Court File and Parties

Court File No.: CV-21-00655031-0000 Date: 2022-05-09 Ontario Superior Court of Justice

Between: Terry Lewis, Plaintiff And: 3414493 Canada Inc. and Accomplish Investments Limited d.b.a Murray Ross Apartments, Canadian Apartment Properties Real Estate Investment Trust, ZEGAS GROUP LTD., and 217572 ONTARIO INC. o/a Emerald Horizons, Defendants

Counsel: Joel P. McCoy, for the Plaintiff Shivani Patel, for the Defendants 3414493 Canada Inc., Accomplish Investments Limited and Canadian Apartment Properties Real Estate Investment Trust

Heard: April 19, 2022

Perell, J.

Reasons for Decision

[1] This is a slip and fall, occupier’s liability case. There are two motions before the court.

[2] In the first motion, the Plaintiff, Terry Lewis, is a tenant who fell in the parking lot of her apartment residence. In her motion, she seeks a determination of whether some of the Defendants can rely on an exculpatory provision, described as a waiver, in the residential tenancy agreement.

[3] If Ms. Lewis’ motion is granted, its practical effect would be to strike paragraph 16 from the Statement of Defence of the Defendants 3414493 Canada Inc., Accomplish Investments Limited (“Accomplish Investments”) and Canadian Apartment Properties Real Estate Investment Trust. (“Cdn Apartment Properties”).

[4] In the second motion, 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties, the Defendants relying on the waiver, bring a motion to strike six paragraphs (paragraphs 3, 4, 5, 6, 7, and 8) of Ms. Lewis’ eight-paragraph Reply to the Statement of Defence and Crossclaim.

[5] If 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties’ motion is granted, the practical effect of their motion would be to strike the entirety of Ms. Lewis’ Reply pleading.

[6] For the reasons that follow, I grant both motions. As the discussion below will reveal, Ms. Lewis’ Reply pleading becomes unnecessary and moot if paragraph 16 is struck from 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties’ Statement of Defence.

[7] The explanation for the granting of both motions may begin with the facts, which are typical of a slip and fall case.

[8] The Defendants 3414493 Canada Inc., Accomplish Investments, and Cdn Apartment Properties are the Landlord of a residential apartment building at 500 Murray Ross Parkway.

[9] On May 4, 2016, Ms. Lewis signed a Residential Tenancy Agreement with the Landlord. The Residential Tenancy Agreement contained the following provision, which the parties refer to as a “waiver”:

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 […]

[10] In their Statement and Defence and Crossclaim, 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties plead that they hired independent contractor Zegas Group Ltd. to perform winter maintenance at 500 Murray Ross Parkway, including snow and ice removal and salting/sanding services.

[11] Zegas Group Ltd. subcontracted the winter maintenance to the co-defendant 217572 Ontario Inc. operating as Emerald Horizons.

[12] On February 20, 2019, Ms. Lewis fell in the parking lot at 500 Murray Ross Parkway. She alleges that while lawfully walking in the parking lot, she slipped and fell on an accumulation of ice which was concealed by snow. She alleges that her normal walking route was blocked by garbage bins that should not have been placed where they were. She pleads that the presence of the ice concealed by snow, constituted a concealed and/or hidden danger to all persons in the area including the Plaintiff. She alleges that her slip and fall was caused or contributed to by the negligence of the Defendants or their respective servants, agents, or employees which they are responsible for.

[13] On January 18, 2021, Ms. Lewis issued her Statement of Claim. She claimed damages of $500,000. She relied on the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, the Residential Tenancies Act, 2006, S.O. 2006, c. C-17, and the Negligence Act, R.S.O. 1990, c. N.1. The pleading includes claims for, unlawful conduct, bad faith, exemplary, aggravated, and/or punitive damages in the amount of $1.0 million.

[14] The Statement of Claim does not contain any allegations against the Landlord that the Tenancy Agreement is illegal or unconscionable.

[15] On August 13, 2021, 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties delivered their Statement of Defence and Crossclaim. For present purposes, the pertinent paragraph of the pleading is paragraph 16, which states:

16. These Defendants plead that the claim of the plaintiff is barred pursuant to the Residential Tenancy Agreement dated July 1, 2016 executed by the plaintiff and in particular s.24, which reads as follows:

17. 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 …

[16] On or about August 19, 2021, the Plaintiff delivered an eight-paragraph Reply to the Statement of Defence and Crossclaim of 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties. The Reply pleading states:

1. The Plaintiff denies all of the allegations contained in the Statement of Defence and Crossclaim the Defendants, 3414493 CANADA INC., ACCOMPLISH INVESTMENTS LIMITED D.B.A. MURRAY ROSS APARTMENTS AND CANADIAN APARTMENT PROPERTIES REAL ESTATE INVESTMENT TRUST, except where expressly admitted.
2. The Plaintiff states that the Residential Tenancies Act, 2006, explicitly states that the Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary [emphasis added].
3. Alternatively, if there is a contract for exclusion of liability, waiver, assumption of risk, and/or indemnity the Plaintiff claims that they collectively, or individually, are illegal, unconscionable, and/or are otherwise not valid under law.
4. The Plaintiff states that she should be awarded exemplary, aggravated, and/or punitive damages in the amount of $1,000,000.00 on the basis of attempting to waive out of its statutory duties when it is impermissible to do so, and also relying on said waiver in this claim.
5. The Plaintiff states that inserting a waiver into a tenancy agreement when it is prohibited to do so is an act of bad faith, which is an independent actionable wrong.
6. The Plaintiff states that relying on a waiver which is illegal is an independent actionable wrong.
7. The Plaintiff states that the Defendants, 3414493 CANADA INC., ACCOMPLISH INVESTMENTS LIMITED D.B.A. MURRAY ROSS APARTMENTS AND CANADIAN APARTMENT PROPERTIES REAL ESTATE INVESTMENT TRUST, only plead a waiver defence in an attempt to lengthen and delay the action, and it is not tenable at law.
8. The Plaintiff states that any costs payable dealing with the waiver should be payable on a full indemnity basis.

[17] It is apparent that the pith and substance of Ms. Lewis’ Reply is to negate the waiver provision in the residential lease agreement. Her motion now before the court has the same substance and purpose of nullifying the waiver provision in the lease.

[18] The Defendants 3414493 Canada Inc., Accomplish Investments, and Cdn Apartment Properties 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.

[19] Section 3 (1) of the Residential Tenancies Act, 2006 stipulates that the Act applies to all residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

[20] Section 20 (1) of the Residential Tenancies Act, 2006 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.

[21] Section 26 (1) of Ont. Reg. 517/06 (Maintenance Standards) enacted pursuant to the Residential Tenancies Act, 2006 states:

26 (1) Exterior common areas shall be maintained in a condition suitable for their intended use and free of hazards and, for these purposes, the following shall be removed:

3. Rubbish or debris, …
4. Structures that create an unsafe condition.
5. Unsafe accumulations of ice and snow.

[22] Pursuant to sections 8 and 9 (1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, landlords are subject to the same statutory obligations as occupiers of premises are subject pursuant to s. 3 of the Occupiers’ Liability Act. Sections 8, 9 (1), and 3 of the Occupiers’ Liability Act state:

Obligations of landlord as occupier

8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

Idem

(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.

Definitions

(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.

Application of section

(4) This section applies to all tenancies whether created before or after the commencement of this Act.

Preservation of higher obligations

9 (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of, […]

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty

[23] As noted above, the long established law is that landlords cannot escape by waiver, disclaimer, or exculpatory provision in a residential lease their statutory duties to maintain the repair and safety of the residential premises. It is plain and obvious that paragraph 24 of the lease does not apply to Ms. Lewis’ claim in the immediate case.

[24] There is no merit to 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties’ argument that because they hired the co-defendant and independent contractor, Zegas Group Ltd., to perform winter maintenance, including ice and snow removal, they have not contracted out of their obligations to maintain their duty to maintain the premises pursuant to the Residential Tenancies Act, 2006 and the Occupiers’ Liability Act and therefore paragraph 24 of the lease may be operative. The argument is a non sequitur. The impugned and unlawful contracting out is precisely found in paragraph 24 of the Residential Tenancy Agreement. That paragraph has nothing to do with how the Landlord may arrange to carry out its statutory obligations by hiring others to clear ice and snow.

[25] While I agree with 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties’ argument that there are cases that support the proposition that an exculpatory provision in a residential lease may be enforceable with respect to claims that have nothing to do a landlord’s exposure to liability under the Residential Tenancies Act, 2006 or the Occupiers’ Liability Act, those cases are no assistance to the landlord in the immediate case.

[26] It is, therefore, plain and obvious that paragraph 16 of 3414493 Canada Inc., Accomplish Investments and Cdn Apartment Properties’ Statement of Defence should be struck.

[27] With paragraph 16 struck from the pleading, Ms. Lewis’ Reply pleading becomes unnecessary and moot. Ms. Lewis’ counsel conceded during argument that Ms. Lewis would not oppose having the Reply pleading struck if Ms. Lewis was successful in having paragraph 16 struck from the Statement of Defence.

[28] For these reasons, I strike paragraph 16 from the Statement of Defence and I strike the entirety of the Reply pleading in both cases without leave to amend.

[29] I order that the costs of both motions should be in the cause.

Released: May 9, 2022 Perell, J.