Executive Summary: Key Legal and Evidentiary Issues

• Procedural fairness — whether Mr. Penner had a meaningful opportunity to participate after joining the hearing late — was a central issue.

• Validity of service of the hearing notice under s. 82(2) of the Act was challenged but ultimately upheld.

• Whether termination under s. 57(1) survived the tenants' payment of the arrears before the hearing was disputed.

• Relevance of the landlords' allegedly shifting reasons for ending the tenancy was raised as a ground of appeal.

• Proper exercise of the "just and equitable" discretion under s. 70(6), including genuine consideration of the tenants' circumstances, proved decisive.

• Admissibility of fresh affidavit evidence on the procedural fairness question was addressed at the outset.

Facts of the case

Amanda Parchewsky and Anthony Penner (the tenants) appealed a decision of the Office of Residential Tenancies (ORT) concerning a residential property they rented from Logan Mayes and Jennifer Empey (the landlords). The hearing officer's decision on the merits, rendered on March 30, 2026, held that the lease had been properly terminated under section 57 of The Residential Tenancies Act, 2006 because the tenants were more than 15 days in arrears, and granted the landlords an order for possession. The tenants appealed on four consolidated grounds: that the hearing officer denied them procedural fairness, because Mr. Penner learned of the hearing only after it had begun and could participate only in its final moments; that an order for possession should not have issued once the arrears were fully paid before the hearing; that the officer relied solely on the arrears without weighing surrounding circumstances, including the landlords' allegedly inconsistent reasons for ending the tenancy; and that the officer failed to properly apply the "just and equitable" discretion under section 70(6) by not considering the tenants' good-faith efforts to pay. The landlords denied any error. A factual point that emerged on appeal was that Mr. Penner had been briefly incarcerated when the notice of hearing was served on Ms. Parchewsky, which is why he missed most of the hearing held on March 27, 2026.

Statutory provisions at issue

The appeal was brought under section 72(1) of the Act, which limits such appeals to questions of law, jurisdiction, and procedural fairness. Section 57(1) was central: it authorizes a landlord to end a tenancy immediately where rent is unpaid for 15 days or more after it is due, with sections 67, 68, and 69 setting out the alternative routes for ending a tenancy for non-payment. Section 70 governs applications for an order for possession against an overholding tenant, and section 70(6) gives hearing officers a residual discretion to decline an order where doing so would not be just and equitable. Service of the hearing notice was assessed under section 82(2), which permits service by posting on the unit's door together with electronic service. The hearing officer had also referred to section 42, which prohibits a tenant from withholding rent. On the admission of fresh evidence, the Court applied the principles in Gjerde and R v AB, and on the "just and equitable" analysis it relied heavily on Bell v Mainstreet Equity Corp. and Heuck v Janz.

The court's reasoning and analysis

Gerecke J. first admitted the tenants' two affidavits, which were confined to the procedural fairness issue. On the first ground, the Court separated service from participation. It found no error on service: the notice had been delivered to Mr. Penner both by posting on the door and by text message, satisfying section 82(2), and the landlords could not be expected to ensure he had access to his phone when they had no knowledge of his incarceration. Participation was a different matter. Because the fresh evidence showed Mr. Penner had not in fact been present for most of the hearing, the Court held that once he joined near its conclusion, the hearing officer was obliged to inquire into the circumstances and, finding a valid reason for his absence, to adjourn, restart, or at least allow him to give evidence; allowing only limited participation at the very end did not meet the high standard of procedural fairness owed in ORT proceedings, particularly where a tenant faces removal from their home. On grounds two and three, the Court rejected the tenants' arguments. It reasoned that the tenancy ended when the landlords served the notice to vacate under section 57(1) on March 16, 2026, after which the tenants could not unilaterally revive it by paying the arrears, so the officer correctly found the landlords entitled to seek possession. The landlords' allegedly shifting reasons were irrelevant, because once arrears reach 15 days, section 57(1) supplies a strict basis to end the tenancy and a landlord is free, but not required, to let the tenant remain. On the fourth ground, however, the Court found a clear error. The hearing officer had treated lawfulness as equivalent to equity - reasoning that, because possession was lawful and landlords need not carry non-paying tenants, an order was just and equitable - without ever considering the tenants' circumstances. The Court emphasized that section 70(6) is universal, admits no carve-outs even where the tenancy has already been terminated, and requires a genuine, judicial balancing of both parties' situations; an order can be lawful and not perverse yet still fail the just-and-equitable standard, and the officer's circular reasoning misread Heuck v Janz.

Ruling and outcome

The appeal was allowed on two of the four grounds - the denial of procedural fairness to Mr. Penner and the failure to properly conduct the section 70(6) "just and equitable" analysis - while the grounds concerning the status of the arrears were dismissed. As the successful party, the tenants, Amanda Parchewsky and Anthony Penner, obtained the quashing of the writ of possession, and the matter was remitted to the Office of Residential Tenancies for a new hearing before a different hearing officer. No monetary award, damages, or costs were granted in the judgment.