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.

[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.