Zandwijk v Johnson, 2023 ABCJ 272

In the Alberta Court of Justice Citation: Zandwijk v Johnson, 2023 ABCJ 272 Date: 20231208 Docket: P2202600224 Registry: Lethbridge Between: Andreas Van Zandwijk Plaintiff - and - Jeremiah Dale Johnson Ravyn La Rose Castle Tshina Wendy Judith Harrie Defendants Memorandum of Judgment of the Honourable Justice J.N.

LeGrandeur Nature of Proceedings [ 1 ] In this case the Plaintiff seeks compensation from the Defendants or any of them for damages caused to the residential premises located at 316 – 11 Street, Fort Macleod, Alberta by the Defendants or any one-off them; for the cost of cleaning the premises, loss of rent, unpaid utilities, travel time and costs. [ 2 ] The Defendants occupied the said premises pursuant to a residential lease agreement, executed by the Plaintiff’s property manager on his behalf, and the Defendants on the 5 th day of December 2021, which was for the period of December 1, 2021, through December 1, 2022 (see lease agreement, pages 12-16, Exhibit #1). [ 3 ] On December 21 st the Plaintiff gave notice of eviction to the Defendants (page 19, Exhibit #1) demanding that they vacate the premises no later than 12:00 noon January 4, 2022.

The Defendants disputed the eviction notice (page 20, Exhibit #1) but in any event, vacated the premises on the 5 th day of January 2022.

[ 4 ] The Plaintiff initially claimed compensation by way of damages in the cumulative sum of $35,082.75, but subsequently in their trial statement filed as part of the simplified trial process varied their claim to $41,471.51 which sum was broken down in the trial statement at page 4 of Exhibit #1 as follows: One month rent for January 2022, $900 rent plus $100 pet rent $1,000.00 Lost wages for court case 202213532 42 hr x $100 per hour $4,200.00 Court costs Connelly Shurtz\Hlady Law case 202213532 $3,000.00 Court costs law firm Stringam LLP case 2202600224 $6,388.76 Damages (see damage deposit list attached) $4,856.25 Water town bill 26.500M3 $ 26.50 Travel costs 30 x Fort Mcleod x 103km = 3090km $1,000.00 Repair labor 210 hours x $100 per hour, lost wages $21,000.00 TOTAL $41,475.51 [ 5 ] The Plaintiff’s claim, as illustrated aforesaid, involves a claim for legal fees paid by the Plaintiff to defend a criminal charge of assault which allegedly arose from a complaint made by the Defendant Castle which arose from an incident involving the Plaintiff and the Defendant Castle at the residential premises.

It would appear, or at least it is asserted by the Plaintiff, that the matter was ultimately dismissed by the Court, although the evidence on that point was less than satisfactory. The initial claim seeks compensation for legal fees and alleged loss of income by the Plaintiff caused by him having to defend the criminal charge.

The legal fee claim in that regard is $3,000 and the lost income claim associated with that particular proceeding is $4,200, a total of $7,200. [ 6 ] The Plaintiff also claims legal fees in the sum of $6,388.76 which he asserts he has incurred in the prosecution of these civil proceedings before the Court. [ 7 ] On February 24, 2023, on a preliminary appearance before the Court, the Plaintiff abandoned the claim for legal fees and lost income related to defending the criminal charge and confirmed that the claim would be limited to the costs associated with repair of the alleged damage to the residential premises allegedly caused by the Defendants or any one of them and unpaid rent which claim was specified at that time in the full sum of $26,865.25. [ 8 ] This matter proceeded to trial by way of viva voce hearing on the 2 nd day of May 2023 at which time the Court heard the viva voce testimony of the Plaintiff, as well as Susan Joyce Lovestead who served in the role as property manager for the Plaintiff and was directly involved in the renting of the subject premises to the Defendants.

The Court also heard the viva voce testimony of the Defendant Castle. [ 9 ] Pages 6 to 100 inclusive of the Plaintiff’s trial statement document were cumulatively marked as Exhibit #1, and the last page of the Defendants’ trial statement document evidencing a receipt for payment of $1,200 damage deposit by the Defendants to the Plaintiff was marked as Exhibit #2. Issues [ 10 ] The issues before this Court may be summarized as follows: 1.

Did the residential premises, being the subject of the residential lease between the Plaintiff and the Defendants, suffer damages in excess of normal wear and tear during the period of occupancy of the premises by the Defendants or any one of them; 2. Did the Defendants or any one of them cause the damages alleged and if not did the Defendants or any one of them permit the alleged damages to the premises; 3. If the Defendants or any of them are liable for proven damages what compensation is the Plaintiff entitled to receive with respect to such proven damage; 4.

Did the Tenant fail to maintain the premises and any property rented with it in a reasonably clean condition; and if so, what compensation is the Plaintiff entitled to with respect to returning the premises to a condition of reasonably cleanliness; 5. Is the Plaintiff entitled to compensation by way of damages for the loss of rental income for the month of January 2022, and if so, in what amount; 6.

Is the Plaintiff entitled to compensation by way of damages for alleged travel time by him between Lethbridge and Fort Macleod allegedly related to the eviction of the Defendants and dealing with the cleaning of the premises; 7. Are the Defendants liable for any unpaid utilities, and if so, in what amount. Background and Facts

[ 11 ] The Plaintiff, through his property manager, Susan Lovestead, rented the subject premises to the three named Defendants pursuant to a lease agreement (Exhibit #1, page12-16 inclusive). The lease agreement was executed on December 5, 2021, and was backdated to cover the period December 1, 2021, through December 1, 2022. [ 12 ] Ms. Lovestead testified that a walkthrough was done with the tenants on December 5, 2021, and the check-in report of December 5, 2021, and that the walk-through report of December 5, 2021 (Exhibit #1, page 18) is evidence of that walkthrough. Ms.

Castle denies that the Defendants ever saw the check-in report until these proceedings had begun. It is clear that the report was prepared by the Plaintiff’s agent, Ms. Lovestead, and I do not believe her testimony that the said document was reviewed with the Defendants or any one of them on December 5, 2021. The walkthrough document was prepared after the alleged walkthrough and not specifically reviewed with any one of the Tenants.

That is why the document has no place for the Tenants or any one of them to confirm the walkthrough. [ 13 ] On December 21, purportedly as a result of concerns about noise and alleged drug activity apparently evidenced by the comings and goings of people from the residence, and a vehicle camped on the driveway of the residence, an eviction notice was served upon the Defendants directing them to vacate the premises by January 4, 2022. That day was one day short of the full fourteen days notice that they were entitled to.

On January 4, the Plaintiff attended the residence according to the Defendant Castle, and the RCMP were called by Ms. Castle as she asserted that the Plaintiff landlord was trying to physically remove her from the premises and that in doing so assaulted her. The Plaintiff was subsequently arrested and charged with assault by the RCMP. Given the testimony of Ms.

Castle and the Plaintiff, it appears that charge was ultimately dismissed at trial. [ 14 ] The RCMP had attended at the premises on one prior occasion on or about December 20 at the behest of the Plaintiff, and the Plaintiff stated in testimony that he found significant damage to the premises at that time. The only photograph of any such damage, however, is Photograph #69 in Exhibit #1 which the Plaintiff testified to having been taken a couple of weeks before the January 5 photographs that make up part of Exhibit #1.

This would have apparently occurred in conjunction with the RCMP visit with the Plaintiff on December 20. The Plaintiff asserts that there were other damages present at the time but only had one photograph, that is the photograph of the BB gun. I am satisfied that had there been other damage to the property visible to the Plaintiff at that time he would have photographed the same.

It is to be noted as well that the Notice of Eviction dated December 21 after the photograph of the gun was taken, likely on December 20, does not assert that damage to the premises was a basis of the termination. [ 15 ] There can be no doubt that the premises were in a damaged state when the Plaintiff attended at approximately 12:00 noon on January 5, and that the premises were littered with clutter and garbage.

There is no reliable evidence that this was the case the day before January 4, 2022. [ 16 ] The Plaintiff claims damages by way of loss of rent for the month of January 2022, essentially on the basis that it took one month to clean and repair the premises which would amount to one-month’s lost rent, which he asserts is the $900 plus $100 pet rent for a total of $1,000. Initially in their respective testimonies, the Plaintiff and Ms. Lovestead asserted that it took two months to repair the damages to the subject premises after the Tenants vacated on January 5. [ 17 ] Ms.

Castle testified that the Tenants did not cause damage to the premises, although she does not take issue with the photographs of the Plaintiff showing the purported circumstances of the premises on January 5, 2022. Ms. Castle acknowledges that she and her partner, Mr. Johnson, wanted to vacate the premises on January 5 as soon as possible, I believe, because they did not feel comfortable or safe with any further interaction between themselves and the Plaintiff given what the Defendant Castle alleged had occurred on the previous day. Ms.

Castle acknowledged that they did not leave the residence in a clean state but denied that they caused the damages as claimed by the Plaintiff and shown in the photographs. They vacated the premises at about 8:30 a.m., leaving the keys in the residence and the door unlocked. Ms. Castle testified that she had no concern about anyone entering the premises; there was no reason to believe that that would occur in that community. She testified that two individuals, Robert Taggart and Richie Lavalee, were waiting in their van parked on the driveway for a tow truck at the time that she and Mr. Johnson left.

They had helped Ms. Castle and Mr. Johnson pack up the night before and the morning of January 5. [ 18 ] The Defendant did not call either Robert Taggart or Richie Lavalee as witnesses even though she believed they would have known what the condition of the premises would have been on January 5.

She acknowledges that since she had vacated the premises in January of 2022, she had seen Robert a couple of times but that he had been in and out of jail and that Richie Lavalee, so far as she knew at that time, was currently in jail and she didn’t know how she could get them to testify. [ 19 ] The Plaintiff, as part of its trial statement, had included the statement of T.J. Gatzky as to his observations at the residence on January 4, 2022, including a statement of damage to the premises, but the Plaintiff did not call that individual nor explain why they were not called.

Damage to Property [ 20 ] There’s no doubt that the subject premises evidenced extensive physical damage and lack of cleanliness as at the point in time on January 5, 2022, when the Plaintiff regained possession of the residence; the Tenants, Castle and Johnson, having vacated earlier that day (8:30 a.m.) and the Tenant, Harrie, having left the previous day.

It is clear that the Defendants made no effort before vacating the premises to clean and declutter the subject premises and that the issue in that regard focuses on what had to be done by the Plaintiff to return the premises to a reasonable state of cleanliness. That issue is distinct from the question as to who caused the damage to the premises and what costs did the Plaintiff incur to return the premises to a reasonable state of repair. [ 21 ] The tenants’ covenant pursuant to the Residential Tenancies Act , SA 2004, c R-17.4, specifically pursuant to s21(

e) and (

f) that; (

e) the tenant will not do or permit significant damage to the premises, the common areas or the property of which they form a part;

(

f) the tenant will maintain the premises and any property rented with it in a reasonably clean condition; [22] Although the lease agreement, Exhibit #1, pages 12-16, under the clause headed “Surrender of Premises” at page 14 of Exhibit#1 provides that the tenant shall surrender the premises at the expiry of the lease in better or equal condition as at the commencement ofthe lease agreement, reasonable use, wear, and tear thereof, and damages by the elements, excepted The statutory covenant s21(

f) doesnot specify the same and the statutory condition trumps any conflicting contractual conditions; Bauer v Bernard, (1972) (NS SC), 33 DLR (3d) 371, (NS. Co. Ct.). The lease contract cannot require anything more than return of the premises in areasonably clean condition. The tenant must do “usual and ordinary” cleaning and clean up after abnormal use J.McNiel v NorthAmerican Lease Holds Ltd, (1980), 118 DLR (2d) 37, (Alta QB) [23] The tenant shall cause no significant damage to the premises, nor permit significant damage to the premises. The working ofSection 21(

e) of the Residential Tenancies Act makes the tenant liable not only for his or her actions in that regard but also vicariouslyliable for the acts of other individuals who attend on the premises. [24] It is the obligation of the Plaintiff to satisfy this Court to the level of a balance of probabilities that the Defendants or any oneof them caused or permitted significant damage to the subject premises. This standard is such that the Court in the end may have a“healthy doubt” about the Plaintiff’s case and still find in the Plaintiff’s favor.

It is as Peter Sankoff suggests in The Law of Witnessesand Evidence in Canada, loose-leaf (Thomson Reuters), at 4.3(c)(i); …The burden is designed so that one party wins regardless of whether the “truth” of the matter can be discerned. … He quotes Wexler in “Legal Proof and Tort Law” (2007) 33 adv. Q. 296 at 334, in support of this view; The same evidence might succeed in one court that will lose in another, but the balance or preponderance of probabilities does not vary.It is constant. Are you more convinced by the Plaintiff than by the Defendant? If so, the Plaintiff wins, if not the Defendant wins.

Thisdescribes a technique of thinking … The ordinary, natural, normal thing to say is if you believe the Plaintiff more than the Defendant thePlaintiff wins. If you believe the Defendant more than the Plaintiff, the Defendant wins. When you are not sure, the Defendant wins. [25] The leading case in Canada with respect to this legal standard is HF v McDougall, 2008 SCC 53 (McDougall). Therein theSupreme Court of Canada makes it clear that the matter is not simply one of saying that the strongest case satisfies the evidentiarystandard described.

The balance of probability standard does not simply weigh competing pieces of evidence against each other andaward judgment to whomever puts forth more, rather the Court must consider the evidence in the context of the proposition beingasserted as proven. McDougall requires that the Court should require that evidence be “sufficiently clear, convincing and cogent” for atrial Judge to make a ruling in one party’s favor. It is not just which case is stronger but also a question of the quality of the evidencepresented.

In essence, the nature and quality of the act or omission, the seriousness of the allegations, the gravity of the consequencesand the inherent probability or improbability of the occurrence of the event are relevant factors when weighing the evidence to determineif a party has satisfied the burden of proof. [26] The Law of Evidence in Canada, Sopinka, Lederman and Bryant, 6th Edition LexisNexis, at paragraph 5.74, states, … For example, the trier of fact may require more cogent or stronger evidence to prove the occurrence of an unlikely or improbableevent, such is an allegation that the insured committed arson, than it would for an allegation of negligence in a motor vehicle collision. [27] In this case, I do not find in all the circumstances there to be clear, cogent and convincing evidence deserving of such weightas to satisfy me on a balance of probabilities that the Defendant Tenants caused the damage to the residential premises alleged by thePlaintiff landlord.

Although the Tenants acknowledge damage to one of the walls, that being a hole in the wall purportedly caused byaccident, Ms. Castle denies that she or any one of the Tenants caused the extensive damages to the residence such as were discovered bythe Plaintiff landlord on January 5, 2022. [28] The evidence before the Court is not clear and convincing to the required degree in the circumstances that the damagespresent when the landlord regained possession were caused by the Tenants. Ms.

Castle denies the same and testifies that when she andJohnson left in the morning of January 5 at 8:30 a.m. the damages were not present save to the extent of the damage previously noted. Icannot and do not conclude that the damages evidenced at the time of the Plaintiff regaining possession on January 5 were present onJanuary 4 when the Plaintiff landlord and RCMP were at the residential premises.

Had they been so present it is, in the circumstances,likely that the Plaintiff would have made some complaint to the police about the same given their extreme and significant nature asillustrated by Photographs 62-100 in Exhibit #1. [29] When the Tenants Castle and Johnson vacated at 8:30 a.m. on January 5, it was the testimony of Ms. Castle that Mr. RobertTaggart and Richie Lavalee were at, although not in, the residential premises waiting in their van for a tow truck to come and apparentlyassist them with their vehicle.

They had assisted Castle and Johnson pack up their goods, but there is no suggestion in the evidence theywere entitled to go into the premises in the absence of Castle or Johnson, and there is no evidence that they believed or ought to haveexpected that Lavalee or Taggart would have entered into the premises once they had vacated the same and proceeded to cause damagesthereto. [30] Had the evidence demonstrated that significant damage to the premises had in fact occurred prior to January 5, the inferencewould be inescapable that it was caused by the Tenants who were still in occupation of the premises.

That evidence, however, is notbefore this Court. The evidence does not prove that the damage was caused by the Defendants between the time the Plaintiff wasremoved by the police from the premises on January 4, and the time the Tenants Castle and Johnson vacated the premises at 8:30 a.m. onJanuary 5. Castle denied such a course of conduct on the part of the Defendants in conjunction with the presence of the individualsLavalee and Taggart.

There was a window of opportunity for someone to have entered into the premises between 8:30 a.m. andapproximately 12:00 noon when the Plaintiff landlord attended on January 5, 2022. The question of who caused the damage is a liveissue in such circumstances. It is not, in my view, improbable that the two individuals, Taggart and Lavalee, with knowledge of thecircumstances as between the Plaintiff and the Tenants, may have entered into the premises of their own accord and purported to execute

some retribution against the landlord by damaging the residential premises without the authority, direction or knowledge of the Tenants.Given all the circumstances present, along with the denial of the Tenant Castle, this Court is left in a circumstance of being unable toconclude on balance who caused the damage. Lavalee and Taggart would have had access to the premises after Castle and Johnsonvacated, and given the animus they held, as described by Castle, about the conduct of the landlord surveilling the tenancy and theTenants. it is not improbable that they caused the damage.

There is nothing that undermines the denial of Castle that the Tenants did notcause such damage. It is just as possible in all the circumstances that Lavalee and Taggart caused the damage. [31] In that context, although the Plaintiff provided some testimony that asserted that the damages to the premises had occurred toa significant degree prior to January 5, I do not consider the Plaintiff landlord to be a reliable witness.

He has, in my view, exaggeratedvarious things in his testimony including costs associated with repair of the premises, in particular the claim he makes for hourlycompensation, the fact that for a light switch cover he was prepared to claim $90 on the basis that he had to travel into Lethbridge to getit, and was entitled to gas for the same even though he lives in Lethbridge and would be traveling back and forth on a regular basis, andthe fact that he changed some receipts to show a date different than the date on which he purchased the goods, which he says he used torepair the premises and presented them to the Court as original documents as part of Exhibit #1.

The fact that he may have previouslypurchased items which he ultimately used to repair the subject premises is of course not an issue, but the fact that he was prepared tochange the documents and present them as originals and file them with the Court raises concerns about his trustworthiness and character,and what else he is prepared to say and do in prosecution of his particular claim before the Court. That undermines his credibility overallas to what he purports to have observed and when he purports to have observed it.

The only thing that is clear and convincing in histestimony is that when he obtained possession of the premises at about noon on January 5, 2022, that they had been extensively damagedas shown in the photographs being part of Exhibit #1. I do not accept his testimony as to when the damages occurred as being reliable forthe reasons described. [32] The evidence before this Court is not sufficiently clear or convincing such as to allow me to conclude on a balance ofprobability that the Defendant tenants caused the damages as alleged save to the extent that one item of damage has been admitted asdescribed aforesaid.

I am unable to conclude in the circumstance who caused the damages. Permitting of Damages [33] Although it is not proven that the Tenants caused the subject damages to the premises shown by the Plaintiff, the Tenantscould be liable if they permitted significant damage to be done to the premises. The opportunity to cause such damage was available toTaggart and Lavalee who were present outside of the residence when Castle and Johnson vacated the premises and left the area.

There isno evidence that the Tenants knew or should have known that Taggart and Lavalee would enter into the premises, and they gave nopermission to do so. That Lavalee and Taggart entered the premises and caused the damage, which as I have described aforesaid, is notimprobable. This could have been done after the Tenants had vacated the premises and were not in a position to exercise control overthose parties as they were not present, nor had they authorized their entry, nor knew of their entry; see Millan v Hulsman, [1990] AJ No205.

These two individuals, in the circumstances, would have been strangers to the Tenants in the sense as expressed by Lord DenningM.R. in H & N Emanuel v Greater London Council, [1971] 2 All ER 835, as approved by Gallo v St. Cyr (1983), 1983 (AB KB), 23 Alta LR (2d) 352 (QB); and therefore the Defendants cannot be seen as vicariously liable for having permitteddamage to the property by some other third party or parties.

Duty of Care [34] The question arises as to whether the Tenants may be liable in negligence for vacating the premises on January 5, 2022, andleaving the door unlocked, thereby allowing these strangers to have access to the subject premises, enter and cause damage.

Although therelationship and connection between the Tenants and the landlord is sufficiently proximate as created by the status of landlord andtenants so as to require a duty of care by the tenant with regard to the landlord’s property and protection thereof, in the absence of actualor implied knowledge on the part of the tenant that such individuals might enter the premises and cause damage, I cannot conclude thatsuch conduct by Lavalee and Taggart was foreseeable in all the circumstances. At best this conduct was a remote possibility only.

Theconduct of the two individuals, if it occurred, was not such as was reasonably foreseeable in the circumstances and the Defendants wereaccordingly not in breach of any duty of care in the circumstances.

Damages [35] As noted aforesaid, the Plaintiff has claimed compensation by way of damages for the cost of repairing the proven damage tothe residential premises; the cost of returning the premises to a reasonable level of cleanliness, the loss of rent arising from being unableto rent the premises for the month of January 2022, travel costs associated with travelling back and forth from Lethbridge to FortMacleod, the location of the residential premises, as well as court costs with respect to the proceedings. [36] This Court has already concluded that the Plaintiff has not proven on balance that the Defendants or any one of them causedthe damages shown in the photographs number 62 through 100, Exhibit #1, or permitted the damages shown to be caused, save to theextent that it is admitted by Ms.

Harrie that she caused damage, specifically the hole in the wall as was observed by Ms. Lovestead.Although she states it was accidental, I am satisfied that even if that is the case the Defendants are liable for the cost of repairing thesame, which I will address hereafter. [37] With respect the costs associated with the Defendants’ obligation to leave the premises in a reasonable state of cleanliness, itis clear from the photographs that distinct from the damage shown that the premises were not left in a reasonably clean state when theDefendants vacated the premises on January 5, 2022.

The Defendant Castle acknowledges in her testimony that they did not clean beforeleaving, as they wanted nothing more to do with the Plaintiff given his alleged conduct during the course of the tenancy and specificallyas described occurred by the Defendant Castle on the date of January 4, 2022.

[38] The Plaintiff’s evidence focused primarily on the damage to the premises distinct from the cleanliness issue, so the Court haslittle, in any, particulars or specific evidence as to what needed cleaning and the efforts or time that was involved in the same. ThePlaintiff’s trial statement and documents in support represented by pages 6 through 100 in Exhibit #1 in this proceeding reference anunclean fridge and stove, garbage throughout the house, a trip to the dump with garbage, and cleaning of pet feces from the house andcarpet and the yard.

At page 9, Exhibit #1, the Plaintiff attributes three hours to the cleaning of the fridge and oven, and the repair of thecountertop. I accept two hours of that time estimate to be related to cleaning. He also mentions four hours of work to clean the carpet,and two hours to clean the yard.

Given the state of the premises, I am confident that the cleaning would include vacuuming the entirepremises, cleaning the bathrooms, wiping down walls in the kitchen and bathroom, and shampooing carpets, although these things arenot specifically addressed by the Plaintiff in terms of his evidence with respect to time and effort. The Plaintiff’s evidence anddocumentation focus is primarily on the damages and damage repair, not the cleaning of the premises.

Nonetheless, I am prepared toinfer, given the evidence before the Court, that over and above the question of damage repair, the whole residential premises wouldrequire a thorough cleaning.

The difficulty, however, is that the evidence is wanting as to what time that would involve given that thePlaintiff did not retain cleaners to do the same who would have provided an invoice outlining exactly what was done and the time takento do it, which is not provided by the Plaintiff. [39] The Court is left with only its “best guess” or “estimate” as to what the compensation should be for such a cleaning exercise.The Plaintiff wants $100 an hour which is what he charges to do his work, and given that the cleaning time took him away from hiswork, he feels he should be compensated for all his efforts, whether it be cleaning or repair of damage at the rate of $100 per hour.

It isclear he could have retained cleaning people to do that work at a significantly reduced hourly rate compared to his $100 per hour. He hasa duty to mitigate his damages, and accordingly he is entitled to no more than would be reasonably charged by an individual or entitywhose business included cleaning residential premises.

I have no evidence as to how long such cleaning would take by a professional orhow much it would cost, but I do accept that the Plaintiff has suffered loss in that regard and consequently I am entitled, in the absence ofsufficient evidence, to approximate the sum of damage in that regard even though it may be little more than a guess; see; Wood v GreatValley Railway Co (1915), (SCC), 51 SCR 283, where Davies J stated at page 289: It was clearly impossible under the facts of that case to estimate which anything approaching to mathematical accuracy the damagessustained by the Plaintiffs, but it seems to me to be clearly laid down there by the Learned Judges that such an impossibility cannot“relieve the wrongdoer of the necessity of paying damages for his breach of contract” and that on the other hand, the tribunal to estimatethem whether Jury or Judge must under such circumstances do “the best it can” and its conclusion will not be set aside even if theamount of the verdict is a matter of guesswork. [40] This approach was quoted with approval in a more modern decision of the Supreme Court of Canada in Penvidic ContractingCo. v International Nickel Co. of Canada, (SCC), [1976] 1 SCR 267; and more recently noted with approval in 581257Alberta Ltd v Aujla, 2011 ABQB 39 at para 89. [41] Given the paucity of information before the Court as to the extent of the cleaning and the time required to do it, and whatwould be a reasonable hourly rate for such service recognizing that the whole residential premises and the yard would require cleaning,the Court’s estimate as to damages attributable to cleaning is $2,500.

Wall Damage [42] With respect to the damaged wall as admitted to by Ms. Harrie, such damage would require drywall repair and painting, andagain there is no specific evidence as to what the reasonable cost of doing so would have been, and accordingly the Court’s best estimatein that regard is $500.

Loss of Rent [43] With respect to this claim, I accept that the Plaintiff required some time to clean the premises to make them habitable for anew tenant, in any event of the time necessary to repair the damages to the premises and although there would be some overlap of time torepair the damages to the premises and the time taken to clean the premises, the Defendants and any other responsible parties would be,in my view, jointly responsible for the loss of rent attributable to the unavailability of the premises for the balance of the month ofJanuary 2022.

The Plaintiff is entitled to damages for loss of the ability to rent the premises due in part to the required cleaning of theresidence to make the same habitable, which is a consequence in part of the Defendants’ failure to clean the premises before leaving theresidence. The Plaintiff shall have damages for loss of opportunity to rent the premises for the month of January 2022 in the sum of$900. There shall be no additional award for “pet rent”, as that is an additional charge relating to the actual presence of pets in theresidence.

Travel Costs Back and Forth to Fort Macleod [44] The rental premises are in Fort Macleod while the Plaintiff resides in Lethbridge and the cost associated with the business ofmanaging and running his rental premises include his travel back and forth which represents part of the day-to-day business costsassociated with the premises, and do not represent a damage suffered by the Plaintiff. In any event, as I described aforesaid, I have noconfidence in the Plaintiff’s evidence as to his time estimates, as it is clear to me that he has exaggerated the same.

Likewise, I concludehe has likely exaggerated the number of trips back and forth, and in any event, most of the trips relate to the issue of repair of thepremises and the Defendants have no responsibility in that regard save to the extent described aforesaid. I award no compensation for thetravel.

Utilities [ 45 ] The Plaintiff claims $26.50 in outstanding utilities. The lease says that town water and town garbage disposal are included in the rent (see Exhibit #1, page13). The utility bill for the period December 1 through December 31 would indicate that the $26.50 is for water consumption, which would appear, given the lease, to be the responsibility of the landlord. Accordingly, that portion of the claim is dismissed.

Summary of Damages [ 46 ] For the reasons expressed herein before, the Plaintiff shall have judgment against the Defendants jointly and severally as follows: 1. Damage as to cost to repair proven damage attributable to the Defendants - $500. 2. Damages as to cost to put premises in reasonable state of cleanliness - $2,500. 3. Damages by way of loss of rent for the month of January 2022 - $900. Total $3,900 . Damage Deposit [ 47 ] The Plaintiff retained the Defendants’ damage deposit which the Defendants are entitled to have credited against the any judgment awarded by this Court.

The Plaintiff says the damage deposit was only $900, although the Defendants paid a deposit of $1,200, which is evidenced in the receipt provided by the Plaintiff to the Defendant Castle, see Exhibit #2 – last page. The payment is described as a damage deposit in the lease, the security deposit set out on page 13 of Exhibit #1 is $900, and on page 14 the lease indicates that the pet deposit is $200/per pet and rent is $50/per pet.

I am satisfied that at least $200 of the $300 paid over and above the $900 damage deposit was a damage deposit relative to the pets and was either refundable to the Tenants or to be credited in their favor with respect to any compensation payable to the Landlord. Accordingly, the Defendants are entitled to credit against any judgment issued in these proceedings of $1,100. Costs [ 48 ] The Plaintiff shall have costs in the sum of $1,500 inclusive of disbursements which includes any filing fee paid in these proceedings by the Plaintiff.

Summary of Judgment [ 49 ] The Plaintiff is entitled to judgment against the Defendants jointly and severally inclusive of costs in the total amount of $5,400 less the deposit of $1,100 to which the Defendants are entitled to credit against the said judgment, leaving a net judgment payable to the Plaintiff by the Defendants in the amount of $4,300. [ 50 ] The Clerk of the Court shall issue a Certificate of Judgment in accordance with the this judgment. Heard on the 2 nd day of May 2023. Dated at the City of Lethbridge, Alberta this 8 th day of December 2023.

J.N. LeGrandeur A Justice of the Alberta Court of Justice Appearances: F. Llewellyn for the Plaintiff Self-Represented for the Defendants