Date Issued: May 13, 2022

File: SC-2021-007017

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Adam v. Holiday Home Rentals International, 2022 BCCRT 573

Between:

WARNER ADAM and SANDRA ISAAC

 

ApplicantS

And:

HOLIDAY HOME RENTALS INTERNATIONAL and CRAIG JACOBSEN

 

RespondentS

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      The applicants, Warner Adam and Sandra Isaac, booked a holiday stay for May 30 to June 6, 2021 at a vacation property operated by the respondent general partnership, Holiday Home Rentals International (HHRI). The respondent Craig Jacobsen is one of HHRI’s partners. The applicants say a May 26, 2021 government order prevented their travel and so, after taking into account a partial refund of cleaning and extra bed fees, they say the respondents still owe them a refund of over $6,000. The applicants also allege the respondents rebooked the property during the applicants’ booked stay, and so the requested refund is also owed on that basis. The applicants claim $5,000, which is the small claims limit in the Civil Resolution Tribunal (CRT).

2.      The respondents say their cancellation policy clearly addressed the COVID-19 pandemic and said there were no refunds unless a specified exception applied. The specified exceptions were: a) the property was rebooked during the scheduled stay (in which case there would be a partial refund), and b) a government order prevented travel from the lower mainland to the Sunshine Coast. The respondents say neither of those exceptions applied and so no refund is owed.

3.      Mr. Adam represents the applicants. One of HHRI’s partners, lawyer Tracey Jackson, represents HHRI. Dr. Jacobsen is self-represented.

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 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.      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. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. 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.      CRTA section 42 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.

ISSUE

8.      The issue in this dispute is whether the applicants are entitled to a $5,000 refund of their holiday booking fee paid for the respondents’ vacation property.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicants must prove their claim on a balance of probabilities (meaning “more likely than not”). I have read all the submitted evidence and arguments but refer only to what I find relevant to provide context for my decision. I note the applicants chose not to provide any final reply submission, despite having the opportunity to do so.

10.   The background facts are not disputed. HHRI rented out its vacation property through VRBO (Vacation Rentals by Owners). Mr. Adam inquired through VRBO about HHRI’s Sunshine Coast property on May 4, 2021. He specifically asked about its refund policy for “Covid restrictions”. Mr. Adam was interested in a May 31 to June 6, 2021 booking, which is what he ultimately booked.

11.   In response, HHRI explained its refund policy: a) that it would provide a partial refund if it were able to replace his cancelled reservation, and, b) if “during Covid” there was a government order prohibiting all travel to the Sunshine Coast from the lower mainland, it would provide a refund. This is expressly set out in HHRI’s cancellation policy in the agreement Mr. Adam acknowledged when he booked the property through VRBO online, which is undisputed. In the parties’ signed May 26, 2021 contract, it also says no refunds due to COVID-19 or any restrictions arising from it, unless an order is made requiring the guest to vacate the property due to COVID-19.

12.   A day before Mr. Adam signed the parties’ contract, on May 26, 2021 Ministerial Order No. 212 was issued under the Emergency Program Act (Order 212) It prohibited non-essential travel in or out of 3 health regions but did not prohibit travel in or out of the province. In short, it prohibited travel for vacation purposes from an area like Prince George to the respondents’ property on the Sunshine Coast.

13.   I acknowledge Mr. Adam’s submission that he was under the impression the COVID-19 restrictions in BC would lift by May 30, 2021 and on that basis he signed the contract. However, that impression is not determinative of the parties’ contractual obligations, and I note there is nothing in evidence that suggests the respondents misled Mr. Adam about the government’s pandemic plans or restrictions.

14.   The respondents say that the parties’ contract, and HHRI’s more generous offer of a refund if there was an order prohibiting travel from the lower mainland, did not provide for a refund to the applicants. This is because the only relevant order in place at the time was Order 212 which did not prohibit travel from the lower mainland to the Sunshine Coast, which are in the same health region.

15.   The applicants make 2 arguments. The first is that Order 212 prevented their travel from Prince George to the Sunshine Coast. The respondents do not dispute this and as noted I accept such travel was prohibited. However, again, HHRI’s contract said no refunds at all and its refund offer otherwise expressly referred to a refund if travel was prohibited from the lower mainland, and such travel was undisputedly not prohibited at the material time.

16.   So, while I accept the applicants could not travel from Prince George given the Order, that does not mean HHRI must provide a refund. Their contract and HHRI’s later offer expressly addressed the COVID-19 pandemic and the limited circumstances under which it would provide a refund. Further, the fact that the applicants were planning to travel from Prince George was not a term of the parties’ contract, and I also note there is no evidence HHRI knew this was the applicants’ departure location even though they might have known Mr. Adam’s home address.

17.   Next, while the applicants did not argue contract frustration, I find it was not frustrated. The parties’ contract expressly contemplated what would happen if there were COVID-19 restrictions, and so I find the government’s pandemic-related restrictions were not an unforeseeable event which is a requirement for frustration.

18.   The applicants’ 2^nd argument is that HHRI re-rented their booked accommodation for at least part of the applicants’ scheduled stay. The respondents deny this and say the applicants’ submitted screenshot of a VRBO search would properly show “no availability” but that did not mean the property had been rebooked. I agree with the respondents, who explain their booking terms required a minimum 4-night stay and booking more than 1 day in advance of arrival. I accept this and have no evidence to the contrary. The applicants’ evidence is their own online search for the property’s availability and their search did not comply with those booking terms. So, I find the applicants’ “no availability” screenshot of a search for the property during the applicants’ scheduled booking does not prove the respondents re-rented the property. So, it follows there is no refund under the cancellation policy.

19.   Further, the obligation to prove the respondents’ failure to mitigate rests with the applicants. The respondents say they tried to rent out the property after Mr. Adam cancelled the booking on May 26, 2021 but were unable to do so. This is supported by a witness statement from HHRI’s employee, KB. Given the relatively short time-frame, I find this unsurprising. I find the applicants have not proved a failure to mitigate. Contrary to the applicants’ suggestion, I also find the respondents had no contractual obligation, or any obligation, to provide the applicants with alternate dates for their stay.

20.   In short, I find the applicants’ arguments cannot succeed. I find they are not entitled to any further refund. I dismiss their claim. Given this outcome, I do not need to address liability as between HHRI and Dr. Jacobsen.

21.   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 the applicants were unsuccessful, I dismiss their claim for reimbursement of CRT fees. The successful respondents did not pay CRT fees and no dispute-related expenses were claimed.

ORDER

22.   I dismiss the applicants’ claims and this dispute.