Tenant’s Responsibility for Repair of Damage

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Date Retrieved:	2025-11-21
CLNP Page ID:	2537
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Citation:	Tenant’s Responsibility for Repair of Damage, CLNP 2537, <>, retrieved on 2025-11-21
Editor:	Sharvey
Last Updated:	2025/11/18

Residential Tenancies Act, 2006

34 The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant. 2006, c. 17, s. 34.

Oniel v. Marks, 2001 CanLII 24091 (ON CA)

[87] In summary, the failure to plead something as important, and I might add, as obvious, as a claim grounded in conventional negligence law is fatal to the appellant in this case. In Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 CanLII 6879 (ON CA), 41 O.R. (3d) 528 at 533-34 (C.A.), Finlayson J.A. said:

It has long been established that the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: see rule 25.06. The trial judge cannot make a finding of liability and award damages against a defendant on a basis that was not pleaded in the statement of claim because it deprives the defendant of the opportunity to address that issue in the evidence at trial.

[88] The principle articulated by Finlayson J.A. in Kalkinis has been consistently applied by this court in several recent decisions: see, for example, Vanek v. Great Atlantic or Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228; Immocreek Corp. v. Pretiosa Enterprises Ltd. (2000), 2000 CanLII 14728 (ON CA), 186 D.L.R. (4th) 36; and Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70. In my view, the principle should be applied again in the present appeal. Put simply, it was not until after the jury had given its verdict and in the course of argument on the Charter claim that the appellant attempted to assert a claim grounded in conventional negligence law. To entertain the claim in negligence at that stage would plainly have deprived the respondents of the opportunity to address important aspects of the issue in the evidence at trial. In particular, no evidence was led as to the requisite standard of care, a central element of the tort of negligent investigation. It was simply too late in the process for the appellant to add another claim after all the evidence had been heard and after the jury had given its verdict.

Cerundolo v Zhang, 2024 ONLTB 66312 (CanLII)

19. While I can appreciate that the rental unit may have appeared unclean when the Landlord conducted the inspection on September 6, 2021, and there may have been some concerns related to damages, this is a claim pursuant to s. 89 of the Act. This section is not designed to compensate landlords for the regular wear and tear that usually occurs to any rental unit during the life of a tenancy. Instead, this section is designed to compensate landlords for undue damage that the tenants have willfully or negligently caused to the rental unit. In this context, “undue” damage means “significant’ or “considerable” damage to the rental unit.

Hedd-Willaims v Danby, 2023 ONLTB 52602 (CanLII)

29. This is the Landlord’s application, and as such, the Landlord has the burden of proving his case on a balance of probabilities. To prove a fact on a balance of probabilities, there must be sufficient clear, convincing, and cogent evidence to establish the fact: FH v. McDougall, 2008 SCC 53 (CanLII), para 46.

30. The Landlord has failed to discharge this burden. There was not sufficient clear, convincing, and cogent evidence for me to be able to determine that the Tenants, their occupants or guests caused undue damage (meaning damage beyond reasonable wear and tear) to the rental unit or residential complex by their willful or negligent conduct.

31. I am not satisfied that the Landlord proved that the plumbing issue in the basement was caused by the Tenants or their guests or occupants pouring grease down the drain in the kitchen sink. LD unequivocally denied that this had occurred, and also said that the kitchen drain always drained.

32. The Landlord’s claim for compensation for damage must therefore be dismissed.

33. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and given the parties’ consent, I find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

Diecidue v Gosford Property Management Inc, 2021 CanLII 151101 (ON LTB)

7. Both section 62 and section 89 use similar language: did the Tenants, an occupant, or a guest wilfully or negligently cause undue damage to the rental unit or residential complex?

8. The problem with the Landlord’s application is with respect to a lack of evidence. In order to succeed the Landlord has to lead sufficient evidence to establish two things. First, that the clog constitutes “undue damage” meaning that it is not the normal type of blockage that occurs with every day reasonable use over time. Second, that the Tenants did something intentionally or without reasonable care and that behaviour caused the clog.

9. The Landlord relies on the plumber’s bill which simply says the plumber unclogged the kitchen sink and found grease, and unclogged the tub drain and found hair. It is a simple truth that when we wash dishes some grease finds its way into the pipes. When we shower, hair goes down the tub drain. So the presence of hair and grease alone does not establish negligence or intent to cause damage. And absent some evidence that the nature and existence of the clog was somehow not consistent with more than a decade of everyday use, the Landlord cannot establish that the clog constitutes undue damage.

10. So the Landlord’s requests under section 69 for eviction and under section 89 for compensation, must be denied for lack of evidence.

Tower v Gulyas, 2022 CanLII 54030 (ON LTB)

3. Section 89 of the Residential Tenancies Act, 2006 (the “Act”) allows a landlord to apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of, or where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex and the tenant is in possession of the rental unit. To succeed in its application, the Landlord must show that the damage is “undue”, meaning it is beyond normal wear and tear, and considered to be excessive or unnecessary.