Lewis v. 3414493 Canada Inc., 2022 ONSC 2769
Justice Perell, in the case of Lewis v. 3414493 Canada Inc., 2022 ONSC 2769, considered the effect of a liability exculpatory clause in a residential tenancy agreement in a slip and fall action. The decision of the Court was released on May 9, 2022.
The plaintiff, Terry Lewis (the “Plaintiff”) alleged that on February 20, 2019, she fell in the parking lot of her apartment residence, causing injury. It was alleged that the fall occurred due to an accumulation of ice that was concealed by snow. As a result, she commenced an action seeking damages. Named as defendants to the claim were the property landlords 3414493 Canada Inc., Accomplish Investments Limited and Canadian Apartment Properties Real Estate Investment Trust (the “Defendants”); along with the winter maintenance contractor hired by the Defendants, Zegas Group Ltd.; and the winter maintenance subcontractor 217572 Ontario Inc. o/a Emerald Horizons.
The Plaintiff alleged in her Statement of Claim that her slip and fall was caused by, or contributed to by, the negligence of the Defendants. The Defendants filed a Statement of Defence and Crossclaim in response, which in part at paragraph 16, plead reliance on an exculpatory provision, or a waiver, in the residential tenancy agreement signed by the Plaintiff. In response to the Statement of Defence and Crossclaim, the Plaintiff filed a Reply contesting the applicability and validity of the exculpatory clause.
Two motions were before the Court. First, the Plaintiff filed a motion seeking a determination of whether the Defendants could rely on the exculpatory clause in their residential tenancy agreement. A reply motion was filed by the Defendants seeking to strike six paragraphs in the Plaintiff’s Reply to the Statement of Defence and Crossclaim, which sought to address the liability exculpatory clause.
The subject Residential Tenancy Agreement, executed by the Plaintiff on May 4, 2016, contained the following provision:
24. Liability: Landlord shall not in any event whatsoever be liable in any way for:
(i) Any personal injury or death that may be suffered or sustained by the Tenant, an Occupant, or any member of the Tenants’ family, his agents, guests or invitees, or any other person who may be upon the Rented Premises or the residential complex; or […]
Justice Perell, in considering the motion, and with reference to the prior decisions in Taylor v. Allen, 2010 ONCA 596; Montgomery v. Van, 2009 ONCA 808; Caldwell v. Valiant Property Management (1997), 33 O.R. (3d) 187 (Gen. Div.); Phillips v. Dis-Management (1995), 24 O.R. (3d) 435 (Gen. Div.); Fleischman v. Grossman Holdings Ltd. (1976), 16 O.R. (2d) 746 (C.A.); and Cunningham v. Moore,  1 O.R. 357 (H.C.J.); found that:
“The Defendants… are the Landlords and notwithstanding their arguments to the contrary, the law is long established that landlords cannot escape by waiver, disclaimer, or exculpatory provision in the residential lease their statutory duties to maintain the repair and safety of their residential premises.”
The Court noted that under Section 3 (1) of the Residential Tenancies Act, 2006 it is stipulated that the Act applies to all residential complexes, despite any other Act and despite any agreement or waiver to the contrary. Further, pursuant to section 20 (1) of the Residential Tenancies Act “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”. Additionally, section 26 (1) of Ont. Reg. 517/06 (Maintenance Standards) enacted pursuant to the Residential Tenancies Act, 2006, requires that a Landlord maintain exterior common areas in a condition suitable for their intended use, and free of hazards, pursuant to which unsafe accumulations of ice and snow were to be removed. Finally, the Court makes reference to sections 8 and 9 (1) of the Occupiers’ Liability Act, R.S.O. 1990, C.0.2, which confirms that landlords are subject to the same statutory obligations as an occupier of a premise is under section 3 of the Occupiers’ Liability Act.
Of note, the Court did consider the defence raised by the Defendants that the act of them hiring a maintenance contractor did not result in them contracting out of their obligations to maintain their duty to maintain the premises under both the Residential Tenancies Act and the Occupiers’ Liability Act, and therefore paragraph 24 of the tenancy agreement may be operative. The Court found that the argument was not logical in that the impugned and unlawful paragraph in their Statement of Defence had nothing to do with how the Landlord may arrange to carry out their statutory obligations by hiring others to perform maintenance.
On the basis of the Court’s analysis and reasoning, Justice Perell struck paragraph 16 of the Defendants’ Statement of Defence and Crossclaim. As a consequence, the Plaintiff’s Reply pleading became unnecessary and moot, and it too, was struck.