Date Issued: February 10, 2023

File: SC-2022-003003

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Sarauer v. Crete, 2023 BCCRT 129

Between:

ADAM SARAUER

Applicant

And:

JEFF CRETE

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is between former roommates. The applicant, Adam Sarauer, says the respondent, Jeff Crete, evicted him without proper notice. He claims $3,025 broken down as follows: 1) $1,600 for punitive damages, 2) $575 for the return of his damage deposit, 3) $220 for moving expenses, 4) $450 for rent reimbursement, and 5) $180 for lost wages.

2.      Mr. Crete disagrees. He says Mr. Sarauer left early and voluntarily before the tenancy’s proper end date.

3.      The parties represent themselves.

4.      For the reasons that follow, I find Mr. Sarauer has proven part of his claims.

JURISDICTION AND PROCEDURE

5.      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.

6.      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, he 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.

7.      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.

8.      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.

9.      In general, residential tenancy disputes are within the exclusive jurisdiction of the Residential Tenancy Branch (RTB) under the Residential Tenancy Act (RTA). However, the RTB declines jurisdiction over roommate disputes like this one. So, I find the RTA does not apply and find this is a contractual roommate dispute within the CRT’s small claims jurisdiction.

ISSUES

10.   The issues in this dispute are as follow:

a.    Did Mr. Crete breach the parties’ contract?

b.    Are any remedies appropriate?

BACKGROUND, EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Sarauer as the applicant must prove his claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

12.   I begin with the undisputed facts. Mr. Crete and his family rented a house from its owner, S. S lived in another location and is not a party to this CRT dispute. In April 2022, Mr. Crete advertised one of the house’s bedrooms for rent. Mr. Sarauer responded to the ad by texting Mr. Crete on April 8, 2022. They agreed he would move in on April 10, 2022.

13.   The parties did not have a formal written agreement. However, some of the terms are documented in their text messages as follows. Mr. Sarauer agreed to pay $1,150 in monthly rent. He only had to pay $865 for April 2022, since Mr. Sarauer moved in partway through the month. Mr. Sarauer paid Mr. Crete the $865 in advance, plus a damage deposit of $575. They agreed on a month-to-month tenancy with no fixed term. There is no indication they discussed or agreed upon other terms before Mr. Sarauer moved in.

14.   On April 15, 2022, Mr. Sarauer texted Mr. Crete. He said Mr. Crete’s family member had complained about Mr. Sarauer eating at night and playing music. Mr. Sarauer asked for permission to move out at the end of April 2022. The parties ultimately agreed that Mr. Sarauer would move out on May 15, 2022.

15.   The parties’ April 17, 2022 text messages show the home’s other occupants complained about Mr. Sarauer’s habits of tapping his feet to music and cooking early in the morning. Mr. Sarauer once again suggested leaving at the end of April 2022, if he could get his deposit back. Mr. Crete did not reply to the text message.

16.   On April 20, 2022, Mr. Sarauer texted that someone had left the side door unlocked. He also asked for the landlord owner’s name. He added that he was going to move his things out on April 21, 2022.

17.   Also on April 20, 2022, the parties had an in-person conversation. Mr. Crete says Mr. Sarauer recorded the conversation without telling him. I agree as Mr. Sarauer did not mention recording the conversation during the playback. During the conversation, Mr. Crete said he could end the tenancy without any notice to Mr. Sarauer because they did not have a written agreement. Mr. Sarauer said, “I guess I can try and get my stuff out here and make a plan but...” Mr. Crete replied that all of Mr. Sarauer’s things had to be out the next day. Mr. Sarauer replied, “All right. Well, if that’s the best you can do, I’ll have to do the best that I can.”

18.   The morning of April 21, 2022, Mr. Sarauer texted Mr. Crete. He said he hadn’t found a place yet. He asked if he could stay “a little while longer until I find a place”. Mr. Crete replied by text without directly answering Mr. Sarauer’s question. Mr. Sarauer ultimately moved out of the house on April 21, 2022.

Did Mr. Crete breach the parties’ contract?

19.   As noted above, I find the RTA does not apply to roommate disputes like this one. So, I find that the parties’ rights and responsibilities are governed by contract law. Based on the text messages, I find the parties entered into a contract for Mr. Sarauer to rent accommodation from Mr. Crete. I also find that they did not agree in advance on the process for Mr. Sarauer to move out.

20.   The CRT has previously held that it is an implied term in such rental agreements that a party moving out must provide reasonable notice so that the other party can secure new accommodation or a new roommate. Similarly, the CRT has also found that a landlord must provide reasonable notice before ending the rental agreement. See, for example, the non-binding decisions of Thibault v. Contini, 2021 BCCRT 1110 and Anderson v. Kuzmick, 2023 BCCRT 106. CRT decisions are not binding, but I agree generally with the reasoning in these decisions.

21.   Here, I find that Mr. Sarauer originally provided reasonable notice to move out on April 15, 2022. On that date, he said he would move out on May 15, 2022.

22.   On April 20, 2022, Mr. Crete told Mr. Sarauer he had to move out on April 21, 2022. Notably, Mr. Sarauer asked for more time to find other accommodation by text. So, I find Mr. Sarauer did not voluntarily move out. Mr. Sarauer suggested moving out at the end of April 2022 twice, so I find 10 days’ notice would have been reasonable notice in the circumstances. I find Mr. Crete breached the contract by only providing 1 days’ notice to move out.

23.   I find that an appropriate measure of damages would be a refund of the remaining portion of April’s $865 rent. This amount was originally for 20 days, and Mr. Sarauer had to leave with 9 days remaining. So, I order Mr. Crete to refund $389.25.

24.   Mr. Sarauer says he spent $244.92 on a storage locker and moving van. I find that Mr. Sarauer likely had to spend this amount to find a temporary place to put his things due to Mr. Crete’s breach. This amount is supported by a screenshot of a credit card or other financial transaction. So, I order Mr. Crete to pay $220, which is the amount Mr. Sarauer claimed in the Dispute Notice.

25.   I turn to the damage deposit. A commonly understood purpose of a damage deposit is to compensate a landlord for loss if the tenant leaves the rental accommodation unclean or damaged beyond normal wear and tear. I find this was the purpose of Mr. Sarauer’s paid damage deposit as there is no evidence otherwise. There is no indication that Mr. Sarauer left his room unclean or damaged, so I order Mr. Crete to return the $575 damage deposit.

26.   Mr. Sarauer claims $180 for lost wages. I find this unsupported by any evidence and dismiss this claim.

27.   Mr. Sarauer also claims $1,600 for punitive damages. The Supreme Court of Canada has said the purpose of punitive damages is to punish extreme conduct worthy of condemnation, and can only be awarded to punish harsh, vindictive, reprehensible and malicious behaviour. See Vorvis v. ICBC, 1989 CanLII 93 (SCC). I find that Mr. Crete’s conduct falls short of this level of conduct. Based on the recorded conversation, I find Mr. Crete acted on an honest misapprehension of the law. I dismiss this claim as well.

28.   Finally, Mr. Sarauer claims $133.51 for an April 22, 2021 hotel stay. However, he did not include this claim in the Dispute Notice. So, I find this claim is not properly before me and decline to award it.

29.   In summary, I order Mr. Crete to pay Mr. Sarauer a total of $1,184.25, broken down as follows: $389.25 for the return of rent, $220 as reimbursement for storage expenses, and $575 for the return of the damage deposit.

30.   The Court Order Interest Act applies to the CRT. Mr. Sarauer is entitled to pre-judgment interest on damages of $1,184.25 from April 21, 2021, the date of Mr. Sarauer moved out, to the date of this decision. This equals $17.11.

31.   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. I see no reason in this case not to follow that general rule. I find Mr. Sarauer is partially successful and entitled to partial reimbursement of $87.50 in CRT fees. The parties did not claim any specific dispute-related expenses.

ORDERS

32.   Within 30 days of the date of this order, I order Mr. Crete to pay Mr. Sarauer a total of $1,288.86, broken down as follows:

a.    $1,184.25 in damages,

b.    $17.11 in pre-judgment interest under the Court Order Interest Act, and

c.    $87.50 in CRT fees.

33.   Mr. Sarauer is entitled to post-judgment interest, as applicable.

34.   I dismiss Mr. Sarauer’s remaining claims.

35.   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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.