Date Issued: November 21, 2019

File: SC-2019-004839

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Un v. Olmsted et al, 2019 BCCRT 1313

Between:

CHAK HONG UN

Applicant

And:

BILL OLMSTED and LORILEE HEWSON

RespondentS

INTRODUCTION

1.      The applicant, Chak Hong Un, rented a room with board from the respondents, Bill Olmsted and Lorilee Hewson.

2.      The applicant says the respondents breached the parties’ contract by failing to provide food as agreed, and by failing to return his $425.00 damage deposit at the end of the tenancy. The applicant claims a total of $3,755.31, for the cost of food between July 18, 2017 and June 30, 2018 ($3,198.93), the deposit ($425.00), and fees and expenses ($131.38) related to a Residential Tenancy Branch (RTB) process, as discussed below.

3.      The respondents deny breaching the contract. The respondents say they provided the agreed food and the applicant damaged his room, which entitled them to retain the deposit.

4.      The applicant is self-represented. The respondents are represented by Bill Olmstead.

5.      For the reasons that follow, I dismiss the dispute.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). 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.

7.      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 a “he said, they said” scenario. 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.

8.      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.

9.      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.

10.   The tribunal does not have jurisdiction over residential tenancy disputes, which are within the exclusive jurisdiction of the director of the RTB under the Residential Tenancy Act (RTA). The applicant first filed his dispute with the RTB. However, the RTA does not apply to disputes where a tenant shares a kitchen or bathroom with the owner. It is undisputed that the applicant shared the kitchen with the owners and the RTB refused to take jurisdiction of the dispute. I find this dispute falls within the tribunal’s small claims jurisdiction set out in section 118 of the CRTA.

11.   Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

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.

ISSUES

12.   The issues in this dispute are:

a.    To what extent, if any, are the respondents required to reimburse the applicant $3,198.93 for food?

b.    Are the respondents required to return the $425.00 deposit?

c.    Are the respondents required to pay the applicant $131.38 in RTB related fees and expenses?

EVIDENCE, ANALYSIS AND FINDINGS

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

14.   The parties agree that between September 1, 2016 and June 30, 2018 they had a homestay contract for room and board. Both parties rely on the terms set out in “The ‘Olmsted’ Family 2016 Homestay Contract” in evidence.

15.   The applicant gave notice on May 24, 2018 of his intention to move out and vacated his room on about June 29, 2018. As mentioned, the respondents refused to return the applicant’s deposit because of alleged damage to his bedroom.

To what extent, if any, are the respondents required to reimburse the applicant $3,198.93 for food?

16.   The contract in evidence says that board would include 1 prepared dinner plus a variety of food options for the students to prepare their own breakfast and lunches. It says that the student will pay for all items not explicitly in the contract, such as extra meals, snacks and special food items. The students’ rooms are equipped with a mini fridge for the students to store any perishable specialty food items. The contract requires students to prepare their own meal if they are not present at normal meal time.

17.   The applicant alleges that as of July 2017, the respondents stopped providing the agreed meals and food, and he had to go out to eat and purchase his own food. He provided his visa statement showing payments to fast food chains, a variety of restaurants and cafés, and grocery stores. The applicant alleges the respondents had a separate fridge for their own food and did not keep the main communal fridge stocked with enough food. He says the respondents often went camping on the weekends and no one prepared dinners during that time. He says he was too “overwhelmed with school” to find other accommodation to move out before June 2018.

18.   The respondents say they “always” prepared 1 cooked meal for the applicant and that he had access to “ample” food in the main kitchen fridge and pantry. They say they store some special dietary food in another fridge in the basement. The respondents agree that they went on camping trips but say family members would stay at the home to provide food and prepare dinner. They say the applicant never raised the food issue until well after he moved out. I note there is no written record that the applicant complained to the respondents about the food during his tenancy.

19.   The applicant argues that if there was “ample” food available, he would not have incurred such “huge expenses for food and meals.” However, I find the fact that the applicant bought food or ate out, does not necessarily mean the respondents failed to fulfill their contractual duties to feed him. The contract did not require the respondents to provide extra snacks, meals out, or specialty food. The evidence does not establish that the expenses were for food that the respondents should have provided under the contract.

20.   The applicant submitted a September 2017 statement from his brother who stated that the applicant “informed him” there was not enough food for at least a month. However, I put little weight on the brother’s hearsay statement. It is the applicant’s statement almost word for word, which does not persuade me that it is his independent recall of the conversation.

21.   The respondents provided a statement from another student, LJ, who was undisputedly in the home at the same time. LJ stated that the respondents always had “plenty” of food available for the students. The applicant alleges that the respondents put undue influence on LJ, who is still their tenant, to make this positive statement. However, the applicant provided no evidence in support of this. Also, LJ provided a different, but consistent statement, on behalf of the applicant. LJ said that he saw the applicant “packing his lunches” and “cooking his own breakfast and dinners” but did not say the respondent failed to provide enough food or meals at dinner time, as the applicant alleges. I find it just as likely that the applicant was preparing either specialty food or food outside normal meal times, as permitted under the contract.

22.   Overall, I find the applicant has not shown, on a balance of probabilities, that the respondents failed to provide the food or prepared meals as required in the parties’ contract. Therefore, I find the applicant has not established that the respondents breached the contract or that he is entitled to the claimed food expenses. I dismiss this aspect of his claim.

Are the respondents required to return the $425.00 deposit?

23.   It is undisputed that the applicant paid a $425.00 deposit on September 1, 2016 and the respondents refused to return it. The contract provides that “the deposit is refundable at the end of contract when no damage to property is observed”.

24.   The applicant alleges that the respondent, Mr. Olmsted, agreed during their joint inspection of the room on June 28, 2018 that there was “no damage” and he would return the deposit. The applicant says when he moved out on June 29, 2018, the bedroom was clean with no damage.

25.   The respondents’ version of events is different. The respondents say they never jointly inspected the room or agreed to refund the deposit. They say the room was initially not clean enough for an inspection and the applicant left without a joint inspection. The respondents say they inspected the room themselves and found the room unclean with standing water around the mini fridge, a broken dresser drawer, and water damaged flooring. The respondents say they invited the applicant to return to clean but he refused.

26.   In the Dispute Notice, the applicant stated that LJ had told him that a new student moved into his former bedroom without the respondents first doing any repairs. However, in his statement for this dispute, LJ denied saying this about the other student. LJ stated that he was out of the country at the time and had no knowledge of it. The respondents say no one stayed in the applicant’s bedroom after he vacated it because they needed to repair the damage.

27.   The applicant argues that under the RTA, a landlord cannot claim against a deposit if the landlord does not offer at least 2 opportunities to inspect together. I infer he is arguing that 2 opportunities for a joint inspection should apply to the parties’ contract. However, his own evidence is that they did a joint inspection, a fact contested by the respondents. In any event, tenancies like the parties’ homestay are explicitly excluded from the requirements of the RTA. I find this means that the parties were free to negotiate the tenancy terms themselves. I find the relevant deposit contract term is broadly worded in passive language but there is no evidence of unconscionability. Also, the parties pre-contract emails show they discussed and agreed to the deposit term, which does not require a joint inspection. I find the contract permitted the respondents to inspect the applicant’s bedroom for damage even in his absence.

28.   The applicant provided no photographs or witnesses on the condition of his bedroom. He does not describe having inspected the room himself for damage, by moving the fridge or inspecting the furniture, and there is no written record of the alleged joint inspection. The respondents on the other hand, provided photographs of the water damaged floor and unclean bedroom, and a “handyman service” receipt in the amount of $292.22 for replacing “laminate flooring and underlay” due to “water damage and swelling” dated after the tenancy ended.

29.   Even though the cost to repair the floor was less than the deposit, I find the contract did not entitle the applicant to any refund if property damage was observed. On the evidence described above, I find the respondents did observe property damage in the applicant’s bedroom shortly after he left.

30.   As mentioned, the applicant has the burden of proof. I find the applicant has not established on a balance of probabilities that his bedroom had no damage or that he is entitled to the deposit refund.

31.   I note that the respondents say to “get rid” of this dispute, they will return the deposit to the applicant’s mother because she was the one who wrote the cheque. Rather than an admission of liability, I find the respondents were attempting to put an early end to the dispute. The applicant’s mother is not a party and she made no claim for the deposit. For these reasons, I have made no order that the respondents return the deposit to the applicant’s mother.  

32.   I dismiss the applicant’s claim on this issue.

Are the respondents required to pay the applicant $131.38 in RTB fees and related expenses?

33.   I find it was the applicant’s responsibility to determine the correct venue to bring a dispute. Additionally, the RTB is in control of its own process and its fees are part of that process. I find it was up to the RTB to determine whether it should refund the fees or order the other party to pay the fees and expenses. I dismiss the applicant’s claim for RTB fees and related expenses.

34.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. As the unsuccessful party, I find the applicant is not entitled to reimbursement of his tribunal fees or claimed dispute-related expenses.

ORDER

35.   I order the applicant’s claims and therefore, this dispute, dismissed.