File: SC-2021-002312
Type: Small Claims
Civil Resolution Tribunal
Indexed as: 1222204 B.C. Ltd. v. Dhillon, 2021 BCCRT 1069
Between:
1222204 B.C. LTD.
Applicant
And:
NINDA DHILLON
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair
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INTRODUCTION
1. This dispute is about rental space at an RV campsite. The applicant, 1222204 B.C. Ltd. (122), operates as Coombs Country Campground and rented an RV campsite space to the respondent, Ninda Dhillon.
2. This dispute is about whether Ms. Dhillon owes 122 a higher weekly rate after she refused to sign a new agreement and 122 evicted her in December 2020, or, whether her payments based on her expired agreement’s lower monthly rate were sufficient to cover her continued occupancy until late March 2021.
3. 122 is represented by its office manager. Ms. Dhillon is 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). 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 parties to a dispute that will likely continue after the dispute resolution 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. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.
6. Under section 42 of the CRTA, 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, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.
8. On March 4, 2021 the Residential Tenancy Branch (RTB) issued a decision relating to this dispute (although the parties were named differently), under its jurisdiction under the Manufactured Home Park Tenancy Act (MHPTA). In her application to the RTB, Ms. Dhillon had disputed 122’s December 2020 rent increase and eviction notice (as discussed further below). 122 argued its site was an RV/campground and not a manufactured home park. The RTB concluded that it was not established that Ms. Dhillon’s RV occupancy was a tenancy contemplated under the MHPTA and so the RTB found it did not have jurisdiction over the tenancy. Given this, I find the CRT has jurisdiction over this dispute, as a claim for debt or damages.
9. Both parties submitted late evidence, mostly about the purpose and application of Ms. Dhillon’s March 2021 payment to 122. I find this evidence relevant and I allow it, given the CRT’s flexible mandate and because all parties had an opportunity to respond to it.
10. 122’s claims are based on Ms. Dhillon’s continued occupancy up to March 20, 2021. While 122 also says it claims for Ms. Dhillon’s continued occupancy after March 20, 2021, I decline to address anything beyond that date, as the claimed amount for anything beyond March 20 was not specified. I note Ms. Dhillon moved out on March 26, 2021, and nothing in this decision precludes 122 from filing a separate claim for the March 21 to 26, 2021 period, subject to the applicable limitation period.
ISSUE
11. The issue in this dispute is whether Ms. Dhillon owes 122 a higher weekly campsite rate, given her ongoing occupancy and failure to sign a new agreement for a lower monthly rate.
EVIDENCE AND ANALYSIS
12. In a civil claim like this one, as the applicant 122 has the burden of proving its claim, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.
13. As noted, this dispute is over whether Ms. Dhillon owes 122 for RV campsite rent at a varying weekly rate (rather than a discounted monthly rate), given she expressly refused to sign a new occupancy agreement in December 2020 after her first occupancy agreement signed in April 2020 expired on September 30, 2020.
14. In particular, 122’s claim is for the higher weekly rents applicable for the January to March 20, 2021 period, less the payments Ms. Dhillon made based on the lower monthly rate that 122 says she is not entitled to because she did not sign a new agreement and had been evicted.
15. The original April 2020 agreement undisputedly expressly included the following terms:
a. It is for 6 months only, but guests can request an extension.
b. All guests must sign the “Registration Application” and “COVID-19 Code of Conduct”.
c. Anyone can be asked to leave at any time without notice. The camper can leave at any time without notice but no refund will be given for the remaining days in the month.
16. I turn to the relevant chronology, none of which is particularly disputed. 122 gave Ms. Dhillon a memo on September 12, 2020, which advised her to come to 122’s office to complete a new agreement. The new agreement included both a “Licence to Occupy Agreement” plus a COVID-19 code of conduct and tracing form. While Ms. Dhillon wanted a long-term rate plan ($575 per month plus hydro), she never signed a new agreement. The evidence shows Ms. Dhillon was upset that 122 had not been consistent in charging her GST each month and so refused to sign the new agreement. I find 122 was entitled to charge GST, which Ms. Dhillon no longer disputes.
17. In early December 2020, 122 realized Ms. Dhillon had not signed the new agreement as required and asked her to do so. On December 8, 2020, 122 emailed Ms. Dhillon that if she wanted to stay through the end of December, she needed to sign a new agreement and COVID-19 documentation. At the same time, due to conflict between the parties, 122 advised Ms. Dhillon that her occupancy would end by December 31, 2020.
18. On December 14, 2020, 122’s lawyer wrote Ms. Dhillon and told her that if she chose not to sign a new agreement, she could not remain on the premises and would be asked to leave and charged a $40 daily rate effective December 9, 2020.
19. Around December 8, 2020, Ms. Dhillon started the RTB proceeding referenced above, and remained living at the campsite. On December 30, 2020, through its lawyer, 122 agreed to await the RTB’s decision on the understanding Ms. Dhillon would agree to the COVID-19 documentation and would be invoiced at the weekly or daily rate. 122 expressly advised Ms. Dhillon that if the RTB found it did not have jurisdiction (as it found in March 2021), 122 would pursue the outstanding fees. 122’s lawyer expressly wrote that “any leeway” in permitting her to stay was not an acknowledgement that she was entitled to remain at the campsite or a waiver of 122’s rights. Ms. Dhillon did not move out until March 26, 2021, 22 days after the RTB’s March 4, 2021 decision and 2 days after 122 started this CRT proceeding. Again, none of this is disputed.
20. The parties agree that 122 accepted Ms. Dhillon’s monthly payments of $575 plus GST and as of January 1, 2021 deducted that amount from the weekly rate that 122 was charging Ms. Dhillon in the absence of new signed agreement. Ms. Dhillon’s “old” monthly rate totalled $603.75 ($575 plus $28.75 GST), plus hydro. I accept 122’s undisputed evidence that weekly and daily rates are inclusive of hydro charges, unlike extended stays of over 30 days. Given the circumstances, I find 122’s accepting the monthly payments does not mean it cannot claim compensation based on the higher weekly rent. There was no documentation attached to the payments that would support such a conclusion.
21. Ms. Dhillon deducted her paid $150 damage deposit from her March fees and paid 122 only $453.75 on March 1, 2021, as shown in Ms. Dhillon’s late evidence. Ms. Dhillon admits she has not paid hydro for December 2020 through March 2021.
22. 122’s breakdown of the claimed $1,891.30 is set out in its March 17, 2021 invoice, which applied Ms. Dhillon’s payments as described above. This invoice charged a $280 winter weekly rate as of December 9, 2020 (except it was only $250 for February 2021), with a $40 daily rate charged for the period between March 1 and March 20, 2021. 122 says Ms. Dhillon owes “more than $600” for hydro for the December 2020 to March 22, 2021 period, as “part of the weekly/daily site rates” it applied to her stay. As noted, up to November 2020 Ms. Dhillon had been paying hydro separately under her monthly agreement, and the evidence shows this hydro was typically around $100 to $125 per month.
23. So, does Ms. Dhillon owe the claimed weekly rates for her January to March 20, 2021 occupancy, less what she paid? For the reasons that follow, I find the answer is yes.
24. Ms. Dhillon undisputedly chose to continue occupancy at 122’s site until March 26, 2021, despite knowing 122’s terms. I find nothing turns on the fact that 122 did not realize until December 2020 that the April 2020 agreement had expired in September, since 122 only claims for the higher rate as of December 9, 2020 when Ms. Dhillon had clear notice she was required to sign a new agreement in order to benefit from the lower monthly rate.
25. Ms. Dhillon says she was prepared to sign pandemic-related documentation, but there is no evidence she did so. She also says she was concerned about signing anything saying she was a ”guest” rather than a “resident”. I find there is no merit to this position, and the original agreement did not refer to her as a resident either. Ms. Dhillon wanted to await arbitration under the MHPTA. I find her ongoing occupancy was her choice and she knowingly took a risk that she would have to pay the claimed damages for occupation rent. I find she cannot unilaterally impose her own terms to occupy 122’s property, namely the lower monthly rate but without having signed the required agreement.
26. In short, I find Ms. Dhillon had no legally recognizable right to continued occupancy after December 9, 2020, given she did not sign the agreement. I turn then to the amount of damages.
27. 122’s claim amounts to a damages claim for a form of trespass known as overholding. In short, overholding means continuing to occupy property after eviction or an agreement’s end.
28. In Kolny (Litigation Guardian of) v. Moghaddam, 2021 BCSC 1243, the court cited the Court of Appeal’s decision in Volovsek v. Boisvenu Alter-Ego Trust #1, 2021 BCCA 179, which set out the three types of damages available for trespass: a) nominal damages if the owner has not proven any actual loss, b) actual damages suffered by the owner, or c) damages equal to a sum that should reasonably be paid by the trespasser for the land’s use (also known as mesne profits or mesne damages). In Volovsek, the Court of Appeal discussed that occupational rent is equivalent to mesne profits in a trespass claim.
29. Such a ‘mesne damages’ claim arises where the parties have not agreed upon the value of the respondent’s wrongful use of the property to the applicant’s exclusion. I find that is the case here, since the parties did not agree to the claimed weekly rent charges and Ms. Dhillon continued to occupy the property despite failing to comply with the eviction notice. Relevant factors include: the terms the owner could have let the property to another during the trespass period, the rent the occupier paid before the trespass, actual profits the respondent obtained during the trespass, and rents paid by occupiers of similar properties. No one factor is essential.
30. I find Ms. Dhillon is liable in trespass, as the court similarly concluded in Initiate School of the Canadian Rocky Mountains Ltd. v. Wolfenden Ventures Ltd., 2013 BCSC 257, a case about overholding on recreational property. In Initiate School, the court concluded that an owner may be entitled to mesne profits even though it cannot show that it would have let the land to someone else.
31. Here, I find the best evidence of the value of the campsite Ms. Dhillon continued to occupy during the trespass period is the weekly rate. Ms. Dhillon does not say 122’s claimed amounts were not in fact its advertised weekly or daily rates, and I accept that they were. Ms. Dhillon benefitted from use of the campsite without complying with 122’s stated terms. I come to this conclusion even though 122 did not submit evidence that it could or would have rented Ms. Dhillon’s RV space to others at the weekly rate.
32. Given the above, on balance I allow 122’s claim for $1,891.30, as trespass damages for Ms. Dhillon’s continued occupancy after December 9, 2020. As noted, this amount reflects a weekly winter rate after that date, after applying Ms. Dhillon’s payments.
Interest, fees, and expenses
33. The Court Order Interest Act (COIA) applies to the CRT. I find Ms. Dhillon must pay 122 pre-judgment COIA interest on the $1,891.30, calculated from March 17, 2021 (a date I find reasonable in the overall circumstances) to the date of this decision. This interest equals $4.72.
34. Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. 122 was successful and so I find Ms. Dhillon must reimburse 122 the $125 it paid in CRT fees. Neither party claimed dispute-related expenses.
ORDERS
a. $1,891.30 in damages,
b. $4.72 in pre-judgement COIA interest, and
c. $125 for CRT fees.
36. 122 is entitled to post-judgment interest, as applicable.
37. 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.
38. Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of BC. 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.
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Shelley Lopez, Vice Chair |