Date Issued: November 16, 2018
File: SC-2018-004397
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Zimendstark v. Walker, 2018 BCCRT 729
Between:
Harold Zimendstark
Applicant
And:
Teresa Walker
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Eric Regehr |
INTRODUCTION
1. This is a dispute between former roommates over a security deposit. The applicant, Harold Zimendstark, and the respondent, Teresa Walker, are each self-represented.
JURISDICTION AND PROCEDURE
2. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
3. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to “he said, he said” disputes between the parties. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.
4. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.
5. Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:
a. order a party to do or stop doing something;
b. order a party to pay money;
c. order any other terms or conditions the tribunal considers appropriate.
6. The Residential Tenancy Act (RTA) does not apply to this dispute on the basis that the Residential Tenancy Branch refuses jurisdiction over “roommate disputes”.
ISSUES
7. The issues in this dispute are:
a. Is the applicant entitled to a refund of $253.14, being the rest of the security deposit that the respondent has not yet refunded?
b. Is the applicant entitled to a penalty?
EVIDENCE AND ANALYSIS
8. The respondent rented a 2-bedroom suite. The parties agreed that the applicant would rent one of the bedrooms for $600 per month, starting April 1, 2018. On February 28, 2018, the applicant paid $300 as a security deposit. There is no written tenancy agreement.
9. The applicant says that he decided in late April 2018 that he would find new accommodations. On April 29, 2018, the respondent sent the applicant an email confirming that he must vacate the suite at the end of May. In her April 29, 2018 email, the respondent confirmed that if the applicant paid his rent and there was no damage to the suite, she would give him the security deposit back.
10. The applicant was unable to move out on May 31, 2018 as initially planned and moved out on June 1, 2018.
11. The respondent returned $46.86 of the security deposit, alleging that the applicant owed the remaining amount in outstanding utilities and cleaning costs.
12. The respondent breaks down the amount she withheld from the security deposit as follows:
• $20 as one night of pro-rated rent for leaving on June 1 instead of May 31.
• $200 labour for cleaning the suite.
• $33.14 as the applicant’s share of the electricity and gas bills for May.
13. The respondent provided photographs in evidence to show what she had to clean after the applicant moved out. The photographs show a significant amount of dog hair on the floors, which the respondent says is from the applicant’s dog.
14. The respondent provided invoices for utilities for May totaling $110.46. The respondent submits that the applicant is responsible for 30% of the utilities for May. The applicant submits that his share of May’s utilities should only be $22.09, which is 20% of the utilities for May, because the respondent’s son moved into the suite in mid-May.
Is the applicant entitled to the return of the rest of the security deposit?
15. The applicant’s primary position is that the respondent forfeited any right to retain any of the security deposit by failing to comply with the RTA. The applicant submits that the respondent failed to conduct an inspection at the end of the tenancy in accordance with section 36 of the RTA. The applicant also submits that the respondent failed to make an application for dispute resolution within 15 days of the end of the tenancy in accordance with section 38 of the RTA.
16. As discussed above, the RTA does not apply to this dispute. The applicant’s entitlement to be refunded the security deposit are governed by the contract between the parties.
17. Based on the email correspondence between the parties, I find that the parties agreed that the respondent would return the security deposit to the applicant within 15 days of the end of the tenancy if the applicant did not owe the respondent any money and there was no damage to the suite. I do not find that it was a term of the contract that the applicant would thoroughly clean the suite when he left.
18. The respondent has not alleged that there was any damage to the suite, only that it was dirty.
19. I therefore find that the respondent is not entitled to hold back any amount for cleaning the suite after the tenancy ended.
20. As for paying rent for an additional night, the applicant’s evidence is that he stayed an extra night because of his own inability to find new accommodations until the afternoon of June 1. There is no evidence that the respondent agreed to provide him with a free night of accommodation as a favour. I find that the applicant was a paying tenant until June 1. I agree with the respondent that $20 is a reasonable sum for the applicant to pay for staying an extra night in the suite.
21. As for the utilities, I do not find that the applicant is entitled to a discount because the respondent’s son moved into the living room for the last 2 weeks of the tenancy. I do not agree that this fact altered the terms of the contract between the parties about the applicant’s obligation to pay a share of utilities.
22. Therefore, I find that the respondent was entitled to hold back $53.14 of the security deposit. The applicant was entitled to the remaining $246.86. Because the respondent has already returned $46.86, the respondent owes the applicant $200.
Is the applicant entitled to a penalty?
23. Section 36(6) of the RTA provides that a landlord must pay a penalty of double the amount of the security deposit if the landlord does not repay a security deposit or commence an application with the Residential Tenancy Board within 15 days of the end of a tenancy.
24. As discussed above, the RTA does not apply to this dispute. The applicant does not identify any other basis for a penalty against the respondent, and I find that there is none.
25. I dismiss the applicant’s claim for a penalty.
Tribunal Fees and Dispute-Related Expenses
26. Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. While not entirely successful, I find that the applicant was sufficiently successful to be entitled to reimbursement of his tribunal fees of $125.
27. The applicant also claims $12.66 in dispute-related expenses for printing and delivering the dispute notice to the respondent by registered mail. The respondent submits that she replied to the dispute notice by email within the time limits in the rules. However, the rules allow delivery by registered mail in addition to by email. I find that this is a reasonable expense. I order the respondent to reimburse the applicant $12.66 in dispute-related expenses.
28. The respondent claims $69 in legal fees. Tribunal rule 132 says that except in extraordinary cases, the tribunal will not order one party to pay another party’s legal fees. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings. Even if the respondent had been fully successful, there is nothing extraordinary in this case that would justify an award of legal fees. I dismiss the respondent’s claim for legal fees.
ORDER
a. $200 as reimbursement for the remaining security deposit,
b. $1.19 in pre-judgment interest under the Court Order Interest Act, and
c. $137.66 for $125 in tribunal fees and $12.66 in dispute-related expenses.
30. The applicant is entitled to post-judgment interest, as applicable.
31. Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.
32. Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.
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Eric Regehr, Tribunal Member |