41. The Tenant testified that the Landlord has not provided proper snow removal services that are included in the rent that she pays. A copy of the rental agreement that was subsequently submitted post hearing records that the Landlord is responsible for keeping all walkways clear of ice and snow. An email dated November 22, 2019 from Bashar confirmed that a Landlord is responsible for snow removal when snow accumulates 5cm or more.
42. The Tenant in her application alleges that on November 11/2019, November 14/2019, January 18/2020 January 20/2020, February 2/2020, February 6/2020 and on February 24/2020 that there was snow falls and the landlord had not adequately removed snow.
43. The Landlord’s Legal Representative stated that the Landlord has a general agreement with someone to come and shovel the walkway when snow accumulated and had no received any other complaints from the other Tenant over snow removal.
44. The Tenant is seeking a 15% rent abatement of rent for the alleged inadequate snow removal services.
45. The Tenant had not provided documentary evidence that there was snow accumulation of 5cm or more on the dates specified and/or that at no time on those dates had the Landlord had not kept all walkways clear of ice and snow. No abatement is awarded."
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24. The Tenants alleged that the Landlord refused to remove snow from the walkway in front of the unit. There is also a dispute between the parties as to who should be responsible for lawn mowing.
25. I note that paragraph 10(k) of the tenancy agreement states that it is the Tenants’ responsibility to “Maintain the exterior vestibule, stairwell and landing clear and free of any and all debris including snow and ice during the winter season; along with driveway where you park.”
26. Section 20 of the Act states that Landlords are responsible for the maintenance of the property. Section 33 of the Act states that the Tenants are responsible for the ordinary cleanliness of the rental unit. That ordinary cleanliness obligation does not extend to maintenance of the yard or snow removal.
27. In Montgomery v. Van 2009 ONCA 808 (CanLII), the Ontario Court of Appeal stated that a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, but a landlord can contract with a tenant to perform maintenance services, so long as that contract is severable from the lease.
28. For it to be a contract, there must be consideration separate from the tenancy. In order for the contract to be severable, it must be entirely unrelated to the tenancy. In this case, there is insufficient evidence of a severable contract between the parties which is unrelated to the tenancy or that there is consideration separate from the tenancy.
29. I am therefore satisfied that the Landlord is responsible for the maintenance of the yard and the snow removal.
30. Based on the exchange of letters between the parties, I am satisfied that the Tenants have been doing yard maintenance and snow removal and were expecting some compensation from the Landlord.
31. However, absent evidence of a separate contract, I would consider the Tenants’ efforts as voluntary. There is no agreement between the parties that the Tenants would be compensated and so a request for compensation after the fact is not reasonable in this case.
32. As there is now a new landlord who is not named as a party in this application, the Tenants will need to file a new application naming the new landlord if the new landlord fails to maintain the property in accordance with the Act."
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"46. With regard to lack of snow removal, section 26(1)(5) of Ontario Regulation 517/06 of the Act requires the removal of unsafe accumulations of ice and snow. In the Court of Appeal decision Montgomery v. Van 2009 ONCA 808, the Court recognized that landlords and tenants may enter into a contract, severable from the tenancy agreement and with consideration, for snow removal.
47. There is no evidence before me of any contract regarding snow removal. I accept the evidence of the Tenant regarding lack of snow removal. The evidence was detailed and the Tenant contacted the Landlord by text message to request snow removal. The Tenant is awarded $50.00 each for the three dates identified in paragraph 42 where snow was not removed ($150.00)."
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"7. The Landlord testified at the hearing that he is not responsible for maintaining the residential complex’s common areas. The Landlord asserted that the tenants are responsible for maintaining the residential complex in a state of ordinary cleanliness.
8. I disagree with the Landlord’s assertion.
9. The Tenant is one of approximately 12 residents at the residential complex. Each resident rents and occupies a bedroom. The residential complex’s kitchen, living room and bathroom are common elements, shared by all residents.
10. Although section 33 of the Act requires tenants to maintain their rental units in a state of ordinary cleanliness, the duty to maintain the residential complex, including the common elements, rests with the Landlord. Subsection 20(1) of the Act requires the Landlord to provide and maintain a residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.”
11. The Landlord is not permitted to transfer his duty to maintain a residential complex to the tenants. Section 3 of the Act states that the Act applies to rental units in residential complexes “despite any agreement or waiver to the contrary.” In Montgomery v. Van, [2009] O.J. No. 5933 (C.A.), the Ontario Court of Appeal determined that a landlord may not transfer his duty to maintain a residential complex to a tenant, as part of the tenancy agreement. I therefore find that, in this case, the Landlord is required to maintain the residential complex’s common elements, but has failed to do so for the period June 2015 to September 2015."
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"2. The rental unit is a house. There is an in-ground swimming pool in the back yard.
12. The Landlord’s claim that the Tenants negligently caused undue damage to the front lawn of the rental unit is dismissed.
13. According to section 33 of the Act, a Tenant is responsible for ordinary cleanliness of the rental unit.
14. Although the tenancy agreement states that the tenants agree to maintain the lawn reasonably, section 3 of the Act specifies that the Act applies despite any agreement or waiver to the contrary.
15. I am not of the view that maintaining the lawn falls within the Tenants’ responsibility for ordinary cleanliness. Consequently by requiring the Tenants to maintain the lawn the Landlord is transferring its responsibility to maintain a unit in a good state of repair including compliance with housing and maintenance standards to the Tenants. This contravenes section 3 of the Act.
16. In Montgomery v. Van 2009 ONCA 808 the Court of Appeal found that a landlord cannot fulfill its statutory duty by requiring tenants to perform prescribed maintenance unless there is a severable contractual obligation. This means that if there is an agreement that the Tenants maintain the lawn, there has to be consideration given to the Tenants for this responsibility. In this case, there was no evidence of any consideration provided to the Tenants for maintaining the lawn.
17. This claim is dismissed."
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"29. Section 20 of the Act states that Landlords are responsible for the maintenance of the property. Section 33 of the Act states that the Tenants are responsible for the ordinary cleanliness of the rental unit. That ordinary cleanliness obligation does not extend to maintenance of the yard such as weeding or fertilizing.
30. There is no question that section 20 of the Act makes it the Landlord’s responsibility to repair and maintain the rental property. The Landlord relies on the lease signed by the parties on July 18, 2016, in which the Tenants, as lessees, covenanted to maintain the property under articles 8 and 11.
31. The evidence is that the Tenants refused to sign the renewal lease for 2017-2018 because they disagreed with those terms and the tenancy continued on a month to month basis without a new or renewal lease.
32. In Montgomery v. Van 2009 ONCA 808 (CanLII)[2], the Ontario Court of Appeal stated that a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, but a landlord can contract with a tenant to perform maintenance services, so long as that contract is severable from the lease.
33. For it to be a contract, there must be consideration separate from the tenancy. In order for the contract to be severable, it must be entirely unrelated to the tenancy. In this case, there is insufficient evidence of a severable contract between the parties which is unrelated to the tenancy or that there is consideration separate from the tenancy.
34. Further, the severable contractual obligation cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met. The Tenant would simply be acting as the Landlord’s agent for that maintenance service, the failure of which may be a breach of contract but cannot be a ground for terminating the tenancy."
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"31. In the context of clauses 19 and 39 of the lease set out above, clause 19 created a genuine and severable contract between the Landlord and the Tenants requiring the Tenants to properly maintain the lawn, garden, driveway, sidewalks, and common areas. There was specific consideration payable to the Tenants for the tasks. As with any such separate employment contract the Landlord was entitled to end it when she did. That means that as of August 31, 2013, the Landlord became responsible for those tasks; the Tenants did not have to do anything.
32. In contrast, clause 39 of the lease does not create a similar severable contract between the Landlord and the Tenants. It is a general clause only and similar to the one the Court of Appeal was dealing with in Montgomery v. Van.[2] This means that the Landlord was responsible for ice and snow clearance throughout the tenancy and lawn maintenance after August 31, 2013."
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"13. Given that this letter was issued to the Landlord on February 26, 2019, I am satisfied that this supported the Tenants position regarding poor snow removal and ice build-up continued up to February 28, 2019. Although, the Landlord submitted that there was a particular area within the community that had ice build-up due to an artisan well, in accordance with section 24.1 of the Town’s By-Law, the Landlord must clear snow and ice from the roadways. Failing to do so for any reason amounted to a breach of the By-Law, sections 20 and 161 of the Act."
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19. Given that the shed is part of the rental unit and can only be entered through the Tenants’ part of the rental property, the Landlord has to give a 24 hour Notice in writing when she wants to access the shed, and once this notice is provided, the Tenants must provide access during the time frame mentioned the Notice, I will comment on the reasonableness of the time of entry later on in these determinations/reasons.
20. With regards to the usage of the garden, the Landlord is stating in her application that in addition to the Tenants’ dogs are soiling and digging up the grass and the Tenants are ruining the landscaped garden by adding their own plants.
21. The rental agreement requires the Tenants to cut the grass and remove the snow. I find that the garden and also the driveway/path are part of the residential complex and part of the services and facilities provided in the tenancy agreement, such as a laundry facility, as shown in Interpretation of the Act, section 2 “services and facilities”, which has to be maintained by the Landlord.
22. I find that this duty to maintain pursuant to section 20 to the Act can only be contracted out to a tenant by a special contract/agreement. Here the Landlord is sending a mixed message, as she seems to want to maintain the garden given that she is watering the lawn and plants in the summer and requesting access to winterize, but then is contracting out the mowing part, which, without a special agreement, does not comply with section 20 of the Act. JV seems to want to mow the lawn, and even has his own lawn mover; however his gardening efforts do not seem to live up to the Landlord’s standards.
23. Therefore I find it reasonable under the circumstances that the Landlord should fulfill her obligation under section 20 of the Act, and mow the lawn, if that is what they wish to do, and also winterize the garden, which is too late for this season, after giving the required 24 hour written notice."
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"1. The issue in this application is whether or not the Landlord is responsible for removing the snow that accumulates between the resident’s/tenant’s cars in the apartment building parking lot.
2. The facts of this case are not in dispute. The Landlord has a contract with a snow removal/snow plow company. That company plows the accessible areas of the parking lot after any significant snow fall. However, the area between the resident’s cars is not plowed or cleared of snow.
3. The Landlord argues that they are not responsible for removing the snow between the resident’s parked cars. The Landlord is concerned about potential liability for damage to cars if they clear snow from the tight, limited area between the parked cars.
4. The Tenants argue that snow removal between the parked cars is part of the Landlord’s responsibility under their general snow removal obligations.
5. The Tenants, as the applicants, have the burden of proving the claim in the application. Other than a general statement that snow removal is the Landlord’s responsibility, the Tenants provided no evidence to support their position. The Tenants did not provide any maintenance standard or by-law which supports their position that the Landlord is responsible for removing the snow between parked cars.
6. The Residential Tenancies Act, 2006 (the 'Act') does not specifically mention snow removal responsibilities or obligations.
7. The Landlord’s general maintenance obligations are set out in section 20 of the Act which states:
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.
(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.
8. Although the Tenants did not provide any by-laws at the hearing, I am aware that the Barrie property standards by law 2011-138 mentions snow removal.
9. Section 9.1 of the by law states: “Steps, walks, ramps, driveways, parking spaces and similar areas of a yard shall be maintained so as to afford safe passage under normal use and weather conditions”.
10. Section 9.2 of the by law states: “Accumulations of ice and snow shall be promptly removed from all main entrances and exits of occupied buildings”.
11. Section 9.1 could be interpreted broadly so that maintenance of the areas set out would include snow removal. However, the addition of section 9.2 to the by-law suggests that the removal of accumulations of ice and snow does not extend to all of the areas set out in section 9.1. If that was the intention, then it would have been specified in section 9.2.
12. In my view, section 9.1 deals with more general maintenance or repair of the areas listed so they are free of pot holes, large cracks, uneven paving or other defects. It does not deal with the specifics of snow removal from those areas. The more specific snow removal obligation is set out in section 9.2.
13. Therefore, the Barrie property standards by law 2011-138 does not clarify whether or not the Landlord is responsible for snow removal between the parked cars.
14. The Landlord stated that the entire lot could be cleared of snow as long as there are no cars in the lot. The plow can access the entire lot if no cars are present. However, when cars are parked in the lot, the plow must go around the cars to avoid damaging them.
15. There have been a few occasions in the past when the entire lot has been cleared of snow. When too much snow piles up on the sides of the lot, the snow removal company must bring in trucks that take the snow away. This is arranged in advance with the Landlord. Residents have co-operated and moved their cars out of the parking lot when they were informed of the exact date and time the snow removal company was coming to take away the piled up snow.
16. However, the problem is with co-ordinating this process every single time it snows. Although the Tenants in this application may be willing to remove their car from the parking lot every time it snows, other residents may not be as willing.
17. This order applies only to the parties in the application. I cannot issue an order directing the tenants from all the other units in the building to move their cars. They are not a party to the application.
18. To remove all the snow in the entire parking lot, the Landlord would have to rely on the willingness and co-operation from all the other tenants in the building to remove their vehicles from the lot at the time the snow plow arrives to clear the lot.
19. Yet, that exact time is usually not known since the snow removal company has multiple contracts and multiple properties to clear in any given day.
20. There are over 150 units in this building so the Landlord would have to co-ordinate with multiple tenants.
21. To further complicate the issue, the building is located on a main street where parking is prohibited during certain hours and there is only paid, metered parking during the permitted hours. The Landlord stated that many residents would not be willing to move their cars to the paid street parking every time it snows.
22. If I were to issue an order requiring the Landlord to remove snow from the entire parking lot, including between parked cars, I cannot see how the Landlord can ensure that they can comply with that order. What if some residents refuse to move their cars, are away on vacation or sick and cannot move their car? What if there is not enough space between the cars that are left behind on the lot to get a plow, a snow blower or even a person with a shovel around or between the cars?
23. The Ontario Court of Appeal in Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477) has determined that a contextual approach is necessary in determining whether or not a landlord has breached their maintenance obligations under section 20 of the Act. That approach involves a consideration of the “entirety of the factual situation” before determining that a landlord is in breach of their maintenance obligations.
24. The Onyskiw case also refers to “the legal maxim of lex non cogit ad impossibilia: that the legislature does not intend compliance where, for all practical purposes, it is impossible.”
25. The Landlord cannot remove snow from areas of the parking lot that are not accessible.
26. Given the context of this case and the factual situation set out above, the Landlord is not in breach of the maintenance obligations in section 20 of the Act. The obstacles in the parking lot (other resident’s cars) are not within the direct control of the Landlord. The Landlord has acted reasonably in removing snow from the areas of the parking lot that are accessible."
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35. With respect to the snow removal, I accept the Tenant’s evidence that there was inadequate snow removal services on the property, as corroborated by photographs #28 to #52 submitted by the Tenant. I accept the Tenant’s evidence that she had to shovel the snow and clear a path for her car throughout the winter. I accept the Tenant’s evidence that she got “stuck” on several occasions. I accept that the Tenant had severe arthritis and suffered excruciating pain due to her constant shovelling. The Tenant notified the Landlord by several text and email messages between December 2017 and April 2018.
36. The Landlord asserted that snow removal has been done by the tenant at apartment #3, referring to a handwritten letter by said tenant dated August 29, 2018 which stated: “I assisted with the snow removal in the last 3-4 years”. The Landlord also asserted that the Tenant was responsible for snow removal in front of her unit, referring to paragraph 1 (b) of the “Tenant Rules and Regulations”, which stated:
To keep the sidewalk surrounding the premises, hallways, balconies, fire escapes or fire routes, free and clear of all obstructions, including snow within 24 hours of a snowfall.
37. The “Tenant Rules and Regulations”, which delegate snow removal to the Tenant, contravenes Section 20 of the Act. The Landlord’s maintenance obligation under Section 20 of the Act extends to the entire residential complex, including the rental units and the common areas. The Landlord is responsible for the general maintenance of the grounds of a complex, which includes shovelling the snow. The Tenant’s only obligation is that of “ordinary cleanliness”. Any provision contrary to the Act or regulations will be void. I therefore find that the provision in the “Tenant Rules and Regulations” delegating snow removal to the Tenant, is void. The Landlord cannot rely on it to justify the lack of snow removal.
38. The Landlord’s assertion that he has assigned another tenant the task of snow removal is not adequately supported by the August 29, 2018 handwritten letter which is hearsay and inherently unreliable. Even if I accept the contents of the handwritten letter, I cannot find the other tenant’s “assistance” with the snow removal, sufficiently discharged that Landlord’s obligations under Section 20 of the Act. There was no evidence that the other tenant’s assistance with snow removal constituted regular, efficient, reliable and adequate snow removal for the residential complex. The Tenant’s photographs certainly show that there was no regular or adequate snow removal service."
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"34. The parties Agreement stated that the Tenants were responsible for the exterior maintenance for the rental unit, namely lawn care and snow removal. There was no dispute that for the first year of the tenancy, the Tenants took care of this maintenance. The Tenants assert that the Landlords were not entitled to relieve themselves of this obligation.
35. In support of their assertion, the Tenants relied on Montgomery v. Van, 2009 ONCA 808 (CanLII). In this decision the Court of Appeal held that a landlord cannot assign responsibility for maintenance to a tenant simply by way of a lease agreement, although a landlord can contract with a tenant to perform maintenance services. The Court said in part at paragraphs 13 to 14:
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…. it cannot be a term of the tenancy that the tenant complete snow removal tasks.
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.
36. I am bound by this decision of the Court of Appeal. In this matter, the parties Agreement relating the Tenants providing exterior maintenance did not amount to a contractual obligation severable from the tenancy agreement. The Tenants received no consideration for providing this service. Consequently, the Landlords have unlawfully assigned this obligation to the Tenants. Therefore, I find that the Landlords breached their obligations pursuant to section 20 of the Act by failing to address exterior maintenance at the rental unit."
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"7. The Tenants allege that the Board Member was required to apply the legal principle originating from the Ontario Divisional Court, Montgomery v. Van in paragraph 48 and 49 of the reasons.
8. It is the Tenants’ duty not only to provide the Board with the decision but with explanations on why the facts in the decision are similar to the case at bar and why the legal principle should be applied. In viewing the Tenants’ book of evidence, the Tenants did not submit the Montgomery v. van decision.
9. The Board Member referred to a Board’s decision SWT-31559-12 submitted by the Tenants and correctly and reasonably determined and I cite “the decision does not state if the tenants agreed to do this work in their agreement.” According to the Board member’s decision, the Tenants agreed to make simple repairs. The Tenants did not repair the toilet and were required to pay more for the excess water consumption Therefore, the Board Member found that the non-binding decision was not sufficiently similar to the case at bar. There is no serious error of law."
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"44. Whose responsibility was it to maintain an adequate salt level in the Water Softener?
45. The Landlord’s responsibilities are set out in Section 20 of the Residential Tenancies Act, 2006 (the “Act”):
LANDLORD’S RESPONSIBILITY TO REPAIR --- (1) A landlord is responsible for providing and maintaining a residential complex, including rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
46. The Tenant’s responsibilities under the Act are set out in Section 33 (for ordinary cleanliness) and Section 34 (for repair of undue damage).
47. The responsibility to maintain the water supply (including maintaining the salt level for the Water Softener), is neither “ordinary cleanliness” nor “undue damage” and falls squarely within the Landlord’s maintenance obligation under Section 20 of the Act.
48. In Burt Dozet Management Inc. v. Goharzad, [2001] O.J. No. 695, the Divisional Court stated that the responsibilities of mobile home parks with respect to maintenance standards (maintaining supply of potable water that is clean and bacteria-free) did not differ from those imposed on landlords of other residential premises. The court stated:
There is no material distinction between the responsibilities imposed on landlords under s. 24 of the Tenant Protection Act (TPA) and under s. 110 of the TPA relating to Mobile Home Parks, nor between the maintenance standards specified in ss. 10(5) and 31.31(1) of O. Reg. 198/98. Both require the supply by the landlord of potable water. Both apply equally to mobile homes which come within the definition of residential complexes under s. 1(b) of the TPA (see also s. 154 TPA)
49. Subsection 2(1) and section 16 of the Act provide:
2.(1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
16. Subject to section 181 [related to mediated settlements], a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.
50. Section 11 (j) of the Tenancy Agreement purports to transfer to the Tenants, the Landlord’s statutory responsibility of maintaining the water supply, and in particular, of monitoring and keeping the salt level for the Water Softener at adequate level at all times.
51. By providing that the Tenants are responsible for maintaining the Water Softener, Section 11 (j) of the Tenancy Agreement conflicts with the Act, which places that responsibility squarely on the Landlord.
52. While a landlord may contract with a tenant to perform its maintenance obligations, any such contractual obligation must be severable from the tenancy agreement. Otherwise, such contractual obligation provided within a tenancy agreement is void under Section 16 of the Act, being inconsistent with the Act.
53. I have reviewed the Tenancy Agreement and conclude that Section 11 (j) is inextricable from the tenancy agreement itself. There is no consideration provided to the Tenants for the maintenance of the Water Softener, separate from the provision of the premises. There is no autonomous contract for the Tenants’ provision of services to maintain the Water Softener.
54. I find therefore that Section 11 (j) of the Tenancy Agreement, transferring the obligation of maintaining the Water Softener to the Tenants, is an impermissible attempt by the Landlord to contract out of its statutory obligation under Section 20 of the Act. I find that it is inconsistent with the Act and is void.
55. In reaching this conclusion, I am guided by the analysis provided by the Ontario Court of Appeal in Montgomery v. Van [2009] O.J. No. 5933 (Ont. C.A.), at paras. 13 – 14:
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.
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.
56. I find that the Landlord breached its statutory maintenance obligation under Section 20 of the Act, by failing to monitor and keep the salt level for the Water Softener at adequate level during the tenancy. This finding is pursuant to the Tenants’ T6 Application.
57. However, I find no basis for the Tenants’ T2 Application. I did not receive compelling evidence to persuade me that the landlord entered the unit without permission, or harassed or threatened the Tenants, or seriously interfered with their reasonable enjoyment. The Landlord did not withhold or interfere with the supply of water. I find that the water issue was simply a maintenance issue."
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"22. The Tenant also proved that the Landlord failed to meet his maintenance obligations by failing to maintain the property’s common elements in a state of ordinary cleanliness.
23. It is important to recall that the Tenant’s rental unit is a furnished bedroom, and that the living room, kitchen, bathroom and laundry facilities represent the residential complex’s common elements, which are to be shared with other residents at the property.
24. While section 33 of the Act requires the Tenant to maintain only the rental unit, and not the residential complex, in a state of ordinary cleanliness, Schedule “A” of the written tenancy agreement purports to require the Tenant to maintain the entire rental property in a “clean and in a sanitary condition.” This provision, however, cannot permit the Landlord to derogate from, or otherwise ignore, his duty to maintain the residential complex, in accordance with subsection 20(1) of the Act.
25. In Montgomery v. Van, [2009] O.J. No. 5933 (C.A.), the Court of Appeal for Ontario determined that a provision of a tenancy agreement, which purported to require the Tenant to clear snow in accordance with a local property standard, was void, because the provision attempted to contract out of the Landlord’s duty to maintain the property. The Court of Appeal noted in its decision that the Act prohibits any provision in a tenancy agreement that is inconsistent with the Act, including a provision that seeks to transfer a landlord’s obligation to maintain the property. The Court of Appeal held that, in order to transfer a responsibility under the Act, a landlord and tenant would have to enter a separate contract that was not a tenancy agreement. In this case, no such separate contract to clean the residential complex’s common elements exists between the Landlord and the Tenant.
26. Subsection 20(1) of the Act requires the Landlord to maintain the residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards”, including the City of Toronto’s property standards by-law, which requires the Landlord to maintain floors and floor coverings “in a clean and sanitary condition and free from holes, stains, rubbish and debris.”
27. In this case, the Tenant submitted photographs of the residential complex’s common areas, showing that the washroom and floors in the kitchen were not maintained in a clean and sanitary condition, or free from stains. I therefore find that the Tenant proved, on a balance of probabilities, that the Landlord failed to comply with a local housing standard by failing to maintain the residential complex’s washroom and kitchen floor in a state of cleanliness and free from stains."
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"15. The first document is an agreement dated December 21, 2009, in which the former landlord agreed to plow the parking lot, provide salt for de-icing and provide shovels for the walkways, and be responsible for garbage removal from the garbage bin used by all three units, A, B and C.
16. The second document is an agreement dated January 1, 2010 that was made after the Landlord showed the first agreement to his lawyer. The agreement dated January 1, 2010 modifies some of the terms contained in the earlier agreement but is silent on the issues of snow and garbage removal and does not indicate that it replaces the earlier agreement. For the duration of his ownership of the residential complex, the former landlord performed the snow and garbage removal as was agreed on December 21, 2009, by plowing the parking lot, providing shovels and salt to the tenants, and by moving all the garbage from the common bin to the curb for municipal garbage collection every week.
17. Considering the content of the documents and the conduct of the former landlord, I find that both documents form the tenancy agreement and must be read together. The former landlord was responsible for snow removal in any event as part of his maintenance obligations under the Act, and he was also responsible for garbage removal as described in the agreement made on December 21, 2009.
18. The Landlord purchased the residential complex in August 2010. With that transaction, the Landlord assumed all of the responsibilities of the former landlord. The fact that the agreement dated December 21, 2009 may not have been disclosed during the sale transaction is a matter for dispute between the current and former landlords, but does not limit the services the Tenant is entitled to receive.
19. Since purchasing the residential complex in August 2010, the Landlord has refused to perform the garbage removal and snow removal that the former landlord performed as a matter of course, other than permitting tenants to take bags of salt from his variety store. The Landlord has purported to make the tenants responsible for emptying the common garbage bin and removing the snow from the parking area and walkways.
20. The Landlord’s maintenance obligations under the Act include snow removal for the residential complex, including the parking area and walkways, regardless of the limitation contained in the agreement dated December 21, 2009. The Landlord is not authorized to unilaterally delegate this maintenance obligation to the tenants. I am guided by the decision of the Ontario Court of Appeal in Montgomery v. Van, 2009 ONCA 808. The Tenant is entitled to an order requiring the Landlord to perform the work.
21. Under the terms of the tenancy agreement, the Landlord is also responsible for removing the garbage from the common garbage bin. As a result of the Landlord’s non-performance, garbage accumulated, smelled foul and attracted rodents to the residential complex, which represents a breach not only of the tenancy agreement but also of the Landlord’s maintenance obligations under the Act. The Landlord cannot discontinue the garbage removal service without reducing the rent in accordance with the Act, which he has not done. The Tenant is entitled to an order requiring the Landlord to perform the work."
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"12. As the Ontario Court of Appeal found in Montgomery v. Van, in order to be effective, a clause that requires a tenant to provide maintenance services must constitute a contractual obligation severable from the tenancy agreement itself.[1] Such a clause must be able to stand alone as an enforceable contract. Section 4 of the Act provides that provisions of tenancy agreements that are inconsistent with the Act or Regulations are void. The Act and Regulations make clear that in the residential landlord and tenant relationship, the landlord is responsible for maintenance of the residential complex. Therefore, it cannot be a term of the tenancy that the Tenant maintain the wood stove or any other part of the rental unit.
13. This does not mean that a landlord cannot contract with a tenant as a service provider to perform maintenance 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.
14. In this case, the provision relating to maintenance of the wood stove, as well maintenance of the rental unit generally, is inextricable from the tenancy agreement. The contract also does not indicate a definite consideration for these maintenance duties that is separate from the provision of the premises. I therefore find that the provisions of the tenancy agreement that purport to delegate maintenance of the rental unit to the Tenant are inconsistent with the Act and therefore void.
15. Throughout the tenancy, neither party properly maintained the woodstove. On February 11, 2017, a prolonged lack of necessary cleaning resulted in a fire that effectively rendered the rental unit uninhabitable. Much of the Tenant’s personal property was damaged by the fire and she has resided with her father ever since. At the hearing, she submitted numerous photographs of her property damaged or destroyed by the fire or the associated smoke fumes.
16. At the hearing, the Tenant submitted an Incident Report from the Huron East Fire Department that determined that the cause of the fire was a blocked chimney. The report concluded that the fire started in the chimney and caused smoke to build up in the residence. The author of the report noted the unsafe use of plastic containers used to hold ashes from previous cleanings and cautioned the Tenant against leaving these containers in the residence. The Fire Department also concluded that the Tenant and the other occupants could not remain in the house due to the toxic smoke fumes and the compromised stove. M.B., the Fire Chief, estimated the cost of the damage at roughly $5,000.00, with most of the damage to the Tenant’s property and some damage to the structure of the residence. The Landlord did not contest any of this evidence.
17. While the Landlord bore the responsibility to maintain the rental unit, including the woodstove, there was no indication that the Tenant ever notified her of any problem with the stove until the fire on February 11, 2017. Other than her apparent removal of ashes from the stove, there was no evidence that she took any steps to maintain the stove herself or to prevent the possibility of a fire. This is not say that she had a duty to maintain the stove under the Act, but that she did have a positive duty to prevent a foreseeable threat to her safety and her property.
18. Throughout the tenancy, the Tenant would have been aware that the chimney was not being cleaned or maintained at all. I find that she was reasonably aware that this would have represented a serious safety issue since her repeated applications for contents insurance were denied based purely upon the presence of the woodstove. As well, that the Landlord went out of her way to specifically deny responsibility for the stove’s maintenance in the tenancy agreement should have reasonably indicated to her that the Landlord intended to avoid any liability associated with this appliance.
19. Despite this reasonable knowledge that the woodstove could result in a safety risk, particularly if it was not being maintained, I find that the Tenant took no steps to mitigate her losses. Similarly, there was no indication that she took any steps to clarify her rights under the Act with respect to maintenance until after the fire had destroyed her belongings. As a result, she also never took issue with the inclusion of the unlawful term in the tenancy agreement.
20. I find that the Tenant’s response to the obvious mounting danger presented by the unmaintained woodstove was one of wilful blindness, if not outright recklessness. The eventual catastrophic failure of the woodstove was not an issue of latent defect, but the inevitable and foreseeable result of prolonged negligence to an item that multiple insurers had informed her precluded any coverage. I find that the Tenant’s silence on the lack of maintenance to the wood stove is analogous to watching a pipe in the basement slowly crack and deteriorate over months without ever notifying the Landlord of the issue until it bursts and floods the residence.
21. While I agree that the Landlord breached her duties under subsection 20(1) of the Act 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, the Tenant also failed to mitigate her losses when she failed to maintain the stove herself or even bringing the issue to the Landlord’s attention. As a result, I do not find that she is entitled to compensation for the items damaged by the fire.22. With respect to an abatement of rent, because the Tenant suffered no losses as a result of the Landlord’s breach up to the date of the fire, no abatement for this period is warranted. As I find that the tenancy terminated as of February 11, 2017, the Landlord is not entitled to rent after this date, effectively accomplishing the same result as full abatement."
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On liability:
"[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."
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"[9] Ms. Zhang filed an affidavit in which she discusses the lease and her beliefs regarding the responsibility for snow and ice removal. She attached to her affidavit excerpts from the transcript of the examination for discovery of the Plaintiff, and she filed the transcript of the cross-examination of Mr. Yassobi. Ms. Zhang’s position is that this is not a proper case for summary judgment. In the alternative, she argues that liability rests entirely with the tenants, Mr. Yassobi and Ms. Rahman, as they were responsible for the ordinary cleanliness on the front porch, including snow and ice removal, pursuant to section 33 of the RTA.
[15] I find that Mr. Yassobi and Ms. Rahman’s motion should be dismissed for two main reasons. First, considering the litigation as a whole, this is not an appropriate case for partial summary judgment. While the Defendants’ arguments on this motion were focused on who was responsible for snow and ice removal at the premises as between the tenants and the landlord, the Plaintiff’s allegations of negligence are not restricted to the presence of ice or snow on the porch. It is possible that factors other than ice could be found to have contributed to the fall of the Plaintiff. The apportionment of liability between the tenants and the landlord for such other factors was not argued before me and remains an open issue until the cause of the fall has been determined or formally admitted. Given this uncertainty, it is not possible at this stage to dismiss Ms. Zhang’s crossclaim for contribution and indemnity as against Mr. Yassobi and Ms. Rahman. Since the crossclaim must continue, it is not advisable to dismiss the Plaintiff’s claims as against Mr. Yassobi and Ms. Rahman because granting such partial summary judgment would, among other things, raise the risk of inconsistent findings and duplicative proceedings."
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A landlord must make sure that the rental property meets health, safety, housing and maintenance standards. These standards are set out in municipal bylaws or provincial maintenance standards.
Municipal Bylaws: Many communities in Ontario have bylaws that set minimum standards for the upkeep and maintenance of a rental property. A landlord must maintain a rental property to the minimum standards. Your local municipal government is responsible for enforcing these bylaws.
Provincial Maintenance Standards: Some communities do not have municipal bylaws. In those areas, the landlord must follow the provincial maintenance standards set out in the Residential Tenancies Act regulations. The municipality is responsible for enforcing the provincial maintenance standards."
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. O. Reg. 517/06, s. 26 (1)."
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