Date Issued: August 20, 2021

File: SC-2021-001830

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Cameron v. Clark, 2021 BCCRT 917

Between:

BRIAN CAMERON and CLARE HUDSON

Applicants

And:

ASHLEIGH CLARK

Respondent

INTRODUCTION

1.      This is a dispute among former roommates. The applicants, Brian Cameron and Clare Hudson, rented a room in a house leased by the respondent, Ashleigh Clark. The applicants say that, when they moved out, the respondent refused to return $400 of their $800 deposit. They ask for an order that the respondent return their $400 deposit and pay them $500 for the time they have spent on this dispute. The respondent says that she is entitled to keep the deposit to cover the increased costs associated with the applicants’ use of electricity and hot water.

2.      The respondent says that, although she uses the spelling “Ashleigh”, her legal first name is “Ashley”. The applicants were advised of this, but declined to change the Dispute Notice. The style of cause above reflects the spelling used on the Dispute Notice.

3.      The parties are 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 properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

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.      The CRT does not have jurisdiction over residential tenancy disputes, which are decided by the Residential Tenancy Branch under the Residential Tenancy Act (RTA). However, the RTA does not apply to disputes among roommates. Therefore, I find that this dispute is within the CRT’s small claims jurisdiction as set out in section 118 of the CRTA.

ISSUES

9.      The issues in this dispute are:

a.    What is the nature of the deposit the applicants paid to the respondent,

b.    Whether the respondent must return the $400 deposit to the applicants, and

c.    Whether the respondent must pay the applicants $500 for their time spent on this dispute.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant and necessary to provide context for my decision.

11.   The respondent rents a house from an unidentified landlord who is not a party to this dispute. In the fall of 2020, the parties made an agreement for the applicants to become her roommates. There was no signed contract, and the parties appear to have made their agreement verbally and through text messages.

12.   The parties agree that the applicants were to pay the respondent a monthly amount for rent, and there is no dispute that they paid rent each month. The parties disagree about the extent to which the applicants were required to contribute to the costs of household expenses such as hydro and internet. For the purposes of this decision, I find that I do not need to determine the precise arrangements the parties had about expenses.

13.   There is no dispute that the applicants gave the respondent $800 as a deposit. Half of this amount was a pet deposit, but the parties disagree about whether the remaining $400 was a damage deposit or a security deposit. The nature of the deposit is the key consideration in this decision.

14.   The applicants moved into the home on November 1, 2020. Based on the parties’ submissions, it is apparent that they were not well suited as roommates. They describe concerns about the use of common spaces, cleanliness, the use of electricity, and the number of visitors who came to the house during the pandemic. An undated text message in evidence shows that the respondent asked the applicants to leave by “March 1^st or even sooner” as the situation was “definitely not working”. The applicants say they found new accommodations and left the home on January 30, 2021.

15.   There is no dispute that the respondent returned the $400 pet deposit to the applicants but retained the remaining $400. In a February 1, 2021 text message exchange, the respondent stated that she had decided to “keep your security deposit to help pay for the huge overages on bills”. The message also stated that “the area around the wood stove is still filthy and there’s a huge mess of wood chips and bark and such all over the patio and surrounding grass that I’m gonna have to clean up” (reproduced as written).

16.   According to the applicants, they cleaned their room and vacuumed the whole house before leaving. They deny that they caused any damage to the home. They also say that they offered to come over to clean up any areas that the respondent was concerned about, but the respondent did not respond to that offer.

17.   The respondent’s position is that the applicants took advantage of her and caused her to incur “excess costs”, particularly around their use of electricity. She provided evidence from BC Hydro that shows that the monthly electrical consumption and bills during the 3 months that the applicants lived in the home were much higher than the same months the previous year. The respondent also provided statements from witnesses who stated that they saw the wood debris in the yard, and one witness who stated that room used by the applicants was not clean after they left.

18.   The applicants say that the deposit was a damage deposit to be used in the event that they damaged the home. The respondent suggests that it was a security deposit to be applied to the applicants’ financial obligations under the agreement.

19.   Although the parties did not put their agreement in writing, they did address the deposit issue in text messages. Before the applicants moved into the house, the parties had an undated text message exchange in which the respondent stated “Usually damage is half rent and pet is half rent which would equal $800”. After the deposit was sent, Mr. Cameron sent the respondent an October 28, 2020 message asking for clarification about the “damage/pet deposit”. The respondent responded that the “$800 was for both”.

20.   The respondent, in her own words, described the deposit as being for damage rather than for security for payment. I find that these text messages reflected an agreement that the $400 deposit was a damage deposit rather than a security deposit. While I accept that the hydro expenses were higher than the respondent expected, I find that based on the parties’ agreement she was not entitled to retain the damage deposit to offset them. She was entitled to retain the damage deposit only to remedy damage.

21.   The parties did not provide information about what their agreement said about cleanliness inside or outside of the home. Although the respondent made submissions about the cleanliness of the room and woodstove area, there is no evidence (such as photos) to establish the state of these areas before and after the applicants used them. Although there is one photo showing some wood debris on the patio and lawn, I find that this image alone does not establish that the applicants were responsible for the debris. I find that the available evidence does not establish that the applicants caused damage or left the home in a state that was different than it was before their arrival or what the parties’ agreement required.

22.   I find that the applicants are entitled to the return of their $400 damage deposit. My decision about the parties’ agreement is confined to this damage deposit. I make no finding about whether the applicants may owe the respondent money under other terms of their agreement.

23.   I find that the applicants are entitled to pre-judgment interest under the Court Order Interest Act. Calculated from February 1, 2020 to the date of this decision, this equals $5.24.

24.   The applicants also claim $500 from the respondent to cover costs and time associated with an action they tried to start in the British Columbia Provincial Court before they learned that the CRT was the appropriate forum, and for the time involved with the CRT’s processes. The applicants did not make a specific claim for any dispute-related expenses.

25.   CRT rule 9.5(5) says that, except in extraordinary circumstances, the CRT will not order a party to pay another party compensation for time spent dealing with a dispute. I find that the circumstances of this dispute are not extraordinary and that the applicants’ claim is not supported by documentation. I dismiss the applicants’ claim for $500.

26.   Under section 49 of the CRTA and CRT rules, the CRT generally will order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As the applicants have been partially successful, I find that they are entitled to reimbursement for half of the $125 they paid in CRT fees, or $62.50.

ORDERS

27.   Within 30 days of the date of this decision, I order the respondent to pay the applicants a total of $467.74, broken down as follows:

a.    $400 as reimbursement for the damage deposit,

b.    $5.24 in pre-judgment interest under the Court Order Interest Act, and

c.    $62.50 in CRT fees.

28.   The applicants are entitled to post-judgment interest, as applicable.

29.   The remainder of the applicants’ claims are dismissed.

30.   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 in effect until 90 days after June 30, 2021, which is the date of the end of the state of emergency declared on March 18, 2020, 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.

31.   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.