consent to email service, with the Court finding that they were served under a valid substitutional service Order, which they never appealed; and that the Applicants presented no new evidence or serious issue warranting further review, merely repeating arguments previously rejected, including those with respect their arguments being labeled OPCA. Permission to appeal was therefore denied.