Date Issued: May 21, 2020
File: SC-2020-001034
Type: Small Claims
Civil Resolution Tribunal
Indexed as: MacCallum v. Carr, 2020 BCCRT 554
Between:
BRANDON MACCALLUM
Applicant
And:
SUSAN CARR
Respondent
| REASONS FOR DECISION |
|
| Tribunal Member: |
Julie K. Gibson |
INTRODUCTION
1. This dispute is about the contract of purchase and sale for a strata lot.
2. The applicant Brandon MacCallum bought a strata lot (unit) from the respondent Susan Carr. The applicant says the contract included “working appliances” and a term requiring the unit to be left clean. The applicant says that, when he took possession, the washer did not work and the unit was dirty.
3. The applicant claims $1,888.56 for a new washer and dryer set, laundromat fees, and 4 hours of cleaning at $30 per hour.
4. The respondent says the washer was working and the unit was clean when her tenants moved out. The respondent asks me to dismiss the dispute.
5. The parties are each 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. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.
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.
ISSUES
10. The issues in this dispute are whether the respondent:
a. failed to provide the applicant a working washer as agreed in the Contract of Purchase and Sale,
b. left the unit dirty when the applicant took possession, and
c. if so, what remedy is appropriate?
EVIDENCE AND ANALYSIS
12. The parties’ purchase and sale completed on January 3, 2020, with a possession date of January 6, 2020.
13. The Contract of Purchase and Sale (contract) states, with the below quote reproduced as written:
Buyer is aware tenant advised all appliances are in working order, One handle on washer is broken, if available handle will be replaced on receipt of handle. All appliances will be as viewed by the buyer and Buyers agents.
14. In the contract, the respondent seller also agreed to leave the property in clean condition
15. While the respondent owned the unit, she had it professionally managed by property manager AH. AH conducted a move-out inspection with the tenants. AH provided a written statement that the unit was in “good shape” when the tenants left.
16. Based on AH’s statement and photographs of parts of the unit, I find that the respondent left the unit mainly clean when she gave the applicant vacant possession. However, AH’s photographs do not show the toilet bowl, or the inside of the fridge, microwave or oven. I find, based on the applicant’s photographs, that these areas were left bearing some minor debris. On a judgement basis, I order $25 for cleaning costs, to address these areas. I dismiss the balance of the applicant’s claim for cleaning.
17. The photographs also show an older stacked Inglis model washer/dryer in the unit. It appears that the units are stacked but not attached to one another.
18. When the applicant viewed the unit about 2 weeks before taking possession, the tenants were doing laundry and both the washer and dryer were working.
19. However, when the applicant had a home inspection performed, the parties agree that the washer did not work. The respondent submits that the applicant is not entitled to compensation for the washer because he failed to add an addendum to the contract after the washer failed to work at the home inspection. I disagree.
20. The applicant took possession on January 6, 2020. I find that the washer, though it had been working at the viewing, remained broken after the home inspection.
21. Because the contract specified that the appliances would be “as viewed” by the buyer, I find that on the possession date the applicant was entitled to receive an older but functioning washer, that would fit in the laundry stack area.
22. On January 17, 2020, I find that the applicant bought a stackable washer/dryer for $980.75 inclusive of installation. The applicant says that, due to space restrictions in the unit’s laundry area, he could not buy a washer alone to replace the stacked set.
23. Given the photographs of the Inglis set, I agree that a replacement unit had to be the stackable set. Put differently, I find it would be unreasonable to require the applicant to keep the dryer but stack a non-matching washer on top or use the replacement washer elsewhere in the unit.
24. The respondent submits that the applicant should have attempted to repair the broken washer before purchasing a new set. Because I have awarded only limited damages below, I find there would be no significant difference between those damages and a repair charge. There is also no evidence before me that the washer could be repaired.
25. I find the damages should put the applicant in the position he would have been in had the washer been working at the time of possession. I find that if I require the respondent to pay the applicant the full cost of replacing the washer and dryer, the applicant will be put in a better position than he would have been in if the damage had not occurred. This is what is known at law as betterment. The process of applying a discount to avoid betterment is imprecise and based on the facts of each case: Fudge v. Owners, Strata Plan NW 2636, 2012 BCPC 409 at paragraph 85.
26. On a judgement basis and having looked at photographs which show a used appliance, I find that the respondent must pay 20% of the $980.75 purchase price, being $196.15.
27. I dismiss the applicant’s claim for laundromat fees because he did not prove the amount of those fees or that an unavoidable delay in getting the machine replaced required him to use the laundromat.
28. The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgement interest on the $221.15 from January 17, 2020 when he purchased the replacement appliance to the date of this decision. This equals $1.49.
29. 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 entitled to reimbursement of $125 in tribunal fees.
ORDERS
30. Within 30 days of the date of this order, I order the respondent to pay the applicant a total of $347.64, broken down as follows:
a. $196.15 in damages, as reimbursement for the new appliance purchase,
b. $25 in damages, for cleaning costs for the microwave, oven and toilet,
c. $1.49 in pre-judgment interest under the Court Order Interest Act, and
d. $125 in tribunal fees.
31. The applicant is entitled to post-judgment interest, as applicable.
32. 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.
33. 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.
|
|
| Julie K. Gibson, Tribunal Member |