Date Issued: December 3, 2021

File: SC-2021-004349

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Williamson v. Cawley, 2021 BCCRT 1276

Between:

DARIN WILLIAMSON

Applicant

And:

NICOLE MARGUERITE CAWLEY

Respondent

And:

DARIN WILLIAMSON

Respondent by counterclaim

 

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This dispute is about furnished rental accommodation.

2.      The applicant and respondent by counterclaim, Darin Williamson, rented a furnished room in his home to the respondent and applicant by counterclaim, Nicole Marguerite Cawley. The rental was $700 per month for a fixed term from November 1, 2020 to October 31, 2021. Ms. Cawley paid June’s rent but moved out early, at the end of May 2021.

3.      In the Amended Dispute Notice, Mr. Williamson claimed $1,593.20 in damages for unpaid rent. In argument, Mr. Williamson reduced his claim to $1,050 for unpaid rent. He also seeks to add a claim of $443.20 for alleged cleaning, repairs and painting.

4.      Ms. Cawley alleges that Mr. Williamson put “unlawful restrictions” on her rights and acted inappropriately and this caused her to move out early. By counterclaim, Ms. Cawley seeks a total of $1,518.04 in damages for 1 month rent at her new rental, mail forwarding, postal box rental and baking soda used for cleaning.

5.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

6.      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.

7.      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. Some of the evidence in this dispute amounts to a “he said, she said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

8.      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.

9.      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.

Preliminary Matters

Jurisdiction over tenancy disputes

10.   The Residential Tenancy Act (RTA) governs most tenancy disputes, which generally must be decided by the Residential Tenancy Branch (RTB). However, RTA section 4(c) says that where a tenant shares bathroom or kitchen facilities with the accommodation’s owner the RTA does not apply. Mr. Williamson was the owner and the parties to this dispute undisputedly shared bathroom or kitchen facilities. Given this, I am satisfied the dispute before me is not a dispute that must be decided by the RTB.

11.   I find this dispute and counterclaim are contractual claims falling under the CRT’s small claims jurisdiction (authority) over debt and damages and the CRT has jurisdiction to resolve this dispute under CRTA section 118.

Amended and Additional Remedies

12.   In Mr. Williamson’s May 30, 2020 application for dispute resolution with the CRT he claimed $3,343.20 for “unpaid rent”. On July 22, 2021, Mr. Williamson reduced his claimed amount to $1,593.20 for “unpaid” rent and the CRT issued an Amended Dispute Notice. In his later submissions, Mr. Williamson revised the unpaid rent claim down to $1,050 but he seeks to add a claim for $443.20 in damages for Ms. Cawley’s alleged failure to clean or repair damage to the rental suite.

13.   CRT rule 1.19 states that the Dispute Notice will not be amended after the dispute has entered the CRT decision process except where exceptional circumstances apply. Mr. Williamson had texted Ms. Cawley when serving the Dispute Notice to say he “could” add an additional $1,000 claim for cleaning and sanding-priming-painting the baseboards. Although it was available to Mr. Williamson, he did not then add this additional claim when he amended the Dispute Notice in July 2021 or prior to this dispute moving to the decision stage. Neither the original nor the Amended Dispute Notice mention a lack of cleaning or damage to the rental suite. Mr. Williamson’s only stated claim in the Dispute Notices relate to unpaid rent. I find no exceptional circumstances here and so I decline to add this additional claim raised in submissions.

ISSUES

14.   The issues in this dispute are:

a.    Did Mr. Williamson breach the contract and force Ms. Cawley to leave the tenancy early? If so, to what extent, if any, is Ms. Cawley entitled to $1,518.04 in damages?

b.    To what extent, if any, must Ms. Cawley pay Mr. Williamson the claimed $1,050 for lost rent?

EVIDENCE AND ANALYSIS

15.   In a civil proceeding like this one, the applicant, Mr. Williamson must prove his claims on a balance of probabilities (which means “more likely than not”). Ms. Cawley has the same burden on the counterclaim.

16.   I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

17.   I start with Ms. Cawley’s counterclaim because my decision on whether Mr. Williamson breached the contract is relevant to his lost rent claim.

Did Mr. Williamson breach the contract and force Ms. Cawley to leave the tenancy early?

18.   The parties signed a pre-printed standard-form RTB tenancy agreement with an addendum that their agreement is enforceable through the CRT. The agreement says the tenancy is for a fixed term from November 1, 2020 to October 31, 2021 for $700 per month rent.

19.   Ms. Cawley gave formal written notice on May 30, 2021 that she was unilaterally ending the tenancy and she vacated the property that same day. Ms. Cawley paid June’s rent and told Mr. Williamson he could keep the $350 damage deposit, which he then kept. Ms. Cawley did not pay any rent from July 1, 2021 to the end of the fixed term. These facts are not disputed.

20.   The signed contract included no provision that permitted Ms. Cawley to end the tenancy prior to October 31, 2021. However, Ms. Cawley says she was entitled to leave the tenancy early because Mr. Williamson allegedly “broke the law by enforcing unlawful restrictions”. Ms. Cawley also alleges that Mr. Williamson’s attitude towards her was demeaning and he engaged in inappropriate behaviours. She seeks damages for having to pay to rent elsewhere, plus moving and cleaning related expenses.

21.   I note Ms. Cawley submitted an August 6, 2021 letter from a Registered Clinical Counsellor, Kara Warren, who says they “wholeheartedly support” Ms. Cawley’s decision to move out. Mr. Williamson objects to this letter because he says it is neither professional nor neutral.

22.   The August 6, 2021 letter includes no details about Kara Warren’s training or experience as a counsellor as required under CRT rule 8.3. The letter also has no letterhead or signature line with a signature, which I find unusual for a professional opinion submitted for a legal proceeding. Additionally, I find the letter is not neutral and is written from an advocate’s perspective. The role of the expert is to assist the CRT and not advocate for any side or party in the dispute. I find the letter does not meet the requirements to accept it as expert opinion evidence under CRT rules. As Kara Warren was not a witness to the parties’ interactions, I find the letter is also not reliable evidence about what occurred during the tenancy. For these reasons, I put no weight on the letter’s contents.

23.   Ms. Cawley refers to and relies on RTA sections 44(a)(i) and 45.1, that says a tenancy ends if there is household violence. Household violence is defined to include psychological or emotional abuse of the tenant including unreasonable restriction on, or prevention of, the financial or personal autonomy of the tenant.

24.   Ms. Cawley says Mr. Williamson interpreted the Public Health Orders of the COVID-19 restrictions literally and essentially restricted her from visiting her mother in her home. As I understand her argument, Ms. Cawley argues that Mr. Williamson’s restrictions on her personal autonomy permitted her to vacate the tenancy early under the RTA.

 

25.   The parties’ agreement references the RTA but does not expressly incorporate these RTA sections. So, I am not satisfied these sections apply. Even if these sections do apply, I find Ms. Cawley had not proven there was household violence as defined by the RTA as I discuss next.

26.   I find this is not a situation where Mr. Williamson unreasonably restricted Ms. Cawley’s ability to visit with her mother or her personal autonomy. Instead, I find it was the Public Health Orders that pre-dated Ms. Cawley moving in that put restrictions on Ms. Cawley’s freedom to visit people in their homes.

27.   As mentioned, Ms. Cawley also alleges that Mr. Williamson engaged in inappropriate conduct that contributed to her moving out. She submitted a witness statement from a tenant who shared the rental home with her. The tenant mentions an inappropriate comment that Mr. Williamson allegedly made to that other tenant about sex. However, it makes no mention of witnessing any inappropriate conduct towards Ms. Cawley. It mostly recounts that tenant’s own conflict with Mr. Williamson over COVID-19 restrictions.

28.   I find the parties’ text messages throughout the tenancy were polite and respectful except after Ms. Cawley told Mr. Williamson she was moving out early. I find a few of Mr. Williamson’s texts were then curt, which I find reasonable considering he was likely upset that she was moving out 5 months early.

29.   I find Ms. Cawley has not proven with supporting evidence that Mr. Williamson engaged in inappropriate conduct or unreasonable personal restrictions that amounted to a breach of the tenancy. I find Ms. Cawley decided to end the tenancy early and Mr. Williamson does not owe Ms. Cawley anything for her new rental fees or expenses related to the move.

30.   As part of Ms. Cawley’s counterclaim, she seeks reimbursement of $10 for baking soda to clean the baseboards. Ms. Cawley says she should not have had to pay for this expense because Mr. Williamson texted her “this one is on me”. I find Mr. Williamson’s statement was not about purchasing cleaning supplies. I find it was about repainting the baseboards, which he planned to do in June 2021. I find Ms. Cawley agreed to pay for the baking soda at the time and was responsible for cleaning her space under the contract. I find she is not entitled to any reimbursement in the circumstances.

31.   For the reasons above, I dismiss Ms. Cawley’s counterclaim for $1,518.04 in damages.

To what extent, if any, must Ms. Cawley pay Mr. Williamson the claimed $1,050 for lost rent?

32.   Because it was a fixed term tenancy, I find Ms. Cawley’s obligations under the tenancy agreement ran until October 31, 2021. I find Ms. Cawley was prevented from unilaterally ending the tenancy early as she did here. So, I find she was responsible for the balance of the rent subject to Mr. Williamson’s obligation to mitigate his damages.

33.   Mr. Williamson says he advertised and ultimately secured a replacement tenant commencing August 15, 2021 once the room was “tenant-able”. I note there is evidence that the room needed some painting and carpet cleaning after Ms. Cawley moved out. As mentioned, Mr. Williamson seeks $1,050 for alleged lost rent between July 1 and August 15, 2021.

34.   Ms. Cawley bears the burden to prove on a balance of probabilities that Mr. Williamson failed to make reasonable efforts to mitigate and that mitigation was possible: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51. Ms. Cawley does not allege that Mr. Williamson failed to mitigate in the Dispute Response or in her submissions.

35.   Considering the room was in a shared home during COVID-19, I accept Mr. Williamson reasonably mitigated his losses by renting the room by August 15, 2021. I find Ms. Cawley owes Mr. Williamson $1,050 in lost rent.

36.   The Court Order Interest Act applies to the CRT. I find Mr. Williamson is entitled to pre-judgment interest on the lost rent from July 15, 2021 (assessed between the amounts due for each month) to the date of this decision. The interest equals: $1.84.

37.   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. Mr. Williamson was the successful party and I find he is entitled to reimbursement of the $175 he paid in CRT fees.

38.   As Ms. Cawley was not successful on the counterclaim, I dismiss her claims for CRT fees. Neither party claimed any specific expenses.

ORDERS

39.   Within 30 days of the date of this decision, I order Ms. Cawley to pay Mr. Williamson a total of $1,226.84, broken own as follows:

a.    $1,050 in debt for lost rent,

b.    $1.84 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in CRT fees.

40.   Mr. Williamson is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

41.   I dismiss Ms. Cawley’s counterclaims.

42.   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.

43.   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.