Duty to Inform Landlord of Issues

Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477

[1] This appeal concerns the interpretation of s. 20(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) which provides as follows:

20. (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.[1]

[2] The appellant tenants submit that the respondent CJM Property Management Ltd. (the “landlord”) failed to comply with its duties to provide and maintain under s. 20 because the elevator that services their building was out of service for 96 days in one year. They submit that the Landlord and Tenant Board (the “Board”) erred in denying their application for an abatement of rent. The Board found that the landlord had at all times acted reasonably in having a program of preventive maintenance for the elevator, in repairing it when it broke down and in installing a new elevator. The Divisional Court dismissed the tenants’ appeal. Leave to appeal to this court was granted on October 5, 2015.

[3] The Divisional Court did not err in selecting or applying the reasonableness standard of review. For the reasons that follow, I agree with the Divisional Court that the Board’s decision was reasonable, and I would dismiss the appeal.

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[56] To interpret s. 20(1) as the tenants propose would result in an interpretation that places the provisions of s. 20(1) and s. 22 in conflict or disharmony with one another and disregard the intent of the legislature that where, as here, there is an overlap, both provisions should apply. The tenants’ reading of the RTA does not result in the legislation functioning as an internally consistent whole.

[57] The contextual approach required when interpreting the provisions of a statute leads me to also consider the wording of s. 29(1) which states:

A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20 (1) or section 161….[3]

[58] If the legislature intended an automatic breach of the landlord’s duty to maintain and repair as soon as a service was interrupted, there would be no need for the Board to make a determination as to whether the landlord had breached its obligation. The legislation would instead simply provide that where a service has been interrupted the landlord is in breach of its duty to maintain and repair and provide that the Board “may” award a remedy under s. 30(1) which authorizes a range of remedies including an abatement of rent.

[59] The tenants’ position that the landlord is automatically in breach of its statutory obligation to maintain and repair even while something is being repaired also offends the legal maxim lex non cogit ad impossibilia: that the legislature does not intend compliance where, for all practical purposes, it is impossible: see Côté, The Interpretation of Legislation in Canada, at p. 479.

[60] Applying general principles of statutory interpretation, I would reject the tenants’ submission that, when the RTA is properly interpreted, a landlord is automatically in breach of its obligation to repair and maintain under s. 20(1) as soon as an interruption in service occurs.

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[93] As I have indicated earlier, the interpretation of s. 20(1) for which the tenant’s argue, that the landlord is automatically in breach of its obligation to maintain and repair whenever there is an interruption in elevator service, is not at all clear. Indeed, for the reasons given above, I have rejected the tenants’ proposed interpretation having regard to both general principles of statutory interpretation and the existing jurisprudence. The approach advocated by the tenants would focus only on the length of time the elevator was out of service and the resulting inconvenience to the tenants, and not on the entire factual context in which the interruptions in service took place. The Board rejected that approach and adopted a contextual one. The tenants’ incorrect interpretation of s. 20(1) does not provide the base from which to attack Guideline 5. The Board was entitled to have regard to Guideline 5.

Residential Tenancies Act, 2006, S.O. 2006, c. 17

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. 2006, c. 17, s. 20 (1).

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.