Date Issued: December 16, 2020

File: SC-2020-004851

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Burris v. Kalbfleisch, 2020 BCCRT 1419

Between:

JESSICA BURRIS

Applicant

And:

BRIAN KALBFLEISCH

Respondent

INTRODUCTION

1.      This dispute is about the return of a damage deposit between roommates. The applicant, Jessica Burris, rented a room in the home of the respondent, Brian Kalbfleisch. Ms. Burris claims $500 for a damage deposit that she says Mr. Kalbfleisch failed to return to her when she moved out. Mr. Kalbfleisch says that he kept the $500 deposit because Ms. Burris’ dogs damaged his furniture, Ms. Burris did not leave the premises clean, and because he says the BC Residential Tenancy Act (RTA) does not apply to this “roommate” rental situation. Mr. Kalbfleisch makes no counterclaims, but says he owes nothing.

2.      Ms. Burris and Mr. Kalbfleisch are both self-represented in this dispute.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

4.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Although the parties’ submissions each call into question the credibility of the other party in some respects, the credibility of interested witnesses cannot be determined solely by whose personal demeanour in a proceeding appears to be the most truthful. The most likely account depends on its harmony with the rest of the evidence. Further, in the decision Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always needed where credibility is in issue. Keeping in mind that the CRT’s mandate includes proportional and speedy dispute resolution, I find I can fairly hear this dispute through written submissions.

5.      Section 42 of the CRTA says the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

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

7.      The CRT does not generally take jurisdiction over residential tenancy disputes, because these are decided by the Residential Tenancy Branch. However, as noted by Mr. Kalbfleisch, section 4 of the RTA says it does not apply to living accommodation in which the tenant shares bathroom or kitchen facilities with the owner of that accommodation. It is undisputed that the parties’ living accommodations included shared kitchen and bathroom facilities, among others. So, I find the RTA does not apply and this dispute falls within the CRT’s small claims jurisdiction set out in 118 of the CRTA.

ISSUE

8.      The issue in this dispute is whether Mr. Kalbfleisch must reimburse Ms. Burris’ $500 damage deposit, or a lesser amount because of damage or expenses Ms. Burris is responsible for.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, Ms. Burris must prove her claims on a balance of probabilities. I have read all the submitted evidence, but I refer only to the evidence I find relevant to provide context for my decision.

10.   At the outset, I reject Mr. Kalbfleisch’s argument that he is entitled to keep Ms. Burris’ damage deposit simply because the RTA does not apply to her room rental. Although the damage deposit provisions of the RTA do not apply to this dispute, that does not mean that Mr. Kalbfleisch is entitled to keep Ms. Burris’ damage deposit in all circumstances, as he alleges. On the evidence before me, I find the parties agreed that Mr. Kalbfleisch would return Ms. Burris’ damage deposit at the end of her tenancy, less the value of any unreasonable damage or expenses caused by Ms. Burris.

11.   The undisputed evidence is that Ms. Burris moved into a room in Mr. Kalbfleisch’s home at the beginning of June 2019, and that she paid him $500 as a damage deposit. Ms. Burris moved out around July 15, 2019. Mr. Kalbfleisch says he is entitled to keep the whole deposit because Ms. Burris’ dogs damaged a couch, love seat, and mattress, and he had to clean up dog hair in the home and dog waste left outside when she moved out. So, the question is whether Ms. Burris caused Mr. Kalbfleisch any unreasonable damage or expenses during her tenancy that should be deducted from the deposit.

12.   Ms. Burris says she gave Mr. Kalbfleisch notice that she would be moving out before the first month of tenancy was over. She says she moved out in a hurry in mid-July 2019 because Mr. Kalbfleisch’s alleged behaviour made her feel unsafe. Ms. Burris says that as a result, she left some dog hair behind in the apartment. Regardless, she says the room she rented was a mess when she moved in, and that she left it cleaner than that when she moved out. Ms. Burris also says her dogs did not damage Mr. Kalbfleisch’s couch or other furniture, which was old and not in good shape when she moved in. She says there was another dog living on the premises when she moved in, and that the scratches on the couch were not from her pets. Ms. Burris also says that Mr. Kalbfleisch told her he had already spent the damage deposit, so could not return it, but I find that is not supported by the correspondence in evidence.

13.   I find that apart from Ms. Burris’ own statement, there is little evidence before me showing she needed to leave hurriedly because of Mr. Kalbfleisch’s allegedly poor behaviour. On balance, I do not find that Ms. Burris was prevented from performing necessary cleaning between the time she says she gave notice and moving out several weeks later. However, on the evidence before me, I find that Ms. Burris was not required to clean her rented room to a better state than when she moved in.

14.   Mr. Kalbfleisch says he asked Ms. Burris to start looking for a new home at the end of June 2019. He says that she left her dogs unattended in the home for long periods of time, and that they damaged a couch and a love seat by “scratching and persistent licking.” Mr. Kalbfleisch says that Ms. Burris failed to consistently keep protective sheets on the couch, and that “at least one of” the dogs ripped one of the protective sheets. However, Mr. Kalbfleisch does not directly confirm that he ever saw Ms. Burris’ pets scratch or lick the furniture. I find Mr. Kalbfleisch’s position is that because he says Ms. Burris left the dogs alone for long periods, and because he says new damage appeared on the furniture after she moved in, her dogs must have caused the damage. He also says the other dog that formerly lived in the home was well-behaved and caused no damage, although this is unsupported by other evidence.

15.   Mr. Kalbfleisch says a local furniture store said the replacement value of the furniture totalled $6,300 new, and that used replacements would total $750 to $1050. He also says the dogs slept with Ms. Burris on a mattress she provided, which now smells of dog. He says a replacement mattress would cost $1,200 new or $200 to $300 used. However, Mr. Kalbfleisch provided no estimates, advertisements, or other evidence supporting the replacement or repair cost of the furniture or mattress.

16.   Mr. Kalbfleisch says, and Ms. Burris does not deny, that Ms. Burris’ rented room was messy when she moved in because she arrived a few days earlier than expected. It is undisputed she agreed to move in with the room in that state. Mr. Kalbfleisch also says that Ms. Burris left a lot of dog hair behind, which Ms. Burris admits. He says it took him 6 hours to clean up the hair, and he says that work was worth $150 because he is an experienced housekeeper, having worked in that field. He says that he also had to dispose of dog waste left outside in bags and pails when Ms. Burris moved out, and he values all his dog waste disposal efforts over the course of the tenancy at between $50 and $500, without further explanation.

17.   Mr. Kalbfleisch also says Ms. Burris never cleaned the inside or outside of the home while she lived there, and that her pets created messes on several occasions that he cleaned up. Further, he says Ms. Burris’ dogs created disturbances, and that she let unannounced guests stay at the home. In the circumstances, I find that the alleged messes, pet disturbances, and guest stays during the tenancy, do not show whether Ms. Burris left items damaged or unclean at the end of her tenancy, which is the issue before me in this dispute. I find that the damage deposit was not intended to compensate Mr. Kalbfleisch for his house cleaning efforts or disagreements during the period when he and Ms. Burris were roommates.

18.   Turning to the documentary evidence, Mr. Kalbfleisch provided photos of a couch armrest before and after Ms. Burris’ dogs allegedly licked it. Apart from an increased number of wrinkles in the couch material, I see no significant difference between the photos, or evidence that the couch had been licked or damaged from licking. Mr. Kalbfleisch submitted a photo of a slightly soiled mattress, but I find the evidence does not reliably demonstrate the mattress’ condition before Ms. Burris’ tenancy, and whether the soils were pre-existing.

19.   Mr. Kalbfleisch submitted a close-up photo showing lighter-coloured streaks on leather couch material, which he says are dog scratches. Viewing the streaks, I find they could have been made by dogs, or by another cause. Mr. Kalbfleisch’s photos of the couch and love seat before Ms. Burris moved in reveal similar streaks and discolourations, but the photos are not clear enough or close enough to determine whether the alleged dog scratches were present at that time or not.

20.   Having weighed the evidence, I find it fails to demonstrate that Ms. Burris’ pets caused significant damage to the furniture or mattress. Even if I had found that the pets damaged the furniture, I find that Mr. Kalbfleisch is alleging the damage, so he bears the burden of showing the value of that alleged damage on a balance of probabilities. As noted, he provided no documentary evidence such as witness statements, estimates, receipts, advertisements, or price tags to support the alleged replacement costs of the furniture and mattress, or a reduction in their value. I find he has failed to prove the value of the alleged furniture and mattress damage.

21.   However, I am satisfied that the submitted photos show a significant amount of dog hair throughout the home, which Ms. Burris admits was likely from her dogs. The photos also show bags and pails of dog waste outside the home, which Ms. Burris does not deny leaving there. I find Ms. Burris should have cleaned up the dog hair and collected the dog waste, but she did not, so Mr. Kalbfleisch did.

22.   So, is Mr. Kalbfleisch entitled to reduce Ms. Burris’ damage deposit refund for this cleaning? There is no evidence that the parties agreed to a move-out cleaning fee payable by Ms. Burris. It is undisputed that Mr. Kalbfleisch paid nothing out-of-pocket for cleaning up the dog hair and dog waste, and he only claims for his time and inconvenience. He does not say that he missed any work or income because of the time he spent cleaning. So, I place little weight on his unsupported $25 per hour valuation of his dog hair cleaning efforts, which the parties did not agree to. I also find that disposing the dog waste likely involved little more than placing the bags and pail contents in a garbage receptacle.

23.   On the evidence before me, I find that Mr. Kalbfleisch likely had to spend more time than normally expected cleaning after Ms. Burris’ departure, considering the large amount of dog hair shown in the photos. Given the lack of evidence of the value of that extra time and effort, on a judgment basis I find that Mr. Kalbfleisch is entitled to $50 for dog hair and dog waste disposal.

24.   Subtracting $50 from the $500 damage deposit, I find that Mr. Kalbfleisch owes Ms. Burris the remaining $450 of the damage deposit. So, I allow Ms. Burris’ claim in part.

CRT FEES, EXPENSES, AND INTEREST

25.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. In this case, neither party paid CRT fees or claimed CRT dispute-related expenses, so I order no reimbursement of fees or expenses.

26.   I find the parties had no agreement about interest payable on the $500 damage deposit. However, the Court Order Interest Act applies to the CRT. I find Ms. Burris is entitled to pre-judgment interest on the $450 debt from July 16, 2019, the day after she moved out, until the date of this decision. This equals $9.38.

ORDERS

27.   Within 15 days of the date of this decision, I order Brian Kalbfleisch to pay Jessica Burris a total of $459.38, broken down as follows:

a.    $450 in debt for a damage deposit, and

b.    $9.38 in pre-judgment interest under the Court Order Interest Act.

28.   Ms. Burris is entitled to post-judgment interest, as applicable.

29.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision. The Province of British Columbia has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is expected to be in effect until 90 days after the state of emergency declared on March 18, 2020 ends, but the Province may shorten or extend the 90-day timeline at any time. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a notice of objection to a small claims dispute.

30.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.