Contracting out of the Tenant Protection Act

It is common for residential leases to seek to contract, at least in part, out of the Tenant Protection Act. Today's decision in Montgomery v. Van, 2009 ONCA 808 deals with such a situation.

Regulations under the Tenant Protection Act place the responsibility upon the landlord to ensure that accumulations of ice and snow are removed from exterior common areas. 

The case concerned the validity of a provision in a tenancy agreement that provided that the tenant shall be responsible for snow removal.  The landlord relied on the provision in his defence against the tenant's negligence action.

The tenant commenced an action against a landlord for damages after slipping and falling on the premises.  In her claim, the tenant pleaded that on January 30, 2003 she slipped on ice on the walkway leading to her basement apartment and suffered injury. 

In his defence the landlord pleaded that the tenancy agreement between the parties provided that: "Tenants are responsible for keeping their walkway and stairway clean (including snow removal)." 

Based on this provision, he pleaded further that the tenant's injury was due to her own negligence in that "she failed to keep her walkway in a state of good repair, including free from snow and ice".

The Court considered whether the condition in the lease could stand:

Analysis

[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.  

[11]         Turning to the provision in this case, I begin by observing that, read literally, it addresses the "responsibility" for snow removal, without specifying any services to be provided by the tenant.  By providing that tenants are "responsible" for snow removal, the clause clashes with the legislation that places that responsibility squarely on the landlord.  Thus, if taken literally, the clause would be inconsistent with the Act and void pursuant to s. 16.

[12]         I recognize, however, that the parties and the motion judge did not interpret the provision literally, but understood it to assign the task of snow removal to tenants.  As the motion judge put it, the provision "indicates that the Tenant will complete snow removal tasks." I continue the analysis on that basis.

[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 provisions 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.

[15]         In this case, the provision is inextricable from the tenancy agreement.  It does not indicate a definite consideration for the snow removal task separate from the provision of the premises.  As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services.  The tenant lives in one of several basement apartments of a multi-unit residential complex.  The provision vaguely places the task of snow removal "from their walkway and stairway" on tenants jointly.  It does not set out specifically what part of the complex's common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation.  The provision fails to define this individual tenant's task clearly enough to create an enforceable contractual obligation.

[16]         Landlords cannot fulfill their statutory duty to ensure the prescribed maintenance standards are met by provisions as ill-defined as this one.  As I see it, this vague provision, even reading it as did the motion judge is nothing more than an impermissible attempt by the landlord to avoid his statutory obligations.  I would conclude the provision is not consistent with the Act and is void.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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