Snow Removal (LTB-Maintenance)

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.