Brian Steven Syniuk v. Michelle Adrienne Syniuk, 2013 SKPC 032

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: February 19, 2013 Citation: 2013 SKPC 032 File: File # 2012 - 30 Location: Melfort, Saskatchewan _____________________________________________________________________________ Between: Brian Steven Syniuk and Michelle Adrienne Syniuk - and - Tim Kornberger and Lisa Meyers Self represented For the Plaintiff Self represented For the Defendant _____________________________________________________________________________ JUDGMENT P.

DEMONG , J _____________________________________________________________________________ [ 1 ] By Summons commenced at Melfort, Saskatchewan on the 30 th day of July, 2012, the plaintiffs Brian Steven Syniuk and Michelle Adrienne Syniuk bring action against their tenants, defendants, Tim Kornberger and Lisa Meyers, jointly, for a debt due and owing, to wit, unpaid rent for each of the months April, May, June and July 2010, at the rate of $300.00 per month.

For a total of $1,200.00. [ 2 ] In addition, the plaintiffs seek damages in the sum of $18,800.00 to reflect the uninhabitable condition in which the defendants left

the premises. [ 3 ] In answer to the claim, the defendants filed a dispute note which reads, in its entirety: They owe me mony Basement was caven in Water wasent safe to drink Sewer dintwork it was ok wen I moved out oct 27 [SIC]. [ 4 ] This matter came to trial in Melfort, Saskatchewan on the 30 th day of January, 2013. Following argument, the matter was reserved.

The Plaintiffs Evidence [ 5 ] Each of Brian and Michelle Syniuk gave evidence as did their insurance agent Trent Fedorychka [ 6 ] Brian and Michelle reside at or near Melfort, Saskatchewan and are registered owners as joint tenants of a property bearing a legal land description of SE Sec 33 Twp 46 Rge 17 W2, in the Rural Municipality of Willow Creek No. 458 in the Province of Saskatchewan. [ 7 ] Situated on the land are various out buildings, together with a garage and a residential premises.

The residence has been described to the court as comprising approximately 1100 square feet of liveable space, with 3 bedrooms and a bathroom.

The home was built by Brian’s father in 1937. [ 8 ] On or about July 2008 the plaintiffs entered into a verbal agreement to rent the home and the garage to the defendants jointly ... originally at the rate of $200.00 per month, which was, at some later date, increased to $300.00 per month. [ 9 ] The agreement was sparse on details. [ 10 ] It was understood however, that rent was to be paid on a monthly basis, and by and large, monthly payments were made on or about the due date, either in cash, or by cheque.

There were occasions when the defendants were unable to pay the rent and on those occasions the plaintiffs allowed the defendants to delay payment, those delays sometimes approaching three months in duration. [ 11 ] In exchange for the rental payments the defendants were to have quiet possession of the land and were responsible for utility payments. [ 12 ] During the currency of this rental agreement Brian was also farming this parcel of land.

According to the evidence, he did, on at least five occasions in 2008, fifteen occasions in 2009 and four occasions in 2010 attend at the rental property. [ 13 ] On those occasions he noted an increasing state of disrepair of the home.

Specifically, he referred to increasingly dirty floors and rugs, a broken window and some damage and subsequent boarding up the front porch of the home. [ 14 ] Brian indicated that on some occasions he would ask the defendants to maintain the premises in a more suitable manner, and advised the court that the defendants indicated on several occasions that they were going to. [ 15 ] Brian indicated that he would have mentioned this on at least five occasions, yet on each occasion that he attended he did not see any discernable clean up of the premises. [ 16 ] April of 2010 came and went and the plaintiffs did not receive the $300.00 rent.

In addition, they did not receive a rental payment for the months of May, June, or July, 2010. [ 17 ] The plaintiffs say that on or about the 6 th day of July, 2010, they were made aware of the fact that the defendants were now living in the community of Brooksby, Saskatchewan. The plaintiffs immediately attended on the property and determined that in fact it had been vacated. In addition, the home was in an astonishing state of disrepair.

Twenty coloured photographs of the premises were tendered into evidence and identified as P-1. [ 18 ] The photographs reflect an extra-ordinary amount of filth and debris scattered throughout the home. They identify at least one broken and boarded up window if not two; missing and torn tile and linoleum scratches, scrapes and damage to what appears to be the

drywall in a number of the rooms and carpets which have been torn and chewed and which appear to be covered in dog feces. The toilet and sinks in the bathroom are also best described as filthy, and almost certainly unusable. [ 19 ] The plaintiffs say that when they attended on the premises to take the photographs and to inspect the damage, the smell in the house was so utterly intolerable that they could only stay a few minutes, and even then, were obligated to “mask up” to brave the smell.

On July 17, 2012 Brian and Michelle sent by registered letter a formal demand for payment of rent and damages and advised that failing payment of $20,000.00 within 14 days they would commence legal action to recover those amounts. [ 20 ] It should be noted in passing that since their first attendance on the premises in July 2010, the plaintiffs have indicated they have taken absolutely no steps to re-enter the premises; to clean up the garbage and the filth; or to repair any of the apparent deficiencies on the property.

The court was told that in 2012 the power to the property was turned off, and presumably the piping in the home is now almost certainly frozen through. [ 21 ] The court was quite surprised to learn this in light of the fact that evidence was lead to suggest that this property was “the beloved and ancestral home not only of the plaintiffs, but their extended family”. [ 22 ] The plaintiffs called Trent Fedorychka, their insurance agent to give evidence in these proceedings.

He indicated that, as their insurance agent, he had occasion in 2007 (when Brian and Michelle moved out of the home) to inspect the home and he noted that the home was “very clean, and absolutely fit for occupancy. Exhibit P-3 was tendered as evidence, which purports to be a computer generated estimate which was provided to the plaintiffs to assess the replacement value of the home.

The estimate purports to include labor and materials, normal profit and overhead costs together with the cost of debris removal for the provision of a new 1100 square foot home. [ 23 ] The construction costs, inclusive of debris removal are identified at $185,907.00. [ 24 ] I should point out that Mr. Fedorychka is an insurance agent. He is not, by training, either an evaluation expert or an appraiser.

Presumably, Exhibit P-3 was tendered to show that the actual losses sustained by the plaintiff is the total loss of a home, and what the plaintiffs would be seeking in turn, is a new home to replace the old. [ 25 ] After each of Brian, Michelle and Mr. Fedorychka were called, the defendants were provided the opportunity to cross examine. They declined to participate in any cross-examination whatsoever. [ 26 ] At the commencements of the defendants’ case, the defendants originally indicated they chose to call no evidence. Eventually, they decided to call their daughter Kimberly.

Kimberly proved to be of little assistance to the court. She indicated that she would, from time to time, over the course of tenancy, live with her parents for anywhere between a day or a week at a time. She indicated that in her view the sewage system did not work during the occupancy of the premises by the defendants. She indicated that the plumbing was poor and the water was undrinkable. She also indicated that the stairs were rotting and that the basement was sunken or to use her words, “falling apart”.

She further indicated that the defendants did at one point in time have two dogs who had a number of puppies which were eventually sold. She also stated that, to her recollection, once the defendants vacated the property, there were one or more parties held on the premises by certain unknown persons. Issues 1. Does the court have jurisdiction to deal with the plaintiffs’ claims for nonpayment of rent and damages to the property; and if so, is the plaintiffs claim for rent for each of the months of April, May, June and July, 2010 tenable? 2.

Did the defendants cause damage to the property, and if so, is there an implied covenant under the verbal agreement to repair that damage? 3. If the defendants caused damage what is the proper measure of damages to be awarded?

ISSUE 1 - Does this court have jurisdiction to deal with the plaintiffs ’ claim for nonpayment of rent and damages to the property; and if so, is the plaintiffs claim for rent for each of the months of April, May, June and July 2010 tenable? [ 27 ] The plaintiffs action seeks relief both in the nature of a debt ... comprising the nonpayment of rent for the months of April, May, June and July while the defendants were in possession of the property, and also for damages done to the property by the defendants while they were in possession as a tenant. [ 28 ] Prima Facie , this court has jurisdiction to deal with both the claim for debt and damages.

Section 3 of The Small Claims Act, 1997 reads: 3

(1) Subject to subsection (7), this Act, applies whether or not the Crown is a party to the action, to any claim or counterclaim for:

(

a) debt or damages; ...[emphasis added] [ 29 ] However it is clear that a claim for unpaid rent and for damages arising while a tenant is possession of rental premises falls squarely within the jurisdiction of The Residential Tenancies Act , 2006 and a claim for each of these forms of relief could be brought to the attention to the Director of Residential Tenancies, who, pursuant to

Section 15 of that Act is responsible for the administration of that Act, and to which aggrieved landlords and tenants may, pursuant to

Section 70, seek redress. [ 30 ] I cannot find anything in that Act which grants to the Director the exclusive jurisdiction to deal with claims for unpaid rent or damages incurred while a tenant is in possession of rental premises and I conclude therefore that, at least to the extent that a claim is for debt or damages, this court has the concurrent jurisdiction to deal with these kinds of claims. [ 31 ] I am further satisfied, based on the reading of

Section 71 of that Act, and

Section 11 of The Residential Tenancies Regulations 2007, that if a claim is being advanced in excess of $10,000.00, then this court would be the most appropriate forum for determination of the plaintiffs’ rights.

Section 71 of The Residential Tenancies Act , 2006 reads: 71 An application or an order may be made pursuant to this Act respecting a monetary claim only if the amount claimed does not exceed the prescribed monetary limit, but the landlord or tenant making the monetary claim may abandon that part of the claim that is in excess of the prescribed monetary limit.

Section 11 of the Regulations reads: 11 For the purposes of

Section 71 of the Act, an application may be made pursuant to

Section 20 of the Act respecting a monetary claim only if the amount claimed does not exceed $10,000.00. [ 32 ] In the instance circumstances, there is uncontroverted evidence that the defendants did not make the plaintiffs aware of their intention to terminate the agreement, and I find that the plaintiffs were not made aware of that termination until July 6, 2010. The defendants had suggested in argument and in their dispute note that they vacated the property on October 2009 but the evidence before the court suggests otherwise.

Exhibit P-2 identifies receipts for rental payments made in each of November and December of 2009 and each of the months January, February, and March of 2010.

Certainly, if the rent was being paid by the defendants beyond October 2009, and the plaintiffs had no notice that the defendants were not in occupation of the premises, then the plaintiffs were entitled to assume that the defendants were still living at the premises, and bound by the verbal tenancy agreement. [ 33 ] I am satisfied that the plaintiffs have proven that they were not paid rent for each of the months of April, May, June and July, 2010 and Judgment in the amount of $1,200.00, constituting 4 months of unpaid rent is hereby awarded. Issue - 2 2.

Did the defendants cause damage to the property, and if so, is there an obligation under this verbal agreement to repair that damage? [ 34 ] At common law, under a verbal agreement to rent, the tenant has a general duty to the landlord to guard against damage to the premises from its use for purposes beyond those incidental to the natural and ordinary uses for which the property was left. A tenant in turn discharges his duty when he keeps the building in repair according to its age, nature, and the condition in which it was when he took possession. See City Bakery Ltd. v. Hebert (1985), 42 Sask. R. 75(QB) .

If the implied covenant is breached, the measure of damages for breach is the cost of restoration of the premises, irrespective of whether the landlord intends to restore them or not. The measure of damages is not the diminuted value of the property. See Buscombe v. Starke [1017] 1 WWR 204 (B.C.C.A.). [ 35 ] This implied covenant is now incorporated into a statutory obligation and is set out in Section 49 (5) and (6) of The Residential Tenancies Act . That

Section reads in part: 49

(5) A tenant must maintain reasonable health, cleanliness and sanitary standards throughout the rental unit.

(6) A tenant must repair damage to the residential property or services and facilities that is caused by the actions or neglect of the tenantor a person permitted on the residential property by the tenant.

(7) A tenant is not required to make repairs for reasonable wear and tear. [36] The evidence of the plaintiffs was that when the premises were originally rented to the defendants the home was clean andabsolutely fit for occupancy. Comparatively speaking, and from a review of the photographs set forth in P-3, taken in July 2010, thesame could not be said. As previously indicated, those photographs identify damage to the walls, flooring and windows of the home.

Inaddition, there is an accumulation of filth and waste which is simply extraordinary. [37] I am satisfied that during the currency of the defendants’ residency, damage was caused to the property and that thedefendants also failed to maintain reasonable cleanliness and sanitary standards throughout the premises. [38] As such, I am satisfied that the plaintiffs are entitled to an award of damages. Issue - 3 3. What is the Proper Measure of Damages to be awarded in the instant circumstances? [39] It is at this point that the plaintiffs put this court into a very difficult position.

The only evidence lead on the issue of damages is areport submitted by the plaintiffs’ insurance agent purporting to measure the damages in terms of a complete replacement of thatproperty with a new 1100 square foot home, in the amount of $185,907.00. [40] This, however, is not the appropriate measure of damages.

While the photographs show the decrepit condition of the property, theyare not so compelling as to suggest that the house could not, with some significant effort, be returned to its pre-rented condition. [41] It was incumbent on the plaintiffs to provide an estimate of the cost of cleaning up the waste and the filth, together with a furtherestimate of the cost of replacing the carpet and tile throughout the house, together with the cost of fumigating the property and the cost ofreplacing the broken windows and drywall, together with the cost of painting and refurbishing walls and cabinets. [42] This court has absolutely no evidence in this regard, notwithstanding that at the commencement of this trial I explained what wasrequired of the parties ... that is to say, a general description of the manner by which witnesses should be called, a general discussion onthe rules regarding hearsay, and in particular, the obligation of the plaintiffs to prove all aspects of their claim - not only the burden ofproof that rested with the plaintiffs, but their obligation to prove their damages.

Even during the course of trial, I invited the plaintiffs onseveral occasions to attempt to identify for me, the costs that they might incur in attempting to rectify the damages to the property. Thiswas not forthcoming. [43] Nevertheless, it is clear that the plaintiffs have sustained damages and, notwithstanding the lack of evidence, that the court cannotavoid awarding damages even where there is a difficulty in assessing damages, or where assessing damages amounts nearly to guesswork. In that regard, I refer to the decision of MacLeod, J in Hughes v. Bachman Holdings Ltd. and Bachman (SKKB), 91 Sask.

R. 244 and Wood v. Grand Valley Railway Company et al. (1915), (SCC), 51 S. C.R. 283, at p. 289. [44] After reviewing the photographic evidence, I am satisfied that the following work will have to be undertaken: 1. Clean up of debris and associated filth. [45] I am satisfied that if 40 hours of labor were expended for the clean up of the interior of the property the vast majority of theassociated filth and debris can be removed. [46] Because some of the clean up would require some specialized equipment including masking, I am satisfied that a rate of $25.00 anhour would be appropriate.

As such, for the clean up of debris and filth, I would assess a value of 40 hours X $25.00 an hour for a totalof $1,000.00. I am also satisfied that the vast majority of the linoleum and the carpet would have to be torn out and replaced. I amsatisfied that the tear out could be accomplished over the course of 20 hours, and employing a rate of $25.00 an hour, this would equateto a further $500.00. [47] The associated debris from the tear out would have to be hauled away. I assign a value of $200.00 to this associated cost. [48] The photographs show flooring that is both linoleum and carpet.

[ 49 ] Because the home has a square footage of approximately 1100 square feet, I am satisfied the new linoleum and the carpet must be installed, and assess to this aspect of the loss, a cost of $30.00 per square metre, materials included. 1100 square feet equates to 104 square metres, and I therefore assign a value of $3,120.00 to this aspect of the claim. [ 50 ] In addition, much if not all of the wall surfaces are in a diminished condition. In my view, with the cost of paint included, a typical room of 12 feet by 12 feet would cost approximately $250.00 to paint.

Operating on the assumption that there are 8 equivalent rooms in the home I assign a value to the repainting of the walls at $2,000.00, materials included. [ 51 ] Finally, I note that there is some damage to at least one window if not more, and further damage to the floor itself in at least one room, and to a couple of the walls.

I rather arbitrarily assign a value of $1,000.00 to correct these problems. [ 52 ] This court was advised that the home was originally built in 1937. [ 53 ] There is no evidence before the court to suggest that the property had been painted just prior to the beginning of the tenancy, nor was there evidence to suggest that new linoleum and new rugs were replaced in the home prior to the tenancy. As such, it is clear that if the plaintiffs were to receive new flooring and linoleum and paint, they would be in a better position than they would have been prior to the tenancy.

This in turn demands some off setting provision to accommodate the betterment that the plaintiffs have received by the introduction of new paint and new flooring. [ 54 ] This court inclines the view that a 25% deduction off of the flooring and painting assessment fairly reflect the betterment accruing to the plaintiffs.

There is no betterment regarding cleanup, or replacement of windows or drywall. [ 55 ] Therefore, the damages for installation of new carpet and linoleum and painting, which together comprise the sum of $5,120.00 shall be reduced by 25% for a total award of damages under this head in the amount of $3,840.00. [ 56 ] The plaintiffs’ damages are assessed as follows: (

a) Unpaid rent - $1,200.00 (

b) clean up and repair - $2,700.00 (

c) painting and installation of flooring (less betterment) - $3,840.00 Total - $7,740.00. [ 57 ] In addition I award pre-judgment interest on the sum of $7,740.00 from July 31, 2012 in the amount of $40.29 and costs in the sum of $182.00. In total, judgment shall be entered against the defendants jointly and severally in the sum of $7,962.29. Paul Demong, J