Watch Your Step! Suing the Landlord for Slip & Fall May Not Always Fly
By Farid Mahdi
The Supreme Court of Canada, in Marguerite Crete v. Ottawa Community Housing Corporation,[1] has denied leave to plaintiffs seeking to appeal from the Court of Appeal for Ontario’s finding which confirmed that landlords in Ontario are not liable for slip and fall injuries on ice in areas used exclusively by the individual tenants if the lease agreement required the tenants to clear ice and snow from the subject area.
Lower court rulings
The action arose out of a March 2017 slip and fall incident on ice on the front steps of a row house the plaintiff and his mother rented from Ottawa Community Housing Corporation (the “landlord”). The mother and son (the “plaintiffs”) sued the landlord for the son’s alleged injuries, in part on the basis that the landlord was responsible for winter maintenance at their property, including clearing any ice from their front step. The landlord denied liability for any injuries, and counterclaimed against the mother for contribution and indemnity for any amount it was ordered to pay her and her son for the son’s injuries.
Summary Judgement Motions at the ONSC
The plaintiffs brought a motion for summary judgment pursuant to r. 20 of the Ontario Rules of Civil Procedure[2]seeking dismissal of the landlord’s counterclaim. In return, the landlord brought a cross summary judgment motion seeking, among other things, a declaration that the mother and son were responsible for winter maintenance of the subject area and a declaration that the plaintiffs were “occupiers” of the leased property as defined in the Occupiers’ Liability Act.[3]
Subrule 20.04 (2) provides that a court must grant a summary judgment when the court is satisfied that there is no genuine issue requiring trial with respect to a claim or a defence. There is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion.[4]
The mother admitted that she was an occupier of her leased property under the OLA but argued that the landlord was responsible for winter maintenance where her son allegedly fell. She also acknowledged that a provision of the lease agreement she and her husband signed provided that the landlord was not responsible for snow removal from driveways and that the tenant was responsible for snow removal from the front and back doors of the rented premises to the main walkway, but argued that the provision was inconsistent with the Residential Tenancies Act, 2006 (RTA)[5] and was therefore void.
Subsection 20(1) of the RTA provides that 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. Subsection 4(1) of the RTA provides, in part, that a provision in a tenancy agreement that is inconsistent with RTA or the regulations is void.
The mother therefore argued that the lease provision was void pursuant to s. 4(1) as that provision was inconsistent with s. 20(1).
The landlord relied heavily on the lease agreement and also argued that for the 28 years before the fall, and even after, the family, not the landlord, cleared snow and ice from the step where son had allegedly fallen. The landlord admitted that it was responsible for removing unsafe snow and ice accumulations from “common areas” in the residential complex, that could be used by all tenants but the plaintiffs were responsible for clearing snow from the portions of the property of which they had exclusive use which included the steps.
The landlord further argued that snow and ice removal from exclusive use areas (as opposed to common use areas) of a residential complex was part of the tenant’s obligation to maintain the “ordinary cleanliness” of their rental unit under s. 33(1) of the RTA which provides that the tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.
The plaintiffs argued that “exclusive use” areas were not defined in the lease nor in the RTA. They relied on s. 1 of the Maintenance Standards[6] regulation, made under the RTA, which states that exterior common areas includes roads, pathways, parking areas, garbage storage areas, grounds for the use of tenants and, in a mobile home park or land lease community, the sites on which homes are situated.
The plaintiffs therefore argued that their front step, the walkway and the driveway were “grounds for the use of tenants”, and therefore exterior common areas to which s. 26(1) of the regulation applies. Subsection 26(1) of the regulation provides that exterior common areas must be maintained in a condition suitable for their intended use and free of hazards and, for these purposes, among other things, unsafe accumulations of ice and snow must be removed.
The motion judge dismissed the plaintiffs’ motion for summary judgment, and granted in part the landlord’s cross motion.
In Her Honour’s view, “snow removal” referenced in the lease must be interpreted to apply to the removal of snow in all of its states, including snow, ice and slush. There were no specific references to ice or ice removal in the lease. Her Honour was satisfied that the area identified in the lease from which the family was required to remove snow (and ice and slush) included the front step where the son had allegedly fallen.
The motion judge found that photographs showed that the front step and the short pathway in front of the plaintiffs’ home served no purpose in common with other tenants in the residential complex. The pathway provided a link between the front door of the plaintiffs’ home and the “carport parking” which was specifically provided for in their lease and exclusive to them.
Her Honour was of the view that the plaintiffs treated the area in front of their house as though they owned it. They decorated the area with a lawn ornament and planters and placed outdoor furniture on the pathway. She agreed with the landlord’s observation that if any of the other tenants in the complex were to place their own chairs on the pathway in front of the plaintiffs’ home without an invitation, the plaintiffs would be of the view that the neighbours did not have the right to do so.
Her Honour was satisfied that the front step and the pathway were areas used exclusively by the plaintiffs and were not common areas for the use of other tenants in the complex. Since the front step where the son had allegedly fallen was not an exterior common area, the landlord’s obligation to remove unsafe accumulations of ice and snow from “exterior common areas” under s. 26(1) of the regulation had no application to the front step.
The motion judge therefore held that the snow removal provision in the lease was not inconsistent with the RTA and not void under s. 4(1) of the RTA. The court made a declaration that the plaintiffs, not the landlord, were responsible for performing winter maintenance in the area where the son had allegedly fallen.
Appeal to the ONCA
The plaintiffs appealed the motion judge’s decision. The Court of Appeal for Ontario, in 2024 ONCA 459 (CanLII), found that although the motion judge erred in her interpretation of certain provisions of the RTA, she nevertheless correctly found that there was no inconsistency between the snow removal provision of the lease agreement and s. 20 of the RTA.
On appeal, the plaintiff mother and son argued that the motion judge erred in finding that the lease provision was not inconsistent with the RTA. They maintained that the provision making them responsible for winter maintenance was void, in accordance with s. 4(1) of the RTA, and that the landlord was responsible for snow clearing in the area where the son had allegedly fallen.
On appeal, the landlord argued that the motion judge’s order was interlocutory and not final, and that the correct appeal route was to the Divisional Court with leave[7], because the ruling did not finally dispose of the claim or the counterclaim, or of the parties’ substantive rights. The appeal to the Court of Appeal, the landlord argued, should therefore be quashed as it was outside the jurisdiction of that court.
In the alternative, the landlord argued that the motion judge did not err in her interpretation of the provision in the lease agreement, in her finding that the provision was not inconsistent with the RTA, and in her declaration that the plaintiffs/tenants were responsible for snow clearing of the area where the son had allegedly fallen.
With respect to the jurisdiction argument raised by the landlord, the Court of Appeal held that the motion judge’s order expressly decided a legal issue by declaring that the plaintiffs were responsible for the clearing of snow and ice from the front steps. The order therefore dismissed one of the plaintiffs’ defences to the counterclaim, with binding effect on the trial judge. To that extent, the order was a final one and the appeal was accordingly properly before the Court of Appeal.[8]
The Court of Appeal disagreed with the motion judge’s finding that s. 20(1) of the RTA requires a landlord to keep a property “in a good state of repair”, and that this obligation did not include the removal of accumulations of snow and ice, since winter conditions do not generally cause damage that needs to be repaired. The Court of Appeal was of the view that the motion judge adopted an unduly narrow interpretation of the scope of s. 20(1) by focusing on the landlord’s obligation in that subsection to maintain a residential complex in a “good state of repair”, and failed to take account that s. 20(1) also requires landlords to comply with “health, safety, housing and maintenance standards.”
Therefore, s. 20 of the RTA does encompass a landlord’s responsibility to clear snow and ice in a residential complex, which is distinct from the tenant’s obligation for “ordinary cleanliness of the rental unit” under s. 33 of the RTA.
The motion judge’s interpretation of the RTAinvolved questions of law, which are reviewed on a standard of correctness. While the motion judge had erred in her interpretation of ss. 20(1) and 33 of the RTA, the Court of Appeal held that she correctly found that s. 26(1) the Maintenance Standardsregulation under the RTA only requires a landlord to clear snow from exterior common areas in a residential complex, and not areas used exclusively by individual tenants.
The motion judge’s interpretation of the snow removal provision in the lease agreement, and her conclusion that the plaintiffs were responsible to clear snow and ice only from areas reserved for their exclusive use, were findings of mixed fact and law, reviewable on a standard of palpable and overriding error.
The Court of Appeal concluded that the motion judge did not err in finding that the provision in the lease was not inconsistent with the respondent’s responsibility under s. 26(1) of the Maintenance Standardsregulation to clear snow and ice from “exterior common areas” in the complex.
The Court of Appeal thus dismissed the appeal.
The Takeaway
Despite the tenant-focused protections in the Residential Tenancies Act, 2006, a landlord can lawfully delegate its obligation to carry out winter maintenance at a residential complex to the tenant, particularly with respect to areas of the rented premises exclusively used by the tenant.
[4] Crete et al. v. Ottawa Community Housing Corporation et al, 2023 ONSC 5141 (CanLII), at paras 6, 7.
[7] See the Courts of Justice Act, RSO 1990, c C.43, s. 19(1) [CJA].