Date Issued: May 11, 2023

File: SC-2022-006137

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Vij v. Richardson, 2023 BCCRT 389

Between:

ALEXIS VIJ

Applicant

And:

ASHLEY RICHARDSON

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This is a dispute between former roommates.

2.      The applicant, Alexis Vij, says the respondent, Ashley Richardson, gave her 2 months’ notice to move out by September 1, 2022 and said she would not have to pay her last months’ rent. Ms. Vij says she agreed to that arrangement. Ms. Vij says Mr. Richardson then asked her to pay rent for August, and she understood that meant she could stay until October 1, 2022. However, once she paid the rent, Ms. Vij says Mr. Richardson “reverted” back and demanded that she move out by the end of August, which she undisputedly did. Ms. Vij claims $930 for a refund of her last months’ rent and internet.

3.      Mr. Richardson says that he initially provided Ms. Vij with a Residential Tenancy Act (RTA) form for 2 months’ notice of eviction due to the landlord’s use of property, which included a term that the landlord must compensate the tenant equal to one month’s rent. Mr. Richardson says he quickly discovered the RTA did not apply to his arrangement with Ms. Vij, and that she agreed to disregard the form. Essentially, Mr. Richardson argues that he is not bound by the form he provided to Ms. Vij, and he was entitled to charge rent for August. Mr. Richardson says he owes Ms. Vij nothing.

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). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must act fairly and follow the law. It must also recognize any relationships between dispute 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. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note in Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

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 Brach (RTB) under the RTA. However, the evidence shows Ms. Vij was renting only one bedroom in Mr. Richardson’s apartment, and that they shared the kitchen. The RTB declines jurisdiction over roommate disputes like this one. Therefore, I find the RTA does not apply and find this is a contractual roommate dispute within the CRT’s small claims jurisdiction over debt and damages.

10.   Initially, Ms. Vij claimed $1,395 for a refund of both her last months’ rent and return of her damage deposit. The evidence includes an agreed statement of facts in which the parties agree Mr. Richardson paid Ms. Vij $450 as reimbursement of her damage deposit after she applied for CRT dispute resolution. In submissions, Ms. Vij says that given this payment, she is now only claiming a total of $930, which includes $900 for one month’s rent plus $30 for internet. So, I find Ms. Vij’s claim no longer includes the damage deposit and is limited to $930.

ISSUES

11.   The remaining issues in this dispute are:

a.    To what extent, if any, is Ms. Vij entitled to a $930 refund for paid rent and internet?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant Ms. Vij 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 that I find relevant to provide context for my decision.

13.   Mr. Richardson provided a copy of the parties’ signed March 22, 2021 tenancy agreement, which is a standard form RTB Residential Tenancy Agreement with no addendum. I note that while the RTA does not apply here, to the extent the parties incorporated RTA terms into their agreement by using the RTB form, I find those are contractual terms that bind the parties.

14.   The agreement ran from May 1, 2021 to May 1, 2022, with the option to continue on a month-to-month basis or another fixed term. Ms. Vij’s rent was $900 under the parties’ agreement. The parties agree she also paid an additional $30 per month for internet.

15.   It is undisputed that Ms. Vij continued to live with Mr. Richardson after May 1, 2021. There is no evidence before me that the parties agreed on another fixed term, and so I find that her tenancy continued on a month-to-month basis after May 1, 2021.

16.   On June 23, 2022, Mr. Richardson texted Ms. Vij that he had asked his girlfriend, K, to move in with him, ideally for August 1. He stated that he did not think all 3 of them in the apartment would work. Ms. Vij responded that she did not think one month was enough time to find a new place to live, and on June 24 Mr. Richardson texted that he could give her another month if she needed it.

17.   On June 28, 2022, Mr. Richardson texted Ms. Vij to confirm whether September 1 would work for her. Ms. Vij responded that she was hoping for 3 months. Mr. Richardson replied that he thought 70 days’ notice was reasonable. Mr. Richardson says he then searched online and found an RTA form called “Two Month Notice to End Tenancy” (notice), which he undisputedly filled out and left for Ms. Vij.

18.   Ms. Vij provided a copy of the June 28, 2022 notice, signed by Mr. Richardson. It stated that Ms. Vij must move out by September 1, 2022. Mr. Richardson checked the box on the notice that he was ending Ms. Vij’s tenancy because the rental unit would be occupied by the landlord or the landlord’s spouse.

19.   Again, while the RTA does not apply here, such that the parties could not apply to the RTB to enforce the notice, I find the parties incorporated the terms of the notice into their agreement to end Ms. Vij’s tenancy. The notice included a term that stated if the notice was given due to the landlord’s use of property (as it was here), the landlord must compensate the tenant an amount equal to one month’s rent.

20.   I find that Ms. Vij accepted the notice, including the term that she would not have to pay rent for August 2022 as compensation for Mr. Richardson ending the tenancy. Mr. Richardson does not specifically dispute that Ms. Vij accepted these terms, and he provided no evidence to the contrary. So, I find the notice became a separate contract between the parties governing the end of Ms. Vij’s tenancy.

21.   Mr. Richardson says that sometime in July 2022, he discovered the notice (and presumably the RTA) did not apply to the parties’ living situation. He says that he informed Ms. Vij, and that she agreed the notice form was invalid and would disregard it, which Ms. Vij expressly denies.

22.   On August 2, 2022, Mr. Richardson texted Ms. Vij to request that she pay him rent. Ms. Vij responded that she was confused, as she thought he wanted her to move out September 1 and that she would not have to pay for the last month. Mr. Richardson replied that he had given her another month because she had said she needed more time. He told Ms. Vij to pay the rent and he would pay “the portion” back to her if she left early.

23.   I find Ms. Vij’s August 2 texts show that she believed the notice was still valid, including the term that she would not have to pay the last month’s rent. So, I do not accept that Mr. Richardson told her in July that the notice was invalid or that Ms. Vij agreed to disregard the notice, as Mr. Richardson submits.

24.   The evidence shows Ms. Vij immediately e-transferred Mr. Richardson $930, which Mr. Richardson accepted, while they continued their August 2 text exchange. The parties then argued about Ms. Vij’s efforts to find new accommodations. Mr. Richardson ended the exchange by stating he was done helping Ms. Vij, and he wanted her to move out by the end of August.

25.   Mr. Richardson says that Ms. Vij then generally refused to communicate with him throughout August, which Ms. Vij does not deny. Ms. Vij says she still understood that Mr. Richardson would refund her August rent payment if she moved out by August 31, as requested.

26.   In an August 5, 2022 text exchange K advised Ms. Vij that the RTA did not apply to the parties’ situation and provided a link to an information page about tenancies in BC. However, I note that K did not say that Mr. Richardson was no longer going to abide by the notice’s terms. There is no evidence that Ms. Vij responded to K or that she agreed the RTA did not apply such that the parties’ agreement about ending her tenancy was invalid.

27.   Ms. Vij also provided screenshots of a text exchange between her sister, AV, and Mr. Richardson. On August 23, 2022, AV advised Mr. Richardson that Ms. Vij was waiting for her August rent back, and Mr. Richardson responded that Ms. Vij was not entitled to “free rent”, which she knew because he had already sent her “the link”. I find Mr. Richardson was referring to K’s August 5 text, as there is no other evidence that Mr. Richardson sent Ms. Vij any link. I accept Ms. Vij’s evidence that this was the first time she learned Mr. Richardson was taking the position that she had to pay her last months’ rent.

28.   Ms. Vij also provided a signed statement from AV’s boyfriend, EB, who stated he called Mr. Richardson on August 29, 2022 about Ms. Vij’s view that Mr. Richardson must either refund August’s rent or permit her to stay until October 1. EB stated that Mr. Richardson insisted Ms. Vij had to leave by the end of August or pay rent for September. Ultimately, it is undisputed that Ms. Vij moved out of Mr. Richardson’s apartment on August 31, 2022.

29.   Ms. Vij says that even though the RTB cannot enforce their agreement to end her tenancy, does not mean she and Mr. Richardson did not have a binding agreement that she would not have to pay her last months’ rent. I agree. My reasons follow.

30.   I find that the law of mistake applies to this dispute. As discussed in Hannigan v. Hannigan, 2007 BCCA 365, citing Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Co., 2003 ABCA 221, there are 3 types of mistake: common, mutual, and unilateral. Common mistake is where the parties make the same mistake. Mutual mistake occurs when both parties are mistaken, but their mistakes are different. In a mutual mistake, the parties misunderstand each other and are “not on the same page”. Unilateral mistake is where only one of the parties is operating under a mistake. See Royal Bank of Canada v. G.S. Continuous Gutters Inc., 2022 BCSC 366 at paragraph 129.

31.   I find the parties made a common mistake that the RTA applied to their tenancy agreement and their agreement about ending the tenancy. With common mistake, the agreement is acknowledged, and the question is whether the mistake was so fundamental as to render the agreement void or unenforceable. Whether or not the mistake goes to the root of the contract is often important. A “fundamental” mistake is one that involves a fact which “constitutes the underlying assumption on which the entire contract was based”. See Munro v. Munro Estate (1995), 1995 CanLII 1393 (BCCA), as cited in Berthin v. Berthin, 2015 BCSC 78.

32.   I find the parties’ mistake about the RTA’s applicability was not so fundamental that the parties’ agreement about ending the tenancy was void or unenforceable. That is, I find the evidence shows Mr. Richardson was already willing to give Ms. Vij 2 months’ notice to end the tenancy, as shown in his June 24 text message. Further, I find the evidence shows the parties were friends, but that Mr. Richardson thought Ms. Vij was being unreasonable in requesting 3 months’ notice. I find that he provided her with the notice mainly to justify his position that 2 months' notice was reasonable, and offering the last month free would provide her with an incentive to agree.

33.   In other words, I find the parties likely would have entered into an agreement on similar terms to those set out in the notice, including that Ms. Vij would not have to pay the last months’ rent, even if they had not both been mistaken that the RTA applied to their arrangement. Therefore, I find the parties’ agreement to end Ms. Vij’s tenancy under the notice’s terms is valid and enforceable.

34.   Even if the parties’ common mistake about the RTA’s applicability was a fundamental mistake, I find that Mr. Richardson must refund Ms. Vij her last months’ rent. This is because I find the time for Mr. Richardson to declare their contract unenforceable and have it set aside was when he discovered the mistake in July 2022. Then, the parties could have come to a new agreement about the terms of ending Ms. Vij’s tenancy.

35.   Instead, I find Mr. Richardson remained silent until after Ms. Vij paid August’s rent, and ultimately only told her on August 23, 2022 that he was not going to abide by their agreement that the last month would be free. I find Ms. Vij never agreed to that arrangement. I find the effect of Mr. Richardson’s silence was that he confirmed the parties’ agreement to end Ms. Vij’s tenancy according to the notice’s terms by implication, and he was not entitled to change those terms without Ms. Vij’s agreement. By doing so, I find Mr. Richardson breached the parties’ contract.

36.   Damages for breach of contract are generally intended to place the innocent party in the position they would have been in had the contract been performed. See Water’s Edge Resort v. Canada (Attorney General), 2015 BCCA 319 at paragraph 39. Here, I find the parties’ contract provided that Ms. Vij would not have to pay her last months’ rent. So, I find Ms. Vij is entitled to a refund of the claimed $930 for August’s rent and internet.

37.   The Court Order Interest Act applies to the CRT. Ms. Vij is entitled to pre-judgment interest on the $930 from August 2, 2022, the date she paid Mr. Richardson, to the date of this decision. This equals $21.44.

38.   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 Ms. Vij is entitled to reimbursement of $125 in CRT fees. Neither party claimed dispute-related expenses.

ORDERS

39.   Within 14 days of the date of this order, I order Mr. Richardson to pay Ms. Vij a total of $1,076.44, broken down as follows:

a.    $930 in debt as reimbursement for one months’ rent and internet,

b.    $21.44 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

40.   Ms. Vij is entitled to post-judgment interest, as applicable.

41.   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.