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 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.