Date Issued: December 5, 2019

File: SC-2019-005737

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Campbell v. Epp, 2019 BCCRT 1367

Between:

EDWARD CAMPBELL

Applicant

And:

ARLENE EPP

Respondent

INTRODUCTION

1.      The applicant, Edward Campbell, says the respondent, Arlene Epp, failed to return his portion of the security deposit for a California property rental. The applicant claims $916.87 for the security deposit.

2.      The respondent denies that she owes the applicant any money from the property rental. Instead, the respondent says the applicant owes her $1,118.53, though she did not submit a counter-claim.

3.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

4.      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.

5.      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, she 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.

6.      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. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

8.      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.

ISSUE

9.      The issue in this dispute is to what extent, if any, the respondent owes the applicant the claimed $916.87 debt.

EVIDENCE AND ANALYSIS

10.   The parties were in a romantic relationship for a period of time. The evidence does not suggest they were spouses. In June 2018, the parties entered into a 3-month lease for a property rental in California with their friend “PM” for $3,500 USD a month. They rented the home from January through March 2019.

11.   In their submissions, both parties rely on a spreadsheet created by the applicant before the California rental. The spreadsheet breaks down the rental costs 3-ways in USD. The cost breakdown is not completely even. According to the spreadsheet, a refundable security deposit of $2,500 was split as follows: $900 for PM and $800 for each the applicant and the respondent. The spreadsheet shows that PM and the parties evenly split a $150 non-refundable cleaning fee. It shows the applicant was responsible for a refundable key deposit of $125 and the respondent for a non-refundable pet fee of $500 for her dog. The parties paid PM for their share of the costs in cash, and PM paid the landlord directly.

12.   The respondent says the parties did not have a written agreement on how they would share the costs. However, I find that they did. I find their written cost-sharing agreement was set out in the spreadsheet mentioned above, which both parties submitted in evidence.

13.   In October 2018, the parties’ relationship temporarily ended. However, it is undisputed that the parties reconciled and stayed together in the California rental in February and March 2019. However, due to the timing of the respondent’s independent travel, she did not spend as many days at the rental as the applicant. They drove down together to arrive about February 1, 2019. Though she was invited to stay longer, the respondent returned home on February 7, 2019 due to other commitments. The respondent flew back to California on February 20, 2019 and stayed with the applicant until the end of March 2019. The parties’ relationship ended shortly after the California trip. These facts are undisputed.

14.   The parties agree that in about June 2019, the landlord refunded the deposit, minus some expenses. The respondent says that the landlord returned to PM a total of $2,502 USD by two separate payments. There is no statement in evidence from PM. I find on the emails that PM returned both parties’ portion to the respondent. However, neither party says exactly how much money PM returned. Based on the respondent’s submissions about the landlord’s refund and the cost-sharing on the spreadsheet, I find the respondent likely received about $1,600 USD from PM. This would amount to $800 for each parties’ equal share. The respondent does not say she received any less from PM. I find the respondent was obligated to return the applicant’s share of the deposit to him.

15.   The respondent says she should not have to return the deposit because the applicant owes her money for other things, which I discuss below. Since the respondent made no counter-claim, I infer she is seeking an equitable or legal set-off. If the respondent can prove that the applicant owes her money that is reasonably connected to the debt, she can deduct it from the amount she owes to the applicant. For a legal set-off to apply, both obligations must be debts, and both debts must be mutual cross obligations. The respondent has the burden to prove that she is entitled to a set-off on a balance of probabilities (see for example, Wilson v. Fotsch, 2010 BCCA 226 (Wilson) and Dhothar v. Atwal, 2009 BCSC 1203).

16.   First, the respondent argues that the applicant should have paid her $120 USD for each day he stayed at the rental without her. The parties’ original plan was to stay together for the months of February and March 2019. After their breakup the parties discussed how they would split the 2 months between them. The parties’ pre-trip emails show some discussion about splitting the cost by days at $120 per night. However, the applicant says the parties did not agree to a daily rate and agreed to pay a full month each. I find the applicant’s statement consistent with the parties’ emails at the time and the spreadsheet mentioned above. The spreadsheet shows $3,500 for the applicant for February and $3,500 for the respondent for March. It is undisputed that each party paid these amounts for the rental. Despite not staying an equal number of days each, I find insufficient evidence that they changed their cost sharing agreement to reapportion the costs by day. Therefore, I find the respondent has not established that the applicant owes her “rent” for his extra days. I find the parties’ express agreement as set out in the spreadsheet must be respected and I apply no set-off for “rent”.

17.   Second, the respondent says that she did not have her dog at the rental for the entire two months yet paid the full $500 USD fee. I find the applicant is not responsible for any portion of the respondent’s dog fee. I find it was up to the respondent to arrange and pay for her own dog.

18.   Third, the respondent says she paid for certain items on a European vacation they took in October 2018 and incurred ‘costs’ for canceling a birthday gift and for a cruise that her employer gave her as a perk. I find that any money the respondent may have spent on prior trips and gifts is separate and apart from their cost sharing agreement on the California rental. I find the respondent has not proven that these extra costs were sufficiently connected to the California rental to reduce the amount the respondent owes.

19.   Fourth, it is undisputed that applicant took about $170 USD from the respondent’s wallet right after the California trip. The applicant says it was his money that he took out in California and that the respondent would not have returned it had he asked her for it. I find the applicant took the $170 USD without permission. The applicant did not provide any bank withdrawal receipts or other proof that it was his money or that he was entitled to it. I find the $170 USD and deposit are mutual, related debts from the California rental. I find the respondent is entitled to a legal set-off of $170 USD.

20.   Fifth, the respondent says they each owed $41 USD for electricity overages. The applicant claims a total of $694.45 USD based on $800 less $105.55 for electricity. Therefore, I find the applicant’s claim already included an electricity deduction and I see no basis for a further deduction.

21.   After subtracting the $170 USD cash, I find on a judgment basis that the applicant is entitled to $524.45 USD, which is about $697.81 CAD on the current exchange rate. I find the respondent must pay the applicant a total of $697.81 CAD.     

22.   The Court Order Interest Act applies to the tribunal. The email evidence shows that PM refunded the deposit to the respondent by at least July 14, 2019. I find the respondent could have reasonably returned the funds by the next day. I will allow the applicant pre-judgement interest on the $697.81 debt from July 15, 2019 to the date of this decision. This equals $17.35.

23.   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. I find the applicant is the successful party and is entitled to reimbursement of $125 in tribunal fees. The applicant claimed no dispute-related expenses.

ORDERS

24.   Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $840.16 CAD, broken down as follows:

a.    $697.81 as reimbursement for the debt,

b.    $17.35 in pre-judgment interest under the Court Order Interest Act, and

c.    $125.00 in tribunal fees.

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

26.   Under section 48 of the CRTA, 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 CRTA, 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.