In a Landlord and Tenant Relationship, Who is Responsible For Doing the Snow Shoveling?

The Landlord is Almost Always Responsible For Snow Shoveling Which Involves Both the Duty to Perform the Workmanship As Well As the Risk of Liability For Poor Performance of the Workmanship.

Understanding That Lease Terms Requiring Snow Shoveling By a Tenant Are Unlawful and Present Potential Liability Concerns

Residential Lease Document A landlord often provides a lease wherein there are terms that attempt to import a requirement that the tenant will shovel snow, salt, and otherwise perform winter maintenance duties upon the rented premises. Unwittingly, such lease terms can create significant risk issues for the landlord.

The Law

While many landlords may believe that the issue of who should perform snow shoveling, among other things, is a matter of perceived common sense whereas the tenant living at a rental unit is the person who is most easily able to attend to snow shoveling needs and therefore it is reasonable to expect, and require, a tenant to do so, with very few exceptions, the duty to shovel snow, among other things, is legally imposed upon the landlord.

Additionally, the liability risk, among other deeper legal issues, generally, remains with the landlord; and accordingly, it is the landlord who becomes legally liable for slip and fall injuries to the tenant, to guests of the tenant, or to persons such as pedestrians as strangers who may happen to come by the rental premises.  The statutory law with respect to these concerning issues is prescribed by the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 including the applicable Maintenance Standards, O. Reg. 517/06 regulation as well as the Occupiers' Liability Act, R.S.O. 1990, c. O.2 and involves interplay that requires a strong understanding of the connections between these statutes as well as the various case law decisions that review the interplay within these statutes. In particular, the relevant sections of these statutes say:

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. 

33 The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it. 

26. (1)  Exterior common areas shall be maintained in a condition suitable for their intended use and free of hazards and, for these purposes, the following shall be removed:

1. Noxious weeds as defined in the regulations to the Weed Control Act.

2. Dead, decayed or damaged trees or parts of such trees that create an unsafe condition.

3. Rubbish or debris, including abandoned motor vehicles.

4. Structures that create an unsafe condition.

5. Unsafe accumulations of ice and snow. 

Definitions

1 In this Act,

occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

premises” means lands and structures, or either of them, and includes,

(a) water,

(b) ships and vessels,

(c) trailers and portable structures designed or used for residence, business or shelter,

(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”)

Common law duty of care superseded

2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

Risks willingly assumed

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Criminal activity

(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Trespass and permitted recreational activity

(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(a) where the entry is prohibited under the Trespass to Property Act;

(b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier.

Same

(3.1) For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of subclause (3) (c) (i):

1. A fee charged for a purpose incidental to the entry or activity, such as for parking.

2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

Premises referred to in subs. (3)

(4) The premises referred to in subsection (3) are,

(a) a rural premises that is,

(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises;

(b) golf courses when not open for playing;

(c) utility rights-of-way and corridors, excluding structures located thereon;

(d) unopened road allowances;

(e) private roads reasonably marked by notice as such;

(f) recreational trails reasonably marked by notice as such; and

(g) portage routes.

Restriction of duty or liability

5 (1) The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.

Extension of liability by contract

(2) A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.

Reasonable steps to inform

(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.

Liability where independent contractor

6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

Idem

(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.

Idem

(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.

Application of ss. 5 (1, 2), 6

7 In so far as subsections 5 (1) and (2) prevent the duty of care owed by an occupier, or liability for breach thereof, from being restricted or excluded, they apply to contracts entered into both before and after the commencement of this Act, and in so far as section 6 enlarges the duty of care owed by an occupier, or liability for breach thereof, it applies only in respect of contracts entered into after the 8th day of September, 1980.

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.

Preservation of higher obligations

9 (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

(a) innkeepers, subject to the Innkeepers Act;

(b) common carriers;

(c) bailees.

Employer and employee relationships

(2) Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists.

Application of Negligence Act

(3) The Negligence Act applies with respect to causes of action to which this Act applies.

Act binds Crown

10 (1) This Act binds the Crown, subject to the Crown Liability and Proceedings Act, 2019.

Exception

(2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.

Application of Act

11 This Act does not affect rights and liabilities of persons in respect of causes of action arising before the 8th day of September, 1980.

Notice period — injury from snow, ice

6.1  (1)  No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).

Same

(2)  The persons referred to in subsection (1) are the following:

1.  An occupier.

2.  An independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.

Copy of notice

(3)  An occupier that receives notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to,

(a)  any occupiers of the premises during the relevant period in which the injury occurred; and

(b)  any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.

Same

(4)  An independent contractor employed by an occupier to remove snow or ice on the premises that receives a notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor.

Exception

(5)  Failure to give notice in accordance with subsection (1) is not a bar to the action in the case of the death of the injured person as a result of the injury.

Same

(6)  Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.

Notice effective against all persons

(7)  For greater certainty, the limitation on bringing actions after the 60-day period set out in subsection (1) no longer applies if notice is provided in accordance with that subsection to any person listed in subsection (2), even if the action is to be brought against a person that did not originally receive the notice.

As above, there is an extensive body of statutory law relevant to the issues of both who is responsible for performing snow and ice control as well as who is responsible for injuries that may arise due to a failure to adequately perform snow and ice control.  Furthermore, the interpretation and application of the statutory law may take many twists and turns depending upon the factual specifics of the tenancy relationship.  Many of the twists and turns were addressed within the case of Miaskowski v. Persaud, 2015 ONSC 1654, among various others as cited therein.  Interestingly, the Miaskowski case was a Motion Hearing decision involving many issues including the dismissal of defendants and cross-claims between defendants due to the expiry of the two-year limitation period applicable to slip and fall litigation.  The Miaskowski case might be even more interesting had all defendants and allegations remained involved; however, for the purpose of identifying various concerns including twists and turns regarding responsibility for performing snow and ice control upon rented premises within a residential context as well as the liability for ineffective snow and ice control, the Miaskowski case remains very informative and instructive, especially as a case example regarding the unique circumstances where a landlord was without the responsibility to perform snow and ice control as well as without liability for injuries due to a default in doing so.  Within Miaskowski it was specifically said:

[104]  Mr. Miaskowski’s claim against Mr. Persaud is two branched. The first branch is that Mr. Persaud was an occupier who breached his duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. The second branch is that Mr. Persaud breached his common law duty of care in failing to take any steps to ensure that the property was safe from dangerous ice and snow conditions.

[105]  On his summary judgment motion, Mr. Persaud’s argument is that there is no genuine issue for trial that he has no liability. Mr. Persaud’s argument is complex because of the intricacies of how the Occupiers’ Liability Act addresses the liability of landlords. It is a particularly complex argument when residential premises are leased.

[106]  However, in my opinion, the competing arguments are capable of being resolved on this motion for summary judgment, and in this section of my Reasons for Decision, I shall describe the law about a landlord’s and a tenant’s liability under the Occupiers’ Liability Act and apply that law to the circumstances of the case at bar to reach the conclusion that Mr. Persaud is not liable.

[107]  For present purposes, the relevant portions of the Occupiers’ Liability Act are set out in Schedule “A” to these Reasons.

[108]  The Occupiers’ Liability Act replaces the common law of occupier’s liability. The marginal note for s. 2 of the Act is “Common law duty of care superseded.” The Occupiers’ Liability Act was intended to supersede the common law rules of negligence that imposed liability upon landlords and tenants of property and differentiated between, for instance, invitees and trespassers: Musselman v. 875667 Ontario Inc. (Cities Bistro), 2010 ONSC 3177 at para. 171, aff’d 2012 ONCA 41.

[109]  Section 9 of the Act preserves higher legal obligations that may be imposed on innkeepers, common carriers, bailees, and others, and, for present purposes, s. 9 is relevant because the Residential Tenancies Act, 2006, S.O. 2006, imposes some duties on landlords that are non-delegable. More precisely, subject to s. 6 of the Occupiers’ Liability Act, these higher duties imposed by the Residential Tenancies Act are non-delegable. Section 6, however, allows a landlord to meet his duty of care by responsibly using independent contractors to keep the property safe. Section 6 of the Act states:

6. (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

[110]  The first major issue in this case is whether Mr. Persaud is an occupier. Section 1 of the Occupiers’ Liability Act provides an inclusive definition of who is an occupier with the attendant duty of care imposed by the Act.

[111]  In Wheat v. E. Lacon & Co. Ltd. [1966], 1 All E.R. 582 (H.L.) at p. 593, Lord Denning described the word “occupier" as “a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises.” The Act defines occupier to include: (a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter premises.

[112]  The Act in s. 1 provides that there may be more than one occupier of the same premises.

[113]  Typically, a tenant will qualify as an occupier of his or her leased premises. And there is case law that establishes that where a tenant controls or has responsibility over adjoining property (i.e., property not leased to the tenant), the tenant may also be an occupier of that property. See: Slumski v. Mutual Life, [1994] O.J. No. 301 (Div. Ct.); Pammett v. McBride Corp., 2013 ONSC 2382.

[114]  Landlords are not so habitually occupiers, and their status as an occupier will depend on whether they are caught by the definition of “occupier” found in s. 1 of the Act or whether they are caught by the provisions of s. 8 of the Act, discussed below.

[115]  Sometimes, both the landlord and the tenant of a property may be occupiers because of shared responsibilities to maintain and repair the premises and to keep the premises safe.

[116]  Depending on the factual circumstances, landlords have been held to be occupiers under the Act. See: Allison v. Rank City Wall Canada Ltd. (1984), 1984 CanLII 1887 (ON SC), 45 O.R. (2d) 141 (H.C.J.); Johnston v. Standard Life Assurance Co. (1990), 1990 CanLII 6628 (ON SC), 73 O.R. (2d) 495 (H.C.J.); Finchurst Plaza Inc. v. Chun, [1996] O.J. No. 5027 (Gen. Div.); Manning v. 3980 Investments Ltd., [2003] O.J. No. 1937 (S.C.J.); Dogan v. Pakulski, [2007] O.J. No. 1903 (S.C.J.); Kehoe v. Ameli, [2008] O.J. No. 2103 (S.C.J.), varied on other issues 2010 ONCA 301.

[117]  Sometimes, the landlord will not qualify as an occupier because he or she will not be in possession of the premises, and he or she will have no responsibility for the control of the premises. This is typically the case when the landlord leases a property under a lease that imposes the repair and maintenance obligations on the tenant.

[118]  In other words, mere ownership of a property does not make the owner an occupier, and the terms of the lease and the landlord’s and tenant’s behaviour may rebut any responsibility for or control over the premises. See: Barnett-Black v. Silad Investments Inc., 1990 CanLII 8095 (ON SC), [1990] O.J. No. 2008 (Gen. Div.); Perricelli v. Musca, [2002] O.J. No. 3768 (S.C.J.); Borzecki v. Elay Gate Signs, [2006] O.J. No. 652 (S.C.J.); Blount v. H. Corp. Coiffures Ltd. (c.o.b. L’Attitudes International Image Centres), [2008] O.J. No. 3690 (S.C.J.); Musselman v. 875667 Ontario Inc. (Cities Bistro), 2010 ONSC 3177, aff’d 2012 ONCA 41.

[119]  In my opinion, there is no genuine issue requiring a trial that Mr. Persaud is not an occupier pursuant to s. 1 of the Occupiers’ Liability Act. Just addressing the definition of “occupier” in s. 1 of the Act, based on the evidentiary record, there is no genuine issue for trial that Mr. Persaud was not an occupier. He was not a person in physical possession of 70 Jingle Crescent. He was not responsible for and he did not have control over the condition of 70 Jingle Crescent. He did not have control over the activities there carried on or control over persons allowed to enter 70 Jingle Crescent.

[120]  The issue then becomes did Mr. Persaud have obligations under s. 8 of the Occupiers’ Liability Act. Pursuant to subsections (1) and (2) of s. 8, a landlord will have an occupier’s liability if two pre-conditions are satisfied; namely: (1) under the tenancy, the landlord is responsible for the maintenance or repair of the premises; and (2) the landlord’s default is such as to be actionable at the suit of the tenant. As I shall demonstrate below, neither precondition is satisfied in the case at bar.

[121]  Section 8 of the Occupiers’ Liability Act specifically addresses the liability of landlords. Under s. 8(1), if the landlord is responsible for the repair and maintenance of the premises, then the landlord owes the duty of care established by the Act to all entrants, and property brought onto the premises by entrants, in respect of dangers arising from the landlord's failure to carry out that responsibility. Under s. 8(3), obligations imposed by any enactment (viz., for example, the Residential Tenancies Act) by virtue of a tenancy shall be treated as imposed by the tenancy.

[122]  However, pursuant to s. 8(2) a landlord will not be deemed to have defaulted in the duty toward an entrant, unless the landlord's default is such as to be actionable at the suit of the tenant.

[123]  Estey v. Sannio Construction Co., [1998] O.J. No. 2984 (Gen. Div.) is an example of the operation of s. 1 and s. 8 of the Act. In this case, the plaintiff alleged that the landlord of residential premises was liable as an occupier.

[124]  In Estey v. Sannio Construction Co., the plaintiff Melanie Estey slipped on ice and snow on a residential property rented to Messrs. Behen and Moscato and owned by Sannio Construction Co. The tenancy was pursuant to an oral month-to-month lease under which the tenants were responsible for clearing snow and ice on the property.

[125]  In Estey v. Sannio Construction Co. the then Landlord and Tenant Act, R.S.O. 1990, c. L.7 imposed repair obligations on both the landlord and the tenant of residential property. Section 94, which is identical to ss. 20 and 33 of the current Residential Tenancies Act, stated:

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. [now s. 20 of the Residential Tenancies Act.]

(2) The tenant is responsible for ordinary cleanliness of the rented premises, except to the extent that the tenancy agreement requires the landlord to clean them. [Now s. 33 of the Residential Tenancies Act.]

[126]  Relying on ss. 1 and 8 of the Occupiers’ Liability Act, combined with s. 94 of the Landlord and Tenant Act, Ms. Estey argued that Sannio Construction Co. was liable as an occupier. Justice Cavarzan disagreed, and on a summary judgment motion brought by Sannio Construction, he dismissed Ms. Estey’s slip and fall claim against Sannio Construction. In Justice Cavarzan’s view, the removal of snow was not a repair obligation imposed on the landlord under s. 94(1) of the Landlord and Tenant Act, but rather was an activity within the meaning of s. 94(2), which made the tenant responsible for the "ordinary cleanliness of the rented premises, except to the extent that the tenancy agreement requires the landlord to clean them". Justice Cavarzan stated at para. 27:

27. In my view, the law does not make a landlord an "occupier" of the premises by virtue of the combined operation of s. 94 of the Landlord and Tenant Act and s. 8 of the Occupiers' Liability Act in the circumstances here. It is not the landlord's responsibility to clear snow and ice on rented residential premises where there is no agreement which requires the landlord to do so. This is particularly the case where the uncontradicted evidence of the tenant is that she always cleared the snow and ice, and never regarded this to be a responsibility of the landlord.

[127]  In Estey v. Sannio Construction Co., the owner was not an occupier under s. 1 of the Occupiers’ Liability Act because the indicia of control and responsibility were not present because the tenants had contractually agreed to assume those responsibilities.

[128]  It is not entirely clear why the owner in Estey v. Sannio Construction Co. was not an occupier under s. 8(1) because the premises were occupied or used by virtue of a tenancy under which the landlord was responsible for the maintenance or repair of the premises. The explanation for no liability would appear to be that the landlord was not in default because the default in this case in keeping the property free of ice and snow was the tenant’s fault and thus the default was not actionable by the tenant and, in turn, pursuant to s. 8(2) not actionable by the plaintiff.

[129]  The facts of Estey v. Sannio Construction Co. are comparable to the facts of the immediate case, and I would apply the principles from that case to conclude that Mr. Persaud has no liability under s. 1 or s. 8 of the Occupier’s Liability Act.

[130]  The Court of Appeal’s decision in Montgomery v. Van, 2009 ONCA 808 is relevant to the analysis of Mr. Persaud’s liability, if any in the case at bar.

[131]  The facts of Montgomery v. Van case were that Ms. Van was the tenant of a basement apartment. She slipped on ice on the walkway leading to her basement apartment and suffered injury. In his defence, the landlord pleaded that under Ms. Van’s lease, she was responsible for keeping their walkway and stairway clean, including snow removal.

[132]  Reversing the motions court judge, the Court of Appeal held that this provision in the lease was void under the Tenant Protection Act, 1997, S.O. c. 24, which provided in ss. 2(1) and 16 that a provision in a tenancy agreement that was inconsistent with the Act or its regulations was void. [This Act was repealed on January 31, 2007 and replaced by the Residential Tenancies Act, 2006, S.O. 2006, c. 17.]

[133]  In particular, the Court held that the provision in Ms. Van’s lease was inconsistent with s. 2(2) of Ont. Reg. 198/98, which provided that the landlord was responsible to maintain exterior common areas and to remove unsafe accumulations of ice and snow from exterior common areas.

[134]  For present purposes, it is important to note that Montgomery v. Van turned on a precise responsibility to keep exterior common areas safe. It is significant also to note that Justice Juriansz, who delivered the judgment for the court, did not foreclose the operation of s. 6 of the Occupiers’ Liability Act, where the landlord can meet its standard of care by responsibly employing an independent contractor, nor did he foreclose a landlord contracting the repair obligation onto the tenant. Justice Juriansz stated at paras. 9-10, 13-14 of his judgment:

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.

10. This, however, is not enough to conclude as the motion judge did, that the particular provision between the landlord and tenant in this case may be declared to be "not inconsistent" with the Act. That the Act does not prohibit a landlord from contracting with a tenant for snow removal services does not mean that every provision that addresses snow removal by a tenant is consistent with the Act. It remains necessary to consider the import of the provision in issue and determine if it creates a contractual obligation to which s. 16 of the Act does not apply.

….

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 pro-visions 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.

[135]  As I read these passages from the judgment in Montgomery v. Van, a landlord can contract with his or her tenant to assume responsibility for snow removal provided that the contract is not inconsistent with statutory provisions. In this case, the statute in question, unlike the situation in Estey v. Sannio Construction Co. supra, imposed a precise responsibility to clear exterior common areas on the landlord, and this obligation could not be shifted onto to the tenant, unless the tenant was, in effect, an independent contractor with a severable contractual obligation from the lease. (Although Justice Juriansz does not mention it, this analysis is consistent with s. 6 of the Occupiers’ Liability Act.)

[136]  In the case at bar, no specific provision of the Residential Tenancies Act is inconsistent with the terms of the lease between Terrence and Mr. Persaud. This means there is no basis to nullify Schedule A of the lease in the case at bar that provided that the tenant shall keep the sidewalks in front and at the sides of the premises free of snow and ice and there is no basis to negate the other provisions of the lease that imposed repair obligations on the tenant.

[137]  The last case to consider before turning to whether Mr. Persaud has any common law liability for Mr. Miaskowski’s slip and fall is another decision of the Court of Appeal, Taylor v. Allard, 2010 ONCA 596.

[138]  In Taylor v. Allard, Mr. Taylor attended a party at property owned by Robert Allen and rented to his mother Joyce and to one Bobby Allard. Mr. Allen did not live on the property, but he had built a fire pit ringed with partially submerged cinder block. The inebriated Mr. Taylor tripped over the cinder blocks, fell into the fire pit, and was badly burned.

[139]  Reversing the trial judge, in a judgment written by Justice Goudge, the Court of Appeal held that Mr. Allen was an occupier and liable under the Act. The trial judge’s prime error was that he ignored that Mr. Allen had admitted in his statement of defence that he was an occupier. As Justice Goudge noted at para. 17 of his judgment, the consequence of this admission was that Mr. Allen must be taken to have the duty of care that s. 3(1) of the Occupiers’ Liability Act imposes on an occupier and in failing to find this, the trial judge erred.

[140]  In Taylor v. Allard, Justice Goudge went on to find a second fundamental error by the trial judge. The error was that of ignoring s. 8 of the Occupiers’ Liability Act and the landlord’s statutory imposed responsibilities. At paras. 19-27 of his judgment, Justice Goudge stated:

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. …

[141]  Returning to the case at bar, like the situation in Estey v. Sannio Construction Co., supra, and unlike the situation in Taylor v. Allard, there was no breach of s. 94(1) of the Landlord and Tenant Act (now s. 20 of the Residential Tenancies Act) and, therefore, no liability under s. 1 or s. 8 of the Occupiers’ Liability Act.

[142]  Once again I conclude that Mr. Persaud has no liability under s. 1 or s. 8 of the Occupiers’ Liability Act.

[143]  This brings me to the final issue of whether Mr. Persaud is liable for common law negligence. Here, I can be brief.

[144]  Recalling that the Occupiers’ Liability Act supersedes common law liability for occupiers, there is no basis for a finding of a common law liability for negligence. The alleged breach of duty in the case at bar is the failure to attend to snow and ice removal. That is a possible incident of liability under the Occupiers’ Liability Act if a landlord is an occupier. In the case at bar, there is no genuine issue requiring a trial that Mr. Persaud was not an occupier.

As above, there are two concerns deserving of attention and appreciation when a landlord or tenant poses the question of who is responsible for snow removal.  Essentially, the question is poorly worded as it is unclear whether the answer sought is in regards to who is required in law to perform the work of snow removal or whether the answer sought is in regards to who is liable in law for injuries arising from unsafe snow and ice conditions.  Either way, as per the explanations in Miaskowski, the answer involves many ifs, ands, and buts, depending upon the specific factual scenario involved; and accordingly, a simple immediate answer is impossible to provide; however, the following may provide a general guidance on the issue.

Perspectives of Responsibility
Landlord

The landlord is usually both responsible for performing snow shoveling work and liable for unsafe snow and ice conditions upon the common areas within the rental complex.  The landlord is permitted to contract the snow shoveling work to an independent contractor rather than performing the work first-hand.  Furthermore, the independent contractor may be the tenant so long as such is done within an agreement that is severable from the lease with the tenant and thus in the context of the tenant as an independent contractor rather than the tenant remaining in the context of the tenant.

When the landlord hires an independent contractor, the landlord may become immune to liability arising from negligence of the independent contractor if it is shown that the landlord took reasonable steps to ensure the competency of the contractor when entrusting the work to the independent contractor.  Of course, where the landlord hires the tenant as an independent contractor it is unlikely that the tenant will be viewed as a competent contractor whereas it is unlikely the tenant is a qualified professional trained, experienced, and insured, as a snow and ice control services provider.

Tenant

The tenant is usually both responsible for performing snow shoveling work and liable for unsafe snow and ice conditions upon the areas of the rental unit that are for the exclusive use of the tenant.  With this said, there is significant legal controversy as to whether the rental unit may be defined as exterior spaces including outdoor walkways; however, where the tenant is deemed responsible for performing snow removal and defaults in the responsibility, resulting in an injury to a third-party person, the landlord should be found without liability per the Miaskowski doctrine and the liability should instead fall upon the tenant.

Summary Comment

In most circumstances, the landlord is responsible for performing snow shoveling and ice control as per section 20 of the Residential Tenancies Act, 2006 as well as legally liable for injuries that occur due to a failing to meet the section 3 duties prescribed by the Occupiers' Liability Act.  With this said, there are rare and complicated exceptions where the tenant may be responsible.

Learn More About
Snow Shoveling Duty

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