Date Issued: May 15, 2020

File: SC-2019-007418

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Wu v. Huang, 2020 BCCRT 543

Between:

HONGJIAN WU

Applicant

And:

XIAOHUI HUANG

Respondent

INTRODUCTION

1.      This dispute is about a homestay agreement.

2.      The applicant, Hongjian Wu, entered into a homestay agreement with the respondent, Xiaohui Huang, to host his son, who was going to attend high school in Canada. The applicant says the respondent demanded a $9,600 advance payment soon after his son had moved in with the respondent. The applicant paid the respondent $9,600. The applicant says he formally gave notice to end their homestay agreement, effective December 1, 2017. The applicant says the respondent agreed to the termination without penalties. The applicant seeks a $4,400 refund.

3.      The respondent refused to refund the $4,400 because their contract was for three years, and the applicant ended their contract only 2 months into it.

4.      The parties are all 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 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.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In this dispute, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. Further, bearing in mind the tribunal’s mandate of proportional and speedy dispute resolution, I find that an oral hearing is not necessary, and I can fairly hear this dispute through written submissions.

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.      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.

9.      Generally, the tribunal does not take jurisdiction over residential tenancy disputes, as these are decided by the Residential Tenancy Branch (RTB). However, section 4 of the Residential Tenancy Act (RTA) says it does not apply to living accommodation in which the tenant shares bathroom or kitchen facilities with the owner of that accommodation, such as this one. It is undisputed that the respondent offered living accommodation in which the tenant would share bathroom or kitchen facilities with the respondent, the home’s owner. So, I find the RTA does not apply to this tenancy. I also note that the applicant already brought this dispute to the RTB, and it appears the RTB refused jurisdiction on the basis that the applicant was not a tenant. For these reasons, I find the dispute falls within the tribunal’s small claims jurisdiction set out in 118 of the CRTA.

ISSUES

10.   The issues in this dispute are:

a.    What were the terms of the parties’ homestay contract?

b.    Did the applicant breach the contract by ending it early?

c.    Is the respondent entitled to keep the applicant’s deposit and advance rent payments?

EVIDENCE AND ANALYSIS

11.   In a civil claim like this one, the applicant must prove his claim, on a balance of probabilities. While I have read and considered all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

12.   Based on the documents filed in evidence, the following facts are undisputed:

a.    On August 25, 2017, the applicant’s son moved in with the respondent as a homestay student.

b.    The parties signed their homestay rental agreement on August 26, 2017.

c.    The security deposit was $500.

d.    The rent was $1,000 payable on the first of each month.

e.    The food cost was extra at $600 per month.

f.     On August 26, 2017, the applicant paid the respondent $9,600.

g.    On November 7, 2017, the applicant gave formal notice to end their agreement, effective December 1, 2017.

13.   The applicant says that after his son had moved in with the respondent, the respondent demanded a $9,600 advance payment because she needed to repair her house. The applicant describes this as 6 months’ worth of rent, namely $1,000 per month rent and $600 per month for food. Since the applicant’s son only lived there for 3 months “and a few days”, the applicant says he is entitled to the difference. He calculates this as $4,400, which is just under 3 months’ of the combined rent.

14.   The applicant says the respondent’s monetary demand came when he needed to leave the country within a week and that he reluctantly paid because he did not want to have any tension and he wanted the respondent to be friendly with his son. Three days later, the applicant says the respondent asked him to pay another $9,600 because she wanted to buy a car. The applicant says he refused to pay the respondent the second time.

15.   The applicant says his son was not happy with his living situation and needed a different living arrangement. So, the applicant gave notice to the respondent to end their homestay agreement. The applicant says the respondent agreed to end the agreement without penalties and promised to return the excess rent and $4,400 deposit on December 1, 2017. He says the respondent did not do so.

16.   The respondent does not deny telling the applicant that she agreed to the termination without penalties and that she would return the advance rent and deposit. I refer to the respondent’s Dispute Response because she chose not to provide submissions despite having the opportunity to do so.

17.   While parties are under no obligation to provide evidence or submissions during the tribunal decision process, failing to do so can lead to the tribunal making an adverse inference. I find that an adverse inference is appropriate in this case. In other words, there is no evidence to dispute the applicant’s account of what representations were made to him when he gave his notice. As a result, I find that the respondent agreed to terminate the agreement without penalties and to return the $4,400 excess rent and deposit to the applicant.

18.   In this context, I find without penalties meant the respondent agreed to return the excess rent and deposit worth $4,400 to the applicant, without deductions for giving less than a month’s notice in a month-to-month agreement or for ending a fixed-length agreement sooner.

19.   I note that the parties used a standard RTB Tenancy Agreement form as the basis for their homestay agreement. The parties marked with a checkmark the boxes for both “month-to-month” and the “fixed-length.” Given my findings above, it is not necessary to determine their intentions because the respondent agreed to terminate the agreement without penalties.

20.   In summary, I find that the respondent agreed to return the excess rent and deposit worth $4,400 to the applicant without deductions for giving less than a month’s notice or for ending their agreement sooner. I find the applicant is entitled to a full refund for his deposit and the advance rent payment for $4,400.00.

21.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgment interest on the $4,400, calculated from December 1, 2017, which was the date the parties agree to end their agreement to the date of this decision. The total pre-judgment interest is $178.73.

22.   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 not to follow that general rule. As the successful party in this dispute, I find the applicant is entitled to reimbursement of the $175 he paid in tribunal fees. The applicant also claims $330 dispute-related expenses for translation services. The applicant obtained translation services from a certified translator to translate crucial evidence written in a foreign language. I find the translation services were necessary and helpful, but the applicant did not provide receipts to prove this expense. As such, I do not allow the applicant’s claim for dispute related expenses.

ORDERS

23.   Within 10 days of this decision, I order the respondent to pay the applicant a total of $4,753.73, broken down as follows:

a.    $4,400.00 in debt,

b.    $178.73 in pre-judgment interest under the Court Order Interest Act, and

c.    $175.00 for in tribunal fees and for dispute-related expenses.

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

25.   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. The Minister of Public Safety and Solicitor General has issued a Ministerial Order under the Emergency Program Act, which says that tribunals may waive, extend, or suspend a mandatory time period. The tribunal can only waive, suspend, or extend mandatory time periods during the declaration of a state of emergency. After the state of emergency ends, the tribunal will not have this ability. A party should contact the tribunal as soon as possible if they want to ask the tribunal to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

26.   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.