Under the Ontario Residential Tenancies Act (“RTA”), a landlord has the primary duty to maintain the premises in a "good state of repair and fit for habitation” and to comply with any applicable maintenance standards established by law.
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. Residential Tenancies Act, s. 20(1). This provision cannot be contracted out by a lease or rental agreement unless the landlord hires a 3rd party contractor to perform maintenance duties. If the lease has a term that attempts to discharge this responsibility, it will be considered void and unenforceable under sections 3(4) and 4(1) of the RTA. The landlord’s duty to repair is especially influential in the context of Occupier’s Liability Act (“OLA”) claims that involve faulty premises that injure tenants. Who Owes the Duty to Maintain Under the OLA and RTA The OLA imposes a duty on occupiers of property to see that persons entering on the premises are reasonably safe in the circumstances. An occupier includes anyone who (a) is in physical possession of the premises at the time of the incident or (b) has responsibility for and control over the condition of premises or activities carried on there. Since the landlord retains responsibilities for property maintenance under section 20(1), they owe duties to their tenants. The duty of care for an occupier extends to landlords under section 8 of the OLA: s. 8 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.” Occupier’s Liability Act, s. 8. In Taylor v. Allard, 2009 CanLII 10986, a visitor arrived at a tenant’s house party in an intoxicated state and tripped into a fire pit. Although the Trial Court did not find that the landlord was an occupier, the Court of Appeal reversed this decision, stating that the landlord was an occupier of the premises pursuant to section 3(1) of the OLA, and therefore owed a duty of care to the tenants and their guests. Section 9 of the OLA also states that “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.” Therefore, landlords owe a duty of care to tenants and their guests to maintain the premises in reasonably safe conditions under section 20(1) of the RTA. This is a stricter duty of care than the general occupier’s liability, since landlords are not allowed to alter their duty to maintain a residential complex. An attempt to nullify this control through a lease provision will fail. That being said, it is worth noting that according to Mongomery v. Van,2009 ONCA 808 the landlord and tenant could create a “severable contractual obligation” independent of the lease to divide tasks (i.e. supplementary contract). To understand the intricacies of this duty, it is necessary to investigate what exactly section 20(1) of the RTA requires. Defining the Standard of Care in the Landlord’s Duty to Maintain This duty of care is one of reasonableness, not perfection, as the landlord is not required to ensure that the property is free of any possible danger or monitor it constantly. Additionally, there are three features within section 20 that make up the overall duty. Each of these must be complied with or the landlord will have failed in their duty to maintain. 1. Good State of Repair & Fit for Habitation: The requirement to keep the premise in a good state of repair is very broad and includes anything that was capable of being repaired. If the house is in a state of disrepair that ordinary use by the tenant causes risk to personal injury, then it is not fit for habitation. This includes infestations of rodents, poor sanitation, and broken windows. 2. Health, Safety, Housing, and Maintenance Standards: Standards for the minimum level of health, safety, housing, and maintenance are found within municipal by-laws and provincial codes (i.e. Fire, Elevator etc.). If your municipality does not have bylaws applicable to the particular subject matter, then these provincial standards apply. This notably includes the more encompassing provincial O. Reg. 517/06: Maintenance Standards under the RTA. Landlord and Tenant Board, Breach of Maintenance Obligations, Interpretation Guideline 5. If these requirements or standards are violated and this failure causes injuries to visitors, including tenants, they will likely be held liable. Summary By virtue of the Occupiers’ Liability and section 20(1) of the Residential Tenancies Act, a landlord owes a non-dischargeable duty to maintain the premises in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. The personal injury lawyers at Littlejohn Barristers have significant experience representing tenants injured due to poor maintenance on behalf of their landlords. If you have suffered a personal injury or accident, please contact our Barrie office at 705-725-7355 to see if we can help.