Date Issued: March 28, 2023

File: SC-2022-004376

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Fortin v. Malcolm, 2023 BCCRT 259

Between:

CAMILLE FORTIN

Applicant

And:

JILLIAN MALCOLM

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

 

INTRODUCTION

1.      This is a dispute between former roommates.

2.      The applicant, Camille Fortin, rented a room from the respondent, Jillian Malcolm, beginning December 1, 2021. In early January 2022, Ms. Fortin moved out because she says Miss Malcolm breached the parties’ rental agreement. Ms. Fortin alleges Miss Malcolm interfered with her quiet enjoyment of the premises by repeatedly shouting at her to the point of verbal abuse, which created an unsafe environment. In addition, Ms. Fortin says Miss Malcolm misrepresented her authority to rent the room in the first place as she had not gotten the landlord’s written permission to do so. So, she says the rental agreement is “void”. Ms. Fortin asks that I award her $2,125, including $1,700 for her December 2021 and January 2022 rent, and $425 for her damage deposit. She also claims $500 for mountain bike equipment she says Miss Malcolm refused to return, and $375 for rent she had to pay for other accommodation in January 2022 after she moved out of the house.

3.      Miss Malcolm says Ms. Fortin chose to move out without providing notice, so she is the one who breached the rental agreement. Miss Malcolm also says she was entitled to rent a room to Ms. Fortin without her landlord’s written permission, as there was no requirement in the lease that she get such permission. Finally, she denies having Ms. Fortin’s mountain bike equipment. So, she says she does not owe Ms. Fortin anything.

4.      The parties are each self-represented.

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.

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. 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 in the interests of justice.

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.

Preliminary Issues

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 this is a contractual roommate dispute within the CRT’s small claims jurisdiction over debt and damages.

10.   In submissions, Ms. Fortin claims Miss Malcolm committed the tort of intentional infliction of mental distress and the tort of intimidation. Ms. Fortin did not include these claims in her Dispute Notice, the purpose of which is to define the issues and provide fair notice to the respondent of the claims against them. Also, Ms. Fortin did not request any remedy for the alleged torts. So, I find these claims are not properly before me and I decline to address them in my decision below.

11.   Both parties submitted late evidence. Each party had the opportunity to review and respond to the other’s late evidence, and neither one objected to it, so I find there is no prejudice in allowing the late evidence. I allow it and have considered it in my analysis.

ISSUES

12.   The issues in this dispute are:

a.    Did Miss Malcolm misrepresent her authority to rent a room to Ms. Fortin?

b.    Did either party breach the rental agreement and if so, what is the appropriate remedy?

c.    Must Miss Malcolm reimburse Ms. Fortin $500 for mountain bike equipment?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, as the applicant Ms. Fortin must prove her claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submissions and evidence but refer only to the evidence and argument I find relevant to provide context for my decision.

Background

14.   It is undisputed that in November 2021, the parties exchanged text messages about Ms. Fortin renting a room from Miss Malcolm. They signed a November 26, 2021 rental agreement that specified $850 monthly rent for a room beginning December 1, 2021 and a $425 damage deposit. The rental agreement also included a term that “you must clean up after yourself and help maintain the home.” The agreement did not include a notice period for ending the tenancy but indicated Ms. Fortin was to vacate the property by April 30, 2022. In the absence of a notice period, I find it was an implied term of the agreement that either party had to give the other reasonable notice to end the tenancy. I find in these circumstances reasonable notice was 1 month.

15.   Ms. Fortin says she moved out of the house around January 3, 2022 because Miss Malcolm breached the rental agreement by interfering with her quiet enjoyment. Ms. Fortin also says Miss Malcolm misrepresented her authority to rent her a room, and so the rental agreement is void. She says the misrepresentation means she is entitled to reimbursement of her entire $1,700 rent for December 2021 and January 2022, not just to the balance of her January 2022 rent from the date she moved out. Though she does not use these words, I infer Ms. Fortin is arguing Miss Malcolm fundamentally breached the rental agreement, and so she (Ms. Fortin) is entitled to be put in the position she was in before the contract was made. Finally, Ms. Fortin argues Miss Malcolm refused to return mountain bike equipment that she forgot in Miss Malcolm’s basement.

Misrepresentation

16.   First, Ms. Fortin alleges Miss Malcolm misrepresented her authority to rent out a room in the house because she did not get her landlord’s written permission to do so as required by their tenancy agreement. A misrepresentation is a false statement of fact made during negotiations or an advertisement that has the effect of inducing a reasonable person to enter the contract (see O’Shaughnessy v. Sidhu, 2016 BCPC 308).

17.   Miss Malcolm and her landlord’s tenancy agreement is the RTB’s standard form residential tenancy agreement. The tenancy agreement (and the RTA) requires a tenant to secure the landlord’s written consent to “assign or sublet the rental unit to another person.” Further, the RTA defines a “sublease agreement” as a tenancy agreement under which a tenant transfers their rights under the tenancy agreement to a subtenant for a shorter period than the term of the tenant’s tenancy agreement.

18.   As established above, the parties were roommates. Miss Malcolm did not transfer her rights under the tenancy agreement to Ms. Fortin when she rented her a room in the house. So, I find she did not “sublet the rental unit” under the tenancy agreement. There are no other terms in the tenancy agreement that require Miss Malcolm to get her landlord’s permission to rent out a room, so I find she did not need to do so. In these circumstances, I find Miss Malcolm did not misrepresent her authority to rent out a room by failing to get her landlord’s written permission. I dismiss Ms. Fortin’s claim for reimbursement of her entire rent for December 2021 and January 2022.

Rental agreement breach

19.   Next, Ms. Fortin alleges Miss Malcolm interfered with her quiet enjoyment of the house and made her feel unsafe. The rental agreement explicitly mentions quiet hours being between 10pm and 7am and not having overnight guests unless previously arranged. However, it does not refer more generally to quiet enjoyment or to safe behaviour. In other CRT decisions, tribunal members have found that rental agreements include an implied quiet enjoyment term (see for example Solimani v. Wong-Moon, 2021 BCCRT 1014, and Nowicki v. Gobrecht, 2020 BCCRT 1417) and an implied term that the parties will treat each other respectfully and not engage in behaviour that makes the other feel unsafe (see for example Wells v. Stetsko, 2021 BCCRT 545, and Ahn v. Hsu, 2021 BCCRT 974). Though previous CRT decisions do not bind me, I agree that such terms may be implied in roommate agreements and I find they were implied in Miss Malcolm’s and Ms. Fortin’s rental agreement.

20.   Ms. Fortin began paying rent on December 1, 2021 but she did not move into the house until around December 24, 2021. At first the parties’ arrangement was satisfactory. However, around December 31, 2021, Ms. Fortin tested positive for COVID-19, and from this point the relationship deteriorated. None of this is disputed.

21.   January 2 and 3, 2022 voice recordings submitted by Ms. Fortin made it clear Miss Malcom was not satisfied with Ms. Fortin’s cleaning of the house’s common areas, particularly when it came to sanitizing and disinfecting surfaces and handles. In the recordings, Miss Malcolm repeatedly spoke to Ms. Fortin in a raised voice or shouts. She used profanity to criticize and berate Ms. Fortin for not cleaning up after herself and for the way in which she cleaned, among other things. Miss Malcolm also directed insults and obscenities at Ms. Fortin personally, asking her if she was stupid and “[expletive] brain-dead”, calling her “useless”, “[expletive] stupid”, a “[expletive] moron”, a “[expletive] idiot”, and a “c[expletive]”. Ms. Fortin also says Miss Malcolm hit the house’s walls in anger. The recordings showed Ms. Fortin told Miss Malcolm her behaviour made Ms. Fortin feel unsafe, and that Miss Malcolm dismissed this.

22.   Miss Malcolm does not object to the voice recordings nor does she deny hitting the walls. She acknowledges she “did not respond well” and used profanities after Ms. Fortin tested positive for COVID-19. She says this was because Ms. Fortin was disrespectful and discourteous by not wearing a mask “while cooking and eating food” and was not “cleaning up right after using common spaces.” Miss Malcolm also says Ms. Fortin was aggressive, asked lots of questions, and was demanding. While I find that on occasion Ms. Fortin responded to Miss Malcolm with a raised voice or a shout, or used an expletive herself, this usually occurred after a sustained period of Miss Malcolm screaming at and disparaging Ms. Fortin. Ms. Fortin admits to not having wiped up crumbs or spilled food a few times and she accepts she missed cleaning up a piece of glass when she broke a coffee maker. She also acknowledges she removed her mask to taste food she was cooking.

23.   It is clear that living together while Ms. Fortin had COVID-19 was difficult for both parties. I accept that some, perhaps intense, disagreement or argument between roommates in such circumstances is understandable. However, on the evidence before me, I find Miss Malcolm’s conduct exceeded any objective measure of justifiable behaviour. I find her outbursts and personal attacks would have made a reasonable person in Ms. Fortin’s position feel unsafe in their home, even over the relatively short period they occurred. In particular, I find Miss Malcolm’s frequent episodes of obscenity-laced shouting and name-calling, as well as wall-hitting, clearly breached the rental agreement’s implied terms of quiet enjoyment and respectful and safe treatment. I find this breach entitled Ms. Fortin to end her tenancy without providing 1 month’s notice.

24.   I turn to Ms. Fortin’s claimed damages. Under the rental agreement, Miss Malcolm agreed to reimburse the $425 damage deposit to Ms. Fortin “when you move out and have left the place like you found it.” Ms. Fortin provided photos from January 6, 2022 of her room and common areas, which I find show she left these spaces tidy and undamaged. Ms. Fortin also provided a receipt for a coffee maker that she says she bought to replace the one she broke. Miss Malcolm does not dispute this and I note the burden is on the landlord to prove property damage. I find there is no evidence of damage that would justify Miss Malcolm withholding the damage deposit. I find she must reimburse Ms. Fortin the $425 damage deposit.

25.   As noted above, Ms. Fortin claims $1,700 for her December 2021 and January 2022 rent on the basis of Miss Malcolm’s alleged misrepresentation, which I find she is not entitled to. Instead, I find Ms. Fortin is entitled to reimbursement of her rent from the time she ended her tenancy and moved out of the house. Since Ms. Fortin undisputedly did not move out until January 3, 2022, I find she is entitled to $767.74, which is a pro-rated amount of the rent covering January 4 to January 31, 2022.

26.   Ms. Fortin provided evidence she paid $375 for alternative accommodation beginning January 6, 2022. Since I find Miss Malcolm must reimburse Ms. Fortin $767.74 for part of her January 2022 rent, I find Ms. Fortin is not also entitled to compensation for the amount she paid for alternative accommodation during that period, which would amount to double recovery. This is because whether or not Miss Malcolm breached the rental agreement, Ms. Fortin would have incurred accommodation expenses for January 2022. So, I dismiss this part of Ms. Fortin’s claim.

Mountain bike equipment

27.   Finally, Ms. Fortin says she left mountain bike equipment in Miss Malcolm’s basement that Miss Malcolm has not returned or allowed her to collect. Miss Malcolm denies having the equipment. The evidence amounts to a “she said, she said” scenario, and I find I am left with an evidentiary tie. As noted above, Ms. Fortin bears the burden of proving her claim, and I conclude she has not done so for the mountain bike equipment. I dismiss this part of her claim.

28.   The Court Order Interest Act (COIA) applies to the CRT. Ms. Fortin is entitled to pre-judgment interest on the $1,192.74 award from January 6, 2022, the date Ms. Fortin cleaned her room and common areas after moving out of the house and a date I find reasonable, to the date of this decision. This equals $25.46.

29.   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. As Ms. Fortin was partially successful, I find she is entitled to reimbursement of half her paid CRT fees, which equals $62.50. Ms. Fortin did not claim dispute-related expenses, so I award none.

ORDERS

30.   Within 21 days of the date of this order, I order Miss Malcolm to pay Ms. Fortin a total of $1,280.70, broken down as follows:

a.    $1,192.74 in debt for the damage deposit and rent refund,

b.    $25.46 in pre-judgment interest under the COIA, and

c.    $62.50 in CRT fees.

31.   Ms. Fortin is entitled to post-judgment interest, as applicable.

32.   I dismiss Ms. Fortin’s remaining claims.

33.   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.