COURT FILE NO.: CV-19-79462
DATE: 2023/09/12
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: DANIEL CRETE and MARGUERITE CRETE
Plaintiffs
- and -
OTTAWA COMMUNITY HOUSING CORPORATION / LA SOCIETE DE
LOGEMENT COMMUNAUTAIRE D’OTTAWA and JOHN DOE
Defendants
BEFORE: Justice H.J. Williams
COUNSEL: Victoria L. Boddy, Lawyer for the Moving Party/Defendant to the Counterclaim, Marguerite Crete
Mitchell Kitagawa, Lawyer for the Defendant, Ottawa Community Housing Corporation/La Societe de Logement Communautaire d’Ottawa
HEARD: March 15, 2023, and July 11, 2023
REASONS FOR DECISION
Overview
[1] Daniel Crete claims that he was injured in March 2017 when he slipped and fell on ice on the front step of a row house he and his mother, Marguerite Crete, lease from Ottawa Community Housing Corporation.
[2] Daniel and Marguerite (“the Cretes”) sued OCHC for Daniel’s injuries, in part on the basis that OCHC was responsible for winter maintenance at their leased property, including clearing any ice from their front step. The Cretes also allege that OCHC was responsible for the ice being on the step in the first place, because ice accumulated after water overflowed from an eavestrough.
[3] OCHC counterclaimed against Marguerite for contribution and indemnity for any amount it is ordered to pay the plaintiffs. OCHC pleaded that Marguerite, as an occupier of the property and a signatory to the lease, was responsible for clearing ice from the front step.
[4] Marguerite and OCHC have each brought a motion for summary judgment. In her motion, Marguerite seeks a dismissal of OCHC’s counterclaim. In its motion, OCHC seeks an order requiring Marguerite to pay contribution or indemnity to OCHC for any amount OCHC is ordered to pay the plaintiffs, dismissal of the plaintiffs’ action, a declaration that the plaintiffs, and not OCHC, are responsible for the winter maintenance in the area where Daniel fell[^1] and a declaration that the plaintiffs were occupiers of the leased property under the Occupiers’ Liability Act, R.S.O. 1990, c. O. 2.
[5] Marguerite and OCHC agree that these issues should be determined by a summary judgment. The court must nonetheless be satisfied that it is appropriate to grant summary judgment: r. 20.04(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
The appropriateness of summary judgment in this case
[6] Rule 20 provides that a court shall grant a summary judgment when there is no genuine issue requiring trial with respect to a claim or a defence.
[7] 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. This will be the case where the process: (1) allows the court to make the necessary findings of fact; (2) allows the court to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[8] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under r. 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rr. 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak, at para. 66.
[9] Partial summary judgment is a rare procedure, reserved for an issue or issues that may be readily bifurcated from those in the main action, and that may be dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at para. 54.
[10] I consider the issue of whether the Cretes or OCHC had responsibility for clearing ice from the Cretes’ front step to be one that can easily be severed from the balance of the case. The issue is discrete from the other liability issues in the case, which are whether OCHC bears or shares responsibility for ice accumulation on the step because of the overflowing eavestrough and whether the Cretes, if responsible for clearing the ice from the step, did so in a reasonable manner. Deciding the issue of responsibility for the ice clearing would not open the door to inconsistent findings at trial. The underlying facts are neither complicated nor significantly in dispute. The issue can be decided efficiently and cost-effectively. Deciding the issue now is likely to simplify the litigation and reduce its overall costs. Fully recognizing that partial summary judgment is to be granted only with great caution, I agree with the parties that this issue, which is the only issue in Marguerite’s motion and the central issue in OCHC’s motion, is appropriately determined by way of summary judgement.
[11] I have a different view about the balance of the relief sought by OCHC on its motion. This relief is not easily severed from the remaining issues in the case. OCHC seeks an order requiring Marguerite to pay contribution or indemnity to OCHC for any amount OCHC is ordered to pay the plaintiffs and a dismissal of the plaintiffs’ action. OCHC argues that the Cretes were responsible for clearing ice from the step where Daniel fell and that Marguerite’s evidence on the motion shows that she and her late husband did not tend to the area properly. OCHC points to Marguerite’s evidence that she and her husband cleared the snow off the driveway and pathway and put salt on the driveway; OCHC notes that Marguerite did not say that they cleared or salted the step. The Cretes, however, argue that Daniel fell on a patch of ice created by the overflowing water, which froze when the temperatures dropped.
[12] There is no evidence in the record about what time Marguerite and her husband cleared their pathway, the state of the step at the time (was it dry or puddle-covered?), whether the eavestrough was dripping at the time, when the eavestrough began to drip or when the temperature dropped. Marguerite said in her affidavit that she frequently brought the issue of the overflowing eavestrough to OCHC’s attention, was told not to fix or clear debris from the eavestrough herself and that OCHC never cleared the eavestrough. OCHC did not deny or otherwise respond to these allegations in its evidence, presumably because the parties had agreed that OCHC’s liability was not an issue on the motions that were before me.
[13] If the Cretes are found responsible for clearing ice from their front step, the issue of Marguerite’s liability for Daniel’s fall will be intertwined with the issue of OCHC’s liability due to the overflowing eavestrough. For this reason, I find that Marguerite’s liability is not a severable issue; her liability cannot be assessed without also assessing that of OCHC. There is insufficient evidence in the record to permit me to determine OCHC’s liability and, as I noted in the previous paragraph, the parties had agreed that I should not do so.
[14] OCHC’s counsel suggested that I could make a finding that Marguerite is liable to pay contribution or indemnity to OCHC, subject to an apportionment to be determined at trial. As I have already indicated, I do not believe that Marguerite’s and OCHC’s liability can be determined separately.
[15] Despite the agreement of the parties, I find that, on the record that is before me, the issues of whether Marguerite is liable to pay contribution or indemnity to OCHC and whether the Cretes’ action should be dismissed are not appropriately determined by summary judgment. These issues should be determined in conjunction with the issue of OCHC’s liability.
The issue
[16] The issue before me is whether Marguerite or OCHC was responsible for removing ice from the step where Daniel fell.
Marguerite’s position
[17] Marguerite admits that she was an occupier of her leased property under the OLA but argues that OCHC was responsible for winter maintenance at the property, which included clearing ice from the step where Daniel fell.
[18] Marguerite acknowledges that para. 6(d) of the lease she and her late husband signed in 1988 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.
[19] Marguerite concedes that para. 6(d) requires the tenant to remove snow from certain areas but argues that the provision is inconsistent with the Residential Tenancies Act, 2006, S.O. 2006, c. 17, and is therefore void. Marguerite’s argument is as follows:
- Section 20(1) of the RTA states that the 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.” Marguerite argues that the landlord’s obligation under s. 20(1) includes winter maintenance, which includes snow and ice removal.
- Section 4(1) of the RTA provides that a provision in a tenancy agreement that is inconsistent with the RTA or its regulations is void.
- Marguerite argues that para. 6(d) of the Cretes’ lease is void under s. 4(1) of the RTA, because it is inconsistent with s. 20(1) of the RTA, which requires the landlord to be responsible for winter maintenance.
- Marguerite relies heavily on Montgomery v. Van, 2009 ONCA 808, 256 O.A.C. 202. Marguerite argues that in Montgomery, the Court of Appeal held that, under s. 20 of the RTA, landlords are responsible for winter maintenance at residential complexes, and that while tenants may assume this responsibility, they may only do so by way of a contract that is severable from the lease. Marguerite argues that para. 6(d) of her lease is not a contract severable from the lease. Consequently, she argues, OCHC was responsible for winter maintenance at her property, which includes removing the ice from her front steps.
OCHC’s position
[20] OCHC relies on the lease Marguerite and her late husband signed to argue that Marguerite and her family were responsible for snow removal from the front door of their home to the main walkway, an area that would include the step where Daniel fell.
[21] Significantly, OCHC notes that for the 28 years before Daniel’s fall, and subsequently, Marguerite and her family, not OCHC, cleared snow and ice from the step where Daniel fell.
[22] OCHC says that, as the landlord, it was responsible for removing unsafe snow and ice accumulations from “common areas” in the residential complex, which are areas that could be used by all tenants. OCHC submits that the Cretes, as tenants, were responsible for clearing snow from the portions of the leased property of which they had exclusive use, which included the step where Daniel fell. OCHC says it has never cleared snow or ice from the exclusive use areas of the Cretes’ property.
[23] OCHC also refutes Marguerite’s argument that para. 6(d) of the lease contravenes the RTA. OCHC submits that snow and ice removal from these exclusive use (as opposed to common use) areas is the tenants’ responsibility under the tenant’s obligation to maintain the “ordinary cleanliness” of their rental unit under s. 33 of the RTA.
[24] Additionally, OCHC argues that it would be cost-prohibitive for community housing complexes to be responsible for snow and ice removal in all exclusive use areas.
Analysis
How should this court interpret the snow removal obligation in the lease?
[25] At the time of Daniel’s fall on March 26, 2017, Marguerite and Daniel were both OCHC’s tenants at the property where Daniel fell. Marguerite says that from February 1, 1989, until October 24, 2018, she, her now deceased husband, Daniel and André (another son) were all OCHC’s tenants at the property. Marguerite says she was not living at the property at the time of Daniel’s fall, but she was still listed as a tenant. Marguerite says that she and her husband had nonetheless cleared snow off the pathway and driveway that day and had put salt on the driveway.
[26] The relevant provision in the Cretes’ lease, para. 6(d) is titled “Snow Removal” and reads as follows:
(d) The Landlord is [ ] is not [X] responsible for snow removal from driveways [X] common laneways [ ]. In singles, doubles and row housing, the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways.
[27] The Rented Premises in the lease were identified as being 499 Marlin Private, Ottawa. Carport parking for one vehicle was included in the lease.
[28] As I noted in para. 1 of these reasons, the property is a row house.
[29] The lease provided that the landlord would keep the keep the Rented Premises fit for habitation, in a good state of repair and in compliance with all laws applicable to the operation of a residential rental project. It also provided that the tenant would keep the Rented Premises in a state of cleanliness.
[30] Although it was not her primary argument, Marguerite submitted that “snow removal” was not defined in the lease and that the lease did not indicate who was responsible for preventing ice from accumulating on the front step or driveway or who was responsible for spreading sand or salt in these areas.
[31] The principles in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, apply to the interpretation of the lease, which is a contract. At para. 47 of Sattva, Rothstein J. said that:
[T]he interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”. To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. [Citations omitted.]
[32] In my view, “snow removal” in para. 6(d) of the Cretes’ lease must be interpreted to apply to the removal of snow in all of its states, including snow, ice and slush. As Marguerite observed, there are no specific references to ice or ice removal in the lease. However, the parties would have been aware when they signed the lease that snow may harden into ice or soften into slush, depending on the temperature. It would be absurd, in my view, to conclude that the parties in this case had an intention other than that the party responsible for snow removal from an identified area of the leased property would also be responsible for ice removal.
[33] I am satisfied that the area identified in the lease from which the Cretes were required to remove snow (and ice and slush) included the front step where Daniel fell. As I have already indicated, the Cretes’ home was a row house and para. 6(d) of their lease provided that “in … row housing, the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways.”
[34] Marguerite included with her affidavit several exterior photographs of the front of the leased property. The photographs show the front door of the home and the step where Daniel fell. There is a carport and driveway to the right of the door. The driveway extends from the house to the street. A brick pathway the width of the front step extends for several metres, along the left side of the driveway, from the front step of the home toward the street, but not all the way to the street. A small lawn the same width as the pathway extends from the edge of the pathway that is farthest away from the home, along the left side of the driveway, to the street. A narrow strip of bricks, the width of the length of two bricks, runs along the right side of the lawn, separating the lawn from the driveway.
[35] There is no sidewalk, pedestrian pathway or walkway separating the Cretes’ property from the street. Pedestrians walking through the complex would be required to walk on the street. Given the configuration of the property, in my view, a reasonable interpretation of the obligation to remove snow from the front door to the main walkway would require the tenant to clear a path from the front door to the street, the street being the main walkway in that part of the complex. This area would include the step where Daniel fell. The lease does not require the tenant to remove snow from the driveway but makes it clear that the landlord will not do so.
[36] Although my interpretation does not turn on this, the parties always acted in a manner that is consistent with my interpretation of the snow removal obligations in the lease. Marguerite’s evidence was that she, her husband and her children took care of shovelling, putting salt on ice and keeping the driveway clear of snow and ice. Marguerite said that OCHC arranged for a box of salt to be available to tenants a few doors down from her property. She said that tenants were expected to retrieve salt from the box and spread the salt on their property themselves. The landlord did not remove snow or ice from any portion of the leased property. It is not in dispute that the Cretes removed both ice and snow from their front step and walkway for almost 30 years before Daniel’s fall.
Is the tenant’s obligation in the lease to remove snow void under s. 4(1) of the RTA?
[37] Marguerite argues that the landlord’s obligation under s. 20(1) of the RTA to maintain a residential complex and its units “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards” includes winter maintenance, which includes snow and ice removal. Marguerite argues that the tenant’s snow removal obligation in her lease is inconsistent with s. 20(1) of the RTA and therefore void under s. 4(1).
[38] OCHC argues that snow and ice removal from exclusive (as opposed to common) use areas of a residential complex is part of the tenant’s obligation to maintain the “ordinary cleanliness” of their rental unit under s. 33 of the RTA.
[39] In Montgomery, the case relied on by Marguerite, the Court of Appeal considered a regulation under the RTA’s predecessor legislation, the Tenant Protection Act, 1997, S.O. 1997, c. 24, which placed responsibility on the landlord to ensure that accumulations of ice and snow were removed from “exterior common areas”. The Court of Appeal quoted s. 26(1) of O. Reg. 198/98[^2] which provided as follows:
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:
- Unsafe accumulations of ice and snow. [Emphasis added.]
[40] In Montgomery, a tenant had sued her landlord for injuries she suffered when she slipped on ice on a walkway leading to her basement apartment. The landlord defended the action on the basis that the tenant’s lease provided that tenants were responsible for “keeping their walkway and stairway clean (including snow removal).” The landlord took the position that the tenant’s injury was due to her own negligence. The Court of Appeal found, at para. 13, that the provision in the lease that made tenants responsible for snow clearing was at odds with the regulation that required the landlord to be responsible for snow and ice removal from common areas: “The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks” (emphasis added).
[41] The Court said that to be effective, a clause that provides that a tenant is responsible for snow removal services must constitute a contractual obligation severable from the tenancy agreement. The contractual obligation must be capable of standing alone because the Act voids provisions of tenancy agreements that are inconsistent with the Act or its regulations.
[42] In Montgomery, the Court noted that the injured tenant lived in one of several basement apartments in a multi-unit residential complex and that the tenant’s lease did not set out specifically “what part of the complex’s common walkways” the tenant had agreed to keep clear of snow. The Court acknowledged that the tenant had slipped on a walkway that was “common”, therefore, a walkway to which the landlord’s obligation under s. 26(1) of O. Reg. 198/98, reproduced above, would apply.
[43] The Cretes’ lease requires the tenant to remove snow from “the front and back doors of the Rented Premises to the main walkways.”
[44] OCHC argues that “the front and back doors of the Rented Premises to the main walkways” describes an area over which the Cretes had exclusive use, and not an exterior common area. OCHC argues that the landlord’s obligation to remove unsafe accumulations of snow and ice from “exterior common areas” in s. 26(1) of Maintenance Standards, O. Reg. 517/06, formerly s. 26(1) of O. Reg. 198/98, has no application to areas over which a tenant has exclusive use.
[45] Marguerite argues that “exclusive use” areas are not defined in the lease or in the RTA. She says that s. 1 of the Maintenance Standards regulation says 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”. Marguerite argues that the front step, the walkway and the driveway on her leased property are “grounds for the use of tenants” and therefore exterior common areas to which s. 26(1) of the regulation applies.
[46] In para. 34, above, I described Marguerite’s photographs of the leased property. The photographs were taken in warm weather. There are flowers in hanging pots to the left of the front door and along the left side of the carport, over the pathway. There is a lawn ornament on the ground to the left of the front step and flowers in a planter in the corner of the pathway on the left side closest to the street. The pathway and part of the driveway have the appearance of an outdoor patio: three plastic outdoor chairs and a small table can be seen on the walkway/patio. There is a coffee cup on the front step.
[47] In an affidavit, OCHC’s senior manager of property management, Michelle Parisien, said the Cretes “had an exclusive use pathway from the front door to their exclusive use driveway (emphasis added).” Marguerite did not file any affidavit evidence in which she took issue with Ms. Parisien’s characterization of her pathway and driveway as being “exclusive use”.
[48] It is evident from Marguerite’s photographs that the front step and the short pathway in front of the Cretes’ home serve no purpose in common with other tenants in the residential complex. There would be no reason for tenants in the complex, other than the Cretes, to make use of the Cretes’ front step or pathway, unless they were visiting the Cretes. The pathway provides a link between the front door of the Cretes’ home and the “carport parking” which was specifically provided for in their lease and exclusive to them. The pathway does not lead anywhere else. To access the pathway and the front step, other tenants would be required to first walk up the driveway or across the small lawn.
[49] It is also evident from Marguerite’s photographs that the Cretes 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. I agree with OCHC’s counsel’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 Cretes’ home without an invitation, the Cretes would be of the view that the neighbours did not have the right to do so. I am satisfied that the front step and the pathway were areas used exclusively by the Cretes and were not common areas for the use of other tenants in the complex.
[50] For the purposes of these motions, it is immaterial that the term “exclusive use” is not defined in the Cretes’ lease or in the RTA. I am satisfied that the area from which the Cretes were required to remove snow, which included the step where Daniel fell, was not an area that could be characterized as either “grounds for the use of tenants” under s. 1 of the Maintenance Standards regulation or “exterior common areas” under s. 26(1) of the regulation.
[51] As I have concluded that the front step where Daniel fell 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 Maintenance Standards regulation had no application to the front step. The provision in the Cretes’ lease requiring them to remove snow from the front door to the main walkways is not, therefore, inconsistent with s. 26(1) of the regulation. Montgomery is distinguishable, as it dealt with a landlord’s responsibility for ensuring that accumulations of ice and snow were removed from external commons areas.
[52] Marguerite argues that even if the Cretes’ lease is found not to be inconsistent with s. 26(1) of the regulation, and Montgomery is found not to apply, the lease is nonetheless inconsistent with s. 20(1) of the RTA, which provides that landlords are 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.” Marguerite argues that this requirement includes snow and ice removal from the entire residential complex, not just the common areas.
[53] This court considered whether it is a landlord’s responsibility to remove snow and ice from rented residential premises in Estey v. Sannio Construction Co., [1998] O.J. No. 2984 (Gen. Div.). In Estey, the plaintiff had been injured when she slipped and fell on a driveway. The defendants were tenants who had leased the property on which the driveway was located and their landlord. The issue was whether the tenants or the landlord were responsible for maintaining/clearing ice and snow from the driveway. There was no written agreement between the landlord and the tenants.
[54] The governing legislation at the time was the Landlord and Tenant Act, R.S.O. 1990, c. L. 7. Sections 94(1) and (2) of the LTA read as follows:
94(1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.
94(2) The tenant is responsible for ordinary cleanliness of the rented premises, except to the extent that the tenancy agreement requires the landlord to clean them.
[55] The wording of s. 94(1) of the LTA is similar to the wording of s. 20(1) of the RTA. The wording of s. 94(2) of the LTA is similar to s. 33 of the RTA (although “rented premises” is now “rental units”).
[56] In Estey, Cavarzan J. concluded that “removal of snow and ice from residential premises does not come within the meaning of the term ‘repair’ in s. 94. Such activity falls logically within the meaning and intent of s. 94(2) which makes the tenant responsible for the ‘ordinary cleanliness of the rented premises, except to the extent that the tenancy agreement requires the landlord to clean them’.” Cavarzan J. said: “It is not the landlord’s responsibility to clear snow and ice on rented residential premises where there is no agreement which requires the landlord to do so. This is particularly the case where the uncontradicted evidence of the tenant is that she always cleared the snow and ice, and never regarded this to be a responsibility of the landlord.”
[57] In Perreault v. C/o Sentinel Management Inc., 2021 CanLII 148914, Ontario’s Landlord and Tenant Board, without reference to Estey, reached a similar conclusion to that of Cavarzan J. In Perreault, a tenant who had leased a house argued that her landlord had failed to comply with its maintenance obligations under s. 20(1) of the RTA by not clearing snow and ice. The tenant relied on Montgomery to argue that removal of snow and ice is always the landlord’s responsibility.
[58] The LTB Vice Chair found that, unlike the leased property in Montgomery, which was in a multi-unit building, the house leased by the tenant had no exterior common areas, only areas of exclusive use. The Vice Chair was of the view that the removal of snow and general lawn maintenance in exclusive use areas are properly characterized as ordinary cleanliness obligations, which are the tenant’s responsibility under s. 33 of the RTA, and not maintenance obligations, which are the landlord’s responsibility under s. 20 of the RTA. The Vice Chair concluded that the delegation of these ordinary cleanliness responsibilities to a tenant in a lease is not improper.
[59] The obligation of the landlord under s. 20(1) of the RTA is to maintain a residential complex in a “good state of repair”. In Anstruther-Gough-Calthorpe v. McOscar, [1924] 1 K.B. 716 (U.K.), at p. 734, Atkin L.J. stated that the obligation to keep a property in “good repair” “connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged.”
[60] Except over time, snow and ice do not typically cause damage to property which needs to be repaired or made good. Snow and ice are transitory, like autumn leaves that need to be raked or swept or mud that is tracked onto a floor that needs to be mopped up. I find the logic of Cavarzan J. in Estey and the LTB Vice Chair in Perreault to be persuasive. I agree that the removal of snow (which includes the removal of ice and slush) from the exclusive use areas of a residential complex falls within the meaning of s. 33 of the RTA, which makes the tenant responsible for the ordinary cleanliness of a rental unit[^3] and not under s. 20(1) of the RTA, the landlord’s responsibility for maintaining a residential complex and its units in a good state of repair.
Disposition
[61] For these reasons, I find that the Cretes’ lease, which imposed certain snow removal obligations on the tenants, was not inconsistent with the provisions of the RTA and that the snow removal obligations are not void under s. 4(1) of the RTA.
[62] Marguerite’s motion seeking dismissal of OCHC’s counterclaim is dismissed.
[63] Even if I had concluded that the snow removal provisions in the lease were void, I would not have dismissed the counterclaim against Marguerite because of the undisputed evidence that Marguerite and her family had been clearing the snow and ice from the area where Daniel fell since their lease began in the 1980s.
[64] OCHC’s motion is granted in part. I declare that the plaintiffs, not OCHC, were responsible for performing winter maintenance in the area where Daniel fell.
[65] OCHC also requested a declaration that the plaintiffs were occupiers of the property where Daniel fell. I believe that this was admitted by the plaintiffs; it was certainly admitted by Marguerite. In any event, I make this declaration in respect of both plaintiffs.
Costs
[66] OCHC said that if it was the successful party, it would not seek costs. OCHC was the successful party. There shall be no costs awarded in respect of either motion.
Justice H.J. Williams
Released: September 12, 2023
COURT FILE NO.: CV-19-79462
DATE: 2023/09/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DANIEL CRETE and MARGUERITE CRETE
Plaintiffs
and
OTTAWA COMMUNITY HOUSING CORPORATION / LA SOCIETE DE
LOGEMENT COMMUNAUTAIRE D’OTTAWA and JOHN DOE
Defendants
BEFORE: The Honourable Justice H.J. Williams
COUNSEL: Victoria L. Boddy, Lawyer for the Moving Party/Defendant to the Counterclaim, Marguerite Crete
Mitchell Kitagawa, Lawyer for the Defendant, Ottawa Community Housing Corporation/La Societe de Logement Communautaire d’Ottawa
HEARD: March 15, 2023, and July 11, 2023
REASONS FOR DECISION
Williams J.
Released: September 12, 2023
[^1]: In its statement of defence, OCHC denies that Daniel fell. Although throughout this decision, for the sake of word economy, I refer to Daniel having fallen rather than, for example, Daniel allegedly having fallen, I am not making a finding that Daniel fell.
[^2]: This regulation is now Maintenance Standards, O. Reg. 517/06, but the wording of s. 26(1) remains uncharged.
[^3]: The definition of “rental unit” in s. 2(1) of the RTA includes any living accommodation used or intended for use as rented residential premises. That “rental unit” is not restricted to the interior of residential premises is evident, because the definition in s. 2(1) includes a site for a mobile home or a site on which there is a land lease home used or intended for use as rented residential premises. The Cretes’ lease says that carport parking for one vehicle is included. I am satisfied that the area from the front door of the Cretes’ home to the main walkway, which was the area from which the Cretes’ lease required them to remove snow, includes the front step and the pathway to the carport parking. I am also satisfied that the area from the front door of the home to the carport parking, carport parking having been specifically mentioned in the lease, is properly considered to be part of the rental unit for purposes of s. 33 of the RTA.