Executive Summary: Key Legal and Evidentiary Issues

• Scope of a hearing officer’s discretion under s. 70(6) of The Residential Tenancies Act, 2006 to make any order that is “just and equitable” in the circumstances when rent is more than 15 days in arrears.
• Evidentiary treatment of the tenant’s attempted payment of arrears by cheque, despite a written tenancy agreement allowing payment by “either cheque or e-transfer,” and whether the landlord could insist on e-transfer only.
• Whether the hearing officer misapprehended or disregarded relevant evidence about the history and method of rent payments (cheques, ATM, e-transfer) and the tenant’s ability and attempt to cure arrears.
• Use of boilerplate “justice and equity” reasoning in ORT decisions and the requirement to meaningfully apply that framework to the specific facts and submissions in each case.
• Characterization of the tenant’s conduct as showing a “lack of urgency” in addressing rent arrears, and whether this finding was unsupported by the evidence before the hearing officer.
• Appellate review on a statutory appeal limited to questions of law or jurisdiction under s. 72(1), including when failures in fact-finding and in exercising discretion amount to reviewable legal error.

Factual background and tenancy arrangement
The dispute concerns a residential tenancy for a single-family rental unit located at 46 Sussex Crescent in Regina, Saskatchewan. The landlord, Mark Jacobs, rented the property to the tenant, Darcy Sinclair, who also uses the name “Jay Redwood,” under a one-year Fixed Term Tenancy Agreement beginning October 15, 2025, at monthly rent of $1,600, with $800 payable for October 2025. The agreement is the standard form “Fixed Term Tenancy Agreement for Saskatchewan” used under The Residential Tenancies Act, 2006. It expressly provided that rent could be paid by either cheque or e-transfer, with the form’s payment clause completed to read “Either cheque or e-transfer.”
Under this tenancy, Mr. Sinclair paid the October and November 2025 rent by cheque, and also paid a $600 pet fee. In December 2025, he made two further payments toward rent arrears: $700 via an ATM on December 3 and $659.97 by e-transfer on December 12. Despite these payments, a rent ledger filed by Mr. Jacobs showed that $240 of the December rent remained unpaid when he served a Notice to Vacate on December 29, 2025. By the time of the hearing in late January 2026, the January rent had also not been paid, and the landlord’s ledger showed cumulative arrears of $1,840.

Proceedings before the Office of Residential Tenancies
Following the December 29, 2025 Notice to Vacate, the Office of Residential Tenancies served a Notice of Hearing on Mr. Sinclair, by posting it to the front door of the unit and by ordinary mail. The ORT hearing proceeded by telephone on January 27, 2026. Mr. Jacobs sought an order for possession and a writ of possession under ss. 57 and 70 of The Residential Tenancies Act, 2006, on the basis that rent had remained unpaid for a period of 15 days or more after it was due. He also claimed a monetary order of $240 in rent arrears and $50 for the application fee.
At the ORT hearing, Mr. Jacobs tendered the written tenancy agreement and receipts confirming payment of October and November rent and the pet fee, as well as documents showing the December ATM and e-transfer payments. He also produced a rent ledger showing $240 in arrears as of the Notice to Vacate and cumulative arrears of $1,840 by the date of hearing. The landlord told the hearing officer that the tenant’s non-payment of rent had forced him to pay expenses for two units, which caused him financial hardship, and that he now wanted possession and did not wish to continue the tenancy.
Mr. Sinclair acknowledged that rent was in arrears, but he explained that he had placed a cheque for the balance of the December arrears in the unit’s mailbox and asked the landlord to pick it up. He said that Mr. Jacobs had attended the unit multiple times and could have retrieved the cheque, and he further stated that he had the funds to cover the arrears. When the hearing officer asked about the normal method of rent payment, both parties confirmed that rent was typically paid by e-transfer. Mr. Sinclair did not give a detailed reason for using a cheque instead of an e-transfer on the occasion when he put the cheque in the mailbox, other than asking rhetorically why he could not pay by cheque.

The ORT decision on rent arrears and possession
In his written decision dated February 5, 2026, the hearing officer first found that the tenant was in rent arrears, relying on the rent ledger and the parties’ evidence. He concluded that Mr. Jacobs had met the statutory precondition under s. 57(1) of The Residential Tenancies Act, 2006: rent had been unpaid for more than 15 days after the date it was due. On that basis, he held that there was a sufficient legal ground to support an order for possession.
The hearing officer then turned to the statutory requirement in s. 70(6) that, after holding a hearing on a residential tenancy dispute, an ORT hearing officer may make any order that is “just and equitable in the circumstances,” including orders for arrears, damages, and possession. In doing so, he reproduced standardized paragraphs that have appeared in many ORT decisions, citing recent King’s Bench authorities such as Bell v Mainstreet Equity and Heuck v Janz, which emphasize that “justice and equity” is a residual discretion designed to prevent technically lawful but substantively unjust outcomes. The boilerplate passages explain that landlords are not obliged to carry tenants indefinitely through financial difficulties and that justice and equity do not require a landlord to provide free accommodation or endure repeated breaches of the Act or of the tenancy agreement.
Applying these general principles, the hearing officer characterized the tenant’s attempt to pay by cheque as creating further delay rather than curing the arrears and described Mr. Sinclair as lacking urgency in dealing with his rent obligations. He accepted the landlord’s evidence of hardship, concluded that it would not be just or equitable to require the landlord to continue the tenancy in light of the ongoing arrears and the tenant’s conduct, and ordered a writ of possession in the landlord’s favour. The monetary portion of the decision awarded Mr. Jacobs $1,840 in rent arrears, plus $50 for the ORT filing fee, for a total of $1,890.

The statutory appeal framework to the Court of King’s Bench
Mr. Sinclair appealed the ORT decision to the Court of King’s Bench under s. 72(1) of The Residential Tenancies Act, 2006, which permits “any person who is aggrieved by a decision or order of a hearing officer or the director” to appeal “on a question of law or of jurisdiction” within 30 days of the decision. Because the ORT had granted a writ of possession under s. 70(13), Mr. Sinclair, as a tenant, was also required by s. 72(1.3) and the accompanying regulations to file a certificate of payment of rent. He did so by paying one month’s rent ($1,600) to the ORT, which then issued the required certificate under The Residential Tenancies Regulations, 2007.
On appeal, the court’s jurisdiction was limited to errors of law or jurisdiction. The judgment reviews this framework, noting that where an appellant alleges such errors, the court assesses the tribunal’s decision on a standard of correctness. The decision also reiterates that, while factual findings are normally within the hearing officer’s province, a finding of fact that is made without evidence, based on irrelevant evidence, or in disregard or mischaracterization of relevant evidence can amount to an error of law.

Key legal issue: the “just and equitable” discretion under s. 70(6)
The central question on appeal was whether the hearing officer committed a legal error by failing to properly exercise the statutory discretion in s. 70(6) to make an order that is “just and equitable in the circumstances.” The King’s Bench judge highlighted prior authority, particularly Bell v Mainstreet Equity, which sets out a non-exhaustive list of inquiries that an ORT hearing officer should consider in exercising this discretion: the length of the tenancy, any history of rent arrears, the causes of the arrears, the source and reliability of the tenant’s income, impediments to the tenant receiving that income, the possibility of direct payment of rent from the income source to the landlord, the circumstances of family members in the unit, whether the arrears continue at the date of hearing, and whether the parties have previously established a pattern for dealing with past arrears.
The court recognized that using stock paragraphs about justice and equity is not inherently problematic. However, such boilerplate cannot substitute for a real and reasoned application of the “just and equitable” lens to the specific facts and submissions in the case. Here, the judge undertook a careful reading of the decision and concluded that the hearing officer had focused almost exclusively on the bare fact of arrears while overlooking several legally significant circumstances, including the terms of the tenancy agreement and the actual pattern of payments.

Errors in treating payment methods and the evidence of arrears
The King’s Bench found that the hearing officer had disregarded or misapplied relevant evidence in assessing whether justice and equity favoured eviction. The written tenancy agreement expressly permitted rent payment by “Either cheque or e-transfer.” Historically, Mr. Sinclair had paid the October and November rent by cheque, and in December he had used a mix of ATM and e-transfer payments. These details established that payment by cheque was a method contemplated by the contract and previously accepted in practice.
Despite this, the hearing officer effectively treated the landlord’s expressed preference for e-transfers as controlling, without analyzing whether, in light of the agreement, Mr. Jacobs was entitled to insist on e-transfer exclusively. The court noted that the hearing officer failed to ask whether it was “just, fair and right” to evict a tenant who had attempted to pay the arrears by a contractually permitted method. Instead, he concluded that the tenant’s choice of a cheque placed in the mailbox “created further delay” and demonstrated a lack of urgency—conclusions that the appellate judge found were not grounded in the evidence. Mr. Sinclair’s evidence, which was not contradicted, was that he had put the cheque in the mailbox for the landlord, that the landlord attended the unit regularly and could have picked it up, and that he had the funds to pay all arrears.
The King’s Bench held that the hearing officer’s narrow focus on the existence of arrears and his failure to meaningfully engage with the context—namely the permitted payment methods, the attempted payment by cheque, prior payment history, and the tenant’s stated ability to pay—represented a failure to exercise the s. 70(6) discretion judicially. In particular, the officer had cited Bell but had not undertaken the kind of fact-sensitive, justice-oriented inquiry that Bell requires.

Outcome of the appeal and status of monetary relief
Having concluded that the hearing officer failed to properly exercise the “just and equitable” discretion under s. 70(6), and that he disregarded or misapplied relevant evidence regarding payment methods and the tenant’s efforts to cure arrears, the Court of King’s Bench held that a reviewable error of law had been made. The tenant’s appeal was allowed, the February 5, 2026 ORT decision was set aside, and the associated writ of possession in favour of the landlord was vacated. The court remitted the matter to the Office of Residential Tenancies for a new hearing before a different hearing officer so that the issues could be reconsidered based on a proper application of the statutory discretion.
In practical terms, this means that the earlier ORT monetary order—$1,840 in arrears plus the $50 hearing fee (total $1,890) in favour of the landlord—is no longer operative, and no new monetary award or costs order was substituted by the Court of King’s Bench. The successful party in this appeal is the tenant, Darcy Sinclair (also known as Jay Redwood), but the court did not grant or confirm any specific monetary amount in his favour, and the total monetary award or costs that may ultimately be ordered will depend on the outcome of the rehearing and therefore cannot presently be determined.