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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 3 - Tenant Rights, Responsibilities and Remedies
(01 September 2020)- Overview
- General Rights and Responsibilities
(a) Cleaning
(b) Documentation on Commencement of Tenancy
(c) Pets
(d) Harassment
(e) Reasonable Enjoyment
. "Quiet Enjoyment" Background
. Reasonable Enjoyment
. Note re Breach and Abatement Remedy Where Caused by "Work" in Premises
- Privacy, Entry and Related
(a) Overview
(b) Entry Without Notice on Consent
(c) Entry Without Notice on Emergency
(d) Entry Without Notice for Cleaning
. Overview
. Time of Entry
. Bona Fide Cleaning Arrangement Only
(e) Entry to Show Unit to Prospective Tenants
(f) Entry With 24-Hour Written Notice
. Notice Requirements
. Time of Entry
. Grounds of Entry
(g) COMMENT re Entry Provisions
(h) No Restriction on Entry by Political Canvassers
(i) Changing Locks
. Landlord Duties
. Tenant Duties
- Repairs, Vital Services and Maintenance
(a) Overview
(b) Repair
. Tenant's Duties
. Landlord's Duties
(c) Vital and Other Services
. "Vital Services" Defined
. Landlord's Duties
. Duration of Landlord's Duties
. Municipal By-Laws Re Vital Service Cut-off
. Maintenance Interruptions
. 'Suite' Electrical Meters
(d) Maintenance Standards
. Overview
. Municipal Administration and Enforcement
. Provincial Administration and Enforcement
- Tenant Rights Applications
(a) Overview
(b) "Regular" Orders for Repair and Maintenance-Related Breaches
. Determinations
. Regular Remedial Orders
(c) "Serious Breach" Orders for Repair and Maintenance-Related Breaches
. Overview
. Rent Increase Restriction Orders
. Determining Work Completion
. Other Consequences of Serious Breach Orders
(d) Regular Orders for Other Breaches
. Overview
. Determinations
. General Remedial Orders
. Additional Remedial Orders Where Tenant Vacates
. Tenant Re-possession Where Lock-out
(e) Restrictions on "Substantial Interference" Orders Where Repair, Maintenance or Capital Improvement Work
. Overview
. Criteria Re Determination
. Conditions Barring Abatement of Rent Order
. Criteria for Abatement of Rent
. Maximum Abatements of Rent Percentages
Note Re: Special and Exempt Premises:
Some residential rental premises - such as care homes, mobile home parks, land lease communities, student accomodation, superintendent's premises, premises under mortgage proceedings - and others - may be exempt from all or part of the Residential Tenancies Act, or may be subject to special RTA provisions. Readers may want to review Ch.2: "Special and Exempt Premises" to check if this is the case for their specific premises.
Note Re: Offences
Many breaches of the Residential Tenancies Act are also prosecutable offences. Readers may want to review Ch.17: "Offences" regarding specific breaches.
1. Overview
This chapter sets out various "tenant rights and responsibilies" under the Residential Tenancies Act, and their procedural remedies (typically applications to the Board where the landlord is non-compliant).
The Board's perspective on tenant's rights and remedies is set out in Interpretation Guideline 6: "Tenant's Rights", linked here. It should be reviewed carefully by anyone involved in such a proceeding.
Interpretation Guideline 6: Tenant's Rights
In the L&T context, a tenant's "right" is almost always the landlord's responsibility - and vice versa. I have chosen to focus this chapter on the more numerous specific "tenant's rights". Landlord's rights and remedies are usually so closely intertwined with rent payment [Chapters 10-12] and termination and eviction proceedings [Chapters 4-8] that they are all addressed in those chapters.
On the issue of rights it is important to remember the basic principle of the Residential Tenancies Act (RTA) that: Act 3(1)
This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. That is - with one exception regarding mediated settlements [see Ch.14, s.2: "Hearings, Orders and Enforcement: Mediated Settlements"], RTA rights cannot be signed or bargained away between landlord and tenant.
Despite this and similar provisions being established in Ontario residential L&T law for over 25 years (though less so with the new standard RTA leases since 2017), it is still common to see landlords using highly-inappropriate old-style commercial lease forms in residential tenancy situations, despite them being riddled with antiquated and quite illegal provisions. If your written lease (a lease need not be written) is on legal length paper and consists of three or more pages, that's probably what you have - and most of it is inapplicable, misleading and irrelevant. Most of your rights are as set out in this chapter, despite what such leases purport to bind you to. Most tenants can insist that their lease be in the new standard RTA lease format [see below s.2(f): "Standard RTA Leases"].Case Note: 1086891 Ontario Inc v Barber (Div Ct, 2007)
In this case (decided under the Tenant Protection Act) two members (another dissenting) of the Divisional Court held that an agreement between landlord and tenant to 'freeze' rent levels for a period longer than one year was unenforceable by virtue of the non-waiver provisions of TPA s.2(1) [the similar provision in the RTA is s.3(1)]. This was the case regardless of whether the right to the benefit of the rent freeze was under contract or under an estoppel. As well, tenants may allege that the landlord has engaged in discrimination under the Human Rights Code. If such arguments can be located within an RTA-specified rights claim, then they can be advanced in support of that claim.
Interpretation Guideline 17: Human Rights
2. General Rights and Responsibilities
(a) Cleaning
Unless the tenancy agreement includes cleaning services, the tenant is responsible for "ordinary cleanliness" of the rental unit [Act s.33].
This is - necessarily - not a precise standard, nor does it judge one's tidiness regarding clutter and leaving 'stuff lying around'. It is concerned with excessive accumulations of dirt and waste, and situations posing a sanitation risk.
On this topic see also s.3(d): "Privacy, Entry and Related: Entry Without Notice for Cleaning", below.
(b) Documentation on Commencement of Tenancy
It is the landlord's duty to provide the tenant with certain documentation at the beginning of the tenancy, as set out below:- Information Package (All Tenancy Agreements)
On or before the commencement of the tenancy (which is the date when the tenant can taken possession, whether they do or not [Act s.13]), the landlord must give the tenant "information relating to the rights and responsibilities of landlords and tenants, the role of the Board and how to contact the Board" "in a form approved by the Board." [Act s.11];
Information for New Tenants
- Copy of Tenancy Agreement (Where Written Tenancy Agreement)
Within 21 days after a written tenancy agreement is signed and given to the landlord, the landlord must give a copy of it to the tenant as signed by both parties [Act s.12(2)].
Any written tenancy agreement must contain the "legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act." [Act s.12(1)].
These duties apply to written tenancy agreements entered into on or after 17 June 1998, which will be most of those in effect today. They do not apply to tenancy agreements that commenced prior to that time and still continue by virtue of regular renewal.
Failure to comply with these duties suspends the tenant's duty to pay rent to the landlord [Act s.12(4)], although after compliance "the landlord may require the tenant" to pay over any withheld arrears of rent (ie. the 'back rent') [Act s.12(5)]. It is hard to imagine that that a landlord wouldn't expect the withheld arrears to be caught up, but the legislation plainly anticipates a positive "requirement" (eg. a request) for the payment of the withheld rent before it actually becomes due.
- Notice of Service Information (Where Tenancy Agreement Not Written)
Where the tenancy agreement is not in writing [recall that tenancy agreements may be "written, oral or implied": Act s.2(1)], within 21 days after it commences (which is the date when the tenant can taken possession, whether they do or not: Act s.13) the landlord must give the tenant "written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act." [Act s.12(3)].
These duties apply to tenancy agreements entered into on or after 17 June 1998, which will be the vast majority of those in effect today.
Failure to comply with them suspends the tenant's duty to pay rent to the landlord [Act s.12(4)], although after compliance "the landlord may require the tenant" to pay over any withheld arrears of rent (ie. the 'back rent') [Act s.12(5)]. It is hard to imagine that that a landlord wouldn't expect the withheld arrears to be caught up, but the legislation plainly anticipates a positive "requirement" (eg. a request) for the payment of the withheld rent before it actually becomes due.
A tenant's right to receive a receipt for rent or any other payments to the landlord is discussed in Ch.10, s.1(e): "Rent Fundamentals: Rent and Rent Controls: Payment Issues".
(c) Pets
Provisions in a tenancy agreement purporting to prohibit the presence of animals "in or about the residential complex" are void [Act s.14]. Note that the "residential complex" includes "a related group of buildings in which one or more rental units are located", a "mobile home park or land lease community", a "care home" and "includes all common areas and services and facilities available for the use of its residents" [Act s.2(1)].
However, where an animal is implicated in a termination 'for cause' (eg. damage, suubstantial interference with the enjoyment of others, etc) special procedures may apply [see Ch.6, s.8: "Early Termination for Cause: Animals in the Premises"].
(d) Harassment
Landlords and tenants are under mutual duties not to "harass, obstruct, coerce, threaten or interfere with" each other [Act s.23,36].
Tenant's remedies for this are discussed below [see s.5(d): "Regular Orders for Other Breaches"].
Landlord's remedies for this are primarily termination and eviction [see Ch.6, s.5: "Early Termination for Cause: Substantial Interference with Reasonable Enjoyment"].
(e) Reasonable Enjoyment
. "Quiet Enjoyment" Background
There is a long-standing L&T common law principle known as "quiet enjoyment", which basically placed a duty on the landlord to provide the tenant with (and not to interfere with) peaceful, undisturbed and dignified possession of the premises - limited only by necessary interruptions for maintenance and safety. While the exact phrase "quiet enjoyment" has been dropped from recent legislation, it is effectively preserved and codified under the newer term "reasonable enjoyment".
. "Reasonable Enjoyment"
A landlord shall not - at any time during the tenant's occupation of a rental unit "and before the day on which an order evicting the tenant is executed" -"substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household" [Act s.22].
The above provision [Act s.22] can be read to suggest that the landlord is free to "substantially interfere" with the tenant on the day set for eviction by the sheriff, however this is a risky interpretation. Due to uncertain scheduling at the sheriff's office and last minute delays a landlord would be taking a great risk in intruding significantly before the eviction is actually completed. Further, other rights (such as privacy and against harassment) are still retained by the tenant and may render the landlord open to prosecution and civil damage claims (or both) if substantially violated.Case Note: Drewlo Holdings Inc. v. Weber (Div Ct, 2011)
In this case the tenancy was exempt from above-guideline rent increases by virtue of a categorical exemption set out in RTA s.6(2) [see Ch.10, s.6]. The landlord circulated a letter stating that the purpose of a nine percent increase was to compensate the landlord for the allegedly higher-than average damage costs that the presence of pets in units posed. The Board (upheld by the court), having regard to it's jurisdiction to ascertain the "real substance of all transactions and activities" [RTA 202], held this to be an illegal penalty charge and ordered a compensating abatement of rent. Abatement of rent was ordered as the Board accepted the characterization that “…a tenant’s reasonable enjoyment of the property…includes the expectation that they [sic] will not be made subject to premiums, penalties or other charges for otherwise lawful conduct.” . Note re Breach and Abatement Remedy Where Caused by "Work" in Premises
As "harassment" [s.2(d) above] is a higher - yet similar - standard to "substantial interference with reasonable enjoyment", it is hard to imagine a fact situation constituting "harassment" that does not also constitute "substantial interference with reasonable enjoyment" (perhaps interference unrelated to the rental premises). Indeed, for the most part - the "remedies" established for both breaches [see s.5(c): "Other Orders Available: General Remedial Orders", below] are the same.
However, both in the "determination" that a "substantial interference with reasonable enjoyment" (but not "harassment") has occured, and in the assessment of an "abatement of rent" order to remedy that breach - the RTA establishes extensive criteria to accomodate the necessities of maintenance, repair and capital improvement "work" being performed. These special criteria are explained in s.5(e): "Restrictions on "Substantial Interference" Orders Where Repair, Maintenance or Capital improvement Work"", below.
Tenants should therefore be sensitive to the distinction between the two determinations ("harassment" versus "substantial interference with reasonable enjoyment") when claiming s.29 application requests for determinations and remedial orders.
3. Privacy, Entry and Related
(a) Overview
A tenant has a general right of privacy in the rental unit, subject to the numerous specific exceptions explained below [Act s.25]. Privacy - for these purposes - may be viewed as the right to bar the landlord and others entry to the rental unit.
This right is particularly significant in the case of boarders and lodgers [see Ch.1, s.2(b): "Fundamentals: Formation of a Tenancy: Licenses Distinguished"] who at common law do not have the right to exclusive possession of the rented premises. The RTA privacy provisions, through the inclusion of "licenses" within the definition of "tenancy agreement" [Act s.2(1)], puts licensees on the same privacy footing as full "tenants".
(b) Entry Without Notice on Consent
A landlord may enter the rental unit without written notice if the tenant so consents at the time of entry. Consent to entry at a prior or later time is not legal consent for these purposes [Act s.26(1)].
This rule is probably aimed at preventing landlords from extracting a general, open-ended right to enter the premises - for example by locating such a 'right' in the fine print of a written lease. However it does apply to one-off consents if not given at the time of entry.
(c) Entry Without Notice on Emergency
The landlord may enter the rental unit without written notice in "cases of emergency" [Act s.26(2)]. It is impossible to define beforehand what will constitute an "emergency" for these purposes, but it is to be expected that any reviewing Board or court will look to surrounding circumstances to determine if this exception is being abused in order to harass or otherwise infringe on a tenant's rights.
Landlords should be cautious in the use of this provision, subject to obvious exigent exceptions [ie. fire, aggravated pleas for help, sounds of violence (careful to distinguish television here), etc]. In most situations of true emergency it would be reasonable to expect that municipal emergency services would be summoned as well (ie. fire, police, etc as appropriate).
(d) Entry Without Notice for Cleaning
. Overview
"A landlord may enter a rental unit without written notice to clean it if the tenancy agreement requires the landlord to clean the rental unit at regular intervals" [Act s.26(2)].
. Time of Entry
The Act provides that entry for cleaning may be made at times specified in the tenancy agreement [which recall, needs not be written: Act s.2(1) "tenancy agreement"], and - "if no times are specified ... between the hours of 8 a.m. and 8 p.m" [Act s.26(2)]. Care should be taken by the landlord to interpret the 8am-8pm window as justifying a random entry within those hours. The term "regular" here [Act 26(2)] implies that such entry should be at a set 'regular' time, which may vary periodically on reasonable scheduling grounds.
. Bona Fide Cleaning Arrangement Only
The cleaning-entry provision plainly applies to bona fide negotiated contractual cleaning arrangements ancillary to the primary rental arrangement, and not to periodic landlord cleanliness 'inspections' or self-appointed entries in an attempt to dictate the tenant's standard of lifestyle.
As well, entry to merely 'check that it is clean', or entry for token cleaning only should not satisfy this exception. Situations where entry is made under a bad faith pretext of cleaning must be addressed under the privacy, reasonable enjoyment and anti-harassment provisions discussed here and elsewhere in this chapter [see s.5: "Tenant Rights Applications", below]. Note however the general repair inspection right of entry on notice [see s.3(f): "Entry With 24-Hour Written Notice", below].
Note as well that charges for cleaning services are included in the definition of "rent' [Act s.2(1) "rent" and "services and facilities"].
(e) Entry to Show Unit to Prospective Tenants
Once a Notice to Terminate the tenancy has been given by either party, or an Agreement to Terminate has been entered into, then the landlord may enter the unit without written notice for the purpose of showing it to prospective tenants [Act s.26(3)].
The notice and time of entry provisions applicable to this ground of entry are different from those set out for cleaning (above). Entry to show to prospective tenants is legitimate if:- "the landlord enters the unit between the hours of 8 a.m. and 8 p.m."; and
- "before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so".
Efforts to notify the tenant of intended entry must be patently reasonable and bona fide in the circumstances, as illegal entry is a prosecutable RTA offence [see Ch.17, s.3(b): "Offences: Strict Liability Offences: Illegal Entry"].
(f) Entry With 24-Hour Written Notice
. Notice Requirements
The landlord may enter the rented premises for a wide variety of purposes on the giving of proper 24-hour written notice [Act s.27]. Note that the Board has not prescribed any standard form for such notice.
Such written notice shall specify [Act s.27(3)]:- the reasons for the entry (see below);
- the day of entry;
- "a time of entry between the hours 8 a.m. and 8 p.m".
. Time of Entry
Above I have mentioned the ambiguity contained in the twelve-hour 'time of entry' window [see "Entry for Cleaning" and "Entry to Show Unit to Prospective Tenants"]. This same problem is arguably not present in these s.27 written notice provisions. These latter provisions require that the notice specify "a time of entry between the hours of 8 am and 8pm", which contrasts with the more general phrasing "the landlord enters the unit between the hours of 8 am and 8 pm" [Act s.26(2) and (3)] above for cleaning and 'showing the premises' entry. Further, unlike those other entry situations, the mandatory written notice requirement practically facilitates the stating of a specific time of entry.Case Note:
The Divisional Court considered this issue on similar wording under the old Tenant Protection Act in Wrona v TCGC 2007 CanLii 3228 (Div Ct). The court stated:In order to obtain entry, the landlord was required to give Mr. Wrona written notice pursuant to s.21 of the TPA. Section 21(2) of the TPA states in part that the notice "shall specify the reason for entry, the date of entry and a time of entry between the hours of 8:00 a.m. and 8:00 p.m." In our opinion, a common sense reading of the language of ss.2 requires the notice to specify a time of entry within the twelve hour window, not as was done here, a nine hour period within the window during which an entry would be made.
In that regard, we agree with the finding of Member Graham of the Tribunal in his Decision in file #TNT-04362, a proceeding between these same parties that:"I do not accept that a landlord is required to specify the exact hour and minute of a required entry into a rental unit and although the hours of entry set out in this notice are clearly between 8:00 a.m. and 8:00 p.m., I do not find that a six-hour entry period complies with the requirement that the Landlord specify a time of entry between 8:00 a.m. and 8:00 p.m." We therefore find that the notice delivered by the Landlord was deficient. Wrona unfortunately leaves surviving ambiguity, clarifying with certainty only that a six hour period is inadequate time specification for a notice. It is likely to be interpreted in future cases in a common sense fashion to require either a specific set time specification (eg. 9am) with reasonable tolerance for lateness as might be expected in general business situations, or a small time window (eg. "between 9 and 10am"). . Grounds of Entry
That said, the legitimate s.27 written entry grounds (and attending pre-conditions) include:- Maintenance Work
"To carry out a repair or replacement or do work in the rental unit". Plainly this broad wording will be read-down to "doing work" on the premises, but there is no apparent requirement that the work be 'necessary'. Read literally this constitutes a significant infringement on the common law principle of "quiet enjoyment", which has strict limitations on even objectively necessary maintenance work. It is possible to argue that "quiet enjoyment" common law should be read into these provisions as a factor requiring a degree of necessity of the 'repair, replacement or work'.
- Viewing by Potential Insurer or Mortgagee
These inspections can - by their nature - be expected to be infrequent and isolated, although tenant premises may be subjected to the taking of photographs during such entries, which is particularly invasive. That issue may have to be litigated.
- Professional Inspections for Condominium Act Purposes
Qualified professional engineers, architects or "another qualified person" may inspect the premises for purposes of s.9(4) of the Condominium Act, 1998 (inspection for local authority regarding conversion of rented residential premises to condominium). Such inspections can - by their nature - be expected to be infrequent and isolated.
- Viewing by Potential Purchaser
Landlords, or - with written landlord authormization - registered real estate brokers or salespersons, may enter "to allow a potential purchaser to view the rental unit." [Act s.27(2)]
Real estate agents are a particular breed of individual prone to cutting corners in the pursuit of a commission, and likely to be impatient with anything that impedes their ability to show premises at their convenience. Tenants must be careful to assert their rights in the face of the agent's perception of what is "reasonable". Strict insistence (send a letter and/or post it on the door) on a tenant's rights of notice for each visit may be required. Recall that such notices must specify the "day of entry" and "time of entry" [Act s.27(3)], so a single notice purporting to cover numerous entries would be inadequate.
- General Repair Inspection by Landlord
General "reasonable" inspections are allowed for the:... purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord's obligations under subsection 20 (1) [general landlord repair and habitation standard duties: see s.4 below] or section 161 [mobile home park maintenance; see Ch.2, s.4(c)], ... Absent unexpected repair crises or other substantial unforeseen problems, such inspections can "reasonably" be expected to be regular and infrequent. An annual scheduled inspection for such purpose - if followed by repair of usual 'wear and tear' - would be a welcome (and novel) experience for many tenants. Tenants would be well advised before such inspections to prepare and serve a written list (keeping a copy for themselves) of items they feel need repair.
Further, as a general precaution against disputes over damage to the premises, it is an excellent practice for tenants to conduct periodic photography of the premises. Minimally, a move-in and move-out photo shoot are excellent self-protection for tenants.
- 'Other Reasons' Specified in Tenancy Agreement
A final ground of entry with notice is quite broad: "(f)or any other reasonable reason for entry specified in the tenancy agreement".
The vagueness of this provision presents a similar potential for abuse as discussed in "Entry for Cleaning", above - given the legal fact that tenancy agreements (and therefore their terms) need not be written [Act s.2(1) "tenancy agreement"] - but can be "implied" only [less so since the 2017 standard RTA leases for most premises]. Much room exists here for unscrupulous landlords to abuse privacy rights.
(g) COMMENT re Entry Provisions
Several of these entry grounds (and thus the entire regime) are extremely broad and poorly limited. We can expect them to be a focus of abuse by unscrupulous landlords, and particularly by new and unprofessional landlords renting out 'starter homes' which they still view with close personal attachment.
Additionally, the ambiguity of the 'time of entry' in some provisions (discussed above) will likely be a cause of contention between the parties. We can expect this provision to be used (or abused) by landlords and other "enterers" wishing to assert their time convenience interests over those of tenants, at the cost of tenant's privacy and security rights. For the tenant however these are not always minor inconvenience issues (particularly for women living alone) but can pose threats to personal and property security as well.
Tenants and advocates should be careful in such situations to document entries by both written logs (detailing circumstances and time of entry) and even photography of the people entering, if on-going abuse is anticipated or experienced.
(h) No Restriction on Access by Political Canvassers
Landlords may not (apparently even with the consent of tenants) "restrict reasonable access to a residential complex by candidates for election to any office at the federal, provincial or municipal level, or their authorized representatives, if they are seeking access for the purpose of canvassing or distributing election material" [Act s.28].
Recall that the definition of "residential complex" is broad and encompasses "a related group of buildings in which one or more rental units are located", a "mobile home park or land lease community", a "care home" and "includes all common areas and services and facilities available for the use of its residents" [Act s.2(1)].
Of course, this just gets canvassers into apartment buildings to 'door-knock'. Tenants are still entirely within their rights to refuse to talk to or otherwise deal with them.
(i) Changing Locks
. Landlord Duties
A landlord can only change (or cause to be changed) the "locking system" on any doors giving access to the residential complex (including of course the specific rental unit, and other entry doors) if they give the tenant new "keys" [Act s.24].
While such systems are aren't all 'keyed' locks anymore, the provision is bound to be read broadly to encompass any access device or procedure (including any access codes).
Similarly, while the provision is silent about "when" keys have to be given, the provision is certainly going to be read to mean as expediently as possible in the circumstances. In situations of unexpected lock changes (eg. repair or damage) the landlord will be expected to undertake significant efforts to provide new "keys" to tenants so that they are not substantially inconvenienced. Further, even brief inability to access premises can in many cases have serious consequences regarding vulnerable children, dependent adults, pets and safety hazards - all of which a landlord must have regard to in such circumstances both as a matter of common sense and legal liability.
. Tenant Duties
Note that tenants are under a similar duty to not change (or cause to be changed) the "locking system on a door ... without the consent of the landlord" [Act s.35(1)].
On an allegation that the tenant has changed or caused to be changed the locking system on an entry door without their consent, the landlord may apply to the Board for the following orders [Act s.35(2)(3)]:- a determination of the breach;
- "that the tenant provide the landlord with keys or pay the landlord the reasonable out-of-pocket expenses necessary to change the locking system".
There is no specific provision for termination of the tenancy associated with such tenant behaviour though it is conceivable that such an application could be brought for "substantial interference" [see Ch.6, s.5].
Form L8: Application Because the Tenant Changed the Locks
4. Repairs, Vital Services and Maintenance
(a) Overview
Landlords have the primary duty to maintain the premises in a "good state of repair and fit for habitation" ("repair"), to continue the provision of any vital services ["hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat"] ("vital services") that they are responsible for under the tenancy agreement, and to comply with any applicable maintenance standards established by law ("maintenance") [Act s.20,21].
These topics are discussed in turn below. Tenant remedies for landlord breach of these duties are discussed in s.5 "Tenant Rights Applications", below.
The Board's perspective on maintenance and repair-related rights and remedies is set out extensively in Interpretation Guideline 5: "Breach of Maintenance Obligations", linked here. It should be reviewed by carefully anyone involved in such a case.
Interpretation Guideline 5: Breach of Maintenance ObligationsNote Re Tenant Remedies:
An issue that often arises in connection with repair and maintenance of the premises is the tenant's right to be free from "substantial interference with reasonable enjoyment" of the premises [see s.2(e) "Reasonable Enjoyment", above]. Further, a common remedy to breach of this right is an "abatement of rent".
The tension in such disputes is between the tenant's right of reasonable enjoyment of the premises and the landlord's need to effect repairs, which almost always involve some degree of interference with the tenant.
Note that where a breach of the tenant's right to "reasonable enjoyment" is alleged - and is caused by maintenance, repair or capital improvement work - then special criteria apply to a Board "determination" that the breach occured, and also for an abatement of rent remedial order. For these criteria see s.5(e): "Restrictions on "Substantial Interference" Orders Where Repair, Maintenance or Capital Improvement Work"", below. (b) Repair
. Tenant's Duties
Tenants have a general duty to repair any "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" [Act s.34]. This does not include normal "wear and tear", nor (interestingly) does it include accidental damage that was not negligently caused.
Remedies compensating for such damage are typically sought in conjunction with termination and eviction, and are discussed in that chapter [see Ch.6, s.4(e): Early Termination for Cause: Damage: Landlord's Application for Damage Compensation"].
. Landlord's Duties
Except for intentional or negligent damage caused by a tenant (above), the landlord bears responsibility for repairing the rental unit [Act s.20]: 20(1)
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. It is no defence to an alleged breach of this duty that the tenant 'moved in' knowing of the non-repair [Act s.20(2)].
A tenant's remedies for non-repair are set out in s.5 "Tenant Rights Applications", below.
Landlords may face duties to notify tenants regarding anticipated extensive repairs [see s.5(e): "Restrictions on "Substantial Interference" Orders Where Repair, Maintenance or Capital Improvement Work""].
Parallel with the coming into force on 01 January 2011 of rules for 'suite meter' and 'utility cost apportionment' conversions, landlords who engage in such conversions come under specific duties to ensure that refrigerators are modernized. These duties are set out in detail in Ch.12 "Other Rent Proceedings", s.8(h) "Suite Meters" and s.9(f) "Apportionment of Utility Costs".
(c) Vital and Other Services
. "Vital Services" Defined
The RTA defines a "vital service" as [Act s.2(1)]: - hot or cold water,
- fuel,
- electricity,
- gas, or
- heat (as defined below).
"Heat" for purposes of the technical definition of a "vital service" must be [Reg s.4]:- made available from 01 September to 15 June;
- "provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius" unless "the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat."
This is a standard that can be tested by municipal inspectors (see immediately below).
. Landlord's Duties
Tenancy agreements may impose on the landlord a duty to pay for "vital services" [defined below] (and additional services such as food and care services in the case of care homes), or they may be directly contracted for by the tenant - or both (ie. some paid by landlord, some by tenant).
Regardless, the landlord may not withhold the provision of a reasonable supply of such services to the tenant - nor shall they deliberately interfere with the reasonable supply of such services to the tenant [Act s.21(1)]Note:
Any denial of these services caused by a landlord's failure to meet their general repair and maintenance duties should also be dealt with as a repair issue (above). Some of a tenant's remedies for breach of these duties are set out below in s.5 "Tenant's Remedies", and in s.4(c): "Repairs, Vital Services and Maintenance: Vital and Other Services: Municipal By-Laws Re Vital Service Cut-off".
Further, where it is the landlord's obligation under the tenancy agreement to pay for such services directly, non-payment for such services resulting in their cut-off by suppliers is deemed to constitute "withholding" of such services by the landlord [Act s.21(2)]. The RTA has established extensive procedures (explained below) for situations where such non-payment occurs. These procedures authorize municipalities to pass by-laws mandating notice to the municipality of any pending cut-off, orders to the supplier to continue service, re-direction of rent to the municipality, liens on the landlord's property to pay for the services - and other remedial steps.
. Duration of Landlord's Duties
This vital services duty applies "any time during a tenant's occupancy of a rental unit and before the day on which an order evicting the tenant is executed". While this suggests that the landlord is free to "withhold" or "interfere" with the provision of such services on the day set for eviction by the sheriff - due to uncertain scheduling at the sheriff's office and last minute delays - a landlord would be taking a great risk in such actions before the eviction is actually completed. Further, other rights (eg. against harassment and intentional infliction of harm) are still retained by the tenant (some as a general matter of law) and may render the landlord open to prosecution and damage claims (or both) if substantially violated.
. Municipal By-Laws Re Vital Service Cut-off
As noted above, by virtue of RTA s.215-223, municipalities are authorized to pass "vital service by-laws" governing the situation where a landlord fails to pay for vital services that it is their responsibility to pay for under tenancy agreements. Readers should contact their local municipality to inquire if such by-laws have been passed, to obtain copies thereof, and to inquire as to complaint procedures (typically dealt with through the "property standards" department).
Generally, such by-laws may [Act s.216]:- require landlords to provide adequate and suitable vital services to each of the landlord's rental units;
- provide for inspection of rental units by appointed municipal inspectors [Act s.218];
- prohibit a supplier from ceasing to provide the vital service until a notice has been given to the municipal clerk [Act s.217];
- require restoration of the vital service when so ordered by a municipal official, and compensation for same by re-direction of rent to the municipality and liens against the landlord's property [Act s.219-222].
Such by-laws may also create prosecutable municipal offences for violation of their provisions.
For example, this is the City of Toronto's Vital Services by-law:
Chapter 835: Vital Services, Discontinuance of
. Maintenance Interruptions
The RTA provides that municipalities may, in their "vital services" by-laws [Act s.216(3)(d)] provide for justified minimal interruptions of vital services for maintenance and repair purposes.
. 'Suite' Electrical Meters
To facilitate the installation of electrical 'suite meters', which are part of a province-wide attempt to assist energy conservation efforts by ensuring that tenants are only charged for the electricity that they use, the RTA was amended effective 01 January 2011. These new 'suite meter' rules provide a limited exception to the landlord's duty to provide vital services for the time that it takes to install the suite meters. The suite meter rules are addressed in depth in Ch.12, s.8: "Other Rent Proceedings: Suite Meters".
(d) Maintenance Standards
. Overview
The landlord's responsibility "for complying with health, safety, housing and maintenance standards" is located in the same RTA provisions that imposes the duty to repair and maintain the premises "fit for habitation" [Act s.20(1)]. Like the repair duty, it is no defence to an alleged breach of this duty that the tenant 'moved in' knowing of the inadequacies [Act s.20(2)].
Some of a tenant's remedies for breach of these duties are set out in s.5 "Tenant's Remedies" (below) and some are set out immediately below in the discussion of "Administration and Enforcement".
The "standards" to which this duty applies are usually the local municipality's "property standards by-law". In situations where there is no such by-law (such as in non-municipally-organized territories) or where there is a property standards bylaw but it adopts the provincial standards, then the provincial standards are adopted ("adopted standards") [Act s.224(1)] [in these circumstances the standards apply only to a landlord's duty under s.20(1) (above): Act 224(2)]:
RTA Reg 517/06: Maintenance StandardsCasenote: Matthews v Algoma Timberlakes Corporation (Ont CA, 2010)
In this remote land lease community case the tenants sought a Board declaration under RTA s.9(1)(a) exempting the landlord from specific duties under the RTA, such as duties under ss.20 and 161 [which applied to land lease communities by virtue of s.152(2)] respecting repair, compliance with "health, safety, housing and maintenance" standards, remove garbage, provide roads and snow removal, utilities, etc. Presumably the tenants were happier with an arrangement where they did those things and wanted to avoid any AGI rent increases.
While holding that s.9(1)(a) did not give the Board jurisdiction to engage in specific discretionary line-by-line exemptions from the RTA, so that the landlord was bound by these repair and service duties, the court downplayed the actual burden that they imposed on such landlords by embarking on a comparative analysis of the nature of the repair and maintenance duties imposed on them. In so doing it made the point that Reg 517/06 s.2(2) duties - which apply by virtue of RTA s.224(1) to remote areas and areas that are not municipally-organized - only require the landlord to "ensure that the maintenance standards in this Regulation are complied with" clearly implying that this was not a direct duty to perform these tasks themselves.
Compare that phrasing with the more strenuous duty located in the primary repair and maintain duties set out in RTA s.20: ie. "providing and maintaining". Under this reasoning premises located in such remote areas may fall back under old-style commercial lease arrangements where the duties can be shifted 'back' onto tenants under appropriate lease terms.
Case Note: Montgomery v Van (Ont CA, 2009)
In this case, which raises issues similar to those in Matthews v Algoma Timberlakes Corporation (noted above), a tenant sued their landlord in a walkway ice slip and fall case. In defence, the landlord argued a provision of the lease that purported to place the responsibility for ice and snow clearance on the tenant. The tenant argued in turn that the no contracting out or waiver provisions of (then) s.2(1) of the Tenant Protection Act (TPA) [now RTA s.3(1)], and the 'inconsistent provisions are void' provision of (then) s.16 [now RTA s.4] combined to render the ice and snow clearance clause of the lease void and unenforceable. TPA s.2(1) [now RTA s.3(1)]
This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
TPA s.16 [now RTA s.4]
... a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. The court, referring to the TPA maintenance duties Regulation (now 517/06) which set out the landlord's ice and snow clearance duties which apparently applied to this tenancy, focussed on the phrasing: "... the landlord shall ensure that the maintenance standards in this Regulation are complied with" (emphasis added) [RTA Maintenance Standards Reg s.2(2); TPA s.2(1)]. Under this wording the court found that the landlord avoided TPA s.2(1) [now RTA s.3(1)] (since there was no agreement or waiver which was contrary to the Act) and was not precluded from contracting snow and ice clearance out to the tenant: [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. However the court held that in this particular case the lease provision still did not shift the duty (and liability) to the tenant because in order to do so it had to be a contractual duty separate from the lease [to avoid TPA s.16, now RTA s.4]. Further, any such contractual duty had to be specific, which the present clause was not, as it failed to clearly set out duties with respect to the common walkway on which the accident occured.
As with Matthews v Algoma Timberlake Corporation (noted above) great care must be taken not to extend the principles of this case beyond their very specific facts, which are not made clear in the reported reasons. The Maintenance Regulation (now RTA Reg 517/06) considered here only applies to areas of the province which are not municipally-organized or where there is no municipal property standards by-law [TPA s.154(1) and RTA s.224(1); TPA and RTA Maintenance Reg s.2(2)]. In cases where there is municipal organization, along with property standards and other by-laws addressing these issues, those local laws apply to define the primary [TPA s.24(1) and RTA s.20(1)] standards-compliance duties. Where such local standards by-laws apply (the vast majority of cases) the duty of the landlord is expressed in much more direct terms: ie. "(a) landlord is responsible for providing and maintaining ..." (emphasis added) - not just 'ensuring' compliance.
Under the logic applied by the court in this Montgomery it seems doubtful that even a specific, separate and free-standing contract with the tenant could avoid being held to be 'contrary' to RTA s.20(1) so as to avoid RTA s.3(1). Consequently landlord liability could not likely be avoided on these grounds. . Municipal Administration and Enforcement
Where the premises are governed by a 'home-made' (non-provincial) local property standards by-law, or by an adopted provincial standards by-law, then the administration and enforcement of the standards is done by the local municipality, which usually has something called a "property standards" branch.
In that case if a current tenant makes a written complaint regarding the unit or residential complex then the municipality shall receive it [Act 224.1(1)], and they "shall cause an inspector to make whatever inspection the local municipality considers necessary to determine whether the landlord has complied with the prescribed maintenance standards" [Act 224.1(2)].
Enforcement procedures in such situations will be governed by the municipal by-law (either custom-made or adopted provincial). Inquire of the clerk's office for copies of by-laws. In addition, municipal inspectors have entry, demand and investigation authorities [Act 230].
If the inspector is satisfied that there has been a non-compliance with the maintenance standards "the inspector may make and give to the landlord a work order requiring the landlord to comply with the prescribed maintenance standard" [Act 225(1)]. That work order shall set out [Act 225(2)]:- "the municipal address or legal description of the residential complex";
- "reasonable particulars of the work to be performed";
- "the period within which there must be compliance with the terms of the work order"; and
- "the time limit for applying under section 226 to the Board for a review of the work order".
The issuance of a work order can then be used by a tenant to aid enforcement of their rights by way of tenant application to the Landlord and Tenant Board. These procedures are explained immediately below in s.5: "Tenant Rights Applications".
A landlord unsatisfied with such a work order may apply to the LTB (the "Board") for a review in 20 days after issuance [Act 226(1)]. On a review the Board may by order [Act 226(2)]:- "confirm or vary the inspector’s work order";
- "rescind the work order, if it finds that the landlord has complied with it"; or
- "quash the work order".
Procedures for a review of a municipal work order are set out in RTA s.189.1
The duties of a municipality extend beyond the above "monitor(ing) compliance with the prescribed maintenance standards as they apply to residential complexes located in the local municipality", but also to investigation and commencement of the following RTA offence provisions [Act 226.2] (see Ch.17,s.3):- "a failure to comply with a work order issued by an inspector appointed by the local municipality" [Act 234(t)],
- "obstruction of, or interference with, an inspector appointed by the local municipality who is exercising a power of entry under section 230 or 231 [Act 234(u)]", and
- "the furnishing of false or misleading information in any material provided to an inspector appointed by the local municipality" [Act 234(v)].
Inspectors may be appointed by the municipality [Act 226.1]. Inspectors, employees or agents are immune from damages for "any act done in good faith in the performance or intended performance of any duty or in the exercise or intended exercise of any power under this Part or section 230 or 231 or for any neglect or default in the performance or exercise in good faith of such a duty or power" [Act 226.3(1)], but a municipality may have such liability [Act 226.3(2)].
. Provincial Administration and Enforcement
If no such municipal by-law exists (either custom-made or adopted provincial), administration and enforcement of maintenance standards is the responsibility of the provincial Ministry of Municipal Affairs and Housing [Act s.224(2),227], and complaints from current tenants should be directed to them (they must be in writing):
Ministry of Municipal Affairs and Housing: Investigations and Enforcement
In any case, inspectors may be sent out (at administrative discretion) [Act s.224(3)] to investigate in response to a formal complaint. It is the practice of such inspectors, when they find infractions, to issue a series of Notices and Orders requiring compliance with the standards - culminating (eventually) in a "work order" [Act s.225(1)]. As well, inspectors may initiate offense prosecutions (other than those delegated to municipal inspectors above: Act 226.2) [Act 229].
Work orders must specify the work to be done, the time frame to do it and the time available for the landlord to apply to have the order reviewed by the L&T Board [Act s.225(2)]. Procedures for such a review are set out in s.226 of the RTA but are not summarized here (basically a "review" is an appeal).
RTA s.226
Form L6: Application for Review of a Provincial Work Order
The issuance of a work order can then be used by a tenant to aid enforcement of their rights by way of tenant application to the Landlord and Tenant Board. These procedures are explained immediately below in s.5: "Tenant Rights Applications".
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