Talk:Property Uninhabitable: Sewer or Flood

"As noted in 'Lord Strathcona' S.S. Co. Ltd. v. Dominion Coal Co. Ltd., [1926] 1 D.L.R. 873, [1926] A.C. 108 at 114 (P.C.) (below), an interruption in performance does not necessarily amount to frustration, depending on how long the interruption is and whether it is reasonable to assume that performance can ultimately resume. A flood or fire causing a tenant to vacate does not necessarily mean that the tenancy is frustrated. The tenancy is not frustrated where the tenant will be out of possession for a reasonable period of time while repairs are completed.

More difficult are the cases where the subject matter of the tenancy contract is completely destroyed: the building is burned down or a flood or fire causes such extensive damage that substantial re-building for a lengthy period of time will be required. Such cases meet the test in 'Lord Strathcona' S.S. Co. Ltd. However, one might argue that the disaster was one which was reasonably withing the contemplation of the parties at the formation of the contract: see Guest v. Groleau, [2002] O.H.R.T. No. 104 (O.H.R.T.) (below). Generally, the complete destruction of the thing which was the basis of the contract (the rental unit in a tenancy situation) will (subject to issues of fault) lead to frustration of the contract. However, there is room for an argument in such cases, depending on the facts, that the event causing the destruction of the rental unit should have been reasonably within the contemplation of the parties when making the tenancy agreement."

Jack Fleming, Ontario Landlord and Tenant Law Practice 2022 (Toronto: LexisNexis, 2021), at page 86.