Executive Summary: Key Legal and Evidentiary Issues

• Tenant's July 2025 rent cheques were returned for insufficient funds, triggering a notice to end tenancy under s. 46(1) of the Residential Tenancy Act.

• Failure to pay rent or file a dispute within the statutory five-day period resulted in a presumption of acceptance of tenancy termination under s. 46(5)(a) of the RTA.

• Central question on judicial review concerned whether evidence of an earlier, uncashed post-dated cheque should be admitted as fresh evidence.

• New evidence is generally inadmissible on judicial review unless it demonstrates lack of jurisdiction, denial of natural justice, or absence of evidence for a material finding.

• No evidence supported that the earlier cheque for a larger amount would have cleared when lesser cheques had already bounced.

• Medication causing memory issues was considered, but the five-day period had expired on July 14, 2025, before the petitioner began taking it on July 15, 2025.

Background of the tenancy and rent payment arrangement

Shaylene Fakeley (Bedborough), referred to as Ms. Bedborough, had been renting a large property in South Surrey, British Columbia, for about ten years. The property served as both her home and a source of income, as she boards horses there. Her monthly rent was $1,325, which she paid through post-dated cheques submitted to the landlord in advance, which the landlord would then cash as rent came due. In the first half of 2025, the landlord credited Ms. Bedborough for amounts she had spent on repairs to the property. As a result of that rental credit, her June 2025 rent was covered in full. A remaining rental credit was applied to the rent for July 2025, and after its application, the parties agree that Ms. Bedborough owed $947.50 in rent for July.

The bounced cheques and notice to end tenancy

Ms. Bedborough gave the landlord a cheque for $947.50 cashable around the beginning of July. However, when the landlord tried to cash it, it was returned for insufficient funds. She gave the landlord another cheque for the same amount around July 5 or 6, 2025, but it also bounced. On July 9, 2025, the landlord gave Ms. Bedborough ten days notice of its intention to end her tenancy for non-payment of rent pursuant to s. 46(1) of the RTA. Under s. 46(5)(a) of the Act, Ms. Bedborough then had five days to either pay the rent or file an application for dispute resolution with the Residential Tenancy Branch, failing which she would be presumed to accept the end of the tenancy. She did not do either of those things by the July 14, 2025 deadline.

The RTB proceedings and Order of Possession

The landlord applied to the RTB for an Order of Possession under s. 55(2) of the RTA on July 25, 2025. Ms. Bedborough responded, submitting evidence for the RTB's consideration and appearing at the RTB hearing. She explained that after the first two cheques were returned for insufficient funds, she attempted to pay by cheque again on July 15, 2025 and then again on July 18, 2025, but those cheques were never cashed. She submitted a screenshot that she said showed there were sufficient funds in her account at the relevant time. She also submitted a note from a doctor that on July 15, 2025, she had started on a new medication that can cause memory issues. After some apparent confusion around paying by e-transfer, Ms. Bedborough paid the July rent by e-transfer on August 6, 2025. In a decision dated September 15, 2025, the RTB Arbitrator found that Ms. Bedborough had until July 14, 2025 to dispute the notice or pay the full amount owing. As she had done neither, the Arbitrator concluded that the presumption in s. 46(5)(a) of the RTA applied and the landlord was entitled to an Order of Possession under s. 55 of the RTA.

Discovery of the earlier cheque and petition for judicial review

After the RTB made the Order of Possession, Ms. Bedborough contacted the landlord asking that any unused post-dated rent cheques she had previously submitted be returned to her. When she received them, she found among them a $1,325 cheque for July 2025 (the "Earlier Cheque"). Ms. Bedborough had given the Earlier Cheque to the landlord along with other post-dated cheques some time before receiving the rental credit and before giving the landlord the two cheques for $947.50 that bounced. She had forgotten about this earlier cheque and argued that a cheque for the full rent amount was in the landlord's possession during the relevant period but the landlord never cashed it and never mentioned it during the RTB process. Ms. Bedborough filed her petition for judicial review on November 4, 2025, and obtained a stay of the Order of Possession.

The court's analysis of fresh evidence and standard of review

Justice Bantourakis explained that judicial review is generally carried out on the record as it was before the RTB, not any new or additional evidence that may have been gathered after the fact. In exceptional cases, new evidence may be admitted on judicial review to show a lack of jurisdiction, a denial of natural justice, or to establish that there was no evidence for a material finding. The court noted that where a discretionary decision or finding of fact by the RTB is disputed, the Court will only interfere if the Adjudicator's decision was patently unreasonable, which is a highly deferential standard. Where the fairness of the RTB process is in issue, the question must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.

Ruling and outcome

The court dismissed Ms. Bedborough's petition for judicial review. Justice Bantourakis found that on the facts of this case, that the landlord held the Earlier Cheque simply does not mean that the landlord held payment for July rent. Ms. Bedborough's cheques for a lesser amount than the Earlier Cheque were returned for insufficient funds, and neither the record before the RTB nor the additional evidence put forward on judicial review suggests that the Earlier Cheque would nevertheless have cleared at any point up until the expiry of the Five-Day Notice Period. The court also found that the Earlier Cheque was for an amount greater than what Ms. Bedborough actually owed and she had submitted two subsequent cheques for July rent, effectively supplanting the Earlier Cheque. In these circumstances, barring a specific request from Ms. Bedborough, the landlord's failure to cash the Earlier Cheque cannot be faulted. The court considered Ms. Bedborough's evidence of a medication she began taking on July 15, 2025 that may cause memory problems; however, the five-day period following the Notice to End Tenancy expired on July 14, 2025, apparently before she began taking that medication. The court acknowledged this is a harsh result considering Ms. Bedborough did eventually pay her rent and has lived in and earned income from the premises for many years. However, the statutory presumption in s. 46(5)(a) of the RTA is unequivocal and the law is clear that there is no relief from the forfeiture of the tenancy in these circumstances, despite the tenant subsequently making good on the amount owing. Each party was ordered to bear its own costs. The landlord offered to defer enforcement of the Order of Possession for 30 days following issuance of the reasons, giving Ms. Bedborough an additional 30 days from the date of the reasons to give the landlord vacant possession of the premises. No monetary award, costs, or damages were granted to either party.