November 17, 2009 by Canadian Underwriter
A landlord can delegate snow removal tasks to tenants, but this must be done in a contractual agreement separate from the tenancy agreement, the Ontario Court of Appeal has ruled in a slip-and-fall case.
“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,” Ontario Court of Appeal Justice Russell Juriansz wrote for the court in Montgomery v. Van.
Juriansz said the clause must be able to stand alone as an enforceable contract, since s. 16 of the Tenant Protection Act voids any provisions in a tenancy agreement that are inconsistent with the Tenant Protection Act.
“The act and regulations make it clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice,” Jurianz wrote, citing Subsection 26 (1).5 in the regulations of the Tenant Protection Act.
“Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.”
Lindsay Montgomery, a tenant, commenced legal action against her landlord, Duc Van, after slipping and falling at her premises on Jan. 30, 2003.
Montgomery claimed she was injured after slipping on ice on the walkway leading up to her basement apartment and suffered injury.
Van’s defence claimed the tenant’s injury was due to her own negligence because she had “failed to keep her walkway in a state of good repair, including free from snow and ice.”
Van brought a motion to determine before trial if a portion of his tenant agreement with Montgomery — which delegated the task of snow removal to her —was inconsistent with the Tenant Protection Act.
The lower court said the act does not say anywhere that tenants cannot remove snow, and therefore the provision in Montgomery’s tenancy agreement was not inconsistent with the act.
The court of appeal reversed this finding.