Date Issued: January 20, 2022

File: SC-2021-007330

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Harris v. Anderson, 2022 BCCRT 75

Between:

JASON HARRIS

Applicant

And:

JOSHUA ANDERSON

Respondent

INTRODUCTION

1.      This dispute is about property damage during a short-term tenancy. The respondent, Joshua Anderson, rented property owned by the applicant, Jason Harris, for the week between July 25 and 31, 2021. Mr. Harris says Mr. Anderson negligently failed to move the barbeque (BBQ) away from its stored location beside the house while using it, damaging the adjacent window unit. Mr. Harris claims $1,220.95, based on the $2,220.95 cost to replace the window unit less Mr. Anderson’s $1,000 damage deposit that Mr. Harris kept.

2.      Mr. Anderson admits the window damage occurred from the BBQ’s use. However, he says he was not told the BBQ needed to be moved before using it. Mr. Anderson also says the window had previous damage from BBQ use. Mr. Anderson says he is not responsible for the window damage and owes nothing. Mr. Anderson did not file a counterclaim for the return of the $1,000 deposit.

3.      The parties are each self-represented. For the reasons that follow, I dismiss Mr. Harris’ claim.

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.      CRTA section 39 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 CRTA section 42, 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 CRTA section 118, 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.      Generally, the Residential Tenancy Act (RTA) applies to residential tenancies, with the Residential Tenancy Branch having exclusive jurisdiction over disputes under the RTA. There are exceptions, and RTA section 4(e) says the RTA does not apply to vacation or travel accommodation, which is the undisputed situation here. So, I find the RTA does not apply to this dispute and find the CRT has jurisdiction over it under its section 118 jurisdiction over debt and damages.

9.      While Mr. Anderson says his damage deposit should be refunded, he did not file a counterclaim. So, I make no findings or order about that issue.

ISSUES

10.   The issues are:

a.    Should Mr. Anderson have moved the BBQ before using it?

b.    To what extent, if any, is Mr. Anderson responsible for the claimed $1,220.95 for the window damage?

EVIDENCE AND ANALYSIS

11.   In a civil claim like this one, as the applicant Mr. Harris has the burden of proving his claims, 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.

12.   As noted, Mr. Anderson rented Mr. Harris’ property between July 25 and 31, 2021. Mr. Harris says the BBQ was “tucked against the house” with the cover on it when not in use, which I accept as this is not disputed. Photos in evidence show the BBQ is stored just outside the home’s sliding glass door, directly in front of a window unit.

13.   As also noted above, it is undisputed the window unit damage occurred as a result of using the BBQ. I accept this was because it is undisputed the BBQ was used in its existing position, beside the house. As discussed below, the central issue in dispute is whether Mr. Anderson ought to have known he should move the BBQ away from the house while using it. It is undisputed that the BBQ’s manual says it should be 24” away from anything combustible while in use, though there is no suggestion Mr. Anderson was given this manual during his rental.

14.   Mr. Anderson argues the window unit had prior damage. Based on Mr. Anderson’s submitted photos of the window taken during his stay, I accept Mr. Harris’ evidence that this prior damage was “some very minor warping of a rubber molding along the window trim”. I find this prior damage likely was the result of using the BBQ in its location beside the house, which is not disputed.

15.   However, I also accept that the damage was far more significant after Mr. Anderson’s stay, which is also not disputed. Specifically, the window trim and glass dividers and seals were undisputedly melted and deformed and significantly discoloured, as shown in Mr. Harris’ submitted “after” photos. Mr. Harris submitted a $2,220.95 quote for the window unit’s replacement. As noted, he claims $1,220.95, because he retained Mr. Anderson’s $1,000 damage deposit.

16.   I turn next to the parties’ rental agreement. In short, it says the $1,000 damage deposit is “fully refundable” within 7 days of departure after “check out inventory” by Mr. Harris’ cleaning team. It elsewhere says the deposit is fully refundable if “no damage” is done to the property or its contents “beyond normal wear and tear”.

17.   Notably, the rental agreement says nothing about moving the BBQ while it is in use, although it does say to clean the BBQ after use. I am not prepared to accept that the agreement’s terms mean that Mr. Anderson is responsible for any damage to the home however caused. In any event, this dispute is not about whether Mr. Anderson is entitled to the $1,000 deposit’s return, because he did not file a counterclaim. Rather, this dispute is about whether Mr. Harris has proved Mr. Anderson either breached the parties’ rental agreement or was negligent such that he is entitled to compensation beyond the $1,000 he retained. Contrary to Mr. Anderson’s submission, the fact that the agreement does not mention “extra charges” beyond the $1,000 deposit does not necessarily mean Mr. Anderson is not liable for Mr. Harris’ claim.

18.   However, since there is no contractual term about moving the BBQ while in use, I find no breach of contract entitling Mr. Harris to the claimed $1,220.95. I find that what matters is whether Mr. Anderson was negligent in failing to move the BBQ away from the house while in use, such that Mr. Harris is entitled to the $1,220.95.

19.   So, was Mr. Anderson negligent? I find the answer is no. To prove negligence, Mr. Harris must show Mr. Anderson owed him a duty of care and breached the applicable standard of care, and that Mr. Anderson’s breach caused the claimed damage. It is undisputed Mr. Anderson owed Mr. Harris a duty of care and that the BBQ use caused the claimed damage. The issue is the standard of care.

20.   Mr. Harris’ essential submission is that Mr. Anderson “should have known” that the BBQ needed to be moved away from the building before use. Mr. Harris says a “reasonably prudent” person with knowledge of a BBQ’s operation would be “aware of the heat and danger” if a BBQ is not moved a safe distance from the house. Mr. Harris says it would not be reasonable to expect him to outline for renters how to safely use common appliances such as a BBQ.

21.   I disagree with Mr. Harris. Mr. Anderson undisputedly only used the BBQ once, for about 20 minutes, when the damage occurred. I find it is not necessarily obvious to the average person renting a property that they should move a BBQ 2 feet from its existing location in order to use it. As noted, the rental agreement did not say to move the BBQ. The fact that there was prior damage to the window unit from the BBQ’s use does not support Mr. Harris’ position. On balance, I find it unproven Mr. Anderson breached the standard of care and so I find it unproven he was negligent. So, I dismiss Mr. Harris’ claim.

22.   Again, as Mr. Anderson did not file a counterclaim, I make no findings or order about whether he is entitled to the return of the $1,000 damage deposit.

23.   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. As Mr. Harris was unsuccessful, I dismiss his claim for reimbursement of paid CRT fees. Mr. Anderson did not pay CRT fees and no dispute-related expenses were claimed.

ORDER

24.   I dismiss Mr. Harris’ claims and this dispute.