Date Issued: October 25, 2023

File: SC-2023-000108

Type: Small Claims

Civil Resolution Tribunal

Indexed as: August v. Greater Vancouver Tenant & Property Management Ltd.,
2023 BCCRT 914

Between:

LLOYD AUGUST

Applicant

And:

GREATER VANCOUVER TENANT & PROPERTY MANAGEMENT LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      The applicant, Lloyd August, hired the respondent, Greater Vancouver Tenant & Property Management Ltd., to manage his rental strata lot. The applicant says that the respondent failed to use due diligence during the tenants’ occupancy from November 16, 2018, to August 11, 2022. He says this led to damage to the strata lot. He claims $2,981.95 as the total estimated cost of the following: $1,365 for sanding and painting interior walls, $1,186.50 for fixing kitchen tiles and grout, $200 for replacing missing shelves, $200 to fix a bathroom tub temperature lever, and $30 for a company search.

2.      The respondent denies liability. It says the applicant claims for reasonable wear and tear that neither the tenants nor the respondent are liable for. It also says that under the contract, it is only liable for negligence or willful misconduct and those are unproven in the circumstances.

3.      The applicant represents himself. An employee or principal represents the respondent.

4.      For the reasons that follow, I dismiss the applicant’s 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.

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.

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.

ISSUE

9.      The issue in this dispute is whether the respondent breached the parties’ contract, and if so, what remedies are appropriate.

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, 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.

11.   The parties signed a written contract commencing on November 1, 2018. It had the following terms. The respondent managed the applicant’s strata lot as a rental property. The contract term continued until terminated. Under section 12, either party could terminate the contract by providing 30 days’ written notice to the other party.

12.   Section 2(i) said the respondent had to complete move in and move out inspections and to provide copies of these inspections to the owner upon request. Section 2(k) said the respondent had to process, when payable, all security deposits and pet damage deposits.

13.   Section 16 said that the applicant agreed to indemnify and save harmless the respondent against any claims from the respondent except those that arose from or were attributable to the default of the respondent of a term or condition under the contract, or the negligence or willful misconduct of the respondent or its employees.

14.   I turn to the chronology. On November 5, 2018, the respondent acted on the applicant’s behalf to enter a written residential tenancy agreement. The 2 tenants paid a deposit of $825. They moved into the strata lot on November 16, 2018.

15.   The tenants subsequently moved out on August 11, 2022. The tenants and respondent filled out a condition inspection report. They noted the following changes in the strata lot from the beginning of the tenancy: 1) unpainted wall patches in the entryway, living room, and dining room, 2) a wobbly tile and cracked and missing grout on the kitchen floor, 3) a reversed tub temperature controller or lever, caused by a plumber, and 4) a missing shelf or shelves from a shelving unit. The report shows that despite these changes, the respondent returned the tenants’ deposit in full, without any deductions for damage.

16.   From August 7 to 17, 2022, the parties and the strata manager exchanged several emails. The strata manager complained that the respondent was rude and failed to schedule a moveout date for the existing tenants. The respondent admitted to acting unprofessionally over the phone. The applicant relies on the emails in submissions, so I mention them here. However, as the applicant’s claim is not directly related to these emails or events, I ultimately find them irrelevant.

17.   I now turn to whether the respondent breached the contract.

Did the respondent breach the parties’ contract?

18.   Generally, when a person alleges that a professional’s conduct fell below a reasonable standard, they must provide expert evidence about the standard of care within that industry. This is because the standard expected of a professional, such as a property manager, is outside the common knowledge of an ordinary person. There are 2 exceptions to this general rule. First, there is no need for expert evidence when the alleged breach relates to something non-technical. Second, there is no need for expert evidence when the conduct is obviously below a reasonable standard. See Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112.

19.   I find the respondent is a professional for the purposes of this dispute. The applicant did not provide any expert evidence. The parties’ contract does not exclude the respondent from liability for breaching the contract terms or negligent or willful misconduct. So, I find that to succeed, the applicant must show a breach that relates to a specific contract term, a non-technical matter, or obviously unreasonable conduct.

20.   Section 10(2)(a) of the tenancy agreement said that the tenants were not responsible for reasonable wear and tear to the strata lot. So, I find that the respondent is not liable for such damage as well, and I should dismiss any part of the applicant’s claim that is for reasonable wear and tear.

21.   The applicant says that the respondent did not practice due diligence. However, I find it would be unreasonable for the applicant to expect the respondent to prevent or otherwise insure against reasonable wear and tear, in the absence of any specific terms about this. With that in mind, I turn to the specifics of the applicant’s claim.

The Wall Damage

22.   The applicant says that the tenants filled in several holes but did not repaint them. The pictures in evidence show unpainted patches in the strata lot’s walls, likely to cover nail or screw holes. There are also photos of other drywall and paint damage.

23.   The respondent says this is reasonable wear and tear that the applicant cannot seek compensation for under the tenancy.

24.   In the non-binding decision of O’Dea v. Dabrowski, 2023 BCCRT 305, the CRT found that 6 deep screw holes did not exceed reasonable wear and tear during a tenancy of 11 months. Applying that same logic, I find the patches and other damage in the photos were likely reasonable wear and tear for the tenancy at issue. I say this in part because the tenancy was lengthy as it lasted nearly 4 years.

25.   Given this, I find the respondent did not act in an obviously unreasonable manner by making no deductions in the returned damage deposit for the wall damage. I dismiss the part of the claim for $1,365 in wall repairs.

 

The Tile and Grout Damage in the Kitchen

26.   The applicant says that the respondent is liable for damage to a tile and grout in the kitchen. The applicant provided pictures of cracked and shrinking grout on the floor. A video also shows a tile wobbling when someone pressed it.

27.   The respondent says the tile and grout damage are reasonable wear and tear.

28.   Ultimately, I find it unproven on the evidence that the tile and grout were damaged beyond the standard of reasonable wear and tear. There is no indication that the tenants caused the damage. For example, there is no indication that someone dropped something heavy on the floor. There is no evidence that explains the cause of the damage or rebuts the possibility that the grout simply degraded over time through ordinary use. As noted above, the tenants stayed for several years.

29.   Given the above, I dismiss this part of the claim for $1,186.50 in tile and grout repairs.

The Shelving

30.   The applicant claims $200 for replacing a missing shelf or shelves. I accept that someone removed them at one point as this is documented in the inspection report.

31.   The respondent says the missing shelf or shelves were returned to the applicant in “good condition”, albeit with some minor missing items of little value. The respondent says it offered to ship the applicant a new shelf or shelving unit at no cost. Finally, it says the removing the shelf made the strata lot more desirable as a rental unit.

32.   I find that removing the shelf or shelves exceeds reasonable wear and tear. However, the applicant did not deny the respondent’s submission that it returned the shelf. So, I find shelving unit components are largely intact. The applicant’s estimate of $200 in damages is largely unsupported by any evidence. For example, there is no repair invoice or ad for a similar replacement to help quantify the claimed loss. A photo shows the shelving unit in a disassembled state. I am unable to determine from the photo what damages, if any, the applicant sustained.

33.   As I find it unproven that 1) the shelving unit is unusable or otherwise missing any key components, or 2) that the applicant sustained any quantifiable loss, I dismiss this part of the claim for $200 in damages.

The Reversed Tub Temperature Control

34.   The applicant says the respondent is responsible for repairing the reversed temperature control for the tub.

35.   The respondent disagrees. It says that a vendor, C&C, did unauthorized work on the strata lot. The respondent says it negotiated C&C’s invoices down to compensate for this. It says C&C is responsible for the flaw because of its “poor coordination”.

36.   Based on the above, I find this claim is not about the tenants or what constitutes reasonable wear and tear.

37.   Section 2(l) said that the respondent had to engage personnel on behalf of the applicant as may be necessary for maintenance and to oversee the work when appropriate.

38.   Aside from the inspection report, there is essentially no documentary evidence about the reversed tub control. There are no documents about the work done or any assessments of it. The respondent says it saved the applicant some money, but there is nothing to support this. As noted earlier, there is no expert evidence on whether the respondent breached any professional standards.

39.   I find it unclear what exactly happened. I find it unproven that the respondent breached section 2(l) or any other section of the contract. I find this matter is essentially an evidentiary tie. As the applicant bears the burden to prove this claim, I must dismiss this part of the claim for $200 in plumbing repairs.

40.   Finally, I note that the applicant says that section 4 of the tenancy agreement said that the tenants agreed to provide an invoice from a professional cleaner to avoid charges against the damage deposit. While I find the tenants did not provide such an invoice, the applicant does not claim any cleaning costs. So, I find nothing turns on this.

41.   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 dismiss the applicant’s claims for reimbursement of CRT fees. I also dismiss the applicant’s claim for reimbursement of the BC company search as a dispute-related expense. The respondent did not claim any dispute-related expenses.

ORDER

42.   I dismiss the applicant’s claim and this dispute.