THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 94 Date: 20060828 Between: Docket: 1342 April Schoenthal and Ryan Dalrymple Prospective Appellants and MP Equities Ltd. O/A RDL Management Prospective Respondent Coram: Jackson J.A. (in Chambers) Counsel: Ms. April Schoenthal and Mr. Ryan Dalrymple in person Ms. Larke Kimpton for the landlord via conference call Appeal: From: QBG 1257 of A.D. 2006, J.C. of Regina Heard: August 23, 2006 Disposition: Application Allowed Written Reasons: August 28, 2006 By: The Honourable Madam Justice Jackson Jackson J.A. [1] Ms. Schoenthal and Mr. Dalrymple, “the tenants,” apply pursuant to s. 49(2) of The Residential Tenancies Act[1] for leave to appeal a decision of the Court of Queen’s Bench reviewing a decision of the Rentalsman. Deputy Rentalsman granted an order of possession and issued writ of possession on July 28, 2006. Her reasons were as follows: The rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice. am satisfied that based on the evidence provided, the Landlord's claim has been sufficiently proven and that an Order should be made placing the Landlord in possession of the rental premises. [2] The file indicates that hearing was held on July 26 at which the tenants agreed to pay the August rent, as well as the July rent, on July 27. The tenants dispute that they agreed to pay the August rent. They indicate that they could not have agreed to pay the August rent on July 27 because they would not have been in position to pay future rent on that day. [3] The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month's rent of the tenancy. The landlord contradicts this and indicates that it holds $640 as damage deposit only. [4] In any event, the parties agree that the rent for July in the amount of $640 was paid on July 27 plus late payment fee of $25, which the landlord accepted. The landlord, nonetheless, immediately applied for, and was granted, writ of possession. No further hearing was held. [5] The tenants allege that they tendered the arrears on the basis that the landlord would not apply for writ of possession and that the arrears were accepted on that basis. Ms. Schoenthal received and cashed her paycheque on July 27 to enable her to pay the July rent. Thus, there were no arrears of rent owing as of July 28. Because the tenants believe that the landlord holds the equivalent of one month's rent, they indicate they would not have tendered the rent if they were going to be evicted in any event. [6] The Rentalsman’s fiat does not speak to knowledge that the July rent had been paid, but to the rent having been in arrears when the original Notice of Termination was served, which the tenants allege was cured on July 27 when the landlord accepted the rent and late payment fee. [7] The tenants appealed the Rentalsman’s decision to the Queen’s Bench. Their appeal was heard on August 15, 2006, by which time the August rent was due not only under the disputed agreement but under the tenancy agreement. The Chambers judge dismissed the tenants’ appeal the same day, saying "[d]ue to [the] fact rent for August has not been paid, and not paid by required time, appeal is dismissed”. [8] My jurisdiction is derived from s. 49 of The Residential Tenancies Act, which reads: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty's Court of Queen's Bench for Saskatchewan within 30 days of the date of the decision or order. (2) Any person who is aggrieved by decision or order of judge of Her Majesty’s Court of Queen’s Bench for Saskatchewan pursuant to sections 47.1 to 47.3 or pursuant to subsection (1) of this section may appeal the decision or order to the Court of Appeal within 30 days of the date of the decision or order with leave of the Court of Appeal or judge of that court. [9] I have decided the following questions warrant leave to appeal:1. Did the Chambers judge err in finding that the Rentalsman had jurisdiction to make an order granting possession on the basis that “[t]he rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice” if the landlord accepted the rent in lieu of seeking a writ of possession? 2. In answering the first question, did the Chambers judge err in considering that the subsequent month\'s rent was not paid? [10] The tenants have until 4:00 p.m. on August 31, 2006 to serve and file their notice of appeal and 15 days thereafter to file their appeal book and factum. [11] If the tenants serve and file their notice of appeal by 4:00 p.m. on August 31, 2006, but do not pay the August rent by the end of August 31, or do not pay their September rent, the landlord has leave to apply on 48 hours notice to lift any stay of execution. [12] There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 28th day of August, A.D. 2006. Jackson J.A. [1] R.S.S. 1978, c. R-22.
The tenants apply pursuant to s. 49(2) of The Residential Tenancies Act for leave to appeal a decision of the Court of Queen's Bench reviewing a decision of the Rentalsman. HELD: Application allowed.  1) The parties agree that the rent for July was paid on July 27. The landlord then immediately applied for and was granted a writ of possession. 2) The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month rent of the tenancy. The landlord claims it is a security deposit. 3) The tenants claim they tendered the arrears on the basis that the landlord would not apply for a writ of possession and that the arrears were accepted on that basis. 4) The Court of Queen's Bench Chambers judge dismissed the appellant's appeal the same day saying 'the rent for August has not been paid and not paid by required time, appeal is dismissed'. 5) The first issue on appeal is whether the Chambers judge erred in finding the Rentalsman had jurisdiction to make the order granting possession on the basis that 'the rent was 15 days in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice' if the landlord accepted the rent in lieu of seeking a writ of possession. The second issue on appeal is whether the Chambers judge erred in considering that the subsequent month's rent was not paid.