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RTA - Repair [s.20]. Crete v. Ottawa Community Housing Corporation [snow and ice on tenant's (non-common) premises]
In Crete v. Ottawa Community Housing Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a trial dismissal in a slip and fall action that occured on an RTA tenant's, non-common exterior premises ("on the front step of a townhouse"):[2] The respondent denied liability for any injuries that Daniel may have suffered, relying in part on a provision in the lease (the “Snow Removal Provision”) that assigned responsibility to the Cretes for clearing snow from their front steps to the main walkways in the residential complex. The respondent also counterclaimed against the appellant for contribution and indemnity for any amount it was ordered to pay the Cretes, on the basis that the appellant was responsible for snow clearing on the front step as a signatory to the lease and an occupier of the Rented Premises.
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[4] The motion judge found that the Snow Removal Provision in the lease was not inconsistent with the Residential Tenancies Act, 2006, S.O. 2006, c. 17 and regulations (the “RTA”). Therefore, the Snow Removal Provision was not void pursuant to s. 4 of the RTA, and its effect was to make the Cretes responsible for winter maintenance in the area where Daniel fell. The motion judge’s order made a declaration to that effect, but dismissed all other relief sought by the parties on their summary judgment motions.
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[19] As described above, the motion judge found that s. 20(1) [SS: 'Landlord’s responsibility to repair'] of the RTA requires a landlord to keep a property “in a good state of repair” and that this obligation did not include the removal of accumulations of snow and ice, since such conditions do not generally cause damage that needs to be repaired. Rather, she found that tenants were responsible for clearing snow and ice from areas used exclusively by them pursuant to s. 33 of the RTA, which makes tenants responsible for the ordinary cleanliness of a rental unit.
[20] The motion judge’s interpretation of the RTA involves questions of law, which are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at paras. 8-9.
[21] Respectfully, the motion judge adopted an unduly narrow interpretation of the scope of s. 20(1) of the RTA by focusing on the landlord’s obligation in that subsection to maintain a residential complex in a “good state of repair”. The motion judge failed to take account of the fact that s. 20(1) also requires landlords to comply with “health, safety, housing and maintenance standards”. The applicable maintenance standards are set out in the Maintenance Standards Regulation, which deals expressly, at. s. 26(1), with a landlord’s obligation to clear snow and ice in a residential complex. It follows that s. 20(1) of the RTA does encompass a landlord’s responsibility to clear snow and ice in a residential complex, albeit in accordance with the applicable standards set by the Regulation. The corollary is that the responsibility to clear snow and ice is not encompassed within the tenant’s obligation for “ordinary cleanliness of the rental unit” under s. 33 of the RTA.
[22] While the motion judge erred in her interpretation of ss. 20(1) and 33 of the RTA, she correctly found that s. 26(1) the Maintenance Standards Regulation only requires a landlord to clear snow from exterior common areas in a residential complex, and not areas used exclusively by individual tenants.
[23] The appellant argues that the motion judge failed to take account of the fact that the Maintenance Standards Regulation defines “exterior common areas” as including “grounds for the use of tenants”. On this basis, the appellant argues that the landlord is required to clear snow and ice from all exterior areas in the complex, not just areas used by tenants in common.
[24] The difficulty with the appellant’s argument is that it effectively reads out the word “common” from the definition of “exterior common areas”. The motion judge correctly found that “grounds for the use of tenants” in the definition of “exterior common areas”, must be grounds intended to be used by tenants in common, as opposed to lands or areas reserved for the exclusive use of individual tenants.
[25] The appellant further argues that the motion judge’s interpretation of the landlord’s responsibility to clear snow and ice in s. 26(1) of the Maintenance Standards Regulation is inconsistent with this court’s decision in Montgomery v. Van, 2009 ONCA 808.
[26] We do not agree.
[27] In Montgomery, the court found that a lease provision which required a tenant to clear snow from a common area in a residential complex was inconsistent with the landlord’s responsibility under the applicable maintenance regulation to clear snow from “exterior common areas”. The lease provision was therefore found to be void. But in coming to that conclusion, the court made clear that the landlord’s responsibility for snow clearing only extended to common areas in the residential complex: Montgomery, at para. 9. Thus nothing in Montgomery requires a landlord to clear snow from areas used exclusively by individual tenants.
[28] In this case, the motion judge interpreted the Snow Removal Provision as requiring the Cretes to clear snow and ice only from areas reserved for their exclusive use. This was a finding of mixed fact and law, reviewable on a standard of palpable and overriding error. There was an extensive evidentiary record supporting the motion judge’s interpretation of the Snow Removal Provision, including an affidavit from the appellant and photographs of the Rented Premises. The appellant has not identified any basis upon which we could interfere with the motion judge’s conclusion that the Snow Removal Provision required the Cretes to clear snow and ice only from areas used exclusively by them, and not from any areas used by tenants in common.
[29] We therefore conclude that the motion did not err in finding that the Snow Removal Provision was not inconsistent with the respondent’s responsibility under s. 26(1) of the Maintenance Standards Regulation to clear snow and ice from “exterior common areas” in the complex.
[30] The appellant argues, in the alternative, that the Snow Removal Provision is inconsistent with ss. 7 or 28 of the Maintenance Standards Regulation. Neither of these provisions is applicable in the circumstances of this case. Section 7(2) deals with clearing of snow and ice from roofs, which is not at issue. Section 28 requires that driveways and other areas “shall be maintained to provide a safe surface for normal use”. However, given that s. 26(1) expressly deals with the landlord’s obligations to clear unsafe accumulations of ice and snow, s. 28 does not encompass responsibility for snow clearing. . Walpole v. Crisol
In Walpole v. Crisol (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal on the application of DOLA 3(1) ['Application of Occupiers’ Liability Act'].
Here the court holds that RTA s.20 ['Landlord’s responsibility to repair'] - which includes keeping premises 'free of hazards' - does not include keeping it free from dangerous dogs:[27] Likewise, I am not persuaded that the motion judge made any error by rejecting the appellants’ reliance on s. 20 of the Residential Tenancies Act, which imposes a duty on landlords to ensure that rented premises are in “a good state of repair”, and the associated regulation that requires common areas to be “kept … free of hazards”. I agree with the motion judge’s conclusion that these provisions do not “create a statutory duty [on landlords] to keep a rental unit free of a hazard that is a dog”. Indeed, as noted above, s. 14 of the RTA bars landlords from prohibiting residential tenants from keeping pets.
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