COURT OF APPEAL FOR ONTARIO DATE: 20240611 DOCKET: COA-23-CV-1209

Huscroft, Coroza and Monahan JJ.A.

BETWEEN

Daniel Crete and Marguerite Crete* Plaintiffs (Appellant*)

and

Ottawa Community Housing Corporation/La Société De Logement Communautaire d’Ottawa* and John Doe Defendants (Respondent*)

AND BETWEEN:

Ottawa Community Housing Corporation/La Société De Logement Communautaire d’Ottawa Plaintiff by Counterclaim (Respondent)

and

Marguerite Crete Defendant to the Counterclaim (Appellant)

Counsel: Victoria L. Boddy, for the appellant Jay Skukowski, Ned Bozalo and Tyler Macks, for the respondent

Heard: May 30, 2024

On appeal from the order of Justice H.J. Williams of the Superior Court of Justice, dated September 12, 2023, with reasons reported at 2023 ONSC 5141.

Reasons for Decision

[1] The appellant, Marguerite Crete, along with her son, Daniel Crete, (collectively, “the Cretes”) sued the respondent, Ottawa Community Housing Corporation, for injuries suffered by Daniel when he slipped and fell on ice on the front step of a townhouse the Cretes had leased from the respondent (the “Rented Premises”).

[2] The respondent denied liability for any injuries that Daniel may have suffered, relying in part on a provision in the lease (the “Snow Removal Provision”) that assigned responsibility to the Cretes for clearing snow from their front steps to the main walkways in the residential complex. The respondent also counterclaimed against the appellant for contribution and indemnity for any amount it was ordered to pay the Cretes, on the basis that the appellant was responsible for snow clearing on the front step as a signatory to the lease and an occupier of the Rented Premises.

[3] The appellant brought a motion for summary judgment seeking dismissal of the respondent’s counterclaim, while the respondent brought a cross-motion seeking a variety of forms of relief, including dismissal of the Cretes’ action, summary judgment on the counterclaim, and a declaration that the Cretes were responsible for winter maintenance of the Property.

[4] The motion judge found that the Snow Removal Provision in the lease was not inconsistent with the Residential Tenancies Act, 2006, S.O. 2006, c. 17 and regulations (the “RTA”). Therefore, the Snow Removal Provision was not void pursuant to s. 4 of the RTA, and its effect was to make the Cretes responsible for winter maintenance in the area where Daniel fell. The motion judge’s order made a declaration to that effect, but dismissed all other relief sought by the parties on their summary judgment motions.

[5] On appeal, the appellant argues that the motion judge erred in finding that the Snow Removal Provision was not inconsistent with the RTA. She maintains that the Provision is void, in accordance with s. 4(1) of the RTA, and that the respondent is responsible for snow clearing in the area where Daniel fell.

[6] The respondent argues that the trial judge’s order is interlocutory and not final, and the appeal should therefore be quashed as outside the jurisdiction of this court. Alternatively, the respondent argues that the motion judge did not err in her interpretation of the Snow Removal Provision, in her finding that the Provision was not inconsistent with the RTA, and in her declaration that the Cretes are responsible for snow clearing in the area where Daniel Crete fell.

[7] As set out below, the motion judge’s declaration was final rather than interlocutory and is appealable to this court.

[8] Turning to merits of the appeal, although the motion judge erred in her interpretation of certain provisions of the RTA, she nevertheless correctly found that there is no inconsistency between the Snow Removal Provision and the RTA. The motion judge’s further finding that the Snow Removal Provision in the lease makes the appellant responsible for clearing snow and ice from the area where Daniel fell is entitled to deference. We therefore dismiss the appeal.

The Motion Judge’s Decision

[9] The Snow Removal Provision provided in relevant part that “the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways”. The motion judge found that this required the Cretes to clear snow and ice from their front steps and along a walkway leading to the street, areas which the motion judge found were used exclusively by the Cretes, as opposed to other tenants in the complex.

[10] The motion judge then considered whether the Snow Removal Provision was void by virtue of s. 4(1) of the RTA, which provides that “a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.”

[11] The motion judge found no inconsistency between the Snow Removal Provision and O. Reg. 517/06, enacted under the RTA (the “Maintenance Standards Regulation” or the “Regulation”). [1] Section 26(1) of the Regulation requires a landlord to maintain “exterior common areas” free of unsafe accumulations of ice and snow. Since the Snow Removal Provision merely required the Cretes to clear snow and ice from areas used exclusively by them, rather than “exterior common areas”, there was no inconsistency between the Snow Removal Provision and s. 26(1) of the Maintenance Standards Regulation.

[12] Nor, in the motion judge’s view, was the Snow Removal Provision inconsistent with s. 20(1) of the RTA, which provides 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.” The trial judge interpreted the requirement in s. 20(1) to keep a property in “good repair” as not including the removal of accumulations of snow and ice, which typically do not cause damage that needs to be repaired. The motion judge found, instead, that s. 33 of the RTA, which makes tenants generally responsible for “ordinary cleanliness of the rental unit,” requires tenants to clear snow and ice from areas used exclusively by them.

[13] Given that there was no inconsistency between the Snow Removal Provision and the RTA, and that this Provision required the Cretes to clear snow and ice from areas used exclusively by them, including the front steps of the Rented Premises, the motion judge declared that the Cretes were responsible for clearing snow and ice in the area where Daniel fell.

Jurisdiction

[14] The Respondent argues that the motion judge’s order is interlocutory rather than final and that appeal lies only to the Divisional Court with leave, since it does not finally dispose of the claim or counterclaim, or of the parties’ substantive rights.

[15] It is well established that an interlocutory order is one which does not determine the real matter in dispute between the parties, or any substantive right to relief of a plaintiff or a substantive defence of a defendant: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at paras. 16-17; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, leave to appeal refused, [2021] S.C.C.A. No. 373.

[16] Here, the motion judge’s order does finally dispose of one of the appellant’s defences to the counterclaim, by declaring that the Cretes, rather than the respondent, are responsible for clearing snow and ice from the area where Daniel fell.

[17] The respondent argues that the motion judge’s order would not be binding on the trial judge in this case (and thus was not a final order), since the motion judge did not invoke the power in r. 20.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to issue judgment where “the only genuine issue is a question of law.” However, the cases relied upon by respondent, particularly Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, 115 O.R. (3d) 401, were ones in which the formal order merely dismissed a motion for summary judgment without deciding any issue of law. In contrast, the motion judge’s order in this case did expressly decide a legal issue by declaring that the Cretes were responsible for the clearing of snow and ice from the front steps of the Rented Premises. The order thereby dismissed one of the appellant’s defences to the counterclaim, with binding effect on the trial judge.

[18] To that extent, the trial judge’s order is a final order and is appealable to this court, in accordance with s. 6(1)(b) of the Courts of Justice Act, R.S.O 1990, c. C.43.

Analysis

[19] As described above, the motion judge found 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 such conditions do not generally cause damage that needs to be repaired. Rather, she found that tenants were responsible for clearing snow and ice from areas used exclusively by them pursuant to s. 33 of the RTA, which makes tenants responsible for the ordinary cleanliness of a rental unit.

[20] The motion judge’s interpretation of the RTA involves questions of law, which are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at paras. 8-9.

[21] Respectfully, the motion judge adopted an unduly narrow interpretation of the scope of s. 20(1) of the RTA by focusing on the landlord’s obligation in that subsection to maintain a residential complex in a “good state of repair”. The motion judge failed to take account of the fact that s. 20(1) also requires landlords to comply with “health, safety, housing and maintenance standards”. The applicable maintenance standards are set out in the Maintenance Standards Regulation, which deals expressly, at. s. 26(1), with a landlord’s obligation to clear snow and ice in a residential complex. It follows that s. 20(1) of the RTA does encompass a landlord’s responsibility to clear snow and ice in a residential complex, albeit in accordance with the applicable standards set by the Regulation. The corollary is that the responsibility to clear snow and ice is not encompassed within the tenant’s obligation for “ordinary cleanliness of the rental unit” under s. 33 of the RTA.

[22] While the motion judge erred in her interpretation of ss. 20(1) and 33 of the RTA, she correctly found that s. 26(1) the Maintenance Standards Regulation only requires a landlord to clear snow from exterior common areas in a residential complex, and not areas used exclusively by individual tenants.

[23] The appellant argues that the motion judge failed to take account of the fact that the Maintenance Standards Regulation defines “exterior common areas” as including “grounds for the use of tenants”. On this basis, the appellant argues that the landlord is required to clear snow and ice from all exterior areas in the complex, not just areas used by tenants in common.

[24] The difficulty with the appellant’s argument is that it effectively reads out the word “common” from the definition of “exterior common areas”. The motion judge correctly found that “grounds for the use of tenants” in the definition of “exterior common areas”, must be grounds intended to be used by tenants in common, as opposed to lands or areas reserved for the exclusive use of individual tenants.

[25] The appellant further argues that the motion judge’s interpretation of the landlord’s responsibility to clear snow and ice in s. 26(1) of the Maintenance Standards Regulation is inconsistent with this court’s decision in Montgomery v. Van, 2009 ONCA 808.

[26] We do not agree.

[27] In Montgomery, the court found that a lease provision which required a tenant to clear snow from a common area in a residential complex was inconsistent with the landlord’s responsibility under the applicable maintenance regulation to clear snow from “exterior common areas”. The lease provision was therefore found to be void. But in coming to that conclusion, the court made clear that the landlord’s responsibility for snow clearing only extended to common areas in the residential complex: Montgomery, at para. 9. Thus nothing in Montgomery requires a landlord to clear snow from areas used exclusively by individual tenants.

[28] In this case, the motion judge interpreted the Snow Removal Provision as requiring the Cretes to clear snow and ice only from areas reserved for their exclusive use. This was a finding of mixed fact and law, reviewable on a standard of palpable and overriding error. There was an extensive evidentiary record supporting the motion judge’s interpretation of the Snow Removal Provision, including an affidavit from the appellant and photographs of the Rented Premises. The appellant has not identified any basis upon which we could interfere with the motion judge’s conclusion that the Snow Removal Provision required the Cretes to clear snow and ice only from areas used exclusively by them, and not from any areas used by tenants in common.

[29] We therefore conclude that the motion did not err in finding that the Snow Removal Provision was not inconsistent with the respondent’s responsibility under s. 26(1) of the Maintenance Standards Regulation to clear snow and ice from “exterior common areas” in the complex.

[30] The appellant argues, in the alternative, that the Snow Removal Provision is inconsistent with ss. 7 or 28 of the Maintenance Standards Regulation. Neither of these provisions is applicable in the circumstances of this case. Section 7(2) deals with clearing of snow and ice from roofs, which is not at issue. Section 28 requires that driveways and other areas “shall be maintained to provide a safe surface for normal use”. However, given that s. 26(1) expressly deals with the landlord’s obligations to clear unsafe accumulations of ice and snow, s. 28 does not encompass responsibility for snow clearing.

Disposition

[31] The motion judge did not err in her finding that the Snow Removal Provision required the Cretes to clear snow and ice from areas used exclusively by them, which included the area where Daniel fell, and that the Provision was not inconsistent with the RTA. The appellant’s appeal is therefore dismissed.

[32] In accordance with the agreement of the parties, the appellant shall pay the respondent’s costs of the appeal in the amount of $15,000, all inclusive.

“Grant Huscroft J.A.”

“S. Coroza J.A.”

“P.J. Monahan J.A.”

[1] The parties assumed, without analysis, that the Maintenance Standards Regulation applies to the residential complex where the Rented Premises are located. We agree that this is the case, by virtue of the fact that the local municipality (the City of Ottawa) has not enacted a municipal by-law applicable “only to the exterior of residential complexes”, per s. 4 of the Maintenance Standards Regulation. While the city has enacted a by-law dealing in general terms with property maintenance in the municipality (By-law No. 2005-208), this by-law does not prescribe standards for the maintenance of the exterior of residential complexes, and thus does not oust the application of the Maintenance Standards Regulation to the residential complex in this case.