Snow Removal (LTB-Maintenance)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	761
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Citation:	Snow Removal (LTB-Maintenance), CLNP 761, <5z>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2022/01/23

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Montgomery v. Van, 2009 ONCA 808 (CanLII)

[2] The appellant tenant commenced an action against a respondent landlord for damages after slipping and falling on the premises. In her claim, the tenant pleads that on January 30, 2003 she slipped on ice on the walkway leading to her basement apartment and suffered injury. In his defence the landlord pleads that the Conditions of Lease (the tenancy agreement between the parties dated July 7, 2002), provides that: “Tenants are responsible for keeping their walkway and stairway clean (including snow removal).” Based on this provision, he pleads further that the tenant’s injury was due to her own negligence in that “she failed to keep her walkway in a state of good repair, including free from snow and ice”.

[3] The landlord brought a motion to determine before trial the question of law whether the provision of the tenancy agreement is void because it is inconsistent with the Act. Taking the position that the provision is void, the tenant brought a cross-motion to strike out the paragraphs in the statement of defence that relied on the provision.

[4] The motion judge reasoned that it would be absurd to find that a tenant may never consent to participating in any snow removal tasks. She accepted the landlord’s argument that “landlords may fulfill their statutory obligations by delegating snow removal tasks to others”. She concluded that “the Act and associated regulations do not state that snow removal tasks may never be assumed by a tenant and, as such, the Conditions of Lease executed by the Tenant are not inconsistent with the Act and should not be considered to be void.” She granted an order that the tenancy agreement provides that “the Tenant will complete snow removal tasks with respect to the stairwell area is not inconsistent with the Act.” She dismissed the tenant’s cross-motion.

[9] I agree with the observation of the motion judge that the legislation only requires the landlord to “ensure” exterior common areas are free of unsafe accumulations of ice and snow. It does not prohibit a landlord from satisfying this statutory obligation by retaining others to provide the required services. Specifically, it does not prohibit a landlord from contracting with a tenant to perform snow removal tasks.

[13] In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement. The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations. The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.

[14] This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.

[15] In this case, the provision is inextricable from the tenancy agreement. It does not indicate a definite consideration for the snow removal task separate from the provision of the premises. As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services. The tenant lives in one of several basement apartments of a multi-unit residential complex. The provision vaguely places the task of snow removal “from their walkway and stairway” on tenants jointly. It does not set out specifically what part of the complex’s common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation. The provision fails to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.

[16] Landlords cannot fulfill their statutory duty to ensure the prescribed maintenance standards are met by provisions as ill-defined as this one. As I see it, this vague provision, even reading it as did the motion judge is nothing more than an impermissible attempt by the landlord to avoid his statutory obligations. I would conclude the provision is not consistent with the Act and is void.

Miaskowski v. Persaud, 2015 ONCA 758 (CanLII)

[47] First, the appellants argue that Mr. Persaud was bound by a continuing maintenance obligation in respect of the Property under s. 20(1) of the RTA and s. 26(1) of the Regulation. Section 26(1) of the Regulation imposes obligations on residential landlords to maintain “exterior common areas” and to remove unsafe accumulations of ice and snow, among other matters.

[48] The respondents submit that, as the Property was a single-family home, s. 26(1) of the Regulation does not apply as the driveway at the Property was not an “exterior common area”.

[49] The motions judge held that no “specific provision” of the RTA was inconsistent with the terms of the Lease. However, based on his reasons, it is unclear that he considered whether the maintenance standards imposed by s. 26(1) of the Regulation applied in this case and whether the landlord’s statutory duty under s. 20(1) of the RTA could be removed by the Lease, in particular, in light of this court’s decisions in Montgomery v. Van, 2009 ONCA 808, 256 O.A.C. 202 and Taylor v. Allen, 2010 ONCA 596, 325 D.L.R. (4th) 761

[50] By failing to address these matters, the motions judge erred in principle. Whether Mr. Persaud was freed of any obligations he might have under s. 20(1) of the RTA by reason of the Lease, and whether the maintenance standards set out in s. 26(1) of the Regulation apply in this case, are genuine issues requiring a trial.

[51] Second, the scope of the tenant’s snow and ice removal obligation under Schedule “A” to the Lease and the landlord’s obligations under s. 8 of the OLA are central issues in relation to the appellants’ claims against Mr. Persaud. While the motions judge referred to the tenant’s maintenance obligation under Schedule “A” to the Lease, he failed to address the pivotal language in the Schedule, which refers only to snow and ice on the sidewalks in front and at the sides of the Property, and not to hazards on the driveway where the accident occurred.

[52] The scope of the tenant’s maintenance obligation under Schedule “A” to the Lease is critical to the issue of Mr. Persaud’s potential liability under s. 8 of the OLA. As this court explained in Taylor, at para. 12:

Second 8(1) imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property. This section applies whether or not the landlord is found to be an occupier. Section 8(2) adds a second requirement, namely, that only if the landlord’s default is such as to be actionable at the suit of the tenant will the landlord’s default constitute a breach of the landlord’s duty under s. 8(1). [Emphasis added.]

[53] Thus, the question whether the tenant was responsible under the Lease for removal of snow and ice hazards on the driveway of the Property, as opposed to the sidewalks, is integral to the issue of the landlord’s potential liability under s. 8 of the OLA regardless of whether the landlord was an occupier of the Property. In these circumstances, the scope of the tenant’s maintenance obligation under the Lease is a genuine issue requiring a trial.

[54] Third, the RTA imposes specific responsibilities on tenants of residential properties in some circumstances. Section 33 of the RTA, for example, provides that tenants are responsible for the ordinary cleanliness of their rental unit, except to the extent that the applicable tenancy agreement requires the landlord to clean it. It is arguable that, in this case, as in Estey v. Sannio Construction Co. (1998), 70 O.T.C. 293 (Ont. C.J. (Gen. Div.)), s. 33 of the RTA imposes an obligation on the tenant to remove snow. That said, I note that, in Estey, this finding rested in part on evidence that the tenant had removed snow and ice from the rented property in the past and believed that it was the tenant’s obligation to do so.

[55] In this case, neither the parties nor the motions judge addressed the potential application of those provisions of the RTA that deal with tenants’ responsibilities in relation to residential properties in light of the terms of the Lease, the intentions of the parties and any evidence about who, in fact, removed snow from the driveway at the Property. In these circumstances, whether the tenant, rather than the landlord, had contractual or statutory responsibility for the removal of snow and ice on the driveway of the Property is a genuine issue requiring a trial.

[56] Accordingly, for the reasons given, I would allow the appeal from the motions judge’s order granting summary judgment in favour of Mr. Persaud and dismissing the action as against him, set aside his order dated March 12, 2015 regarding Mr. Persaud, and reinstate the action as against him.

Taylor v. Allen, 2010 ONCA 596 (CanLII)

[10] The trial judge’s reasoning appears to begin with the finding that the respondent had no control over the premises, and since he was not in physical possession of the premises either, he did not meet the definition of “occupier” in s. 1 of the OLA and therefore had no duty of care to the appellant under s. 3 of the OLA.

[11] The trial judge then turned to s. 8 of the OLA which reads as follows:

Obligations of landlord as occupier

8. (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

Idem

(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.

Definitions

(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.

Application of section

(4) This section applies to all tenancies whether created before or after the commencement of this Act. R.S.O. 1990, c. O.2, s. 8.

[12] Section 8(1) imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property. This section applies whether or not the landlord is found to be an occupier. Section 8(2) adds a second requirement, namely, that only if the landlord’s default is such as to be actionable at the suit of the tenant will the landlord’s default constitute a breach of the landlord’s duty under s. 8(1).

[13] The trial judge’s reasons clearly reference s. 8 and its requirements in finding that the landlord owed no duty of care to the appellant. While the trial judge does not explain why the requirements of s. 8 are not met in this case, this conclusion appears to rest on his finding that the rental agreement relieved the landlord of all maintenance obligations. In this court, the respondent suggested no other basis.

[14] The reasoning seems to be that the rental agreement rendered this a tenancy under which the landlord is not responsible for the maintenance or repair of the property, so that s. 8(1) was not engaged. Further, the rental agreement would render the landlord’s default not actionable by the tenants under s. 8(2) because it gives the tenants complete responsibility for maintenance of the premises. Hence, the reasoning would go, the respondent had no duty to the appellant under s. 8(1) of the OLA.

[19] Although the appellant’s first argument is enough to dispose of the appeal, I propose also to deal with the appellant’s second argument. The appellant says that in giving effect to the rental agreement that relieved the respondent of maintenance obligations as the basis for finding that the requirements of s. 8(1) and (2) of the OLA were not met, the trial judge erred in ignoring s. 94(1) and s. 80(1) of the Landlord and Tenant Act R.S.O. 1990 c. L. 7 (the LTA). Those sections impose a statutory duty on a residential landlord to maintain the premises, a duty that the landlord cannot escape by contract.

[20] I agree with the appellant. Sections 94(1) and 80(1) of the LTA read as follows:

94. (1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.

80. (1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.

[21] Section 94(1) imposes a statutory responsibility on the landlord of residential premises to maintain and repair the premises. Section 80(1) provides that this responsibility prevails, despite any agreement or waiver to the contrary. See Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 per Sharpe J. (as he then was).

[22] Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm.

[23] The combined effect of ss. 94(1) and 80(1) of the LTA is therefore that, for the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the maintenance and repair of the premises. Equally, for the purposes of s. 8(2), the rental agreement could not prevent the landlord’s default being actionable at the suit of the tenants. As a consequence, the respondent landlord had a duty of care under s. 8(1) of the OLA, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

[24] In other words, s. 8(1) imposes on the respondent the same duty of care to the appellant that the respondent would have under s. 3 of the OLA as an occupier for a danger arising from his failure to maintain the premises.

[25] In summary, therefore, the respondent not only had a duty of care as occupier to the appellant under s. 3 of the OLA. He had a duty of care to the appellant under s. 8(1) of the OLA. The trial judge therefore erred in finding that the respondent owed no duty of care to the appellant.

[26] In my view, the findings of fact by the trial judge also necessarily entail the conclusion that the respondent breached his duty of care to the appellant imposed by s. 8(1) of the OLA. Particularly given that he created the danger in the first place by installing the cinder blocks surrounding the fire pit, by permitting the danger to continue the respondent landlord failed in his statutory responsibility to maintain the premises. The danger that caused the appellant harm arose from this failure. The respondent therefore breached his duty of care to the appellant under s. 8(1) of the Act.

[27] I conclude that the respondent landlord breached his duty of care to the appellant, both his duty under s. 3 of the OLA as an occupier and his duty under s. 8(1) of the OLA as a landlord with the responsibility to repair and maintain the premises. Taking into account the appellant’s contributory negligence, assessed by the trial judge at 50%, the respondent is therefore responsible for 50% of the damages suffered by the appellant jointly and severally with the tenants. I would split the fault between the landlord and the two tenants equally, just as the trial judge did with the tenants. Each of them should be found at fault for one third of 50% of the appellant’s damages.

TST-49807-14 (Re), 2015 CanLII 34298 (ON LTB)

20. It is clear from an e-mail to the Tenants dated June 9, 2013, that when the parties were negotiating the tenancy agreement the Tenants told the Landlord they could not afford the monthly rent of $1,350.00 that the Landlord was seeking. The e-mails says in part:

When you mentioned that $1200 was your top price, we discussed it and made a proposal to you that would allow for you to potentially get to your $1200. The $100 per month we offered for yard maintenance was extremely generous… we have offered this rebate opportunity to help you with your monthly expenses. The $50 per month if you found the basement tenant that was agreeable is again very generous…

21. As a result of these negotiations, paragraph 19 was added to the lease agreement prior to signing. It says:

The Landlord will give, make or perform the following incentives: A lease rebate in the amount of $100 will be given for each month that the tenant properly maintains the lawn, garden, driveway, sidewalks, and common areas. The rebate will be sent to the tenant via email transfer or direct payee through TD on the third day following the month in which the maintenance noted above was completed in a manner satisfactory to the landlord.

22. There is also a general clause in the lease that addresses the same kind of maintenance. Apparently it is standard for the Landlord’s leases. Paragraph 39 says:

The Tenant will also perform the following maintenance in respect to the Premises: The tenant shall keep the lawns and gardens in good condition and shall not injure or remove any tree or plant which may be in, upon or about the premises, and shall keep the sidewalks in front and at the sides of the premises free of snow and ice. The tenant shall keep the common areas free and clear of debris and in reasonable cleanliness.

23. Not long into the tenancy the Landlord formed the opinion that what the Tenants were doing for lawn maintenance was not sufficient. At the end of August, 2013, she told them she was no longer prepared to pay them for lawn care and she would be taking over mowing the lawn and caring for the flower beds. The $100 incentive payment stopped.

24. After that there was essentially an on-going dispute about who was responsible for what tasks. When winter arrived it spilled over into the question of who was responsible for snow removal. It also led to other conflicts such as the incident that occurred on October 9, 2013, which is discussed more fully below.

25. The starting point with respect to this issue is s. 20(1) of the Act which states:

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.

26. Toronto’s Property Standards By-Law requires lawns and grounds be kept trimmed and snow and ice be removed within 24 hours of a snow fall. The By-Law is a “housing and maintenance standard” so s. 20(1) essentially means that the Landlord is responsible for this kind of maintenance work.

27. Subsection 3(1) says:

This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

28. This provision means that landlords and tenants cannot contract out of their responsibilities. Any attempt to do so by way of a lease agreement is not enforceable.

29. During the course of the hearing I provided the parties with a copy of the Court of Appeal’s decision in Montgomery v. Van, 2009 ONCA 808 (CanLII). It addresses this issue in the context of snow removal and the previous legislation, the Tenant Protection Act, 1997 (the ‘TPA’). The provisions of the current Act are similar to those under the TPA and I believe Montgomery v. Van is applicable here and binding on the Board.

30. Essentially, Montgomery v. Van says that although a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, a landlord can contract with a tenant to perform maintenance services. The Court says in part at paragraphs 13 to 15:

In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement…. it cannot be a term of the tenancy that the tenant complete snow removal tasks.

This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.

In this case, the provision is inextricable from the tenancy agreement. It does not indicate a definite consideration for the snow removal task separate from the provision of the premises. As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services. The tenant lives in one of several basement apartments of a multi-unit residential complex. The provision vaguely places the task of snow removal “from their walkway and stairway” on tenants jointly. It does not set out specifically what part of the complex’s common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation. The provision fails to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.

31. In the context of clauses 19 and 39 of the lease set out above, clause 19 created a genuine and severable contract between the Landlord and the Tenants requiring the Tenants to properly maintain the lawn, garden, driveway, sidewalks, and common areas. There was specific consideration payable to the Tenants for the tasks. As with any such separate employment contract the Landlord was entitled to end it when she did. That means that as of August 31, 2013, the Landlord became responsible for those tasks; the Tenants did not have to do anything.

32. In contrast, clause 39 of the lease does not create a similar severable contract between the Landlord and the Tenants. It is a general clause only and similar to the one the Court of Appeal was dealing with in Montgomery v. Van. This means that the Landlord was responsible for ice and snow clearance throughout the tenancy and lawn maintenance after August 31, 2013.

33. Because the Landlord genuinely believed the lease agreement between the parties required the Tenants to do various exterior maintenance tasks, the parties disagreed about who was to do certain tasks, particularly snow and ice removal.

34. Specifically, on February 15, 2014, the Landlord issued a notice of termination alleging substantial interference; one of the reasons for that notice was the Tenants’ failure to clear ice and snow. (However, the notice was never the basis of an application to the Board.) On February 24, 2014, the City issued the Landlord a notice of violation for failing to clear ice and snow. On one occasion there was a particularly heavy snowfall that was not cleared that made it impossible for the Tenants to drag their garbage to the front of the house. Apparently the Landlord threatened to call the police on the Tenants during one confrontation involving snow removal.

35. There was another minor e-mail argument when a neighbour apparently cut down some branches that ended up in the backyard.

36. As the Landlord was the one who was legally responsible for exterior maintenance her insistence on the Tenants doing those tasks after August 31, 2013, and serving notice of termination on them in part because they failed to do them constitutes a breach of section 22 of the Act. It is also arguably a breach of section 23 as the Landlord reasonably ought to have been aware that the Tenants would find her behaviour in this regard to be unwelcome.

37. With respect to remedy for the Landlord’s breach, the passage of time means the only remedies requested in the application that are still relevant are: abatement of the rent; and a fine.

38. Abatement is a contractual remedy. It addresses the idea that if a tenant is paying for a bundle of goods and services and not receiving everything being paid for then the rent should be abated in an amount proportional to the difference between what is being paid for and what is being received.

39. Here the Tenants were paying for exterior maintenance by the Landlord for the period after August 31, 2013 and for the right to be left alone and not subject to demands that they do tasks they were not responsible for. They did not receive those things so they are entitled to abatement of the rent.

40. That being said neither party offered any submissions with respect to quantum of abatement. Given that the Landlord placed a value of $100.00 a month on exterior maintenance in the lease it seems to me that is a reasonable abatement of the rent to award the Tenants for the period September 1, 2013 to February 28, 2014. This is when it appears the Landlord stopped making demands that the Tenants do exterior maintenance work. This amount totals $500.00 which in my experience is in line with similar cases at the Board alleging similar facts.

41. With respect to the request in the application for an administrative fine, I do not believe the situation here calls for one. Fines are intended to deter landlords from repeating their behaviour where that behaviour reflects a flagrant disregard for the Act and the other remedies awarded are not adequate to achieve the goal of deterrence. Here, I do not believe there is any need for further deterrence. The Landlord clearly did not understand she could not pass on responsibility to the Tenants for maintenance and repair; she does now and no further remedy is needed to prevent similar situations from occurring.

42. I would note here that the Tenants’ application also requests moving costs, termination of the tenancy, and return of post-dated cheques. The tenancy was terminated by Board order so that request is essentially moot; and no evidence was led with respect to moving costs or cheques so it would not be appropriate to consider those requests.

CET-82999-19 (Re), 2019 CanLII 87714 (ON LTB)

1. In this application, the Tenants allege that the Landlord failed to maintain the roads in this land lease community, specifically with respect to snow removal for the period of November 1, 2018 to March 31, 2019.

13. Given that this letter was issued to the Landlord on February 26, 2019, I am satisfied that this supported the Tenants position regarding poor snow removal and ice build-up continued up to February 28, 2019. Although, the Landlord submitted that there was a particular area within the community that had ice build-up due to an artisan well, in accordance with section 24.1 of the Town’s By-Law, the Landlord must clear snow and ice from the roadways. Failing to do so for any reason amounted to a breach of the By-Law, sections 20 and 161 of the Act.

It is ordered that:

1. The Landlord shall pay to the Tenants a rent abatement of 10% for each month of December 2018, January 2019 and February 2019.