Clearing the Ice

As good as November has been to us here in Toronto, things will inevitably take a turn for the worse (I don’t ski), usually in the forms of snow and ice. And that, in turn, has us soon thinking of another aspect of Winter Law: the matter of slippery stuff on the sidewalk and the potential it creates for slips and falls.

In Toronto, if you occupy a house, you’re required under a by-law [PDF] to clear the snow and ice from the sidewalks beside the house “within 12 hours after any fall of snow, rain or hail has ceased . . .” I’ve mused from time to time about the legitimacy of this forced labour provision, because, after all, the sidewalk isn’t my land in any sense; I suppose that the argument is that it’s a form of municipal taxation, given that I could fail to do my duty, and let the city clear the walkway and then recover the cost from me; though this doesn’t quite answer, since there’s a fine for failing to clear the ice.

Luckier, then, are those who rent apartments. Under the Tenant Protection Act, 1997, S.O. 1997, c. 24[1] and associated regulations, landlords have the duty to remove “unsafe accumulations of ice and snow” from exterior common areas. Business being what it is, landlords will sometimes try to pass their burdens off to their tenants. The Ontario Court of Appeal has just released a decision on whether and when a landlord may do this with respect to the obligation to clear snow and ice.

In Montgomery v. Van, 2009 ONCA 808 (CanLII), the lease contained a term stating, “Tenants are responsible for keeping their walkway and stairway clean (including snow removal).” The tenant slipped and fell, injuring himself; he sued the landlord for negligence. As a preliminary issue, the validity of the snow and ice provision placing the duty on the tenant was challenged, the argument being that provisions in a lease that are “inconsistent” with the Act are void.

Interestingly, the Court found that it would be possible for a landlord to contract with a tenant for the tenant to assume the task of clearing the ice and snow from common areas; however, any such obligation would have to arise from “an autonomous contract for services.” In this case the provision in question was embedded in the lease, involved no separate or distinct consideration, and could not be severed.

To my mind, the case leaves some doubt about the degree to which landlords may by using a separate contract in effect avoid their other duties under the Act. I suppose that if the obligation-shifting deal is sufficiently “separate,” the tenant is at least alerted to the burden. But awareness on the part of the tenant shouldn’t be enough to allow this Act to be modified by contract.

Comments

  1. What? You couldn’t find anything better to do than read recent ONCA cases?

    You’re right, though. The result of the decision is open to abuse and I expect we’ll see landlords whose tenants aren’t in a position to negotiate trying to use it.

    The ONCA wrote:

    “[14] This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.”

    If we take the ONCA’s words at face value, the consideration flowing from landlord to tenant under the separate contract will have to be something to which the tenant isn’t entitled to under the lease of the premises. But if that’s all it is, it wouldn’t have to be very much. For example, it could be “free” use of the building’s gym facilities, made available only to tenants who have a key and otherwise pay an extra amount.

    In some cases, one might be able to fairly ask how voluntary the tenant’s agreement was to the second contract.

    Will we see cases in which the second contract is described as a contract of adhesion and subject to whatever might be the special requirements for interpretation of those sections?

    Did the ONCA really intend that trial judges have to get involved in fine distinctions as to the validity and interpretation of the second contract?

    It’s probably safe to assume that the trial judges will require that the second contract be specific about the obligations the tenant is assuming and the consequences of a breach of those obligations, including that the tenant is giving up his/her right to sue the landlord for any injury resulting from the tenant’s failure to maintain, whether or not the landlord also failed to maintain, and similarly to indemnify the landlord for any liability the landlord might have to others resulting from etc. … (There’s lots of law already about how specific these sorts of waivers of causes of action, or assumption of liability, have to have.)

    I suspect we’ll see some modifications to the provision, perhaps to deal separately with rentals where the “exterior common area” in question is essentially used only by the particular tenant and others for access to that unit, rather than an area which is multi-purpose. At present, the regulation provides that “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”.

    The ONCA reasons indicate the area in Montgomery provided access to a basement apartment. I can’t tell from the reasons – and didn’t look at the trial decision – to see whether the area was essentially just for access to the unit or more of a general thoroughfare.

    More work for the solicitor and litigator branches of the profession. Some of us should thank the ONCA. And the Legislature, of course.

    DC

  2. Simon says:

    In Toronto, if you occupy a house, you’re required under a by-law [PDF] to clear the snow and ice from the sidewalks beside the house “within 12 hours after any fall of snow, rain or hail has ceased . . .” I’ve mused from time to time about the legitimacy of this forced labour provision, because, after all, the sidewalk isn’t my land in any sense; I suppose that the argument is that it’s a form of municipal taxation, given that I could fail to do my duty, and let the city clear the walkway and then recover the cost from me; though this doesn’t quite answer, since there’s a fine for failing to clear the ice.

    The concept of “statute labour” is not at all a recent innovation, and it has indeed been characterized as a form of municipal taxation.

    Section 3 of the Statute Labour Act, R.S.O. 1990, c. S.20 even now provides:

    Every person assessed upon the assessment roll of a township that has not passed a by-law abolishing statute labour is, if his or her property is assessed at not more than $300, liable to two days statute labour; at more than $300 but not more than $500, three days; at more than $500 but not more than $700, four days; at more than $700 but not more than $900, five days; and for every $300 over $900, or any fractional part thereof over $150, one additional day; but the council may, by a by-law operating generally and rateable, reduce or increase the number of days labour to which all the persons rated on the assessment roll or otherwise, shall be respectively liable so that the number of days labour to which each person is liable shall be in proportion to the amount at which he or she is assessed, and in all cases both of residents and non-residents the statute labour shall be rated and charged against every separate lot or parcel according to its assessed value.

    Unfortunately, the relevant volume doesn’t seem to be available yet on Early Canadiana Online [search for “9_10042”], and I haven’t bothered to check the microfilm, but page 25 of CIHM 9_00972 [available on ECO] suggests that the first such legislation in the province was 33 Geo. III, c. 4 (1793).

  3. I have a lot more sympathy for the landlord here – both in the effort to get the tenant to look after the place a bit, and especially in resisting a lawsuit for an injury that the tenant could have avoided more readily than the landlord could have.

    I am not thinking of a highrise, or of a flat in a house that the landlord also occupies, but consider a rental of a house or of one of a couple of units of the house. Presumably the rent can reflect that the tenant is expected to keep the place a bit orderly. It takes a particularly nervy or self-righteous tenant to sue in those circumstances, anyway, and I’m rather sorry to see that the tenant won.

  4. Where is the part about calling in the military when there is a snow storm in Toronto?

  5. Landlords aren’t allowed to have recourse to the military to do their civic duty ,or their duty to their tenants.

    I wonder how many places in Canada could have dealt with getting their average annual snowfall in the space of about a week? And since Toronto doesn’t put the salty stuff into the lake any more, one quickly runs out of somewhere to put it.

  6. Gary P. Rodrigues

    Many years ago, when I lived in the Annapolis Valley, we shovelled what seemed like mountains of snow in the winter, in order to provide access to Nova Scotia highways from private property. We were not expected to clear the highways themselves but we knew that we might have to do it in appropriate circumstances. Shovelling snow was great fun and great exercise. Every male person that I knew joined in with a positive attitude.

    I thought it was a good law at the time and still do.