Date Issued: February 20, 2020

File: SC-2019-006313

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Colquhoun v. Findlay, 2020 BCCRT 204

Between:

SHANNON COLQUHOUN and ANDREW COLQUHOUN

ApplicantS

And:

LINDA FINDLAY and DOUG BUCHANAN

RespondentS

INTRODUCTION

1.      This dispute is about a short-term lakefront property rental agreement between the parties.

2.      The applicants, Shannon Colquhoun and Andrew Colquhoun, rented a lakefront property owned by the respondents, Linda Findlay and Doug Buchanan, for the period of July 13 to 27, 2019.

3.      The applicants say the rental property was not as advertised and as a result they left 2 days early. The applicants seek a $250 per night refund for those 2 days, plus a $150 daily rate reduction for each of the 12 night they stayed. In total, the applicants seek a $1,700 refund .

4.      The respondents say the lakefront property was as advertised. They deny the applicants are entitled to the claimed refund under the parties’ March 28, 2019 rental agreement.

5.       All parties are self-represented.

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. Though I found that some aspects of the parties’ submissions called each other’s credibility into question, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is an issue. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that oral hearing is not necessary, and I can hear this dispute through written submissions.

8.      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.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUE

10.   The issue in this dispute is whether the respondents misrepresented the lakefront property rental, and if so, whether the applicants are entitled to a partial refund or reduction in their daily rate? 

EVIDENCE AND ANALYSIS

11.   In a civil claim like this one, the applicants bear the burden of proof on a balance of probabilities. This means I must find that it is more likely than not the applicants’ position is correct and is supported by the available evidence before me.

12.   While I have read and considered all of the parties’ evidence and submissions, I have only addressed the evidence and submissions to the extent necessary to explain and give context to my decision.

13.   In this dispute, the applicants say the size of the beds were not as advertised, the dock and its ramp were unsafe, the curtain was ripped to shreds, the floors were sinking, rodents could be heard at night, and the place was dirty and dusty. The applicants say that the lake property was not as advertised in the VRBO website, but they did not provide a copy of the VRBO advertisement.

Beds:

14.    The applicants say the beds were advertised as queen size beds but when they measured them, they were double size beds. The applicants did not produce photos of the bed measurements that they took. They also say that since the beds were not queen size, they were not able to sleep together as most couples would. They also say that every time they got up, the sheets did not stay and the foam topper on their daughter’s bed kept falling off. As a result of all these, none of them had any quality sleep during their stay.

15.   In contrast, the respondents supplied photos and measurements of the beds and even included the June 19, 2019 receipt of the new queen mattress they bought for the master bedroom. The respondents’ photos show the beds were between 78 and 80 inches in length. The respondents say they only have queen size beds and queen size sheets and beddings at the lakefront property. I find the beds are more likely queen size beds based on the evidence before me. As such, I dismiss this aspect of the applicants’ claim.

Unsafe Dock and Ramp:

16.   The applicants say they rented the place due to its lake access but they were not able to use the dock or access the lake because it was unsafe for them to do so. They say the ramp was only attached with eye-bolts which they say were not strong enough to support its weight. The applicants say they could have fallen when they walked over the ramp to go to the dock. They also claim that when the frontage stairs broke, they were not able to access the dock and the lake for three days while the stairs were being repaired.

17.   In response, the respondents say that the ramp and the dock passed all safety inspections and are compliant with all safety and insurance underwriting regulations. On review of the photos, I agree with the respondents and find that the lake’s shoreline is accessible on either side of the ramp and the dock. So, the lake shoreline was accessible even without the dock. The applicants say that it was difficult for them to access the lake on the shoreline, but they did not provide supporting evidence of the nature of their difficulty. On the applicants’ claim that it was unsafe for them to use the dock because it was attached to the ramp with eye-bolts, I find that expert evidence is required because what is being alleged is of a technical nature outside the knowledge and experience of an ordinary person: Bergen v. Guliker, 2015 BCCA 283. The applicants bear the burden of proof and they did not produce expert evidence to substantiate their claim in this regard. As such, I dismiss this aspect of the applicants’ claim.

Curtains, Floors, and Rodents:

18.   The applicants say that a curtain rod in the living room was falling and the curtain in the master bedroom was ripped to shreds. They also say that they felt the floors were sinking when they step on it and they were worried their daughter would fall through the floors. The applicants also say that they could hear rodents running around in the ceiling at night.

19.   In response, the respondents denied that the floors were sinking. I agree with the respondents and find that it is more likely that the carpet underlay of the laminate floors created the soft or cushioning effect. The respondents also say the curtain did not appear falling or broken when they were onsite from July 17-20, 2019 and they were never told about it as an issue. The respondents suggested the applicants’ dogs may have scratched and damaged the curtain. On review of the photos, the curtain was ripped near the bottom and the lower right side. Since the applicants did not raise this issue when the respondents were on site, I find that it is more likely the curtain was damaged sometime during the applicants’ stay and not before. The respondents say they never had issues with rodents and were never told about it by the applicants. The applicants did not provide any explanation why they never reported these issues to the respondents. The applicants bear the burden of proof and I find that they did not meet that burden. As such, I dismiss this part of the applicants’ claim.

Dust, Dirt, and Cleaning

20.   The applicants say the place was not properly cleaned because dirt and dust were found under and behind the couch and fridge. The applicants supplied photos of these. The applicants also say they found someone else’s hair in the shower, but they did not provide photo of the shower.

21.   In response, the respondents say the cleaning of the property was contracted out and they never had issues about cleanliness. They say maybe one of the applicants’ dogs brought the dirt inside. Upon review of photos, I agree that dirt and dust are visible, but I find them within a degree of what one might expect to see if one were to sweep behind or under the fridge or couch. I agree with the applicants that if it rained less which keep them mostly indoors, they might not otherwise have found as much dirt and dust inside. In any event, I also find that it is more likely that the dirt and dust were caused or materially contributed to by the applicants and their dogs since animal hairs are also visible in the photos. I agree with the respondents that when the applicants left the place, feces of their dogs were found uncollected on property grounds. The burden of proof is on the applicants and they did not meet that burden. As such, I dismiss this part of the applicants’ claim.

22.   I agree with the respondents that their agreement require the applicants to inspect the premises within 24 hours of arrival and to let the respondents know of any issues. Except for the broken stairs and broken DVD player which the respondents dealt with immediately, I agree and find that the applicants did not notify the respondents about these other complaints. The applicants did not provide any explanation why they did not notify the respondents either within 24 hours of their arrival as required or when the respondents were onsite from July 17-20, 2019 to repair the broken stairs.

23.   I dismissed the applicants’ allegations because they were either disproven or unproven. Even if I were to accept the applicants’ claims, which I do not, I find that the applicants did not give the respondents reasonable opportunity to address and rectify their concerns.

24.    The applicants can cancel their contract under the agreement, but not without penalty if done more than 60 days before the check in date. The agreement is also clear that there are no rental fee refunds for early departure. In other words, if the renter leaves early, the renter forfeits the rental fee on the entire stay. I find that this provision applies to this dispute.

25.   The applicants bear the burden of proof in this dispute and I find that they have failed to meet their required burden of proof.

26.   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. Since the applicants were unsuccessful, I find the applicants are not entitled to reimbursement of its tribunal fees and other dispute related expenses.

ORDER

27.   I dismiss the applicants’ claims and this dispute.