The Ontario Court of Appeal recently released the decision of Crete v Ottawa Community Housing Corporation, 2024 ONCA 459 upholding the decision of Justice H.J. Williams that the Plaintiff tenants were required to clear snow and ice from areas used exclusively by them.
In this case, the plaintiff, Daniel Crete, slipped and fell on ice on the front steps of a townhouse the Cretes leased from the Defendant Landlord. The lease stated that: “the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways”
Determining fault for falls on rented premises can be tricky. There’s always a question of where the tenant’s liability starts and the landlord’s liability ends. Overlap is not precluded. This case provides some guidance to the personal injury bar, particularly in the residential context, where this question is complicated by the Residential Tenancies Act.
At Trial
The trial Judge found that there was no inconsistency between the Lease’s requirement that the Tenant’s clear the snow from areas used exclusively by them, and the landlord’s requirement to maintain the residential complex in a good state of repair pursuant to s. 20 of the Act. She also found that s. 33 of the Act, which makes tenants generally responsible for “ordinary cleanliness of the rental unit”, required tenants to clear snow and ice from areas exclusively used by them.
On Appeal
While arriving at the same conclusion as the Trial Judge, the Court of Appeal reached it differently. The Court of Appeal found that the Landlord was required to clear snow and ice in a residential complex pursuant to s. 20(1), but that requirement only extended to “exterior common areas”, citing s. 26 of O. Reg 517/06 (Maintenance Standards).
The Court also held that tenants were not required to clear snow and ice by s. 33 of the Act.
Because the area where Mr. Crete fell was an area used exclusively by the plaintiff tenants, the Court of Appeal held that it was not a common area that the Landlord was required to clear snow and ice from. As a result, there was no inconsistency between the provision in the lease requiring the tenants to keep that area clear from snow and ice, and the Residential Tenancies Act.
What about the Occupiers’ Liability Act?
Even though they might not be in physical possession of the premises, Landlords can be Occupiers’ under the Occupiers’ Liability Act if they have “responsibility for and control over the condition of the premises or the activities there carried on…”
Whether the landlord is an occupier depends on the lease, but also on the assessment of the entirety of the circumstances, including the parties conduct. (See for example Musselman v. 875667 Ontario Inc. (Cities Bistro), 2012 ONCA 41 at paras 8 and 9).
This analysis is complicated by the fact that a landlord is only in default of their maintenance obligations as landlord if “the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises” (Occupiers’ Liability Act s. 8(2)).
Maintenance Standards?
Query whether the maintenance standards regulations cited by the Court of Appeal (O. Reg 517/06) even apply to the apartment in question. Section 224 of the Residential Tenancies Act says that the prescribed maintenance standards only apply where there no applicable property standards bylaw.[1]
Ottawa has its own property standards by-law (2013-416). Whether Ottawa’s by-law or the prescribed maintenance standards apply, the result is the same in this case. The by-law requires owners to maintain all walkways “in a condition so as to afford safe passage by pedestrians”[2] but defines owners to include “the lessee or occupant of the property who, under the terms of the lease, is required to repair and maintain the property…”
Bottom Line
Landlords can require Tenants to keep areas used exclusively by them clear of snow and ice. This requirement doesn’t run afoul of the Residential Tenancies Act.
I cannot help but wonder what the outcome would be in this case if the lease was silent about snow removal from areas used exclusively by tenants. Per the Court of Appeal, the Residential Tenancies Act requires neither Landlord nor Tenants to keep these areas free from snow and ice.
Under the City of Ottawa’s by-law, it would in fact be the landlord that has a duty to keep the walkways free from snow and ice in the “silent lease” case.
A landlord in breach of a by-law and by extension, the maintenance standards of the Residential Tenancies Act, still might escape liability.
In the silent lease case, the Tenants would likely have a duty, as occupiers, to keep their private steps and walkways free from snow and ice. Whether the landlord would have such a duty as well as, or instead of, the Tenants depends on all the circumstances. The foremost circumstances being (1) who is in control of these areas; and (2) what the landlord and tenants either expressly (or impliedly) agreed to about the maintenance of these areas.
None of this is meant to be legal advice. If you or a loved one were injured as a result of an accident at a rental property, call Bergeron | Clifford today for a free consultation and closer look at your case.
[1] Or in other “prescribed circumstances” that do not seem to apply here.
[2] Section 9(1)(b)
ROBERT MURPHY
Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020. He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario. During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side. After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023.
