Date Issued: November 16, 2018

File: SC-2017-007582

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Moghaddam v. Guthrie, 2018 BCCRT 737

Between:

Amir Moghaddam

Applicant

And:

Don Guthrie

Respondent

INTRODUCTION

1.      This dispute is about a deposit for room rental.

2.      The applicant, Amir Moghaddam, says he gave the respondent, Don Guthrie, a $240 deposit to rent a room in the respondent’s house. The applicant says the respondent would not let him move in, but kept the deposit. The applicant seeks a refund of the $240 deposit. He also seeks $4,560 for the rent he is paying at his new accommodation, plus $200 for his own time spent dealing with the dispute.

3.      The respondent says he learned from the police that the applicant had been convicted of a violent offence in the past. The respondent says the applicant withheld this aspect of his criminal record, which made him an unsuitable tenant. The respondent says he lost rent on the unoccupied room, so the applicant forfeited the deposit.

4.      The parties are self-represented.

JURISDICTION AND PROCEDURE

5.      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.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. 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.

7.      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.

8.      Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate. 

Jurisdiction over Rental

9.      The tribunal does not take jurisdiction over disputes where the Residential Tenancy Act (RTA) applies. However, the RTA does not apply to this dispute. Section 4(c) of the RTA says it does not apply where the homeowner shares a kitchen or bath with the tenant. The parties agree that the respondent was the homeowner, and would have shared a kitchen and bath with the applicant if the tenancy had proceeded. Therefore, I find that the tribunal, rather than the Residential Tenancy Branch, has jurisdiction over this dispute.

ISSUES

10.   The issues in this dispute are:

a)    Is the applicant entitled to a refund of the $240 rent deposit?

b)    Is the applicant entitled to $4,560 for rent at his new accommodation?

c)    Is the applicant entitled to $200 for his own time spent dealing with the dispute?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

12.   The parties agree that the applicant paid the respondent a $240 rental deposit on November 12, 2017. The receipt signed by the respondent notes the deposit, describing it as a “damage and security deposit for room rental”. The handwritten receipt also said the rental price was $480 per month, beginning December 1, 2017.

13.   The respondent says that while the applicant disclosed his criminal record, and offered the name and number of his parole officer, he failed to disclose that he had been convicted of a violent offence. The respondent says he learned about the violent offence after he spoke to an RCMP officer. The respondent says that as soon as possible after the meeting with the RCMP officer, he told the applicant his rental application was not approved, and he withdrew the offer to rent the room.

14.   The applicant disputes this account by the respondent, and says he gave full disclosure of his criminal record before he paid the deposit. I make no findings about that, because I find the applicant is entitled to a return of his deposit based on other facts.

15.   In his submissions to the tribunal, the respondent says the $240 deposit was to offset half a month’s rent. He said that a new tenant, B, moved in December 1, 2017. The November 1, 2017 deposit receipt clearly states that the applicant’s tenancy was “beginning December 1/2017”. Since the applicant would not have paid rent before December 1, 2017, the respondent did not lose any rental income.

16.   There is also no evidence indicating that the parties agreed the deposit was non-refundable. The deposit was described on the receipt as a “damage and security deposit”. There was no damage and no security issue, which I infer relates to something arising during the occupancy of the room (such as unpaid rent).

17.   For these reasons, I find the respondent is not entitled to keep the $240 deposit, and must return it to the applicant.

18.   The applicant is also entitled to pre-judgment interest on the $240, from November 13, 2017, under the Court Order Interest Act.

Damages

19.   The applicant also claims $4,560 in damages. He says that due to the respondent’s breach of the rental contract, he had to rent accommodation that cost $20 more per month than he would have paid for the respondent’s room. He claims damages of $20 per month on an ongoing basis, up to the tribunal’s small claims limit (minus his other claims), which equals $4,560.

20.   I find that the applicant is not entitled to damages. As he had not even moved in at the time the contract was breached, it would be speculative to find that the tenancy would have lasted for a long time. While I accept that it was frustrating and inconvenient to find a new residence, he has not provided evidence to establish that it was necessary to spend $20 more per month. He did not provide evidence that the spaces were equivalent. Also, because the RTA did not apply, the respondent had no obligation to give notice to end the contract.

21.   For these reasons, I do not order damages.

$200 for Applicant’s Time

22.   The applicant claims $200 for his own time spent dealing with the dispute. He did not explain how he arrived at this amount. Also, the tribunal typically does not award a party expenses for their own time in dealing with a dispute, consistent with the tribunal’s practice of not generally awarding legal fees. I therefore do not order reimbursement for the applicant’s own time.

23.   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. As the applicant was partially successful in this dispute, I find he is entitled to reimbursement of half of his tribunal fees, which equals $62.50. The applicant also claimed $10.95 for postage costs incurred in serving the Dispute Notice on the respondent. This expense was reasonable in the circumstances, and is confirmed by a receipt, so I order reimbursement of $10.95.

ORDERS

24.   I order that within 30 days of the date of this order, the respondent pay the applicant a total of $316.41, broken down as follows:

a.    $240 as a refund of the rental deposit,

b.    $2.96 in pre-judgment interest under the COIA, and

c.    $73.45 for tribunal fees and dispute-related expenses.

25.   The applicant is entitled to post-judgment interest, as applicable.

26.   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.

27.   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.