Small Claims Court

SMALL CLAIMS COURT OF NOVA SCOTIA

Citation: Mrishih v. Guest, 2023 NSSM 20

On Appeal From an Order of the Director of Residential Tenancies

Date: 20230522

Claim:  SCT520956

Registry: Truro

Between:

Sakher Mrishih

Appellant

and

Jonathan David Guest

Respondent

Matte, Adjudicator:

[1]             This is an Appeal of an Order of the Director of Residential Tenancies allowing the claim for the return of a deposit in the amount of $4,005 to the Respondent in addition to awarding vacant possession to the Appellant along with $300 for damages to the property.  The parties agree that on or about August 9, 2022, the Respondent delivered a cash deposit to the Appellant to secure the rental of the Appellant’s property. The parties, however, disagree on the amount given as a deposit.

[2]             While both parties accuse the other of dishonest conduct, this matter can be decided without having to parcel through the parties’ credibility.  Like all matters that come before this Court, the party who asserts a claim has the burden to prove that on a balance of probabilities his claim should be allowed.  This can be achieved by giving testimony, presenting witnesses and documents all with the goal of proving that the claim is more likely than not to have occurred.

[3]             Here, the Appellant is asserting that the Director erred when he found that the Respondent gave the Appellant the equivalent of four and a half months’ rent plus another half month’s damage deposit, an amount he says he did not receive. Instead, the Appellant claims he received one and a half month’s rent as the deposit and therefore only owes $315 of the damage deposit after the $300 damage award is taken off.

[4]             The Respondent asks that the appeal be dismissed.

Evidence

[5]             The Appellant testified on his own behalf and presented a book of documents including submissions, text messages between the parties, an email, bank statements, the Director’s Order, the Lease between the parties and documents related to a dispute about furnace oil.  The Respondent testified on his behalf, called his father and grandmother and submitted documents including screenshots of texts, pictures of the apartment and bank statements.

[6]             The parties agree that the Respondent answered a Kijiji ad for an apartment rental from the Appellant.  The parties also agree that the initial terms of rental were for the Respondent to pay a total of $6,150 due at the signing of the lease. Both parties tendered an email dated August 7, 2022 showing the Appellant’s breakdown of the required $6,150 deposit.  The email thread ends with an August 8, 2022 at 3:03p.m. email from the Respondent noting “I’m assuming dad will bring cash tomorrow, I’ll talk to him”.

[7]             The parties agree that the original tenancy was to run from August 15, 2022 to April 30, 2023 on a fixed term basis but ended early on December 1, 2022. The Respondent does not seek to return to the property and neither party challenges the Director’s finding that the Respondent caused $300 in damages and therefore is entitled to the return of $315 from the outstanding damage deposit.  The parties agree that they met at the Appellant’s residence where they signed the lease, on August 9, 2022 and that the Respondent gave the Appellant a cash deposit and postdated cheques.  Only the amount of the deposit is in dispute. 

[8]             The Appellant stated that between the afternoon of August 8 and the meeting of August 9 2022, he decided, upon finding out during phone calls with the Respondent that the Respondent was a mature student returning to school and since he himself had once been a mature student, he decide he would help the Respondent by not requiring the extra three months’ rent up front.   The Appellant tendered his bank statements showing the rent amounts for October, November and December but not showing any deposits for August or September. The Appellant did not comment on the Respondent’s version of the meeting on August 9, 2022 preferring to stay silent as he suggested he could not prove something that did not happen. 

[9]             The Appellant states instead that he received a deposit of $1,845, an amount claimed under both his written submissions and at the hearing.  However, the Court notes that the initial demand included an additional $615 for the period of August 15 to August 31, 2022.  The Appellant’s evidence appears to be that he neither received or claimed any rent for August 2022 and only requested a damage deposit of $615 and one-month’s rent of $1,230 for the September rent.

[10]         The Respondent testified that he provided $6,150 cash as agreed on August 9, 2022.  He obtained the money from his grandmother who withdrew the money from the bank that day as evidenced from a bank statement and her testimony. I note that the Respondent’s grandmother’s evidence came from largely leading questions.  However, the Court accepts that she withdrew a large sum of money on August 9, 2022 and gave it to the Respondent’s father.

[11]         The Respondent’s father testified that he went to the bank and counted out $6,150 and put it in his pocket with the rest put in an envelope to be used for the Respondent’s tuition and school fees.  All three drove to Bedford from Truro.  When they arrived at the Appellant’s house the Respondent and his father went into the house and signed the lease at the kitchen table.  The Respondent’s father testified that he counted out the cash in six piles representing $1000 each with another $150. 

Findings

[12]         The narrow issue before the court is whether the Respondent gave a deposit of $6,150 or a deposit of $1,845 to the Appellant. The Appellant relies on his recollection of a phone conversation he had in the hours before the meeting where he alleges that he changed his mind about requiring an additional three months’ rent upfront because he empathized with the Respondent as a mature student. However, neither party tendered any evidence that the Respondent requested or needed a reduction in the deposit.  Rather as of August 8, 2022, the Respondent told the Appellant that he would get cash from his father. 

[13]         The request for rent up front is a request for security in case of future rent default or extensive damage to the property.  As it turns out, the Appellant’s request runs contrary to the provisions of the Residential Tenancies Act. A last-minute realization of the illegality of the request might have explained the Appellant’s change in requested deposits. That was not the explanation given. The Appellant’s alleged gesture neither helped nor alleviated the Respondent’s burdens. It strains credibility that the Appellant’s empathy for the Respondent’s common experience as a student would have led to a decision to forgo that security where a more logical act might have been a reduction in rent.

[14]         The Respondent relies on a bank statement and his grandmother’s testimony that she withdrew money to provide the Respondent with rent and tuition.  The Respondent also relies on his father’s testimony that he witnessed the withdrawal, counted out the deposit and personally delivered it to the Appellant at his home.  In addition, the Respondent testified to witnessing the money being given to the Appellant at his home. 

[15]         The Appellant’s focus on impeaching the Respondent’s credibility for issues that happened during the tenancy was not effective at proving his claim.  The Court finds that, regardless of the explanation given for his alleged change of heart, the Appellant has not presented sufficient evidence to meet his burden that he received a deposit of $1,845 as claimed.  While the Respondent’s credibility is not untarnished by the evidence, the evidence tendered shows that is more likely than not that the Appellant received a total deposit of $6,150.  Of that amount, the three month’s advance of $3,690 plus the balance of the damage deposit of $315 is to be returned to the Respondent. 

Conclusion

[16]         Although the Small Claims Court aims for quick and informal resolution of disputes, parties must still present the Court with the evidence needed to prove their claim. Here the Appellant’s evidence of a last-minute change of heart falls well short and serves as a cautionary tale for anyone giving or receiving cash without obtaining a receipt. 

Order

[17]         The Appeal is dismissed. The Order of the Director dated January 27, 2023 is affirmed.

Julien S. Matte, Adjudicator