This recent case helps illustrate who is responsible when a person slips and falls on the property of a residential tenanted building. In this case both the tenant and the landlord asked the court for an advanced ruling on who was responsible for clearing the snow at a residential complex, on the hope that they could be released from the claim before the trial; each party, of course, believing they would be the one released from the lawsuit. Ultimately the landlord was victorious, and excused from the lawsuit based on the judge’s conclusion that the landlord did not have the obligation to clean the steps leading up to the tenant’s unit.
The case is helpful because it reinforces the following concepts as it pertains to the winter maintenance obligations around a residential building: occupied by tenants:
- If the residential property contains common areas that are used by a variety of tenants, typically the landlord will be responsible for the snow removal of those areas (ie: think parking lot, etc), unless there is a separate agreement that requires the tenant and/or tenants to clear the snow and ice from the common areas;
- Regardless of the size of the complex, or the number of tenants, the tenant is responsible for cleaning snow from the entrances and exits to their units (often referred to as the “exclusive use” areas of the tenancy). The exclusive use areas do not have to be “spelled out” or defined in the lease: common sense prevails such that if no one else needs to use the area, and only the tenant uses the area for the most part, then it is an exclusive use area to that tenant (ie: front steps to the unit, walkways to the unit if the walkway leads exclusively to the tenant’s unit, etc);
- If there is only one tenant occupying the property, the sole tenant is responsible for cleaning snow from all areas because in law the tenant has exclusive use of the entire premises;
- These principals apply even if there is no written lease, but be aware that for most residential tenancies in Ontario, it is a requirement under the law to use a prescribed standard lease that is available on-line on the website of the Ministry of Municipal Affairs and Housing.
The court made it clear that the Landlord’s responsibility to keep the premises in a “good state of repair” under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, (the “RTA”) does not include the responsibility to clear snow. The court reasoned that snow removal is not a “repair,” and indeed, the presence of snow is a state of uncleanliness, and under the RTA the tenant is obligated to keep the tenanted space clean and tidy, which includes the need to clean and clear snow from their exclusive use areas.
Crete et al. v. Ottawa Community Housing Corporation et al., 2023 ONSC 5141 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc5141/2023onsc5141.html
UPDATE: (June 24, 2024)
This decision was upheld on appeal to the Ontario Court of Appeal, however, the appellate court noted that the motion’s judge misinterpreted the Landlord’s obligations under the RTA. In this regard, the appellate court concluded that the RTA does in fact obligate the Landlord to clear snow and ice as part of the landlord’s responsibility to maintain the residential complex in “a good state of repair” under subsection 20(1) of the RTA, in conjunction with subsection 26(1) of the Maintenance Standards Regulation, O. Reg. 517/06. However, according to the Ontario Court of Appeal, the Landlord’s obligation to clear snow and ice only applies to “common areas in a residential complex, and not areas used exclusively by individual tenants” (at Paragraph 22).
As such, the conclusion reached by the motion’s judge was upheld, even if the logic used to get to the correct result was misguided. The appellate court made it clear that residential tenants are responsible to clean snow and ice from their exclusive use areas, and that the landlord is required to clear snow and ice from common areas.
It is also noteworthy that the appellate court pointed out that the analysis would be different if the municipality of the rental property had passed a by-law prescribing standards for the exterior maintenance of residential complexes, because such a by-law would oust the application of the Ontario Maintenance Standards Regulation, and require an analysis of the exterior maintenance requirements stipulated in the municipal by-law rather than a review of the Ontario Maintenance Standards Regulation.
Crete v. Ottawa Community Housing Corporation, 2024 ONCA 459 (CanLII)
https://www.canlii.org/en/on/onca/doc/2024/2024onca459/2024onca459.html