Date Issued: March 24, 2021

File: SC-2020-007948

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Aburto v. Pinero, 2021 BCCRT 328

Between:

CAROLL ABURTO

Applicant

And:

ALEX (ALEJANDRO) MARCELO PINERO

Respondent

INTRODUCTION

1.      This dispute is about a damage deposit in a roommate situation. The applicant, Caroll Aburto, rented a room from the respondent, Alex (Alejandro) Marcelo Pinero. Mr. Aburto claims double her $387.50 deposit, for a total of $775.

2.      Mr. Pinero, who was also a tenant in the home, says Ms. Aburto acknowledged her guest damaged a valuable antique trunk. Mr. Pinero says he was entitled to retain the deposit to cover the damage. Ms. Aburto says she was away on holidays at the material time in December 2019, and that no one knows who is responsible. She also says the trunk was only locked, not physically damaged.

3.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

4.      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.

5.      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. Here, I find that I am able to assess and weigh the documentary evidence and submissions before me.

6.      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.

7.      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.

8.      Generally, the CRT does not take jurisdiction over residential tenancy disputes, as these are decided by the Residential Tenancy Branch (RTB). However, the Residential Tenancy Act (RTA) does not apply to this dispute because the RTB refuses jurisdiction over roommate disputes like this one. Therefore, I find that this dispute is within the CRT’s small claims jurisdiction, as set out in section 118 of the CRTA.

ISSUE

9.      The issue in this dispute is whether Ms. Aburto is responsible for the trunk’s damage, and if not, to what extent is she entitled to payment of double her paid damage deposit.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, as the applicant Ms. Aburto must prove her claims on a balance of probabilities. I have read all the evidence and submissions before me, but refer only to what I find relevant to provide context for my decision.

11.   Ms. Aburto rented a room from Mr. Pinero in June 2019. As noted above, Mr. Pinero is also a tenant in the shared house with multiple tenants. The parties agree they had no written rental agreement. Ms. Aburto moved out at the end of March 2020. Mr. Pinero agrees he has not refunded Ms. Aburto’s paid $387.50 damage deposit. The parties agree Ms. Aburto left her room in good condition.

12.   It is undisputed that at the end of December 2019 someone locked Mr. Pinero’s antique 1922 trunk. Neither Mr. Pinero nor Ms. Aburto had a key for the trunk. Mr. Pinero withheld the damage deposit as compensation for the trunk’s repair costs. Mr. Pinero says Ms. Aburto admitted in January 2020 that her guest locked it, whereas Ms. Aburto submits no one knows who locked it.

13.   Mr. Pinero submitted “before and after” photos that I find show the lock was damaged due to a locksmith having to open the lock, which is not particularly disputed. The photos also show what appears to be circular markings, like from a coffee mug, that Mr. Pinero says are burn marks. Ms. Aburto denies any damage beyond the trunk being locked. More on this below.

14.   So, the issue in this dispute is whether Ms. Aburto’s guest damaged the trunk, such that she is responsible for the cost of the trunk’s repair. If not, then it is essentially undisputed Ms. Aburto would be entitled to her damage deposit’s return.

15.   At this point, I will address Ms. Aburto’s request for double the $387.50 damage deposit, or $775. I infer Ms. Aburto relies on the relevant RTA provision that allows a double refund of a damage deposit if the landlord does not refund the deposit within a set period. As noted above, the RTA does not apply to this dispute. There is no evidence the parties’ verbal agreement ever contemplated a refund of double the deposit. So, I find Ms. Aburto’s claim is at most limited to the return of the $387.50 paid deposit.

16.   While Mr. Pinero questions Ms. Aburto’s submitted plane ticket showing she was out of the country between December 24, 2019 and January 14, 2020, I accept that she travelled. However, that is not the end of the matter. I find it likely Ms. Aburto’s guest damaged the trunk and that she is responsible for it, even if she was not in the home at the time.

17.   In particular, I place significant weight on Ms. Aburto’s January 3, 2020 text to Mr. Pinero (reproduced as written):

It’s a shame about the trunk, I didn’t realize it was lock, I don’t think that it was with bad intention Alex. I invited some friends at home, not sure if any of them did it but I feel kind of responsible so I’ll pay you the money, I don’t think is fair the rest [of the tenants] pay for it, specially the new … [text message excerpt ends]

18.   Ms. Aburto submits that none of the house’s 5 tenants can explain the trunk’s being closed and locked, and yet she submitted no witness statements. Further, Ms. Aburto’s own evidence is that all of the house’s tenants were away when she was away. Yet, I find her text quoted above admits that she had guests stay in the home during the relevant time period. There is no evidence before me that any of the other tenants had guests in the home during that timeframe. So, I find it more likely than not that Ms. Aburto’s guests were the only people in the home at the time the trunk was damaged.

19.   On balance, given the evidence summarized and quoted above, I find it more likely than not that Ms. Aburto’s guest damaged the trunk in late December 2019. I also find in the text quoted above that Ms. Aburto agreed to pay for the trunk’s damage.

20.   I turn then to Ms. Aburto’s responsibility for the trunk damage, under the parties’ rental agreement.

21.   Ms. Aburto acknowledges that Mr. Pinero is the head tenant and that the landlord had advised that Mr. Pinero is “in charge of the house”. Ms. Aburto paid Mr. Pinero the claimed damage deposit. Mr. Pinero submitted an undated text message that sets out the ‘house rules’. In it, he wrote that deposits would be returned within 2 weeks “or after I’m sure the room and house contents were left clean and in good condition”. They also say that “if anything is broken or damage the person who did it must take ownership of it … this includes any damages guests may cause”. I find these terms were not part of the original offer to rent the room. However, Ms. Aburto does not expressly dispute she later agreed to these terms, and I find she did. I find these terms are broad enough to permit Mr. Pinero to retain Ms. Aburto’s damage deposit, subject to Mr. Pinero proving the value of the damage that was done.

22.   Next, I find the damage included locking the trunk somehow, requiring Mr. Pinero to hire a locksmith to open the trunk. I also accept that by opening the locked trunk the locksmith unavoidably damaged it, as shown in photos in evidence. Mr. Pinero submitted a $728 estimate from Mike Wetter of Woodagen Finishing for installation of a new lock mechanism, inclusive of taxes. I accept this quote is reasonable. I find I do not need to decide whether Ms. Aburto’s guest also marred or burned the trunk’s surface, because Mr. Pinero did not file a counterclaim and the $728 quote for the lock installation far exceeds the value of the claimed damage deposit.

23.   Given my conclusions above, I find that Ms. Aburto is not entitled to any refund of her paid $387.50 damage deposit, because I find she is responsible for her guest’s damage to the trunk, which exceeds the amount of her deposit. I dismiss her claims.

24.   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. As Ms. Aburto was unsuccessful, I dismiss her claim for reimbursement of CRT fees. Mr. Pinero did not pay CRT fees. No dispute-related expenses were claimed, so I make no order about them.

ORDER

25.   I dismiss Ms. Aburto’s claims and this dispute.