Crete v Ottawa Community Housing Corporation, 2024 ONCA 459.

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Crete v Ottawa Community Housing Corporation, 2024 ONCA 459 arises out of a slip and fall that took place on the steps of a rental property.

Canada Real Estate and Construction

The Facts

Crete v Ottawa Community Housing Corporation, 2024 ONCA 459 arises out of a slip and fall that took place on the steps of a rental property. The plaintiff and his mother (the "Cretes") leased the property from the Defendant, Ottawa Community Housing Corporation ("OCHC").
OCHC denied liability for any injuries suffered, relying on a provision in the rental agreement that stated: "the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways" (the "Snow Removal Provision").
At issue was whether the Snow Removal Provision was void in light of the Residential Tenancies Act, 2006, SO 2006, c.17 ("RTA").

The Underlying Motion

The plaintiff brought a motion seeking to dismiss the counterclaim brought by OHCH. OHCH brought a cross-motion seeking a variety of forms of relief, including a declaration that the Cretes were responsible for winter maintenance in the area of the fall.
The motion Judge held that the Snow Removal Provision in the lease was not inconsistent with the RTA and that the Cretes were responsible for winter maintenance in the area where the fall took place.

Relevant Provisions of the Residential Tenancies Act

On appeal, an issue was whether the Snow Removal Provision was inconsistent with the RTA and its Regulations. Specifically section 4(1) of the RTA states:

Subject to subsection 12.1 (11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or regulations is void.

If the Snow Removal Provision was inconsistent with the RTA or its Regulations, then section 4(1) of the RTA would render the Snow Removal Provision void.

Tenants Responsibility for Snow Removal under Section 33 of the Residential Tenancies Act

The ONCA considered whether snow removal in areas used exclusively by the tenant is encompassed by a tenant's general responsibility for the ordinary cleanliness of a rental unit found under section 33 of the
The ONCA held that section 33 of the RTA does not include snow removal in areas used exclusively by the tenant. The Court arrived at this conclusion after considered a landlord's responsibility as outlined in section 20(1) of the RTA, which states that a landlord is responsible for maintaining a residential complex "in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards". Further, section 26(1) of the Maintenance Standards Regulations, O Reg 517/06 states that a landlord has an obligation to clear unsafe accumulations of ice and snow from exterior common areas. As a result, ONCA concluded that a tenant does not have responsibility to clear snow and ice under section 33 of the RTA.

Landlords Obligation to Clear Snow from Exterior Common Areas in a Residential Complex

The ONCA determined that the motion judge was correct in finding that section 26(1) of the Maintenance Standards Regulations only requires a landlord to clear snow from exterior common areas, as opposed to areas used exclusively by individual tenants.
While the Cretes argued that "exterior common areas" included "grounds for the use of tenants", the ONCA concluded that to interpret section 26(1) of the Maintenance Standards Regulations in this fashion would have the effect of removing the word "common" from "exterior common areas".
The Cretes further argued that the underlying decision was inconsistent with the ONCA's decision in Montgomery v Van, 2009 ONCA 808. In Montgomery, the ONCA found that a lease provision that required a tenant to clear snow from a common area in a residential complex was inconsistent with the landlord's responsibility to clear snow from "exterior common areas" found under the section 26(1) of the Maintenance Standards Regulations. As a result, the ONCA in Montgomery held that lease provision in that case was void. Here, the ONCA made clear that the landlord's responsibility for snow only extended to common areas in the residential complex, and that nothing in Montgomery required a landlord to clear snow from areas used exclusively by individual tenants.
As a result, the ONCA held the motion judge did not err in finding that the Snow Removal Provision required the Cretes to clear snow and ice from areas used exclusively by them and that the Snow Removal Provision was not inconsistent with the Residential Tenancies Act or its Regulations. The Appeal was therefore dismissed.

Conclusion

The decision highlights several considerations for lawyers and victims of slip and falls on leased residential properties covered under the Residential Tenancies Act. Specifically, a close examination of any snow removal provisions requiring the tenant take positive steps should be undertaken to confirm whether such provisions in the agreement are in fact enforceable or void.

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