Andrea Craig - v. -, 2018 SKPC 050

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 050 Date: August 22, 2018 File: #495[2016] Location: Saskatoon _____________________________________________________________________________ Between: Andrea Craig - and - Elite Property Management Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGEMENT S. L METIVIER, J _____________________________________________________________________________ I.

INTRODUCTION [ 1 ] The Plaintiff, Andrea Craig, owns a rental property located at 103 28 th Street West in Saskatoon, Saskatchewan (the “Property”). On March 31, 2015 the Plaintiff entered into a Property Management Agreement with the Defendant, Elite Property Management Ltd. (“Elite”) to lease and manage the Property for a one-year term (the “Contract”).

[ 2 ] Elite arranged for the Property to be rented out under a written tenancy agreement at a rate of $1350.00 per month for a one- year term commencing on June 1, 2015. The tenant paid rent in June, July and August, then moved out in the middle of September without notice. The Plaintiff terminated the contract on December 11, 2015, as, in her opinion, Elite was not properly managing the Property.

The Property remained vacant from the middle of September to January, 2016, when it was rented out by a different property manager. [ 3 ] The Plaintiff commenced this action against Elite claiming the following damages for breach of contract: a. Loss of rent for November and December $2700.00 b. SaskEnergy bill for December $93.05 c. Refund of advertising costs charged by the Defendant $243.06 $3036.11 [ 4 ] Elite denies any breach of its’ contractual obligations and advances a counterclaim against the Plaintiff for wrongful termination of the Contract. II. ANALYSIS A.

Is the Plaintiff entitled to damages for breach of the Contract?

a) Loss of Rent and SaskEnergy Costs for December [ 5 ] The Plaintiff claims that Elite failed to clean and maintain the Property resulting in it not being rented out in November and December, 2015. She testified that after firing Elite on December 11, 2015, she hired a new property manager who had the Property cleaned and quickly rented out to a new tenant at the same rental rate by January of 2016. [ 6 ] The Contract imposes the following obligations on Elite to lease and manage the Property: 2. The Agent shall use all reasonable efforts to lease available space in the Building to desirable tenants. … 7.

The Agent is authorized and required, at the expense of the owner, to purchase necessary supplies; to make contracts for electricity, gas, steam, telephone, window cleaning, refuse disposal, vermin extermination, and for any utilities or services which the agent shall reasonably consider advisable; to make ordinary repairs and alterations, provided that expenditures for any one item of repair or alteration shall not exceed the sum of $500.00 without written consent of the Owner, unless they are made under circumstances which the agent shall reasonable consider to constitute an emergency. … The standard imposed on Elite both in regard to leasing and maintenance of the Property is one of reasonableness. [ 7 ] What is reasonable will depend on the facts of a particular case.

In 1092369 Alberta Ltd. v Joben Investments Ltd. 2013 ABQB 310 (Alta QB), Brown J (as he then was) described “reasonableness” in the context of the performance of contractual obligations, at para 75, as follows: While " reasonableness " does not require that a party spare no effort or leave no stone unturned - for example, Dickson J. wrote in Dynamic Transport Ltd. (at 1083) of "best efforts" as requiring "do[ing] all that is necessary" - it nonetheless denotes a prudent and moderate measure of sustained diligence necessary to give business efficacy to the object of the parties' underlying agreement (being, in this case, to effect the purchase and sale of subdivided lots).

Alternatively put, it describes the effort that a reasonable person, committed to achieving the objective, would have undertaken. [ 8 ] The Plaintiff testified that when she attended the Property on October 5, 2015, most of the upstairs had been cleaned; however, there was debris on the upstairs carpet, the basement was not clean, and the yard was not attended to.

She said that these problems persisted when she returned to the Property on December 10, 2015, in spite of her repeated requests to Elite to resolve these issues. [ 9 ] The Plaintiff filed photographs of the Property taken on December 10, 2015 (Exhibit P-4), to illustrate housekeeping deficiencies, including debris on the upstairs carpet, saw dust underneath an electrical outlet, a dirty basement bathroom, and a few

personal items left behind by the tenant. Photographs taken outside of the house show items left in the garage by a friend of the previous tenant, some branches piled behind the garage door, a full Loraas Recycle bin, and various items left in the yard. [ 10 ] Ronald Bloomfield provides lawn care and maintenance services for Elite. Time records filed as Exhibit D-2 show that Mr.

Bloomfield attended at the Property and performed the following services: • October 1, 2015 – pick up garbage, cut grass, trees • October 2, 2015 - check house • October 9, 2015 – check house • October 23, 2015 – check house, clean yard • October 30, 2015 – check house • November 12, 2015 – pick up garbage, check house • November 20, 2015 – check house, remove snow • November 27, 2015 – remove snow, check house • December 3 2015 – check site • December 11, 2015 – remove snow, check exterior of house • December 16, 2015 – remove snow [ 11 ] Mr.

Bloomfield testified that the Property is in a mature neighborhood with many trees, including an apple tree in the backyard. He said that even though he raked the leaves and picked up fallen apples during his site visits, the yard could quickly become covered with a new batch. He recalled that sometime before the first snowfall someone deposited a pile of tree branches in the back alley behind the garage. While it would be his normal practice to contact a supervisor to have the branches picked up, he could not recall if he had done so in this case.

He said that it is not his practice to inspect or empty the recycle bin as his visits do not necessarily coincide with the City’s

schedule for pick-up. [ 12 ] While inspecting the inside of the house, Mr. Bloomfied checked for general cleanliness, damage, or any problems with the heating or plumbing systems. He stated that, in his view, this Property was cleaner than others; he could not recall anything out of the ordinary apart from the items left in the garage by the previous tenant. [ 13 ] Sheldon Trabish is employed by Elite as a property administrator.

He testified that after the tenant vacated the Property without notice in the middle of September, Elite applied for an Order for Possession under the Residential Tenancies Act, 2006 (the “Act”). A hearing was held on October 6, 2015, resulting in the issuance of a Writ of Possession on October 7, 2015. [ 14 ] Mr. Trabish attended at the Property on September 26, 2015, and took the photographs marked as Exhibit D-3. He recalled that there was minimal damage to the house. The tenant left a few personal items behind and the house required cleaning.

There were tools and other items left in the garage and four tires in the yard. Mr. Trabish stated that Elite was unable to dispose of these personal items until it received permission from the tenant or obtained an Order of Abandonment under the Act. [ 15 ] Cash Flow statements for the months of October and November, 2015, show that the Plaintiff’s account with Elite was in arrears in the amount of $547.03 and $1283.56, respectively. In November, 2015, the Plaintiff made a $547.03 payment.

Elite applied the tenant’s damage deposit of $675.00 to the outstanding account leaving an unpaid balance of $882.93. [ 16 ] Mr. Trabish said that he showed the Property to prospective tenants in November and December. While people generally thought the Property was “cute and comfortable” factors such as the Property’s location, unfinished parts of basement, and the fact that the Property was listed for sale made it more difficult to rent.

He considered the listing agreement to be a significant detriment as the Property could only be rented out on a month to month lease. [ 17 ] In regard to cleaning and maintenance of the Property, Mr. Trabish said that Elite made the decision to be cautious with expenditures because the Plaintiff’s account was in arrears. Elite instructed the cleaners to limit their time to 8 hours, which resulted in the main floor being cleaned, but not the basement. In his view, the Property was in a showable state.

The Plaintiff pointed out in cross- examination that when the work order for cleaning was made on September 28, 2015 the amount owing on her account was only $42.90. [ 18 ] Dax Murdoch started his position with Elite as an associate broker in December, 2015. He described the condition of the Property when he attended there in December, 2015 as “rent ready.” Under cross-examination, he could not recall whether there was a missing lightbulb, or “hygiene items” in the basement shower.

His inability to recall such small details about the condition of the Property is understandable given the time that has elapsed and the number of properties that he would be involved with in his occupation. [ 19 ] I find that Elite fulfilled its contractual obligations relating to the leasing and maintenance of the Property. After the tenant moved out, Elite obtained a Writ of Possession and had the Property cleaned. While the Property was not immaculate, it was in a reasonable state to be shown to prospective tenants. [ 20 ] The items in the garage belonged to a friend of the previous tenant.

Elite started communicating with that individual around the beginning of October. On November 30, 2015, Elite received written permission of the previous tenant to release the items in the

garage to the lawful owner and arrangements were made with him to remove the items from the garage by the middle of December. I find that the actions taken by Elite for removal of the personal property were reasonable in the circumstances. [ 21 ] Even if I had found that Elite breached its’ contractual obligations to lease and maintain the Property, I am not satisfied on a balance of probabilities that the deficiencies with respect to cleaning and maintenance of the Property resulted in the Property being vacant in November and December.

The time period between Elite obtaining a Writ of Possession and date the Plaintiff terminated the Contract is relatively short. I do not accept the Plaintiff’s argument that the only discernable difference in the Property from November to January was the cleaning and maintenance of it. It would be speculative to come to that conclusion in the absence of testimony from the new property manager.

Furthermore, it does not stretch the imagination to suppose that the end of the Christmas season, and expiration of the listing agreement in the beginning of January were just as significant as the minor cleaning issues raised by the Plaintiff.

b) Advertising [ 22 ] The Plaintiff claims damages in the amount of $243.06 for reimbursement of advertising costs for April ($63.52), May ($63.52) and October, 2015 ($116.02), arguing that the amounts charged by Elite are not supported by receipts. [ 23 ] Mr. Trabish testified that the advertising cost includes a flat fee charged to each client to cover the costs of general advertising such as block advertisements placed in newspapers or at bus stops. He said that this was discussed with the Plaintiff when she signed the Contract.

Particulars of the forms of advertising used by Elite are provided in the invoices supplied to the Plaintiff. [ 24 ] I am satisfied from Mr. Trabish’s testimony that the advertising costs charged to the Plaintiff by Elite were reasonably incurred, and properly charged out to the Plaintiff pursuant to paragraph 2 of the Contract. [ 25 ] The Plaintiff’s claim for breach of contract and damages arising under the Contract is dismissed. B.

Was the Plaintiff entitled to cancel or terminate the Contract? [ 26 ] The Contract sets out the circumstances in which the parties would be entitled to cancel or terminate the Contract. It provides, in part, as follows: 13. This agreement shall become effective on the (31) day of March, 2015, and shall continue in full force and in effect until and including the (31) day of March, 2016.

Thereafter it shall continue in full force and in effect unless either party shall serve written notice of cancellation sent by registered mail or in person to the other party, in which event this agreement shall terminate 3-months after the service of such notice on or before the last day of the month. [ 27 ] At common law, only a repudiatory breach gives the party not at fault a right to terminate the agreement.

A repudiatory breach can be found where the breach that has occurred is an event that deprives the party not at fault of substantially the whole benefit which it was intended that he or she should have obtained from the contract. [ 28 ] For the reasons previously stated, I conclude that the Defendant did not breach the Contract. As such, the Plaintiff did not have any lawful justification for terminating the Contract and is liable for damages arising from the breach of it. [ 29 ] Pursuant to paragraph 13 of the Contract, the Defendant is entitled to 3 months’ notice of cancellation of the agreement.

Paragraphs 10(

e) and (

f) of the Contract provide that where a property is vacant, Elite is entitled to a monthly flat fee of $100.00 for monitoring the property, plus a $10.00 administration fee. The damages arising as a result of the Plaintiff’s failure to provide the requisite three months’ notice are therefore calculated at $330.00, plus $16.50 GST for a total of $346.50. The Defendant is further entitled to judgment against the Plaintiff in the amount of $882.93 for the outstanding balance on her account. [ 30 ] Elite claims further damages for fees allegedly incurred under the Contract prior to December 11, 2015.

The invoice issued by Elite in December 2015 (Exhibit D-1) shows the outstanding balance at $882.93. The same balance is reflected in the invoices for January and February, 2016 (Exhibits D-4 and D-5). Sheldon Trabish testified that the balance owed by the Plaintiff as of December, 2015, was $882.93. If Elite did not include all of its fees in its monthly billing statements, then it has only itself to blame. The Plaintiff has failed to establish any contractual damages other than those set out above. III.

CONCLUSION [ 31 ] The Plaintiff’s claim is dismissed. [ 32 ] The Defendant shall have judgment against the Plaintiff in the amount of $1,229.43. The Defendant is entitled to pre- judgement interest on $882.93 from December 15, 2015, to the date of judgment, and on $346.50 from March 10, 2016, to the date of judgment.

________________________ S.L. Metivier, J