Bankowski v. Cooper-Easingwood, 2019 BCPC 367

Citation: Bankowski v. Cooper-Easingwood 2019 BCPC 367 Date: 20191126 File No: 22368 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ADRIANA GABRIELA BANKOWSKI CLAIMANT AND: ROCHELLE COOPER-EASINGWOOD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEVEN Appearing on her own behalf: A. Bankowski Appearing on her own behalf: R. Cooper-Easingwood Place of Hearing: Dawson Creek , B.C. Date of Hearing: Feb. 28, Oct 9, 10, 2019 Date of Judgment: November 26, 2019 BACKGROUND [ 1 ] This dispute arose during a verbal house sitting agreement between the parties.

The parties agree that Ms. Cooper-Easingwood was to have free use of the house in exchange for paying utilities and doing any necessary maintenance such as collecting mail and doing snow removal. [ 2 ] The agreement was entered into on July 10, 2017. Ms. Cooper-Easingwood agreed to housesit Ms. Bankowski's residence in

Dawson Creek, British Columbia. It is not contentious that the agreement commenced in July 2017 and concluded in March 2018, although Ms. Bankowski says the agreement ended on March 30, 2018 and Ms. Cooper-Easingwood takes the position that it ended on March 15, 2018. [ 3 ] Ms. Bankowski takes the position that the parties subsequently agreed that Ms. Cooper-Easingwood would start paying rent for the premises in the amount of $350 per month for using a third bedroom and parking a holiday trailer on the premises. Rent payments were to have commenced on October 1, 2017 and continue until March 30, 2018. [ 4 ] Ms.

Bankowski also says that it was a term of the agreement that Ms. Cooper-Easingwood take good care of the furniture and the floors in the residence. She said Ms. Cooper-Easingwood caused irreparable damage to a dining room set and some newly installed laminate floors. [ 5 ] She also says Ms. Cooper-Easingwood failed to pay utility bills and takes the position that all utility bills should have been paid by Ms. Cooper-Easingwood up to and including March 30, 2018. [ 6 ] She makes a claim for two months of rent which she says Ms. Cooper Easingwood caused her to pay for a lease she held in Burnaby.

She also claims for a Rodan & Fields face cream kit which she says she left in the residence and is now missing. [ 7 ] Ms. Cooper-Easingwood admits that she owes some money for outstanding utility bills but says she should only be responsible for those bills until March 15, 2018, when she vacated the premises. She claims she had to vacate the premises because large amounts of water were entering the premises due to unforeseen accumulations of ice and snow on the roof. She claims she and her daughter felt unsafe in the premises and felt their health was being adversely affected by continuing to reside there.

She denies causing any damage to the dining room set or floors. [ 8 ] She also denies being responsible for Ms. Bankowski’s lease payments in Burnaby and denies using, disposing of, or ever seeing the Rodan & Fields face cream kit. [ 9 ] In text messages she sent to Ms. Cooper-Easingwood on or about March 31, 2018, Ms. Bankowski told Ms. Cooper- Easingwood that she would be taking her to small claims court. This was at a time when it was obvious that the parties’ relationship had deteriorated, but before most of the damages claimed by Ms. Bankowski would have been evident to her. This timing suggests that Ms.

Bankowski was already in a litigious mood even before knowing the extent of any damages and causes me to treat all of Ms. Bankowski's claims with a degree of caution. [ 10 ] It is obvious by the tenor of the many text messages referred to in the evidence of the parties, that this was an emotionally laden dispute. It was also evident during the course of the trial that Ms. Bankowski, in particular, was highly emotional when speaking of her interactions with Ms. Cooper-Easingwood. She believes Ms. Cooper-Easingwood was dishonest and unfair with her by apparently agreeing to pay rent and then not doing so.

She also pointed out that Ms. Cooper-Easingwood had advised her she had paid all the utility bills when she moved out when in fact she had not done so. Much time was spent in cross examination on these issues with Ms. Bankowski seeking to prove that Ms. Cooper-Easingwood provided “false testimonies”. It is obvious that she feels insulted by Ms. Cooper-Easingwood’s actions and appears to blame Ms. Cooper-Easingwood for difficulties that ensued with her mental health and employment after she returned to Dawson Creek. [ 11 ] The trial proceeded over the course of three days. Both Ms. Bankowski and Ms.

Cooper-Easingwood testified. Three additional witnesses testified, two for Ms. Bankowski and one for Ms. Cooper-Easingwood. Thirty-one exhibits were filed. ISSUES 1. Rent [ 12 ] Ms. Bankowski makes a claim for $2,100 in unpaid rent. She says the parties agreed that monthly rent of $350 was to have been paid from October 1, 2017, until March 30, 2018. Ms. Cooper-Easingwood says that, although there was no ongoing agreement, she had voluntarily agreed to pay some rent but soon changed her mind when the condition of the premises became evident. [ 13 ] I dismissed this portion of Ms.

Bankowski's claim on the first day of trial because there is no jurisdiction under the Small Claims Act for me to deal with claims of unpaid rent. This was clearly a residential property as defined in the Residential Tenancy Act and any claims for rent clearly fall outside the jurisdiction of the Provincial Court pursuant to section 58(3) of that act. [ 14 ] I proceeded to continue to hear the rest of Ms. Bankowski's claim on the basis that there was no tenancy agreement and that her claims involved a house sitting agreement only. 2. Unpaid Utility Bills [ 15 ] Ms.

Bankowski claims $706.86 for unpaid utility bills up to March 30, 2018. [ 16 ] In her reply, Ms. Cooper-Easingwood agreed that she owes $462.00 for outstanding utilities. [ 17 ] During the course of the trial, and after reviewing exhibits, Ms. Cooper-Easingwood now agrees that she owes $565.25 for outstanding Hydro, gas, and a municipal utility bill. [ 18 ] Ms. Bankowski takes the position that Ms. Cooper-Easingwood owes $706.86 for those same outstanding bills. [ 19 ] The difference between what is admitted and what is claimed is $141.65. Whether this amount is owed depends on whether Ms.

Cooper-Easingwood is liable for utility bills to March 15, 2018 or to March 30, 2018. 3. Maintenance of the Premises

[ 20 ] I heard much evidence about the state of the premises during the winter months in late 2017 and early 2018. Ms. Cooper- Easingwood testified and filed exhibits that large amounts of water began to flow into the premises while she resided there. Ms. Bankowski does not dispute that this was the case but says Ms. Cooper-Easingwood is responsible for water entering the premises because she did not clear snow from the roof. Both parties agree that there was an unusually high amount of snowfall during the winter months when Ms. Cooper-Easingwood occupied the premises. [ 21 ] Mr. Jacek Bankowski testified.

He is Ms. Bankowski's former spouse and attended to the residence in December 2017 and again in February 2018. He testified that in December, he observed an approximate 30 cm accumulation of ice and snow on the roof. He attended once again in February and observed a significant layer of ice on the edge of the roof which he estimated to be approximately 40 cm thick. He testified that the ice was attached to the shingles and could at that point not be removed until it began to melt. He testified that it was the layer of ice on the roof which caused water to get under the roof shingles and leak into the residence.

He said ice could be removed from the edge of the roof without climbing on top of the roof. He testified that when he had previous renters, he had an agreement with them to remove the snow and ice from the roof. He had provided those renters with an axe and a ladder and gave them instructions on how to remove ice and snow. [ 22 ] There is no evidence before me that Ms. Bankowski gave similar instructions to Ms. Cooper-Easingwood. I further find that there was an unusually high snowfall and accumulation of snow during the winter months of 2017 and 2018. Given the lack of directions to Ms.

Cooper-Easingwood and the unusual snow accumulation, it is not reasonable to expect that Ms. Cooper-Easingwood could keep up with snow removal -- particularly from the roof. Applying common sense, ice accumulation on the edge of a roof suggests that the roof is not properly insulated and that cannot possibly be the fault of Ms. Cooper-Easingwood. [ 23 ] Ms. Cooper-Easingwood and her daughter Brenda Easingwood both testified and provided photographic evidence of large amounts water leaking into the house.

They both testified that Brenda Easingwood was ill and they attributed her illness to the damp conditions in the house. I accept that Ms. Cooper-Easingwood advised Ms. Bankowski that the parties needed to vacate the residence due to the perceived threats. Ms. Cooper-Easingwood sent text messages to Ms. Bankowski on February 21, 2018, advising of her intention to leave the residence by April 1 and that she was looking for a new place to live. [ 24 ] Much cross-examination occurred about mould and fiberglass and what may have caused Ms. Easingwood's health problems.

I did not find that cross-examination helpful. [ 25 ] Ms. Bankowski sent a text message on February 27, 2018, in which she advised Ms. Cooper-Easingwood that there was a danger of the roof collapsing due to ice accumulation on it. [ 26 ] Having reviewed the evidence, health problems aside, it would not be reasonable to expect anyone to continue to reside in the residence after the water leakage became a problem and the roof being in danger of collapsing. The water leakage and the state of the roof frustrated any agreement that may have existed between the parties. I find that Ms.

Cooper-Easingwood had ample reason to move out of that residence when she did. [ 27 ] I am also satisfied that Ms. Cooper-Easingwood and Ms. Easingwood moved out of the house by March 15, 2018. Both testified that they had left the premises by March 15. Ms. Cooper-Easingwood filed as Exhibit 17 a residential tenancy agreement she and Ms. Easingwood signed on March 9, 2018. That same agreement shows the commencement date for their new tenancy to have been March 14, 2018. [ 28 ] I find Ms. Cooper-Easingwood had good reason to leave the premises when she did.

The verbal agreement between the parties contained no details about any notice that had to be given by either party to terminate the agreement. I find it unreasonable in the circumstances to expect Ms. Cooper-Easingwood to continue to pay utilities when she was no longer residing in the premises. I also find that she had left the premises on or before March 15, 2019. I therefore find that she is liable for utility bills to March 15, 2018 only and award $565.25 to Ms. Bankowski for outstanding utility bills. 3. Damage to Dining Room set and floors [ 29 ] Ms.

Bankowski makes a claim of $4,142.88 for replacement of a dining room table and chairs, and $846.47 for floor replacement. Ms. Bankowski referred extensively to an exhibit she filed on June 12, 2018. That exhibit contains photographs of damage to a dining room table and chair set as well as scratches to two floors in the residence, one in the living room and the other in a downstairs bedroom. [ 30 ] Ms. Bankowski testified that the dining room table and chairs were important to her because they were of significant value and she was proud to have accumulated them.

She testified that she and her ex-husband owned this set prior to their separation and used it only on special occasions. She testified that the set was in excellent condition with the exception of three marks her son had put on the table. She further testified that she showed these marks to Ms. Cooper-Easingwood and told Ms. Cooper-Easingwood that these were her prize possessions and to keep the table and chairs covered. She said the table had two padded layers and a tablecloth on it and all the chairs had plastic covers when she left it with Ms.

Cooper-Easingwood. [ 31 ] Ms Bankowski testified that the table now has a number of additional scratches on the surface, the edges and the legs and had some marks on the surface consistent with hot items being placed directly on it and the cloth chair cushions were now stained. She said she was unable to find anybody willing to repair the table and chairs. Her claim for $4,142.88 is based on total replacement value for a similar set she found at a local furniture store. [ 32 ] Jacek Bankowski testified that the dining room set were items that Ms. Bankowski retained after their separation.

He also said that they typically used the set only on special occasions and that he believed it to have been in good condition when the parties separated. [ 33 ] Ms. Cooper-Easingwood testified that she knew the dining room set was an important item for Ms. Bankowski and remembers being shown the three existing marks on the table by Ms. Bankowski. Ms. Cooper-Easingwood testified that she had not caused any

damages to it and with the exception of removing the covers to wash them periodically, she kept the table and chairs covered. Brenda Easingwood gave similar evidence to the effect that they did not cause or allow anyone else to cause damage to the furniture. [ 34 ] Ms. Cooper-Easingwood was cross-examined about padding that had gone missing from the table top. It was suggested to her that a padded covering belonging to Ms. Bankowski was not left with the table when Ms. Cooper-Easingwood moved out. Ms.

Cooper- Easingwood agreed that when she removed her own table coverings while moving out she couldn't find the padded covering belonging to Ms. Bankowski. No evidence was provided about the nature of the table coverings belonging to and used by Ms. Cooper-Easingwood. [ 35 ] Regarding the scratches to the floors, Ms. Bankowski introduced photographs showing several scratches to two different floors. One of the floors appears to be either a hardwood or an engineered hardwood floor and the other appears to be a laminate floor. Ms.

Bankowski says she is claiming only the replacement value for the materials and not labour because her ex-husband had installed the floors free of charge to her. [ 36 ] Jacek Bankowski testified that he installed those floors in the residence prior to Ms. Cooper-Easingwood's occupancy and that the floors were then undamaged. [ 37 ] Harvey Doornbos testified that he had helped Ms. Bankowski move her belongings into that residence. He testified that all furnishings were covered and it was difficult to move them.

He also said that there were blankets and towels on the floor and that the movers were careful to carry things in and set them down so as not to damage the floors. [ 38 ] Considering all of the evidence, I accept that some damage was caused to the dining room set as well as the floors while Ms. Cooper-Easingwood was in the residence. I do not find that Ms. Bankowski has proven that the damage to the table, chairs and floors is so serious that the items need to be replaced. [ 39 ] In my view, Ms. Bankowski exaggerated her claims for damages to the dining room set and floors.

She did testify that she attempted to find someone to repair the table but was unable to do so. She provided no details about what efforts she undertook nor did she provide evidence that the items were irreparably damaged. There are many “do-it-yourself” videos available online to repair both laminate and hardwood floors. Similar videos exist to repair damage to furniture. The items required to do such work are few and the cost minimal. [ 40 ] I find that Ms.

Bankowski has not seriously attempted to mitigate her damages and has not provided sufficient evidence to establish that the items were damaged beyond repair. I allow only nominal damages of $200 for materials to repair the floors and dining room set. 4. Incurred Expenses [ 41 ] Ms. Bankowski made a claim on her notice of claim of $1,711.38 for photos, incurred expenses, photocopying, change of locks, and a missing Rodan & Fields face cream kit. At trial, she conceded that she was no longer pursuing the costs of photos, photocopying, or change of locks.

Her claim for incurred expenses now is $1,200 for rent in May and June of 2018 in Burnaby and $230.72 for the Rodan and Fields face cream kit. Rent in Burnaby [ 42 ] Ms. Bankowski testified that she attended Simon Fraser University in Burnaby and had entered into a lease to pay $600 per month for accommodation. She said that lease expired in June of 2018 and she had to pay the last two months of her lease despite no longer residing there. Ms. Bankowski says she needed to return to Dawson Creek to look after the residence after receiving notice from Ms. Cooper-Easingwood that she was moving out. Ms.

Bankowski also testified that she would have returned to Dawson Creek in December had it not been for Ms. Cooper-Easingwood's promise to pay her rent. Ms. Bankowski says that she could likely have sublet her lease in December when more students in the area were looking for rental premises. For these reasons, she is seeking reimbursement from Ms. Cooper-Easingwood. [ 43 ] Ms. Cooper-Easingwood testified that Ms. Bankowski did not need to return to Dawson Creek to look after the residence. She sent text messages advising Ms. Bankowski that she would continue to look after the residence until Ms.

Bankowski returned from her school semester. She testified that she continued to collect mail and clean up water even after she had left the residence. These text messages were made an exhibit and Ms. Bankowski agreed that Ms. Cooper-Easingwood offered to and apparently continued to do things like collect her mail. [ 44 ] Based on all the evidence, I find that Ms. Bankowski made a conscious decision to leave the Lower Mainland and return to Dawson Creek despite her rental obligations in Burnaby and Ms. Cooper-Easingwood's offer to look after the residence. [ 45 ] I do not accept that by failing to pay rent, Ms.

Cooper-Easingwood necessarily caused Ms. Bankowski to incur $1,200 in rent payments. [ 46 ] I do not accept Ms. Bankowski's argument because it depends on a number of contingencies. If I understand her argument it goes like this. In or about October 2017, Ms. Cooper-Easingwood promised to pay her $350 per month in rent. Ms. Bankowski needed that rent in order to afford living expenses in Burnaby. Had she known before December 2018 that Ms. Cooper-Easingwood would not be paying rent and would be moving out of the residence, Ms. Bankowski could have returned to Dawson Creek.

Had she made this decision, she could likely have sublet her lease in Burnaby and recovered rental payments. [ 47 ] Ms. Cooper-Easingwood did not pay any rent. For reasons mentioned above, I find that Ms. Cooper-Easingwood had legitimate reasons to move out of the residence, which reasons only became evident in February of 2018. Ms. Bankowski had entered into her lease agreement in Burnaby for two semesters at Simon Fraser University. I understood from her evidence that the lease commenced in September and ended in June. She must have entered into that lease well before any rent discussions with Ms.

Cooper-Easingwood knowing she would be fully responsible for her rent in Burnaby. She chose to enter into a lease for nine months instead of four months.

Had she been prudent she would have entered into shorter term leases knowing what finances were available to her. She speculated that she could have sublet her lease but provided no evidence that this was likely or possible. [ 48 ] I am not prepared to find that Ms. Cooper-Easingwood is in any way responsible for the $1,200 in lease payments claimed by Ms. Bankowski. I dismiss this portion of the claim. Rodan & Fields kit [ 49 ] Ms. Bankowski testified that she had purchased this item for $230.72. She filed a receipt to substantiate this purchase which was entered as Exhibit 22.

She testified that she had not opened the kit and had left it in a cupboard in a bathroom of the residence. Since returning, she has not been able to find the item despite having searched everywhere for it. She speculates that either Ms. Cooper- Easingwood, Ms. Easingwood, or a visitor to the home has taken or disposed of the item. [ 50 ] Ms. Cooper-Easingwood testified that she had no knowledge of the item, had never seen the item before, did not use it or dispose of the item, and didn't even know what the item was until after Ms. Bankowski made a claim for it. Ms.

Cooper-Easingwood further testified that the house contained countless items most of which she never took an inventory of and paid no particular attention to. She also said that had Ms. Bankowski wished for her to take special care of certain items, she should have pointed out to her the importance of such items. She claims Ms. Bankowski never did so with respect to the kit. [ 51 ] In any civil claim, the onus is on the claimant to prove their claim on a balance of probabilities. I accept Ms. Bankowski's evidence that she purchased this item and that the item has gone missing.

But in order to award her damages, I must also find more likely than not, that Ms. Cooper-Easingwood was responsible for the disappearance of this item. After considering all of the evidence, I am unable to conclude that Ms. Cooper Easingwood is responsible. I accept Ms. Cooper-Easingwood’s and Ms. Easingwood's evidence that they were unaware of this item and did not use it or dispose of it and dismiss this part of Ms. Bankowski's claim. CONCLUSION [ 52 ] I award judgement to Ms. Bankowski as follows: 1. For outstanding utilities $565.25 2. For materials to repair dining room set and floors $200.00 3.

Filing fees and service fees $187.00 TOTAL $952.25 [ 53 ] Ms. Bankowski is entitled to Court Order Interest which will be calculated by the registry. The payment order is also to be drafted by the registry. The judgement amount is payable forthwith unless Ms. Cooper-Easingwood brings application for a payment schedule. ______________ G. Leven, PCJ Provincial Court of British Columbia