Maintenance Obligations - General

Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (CanLII)

[62] In Stephos Management Services v. McGregor, 1993 CarswellOnt 3655 (Gen. Div.), Charron J., as she then was, dealt with a situation in which a tenant claimed a rent abatement for the time he was out of his apartment when the landlord undertook an extermination procedure to rid the building of cockroaches. After notice was given to the tenants, the extermination procedure in the 134 units took place with the tenants being required to be out of the building from 8:30 a.m. to 6 p.m. on one of two days when their half of the building was treated.

[63] In her recitation of the facts in para. 8, Charron J. noted that the landlord made other units available for tenants who indicated a need for alternate accommodation during the process. In addition the “party room” at a neighboring building was made available.

[64] At para. 15 of her reasons, Charron J. held that the landlord was not in breach of its obligation to provide premises fit for habitation:

While it is beyond dispute that the responsibility to rid premises of cockroaches rests on the landlord, the problem is an interesting one since it is not likely to be caused by any actions of a landlord unless he or she is also an inhabitant of the building in question. On the other hand, the tenants can be and are often the source of the problem. They usually bring in the pests into the building with their belongings or with food that they carry in, albeit quite inadvertently, and then, in the case of some tenants (not necessarily the same who are afflicted by the problem) foster their existence by their particular living habits. A finding that a landlord not only has the responsibility to attend to a problem, the existence of which is essentially out of his control, but that he is automatically in breach of his statutory obligations the moment the problem does arise defies common sense and is grossly unfair. [Emphasis added.]

[65] So too, here, the latent defect in the elevator, the difficulty obtaining replacement parts, the province-wide elevator technician strike, and the length of time it took to install the new elevator were all matters beyond the landlord’s control, and were acknowledged as such by the tenants in the agreed statement of facts before the Board: “The landlord’s efficacy, efficiency, diligence or reasonableness of its actions regarding the elevator problem is agreed to be deemed satisfactory by the tenants.”

[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.

Miaskowski v. Persaud, 2015 ONSC 1654 (CanLII)

[108] The Occupiers’ Liability Act replaces the common law of occupier’s liability. The marginal note for s. 2 of the Act is “Common law duty of care superseded.” The Occupiers’ Liability Act was intended to supersede the common law rules of negligence that imposed liability upon landlords and tenants of property and differentiated between, for instance, invitees and trespassers: Musselman v. 875667 Ontario Inc. (Cities Bistro), 2010 ONSC 3177 at para. 171, aff’d 2012 ONCA 41.

[109] Section 9 of the Act preserves higher legal obligations that may be imposed on innkeepers, common carriers, bailees, and others, and, for present purposes, s. 9 is relevant because the Residential Tenancies Act, 2006, S.O. 2006, imposes some duties on landlords that are non-delegable. More precisely, subject to s. 6 of the Occupiers’ Liability Act, these higher duties imposed by the Residential Tenancies Act are non-delegable. Section 6, however, allows a landlord to meet his duty of care by responsibly using independent contractors to keep the property safe. Section 6 of the Act states:

6. (1)Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

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.

(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.

29 (1) 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.

(2) No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.

30 (1) If the Board determines in an application under paragraph 1 of subsection 29 (1) that a landlord has breached an obligation under subsection 20 (1) or section 161, the Board may do one or more of the following:

1. Terminate the tenancy.

2. Order an abatement of rent.

3. Authorize a repair or replacement that has been or is to be made, or work that has been or is to be done, and order its cost to be paid by the landlord to the tenant.

4. Order the landlord to do specified repairs or replacements or other work within a specified time.

5. Order the landlord to pay a specified sum to the tenant for,

i. the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach, and

ii. other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach.

6. Prohibit the landlord from charging a new tenant under a new tenancy agreement an amount of rent in excess of the last lawful rent charged to the former tenant of the rental unit, until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

7. Prohibit the landlord from giving a notice of a rent increase for the rental unit until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

8. Prohibit the landlord from taking any rent increase for which notice has been given if the increase has not been taken before the date an order under this section is issued until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

9. Make any other order that it considers appropriate.

(2) In determining the remedy under this section, the Board shall consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board.

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;

(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,

(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and

(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;

(c) order an abatement of rent;

(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;

(e) order that the tenancy be terminated;

(f) make any other order that it considers appropriate.

(2) If in an application under any of paragraphs 2 to 6 of subsection 29 (1) it is determined that the tenant was induced by the conduct of the landlord, the superintendent or an agent of the landlord to vacate the rental unit, the Board may, in addition to the remedies set out in subsection (1), order that the landlord pay a specified sum to the tenant for,

(a) all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit; and

(b) reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur.

(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else.

(4) An order under subsection (3) shall have the same effect, and shall be enforced in the same manner, as a writ of possession.

(5) An order under subsection (3) expires,

(a) at the end of the 15th day after the day it is issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located; or

(b) at the end of the 45th day after the day it is issued if it is filed in the manner described in clause (a).

32 If the Board makes an order terminating a tenancy under paragraph 1 of subsection 30 (1) or clause 31 (1) (e), the Board may order that the tenant be evicted, effective not earlier than the termination date specified in the order.

161 In addition to a landlord’s obligations under section 20, a landlord is responsible for,

(a) removing or disposing of garbage or ensuring the availability of a means for removing or disposing of garbage in the mobile home park at reasonable intervals;

(b) maintaining mobile home park roads in a good state of repair;

(c) removing snow from mobile home park roads;

(d) maintaining the water supply, sewage disposal, fuel, drainage and electrical systems in the mobile home park in a good state of repair;

(e) maintaining the mobile home park grounds and all buildings, structures, enclosures and equipment intended for the common use of tenants in a good state of repair; and

(f) repairing damage to a tenant’s property, if the damage is caused by the wilful or negligent conduct of the landlord.