Delegating Maintenance Obligations:

Question: When you’re a landlord in Ontario, how can professional property maintenance services help reduce legal risk and injury liability while meeting your duties under the Residential Tenancies Act, 2006?

Answer: Lippa Legal Services can help landlords in Ontario understand why property maintenance should be performed in a good state of repair and why hiring qualified paralegal and contractors matters for safety and liability management under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 and the Occupier's Liability Act, R.S.O. 1990, c. O.2. By outsourcing tasks like snow clearing, lawn care, and other health and safety maintenance to properly qualified providers, landlords keep statutory maintenance obligations on track while improving their chances of having a reasonable-contractor due diligence defence under Occupier's Liability Act, R.S.O. 1990, c. O.2, including section 6(1).   If you need help reviewing how maintenance duties, delegation, and documentation should be handled for your property, call (416) 241-4529 to discuss your situation with Lippa Legal Services.

Benefits of Hiring Professional Property Maintenance Services

Among many other things, the law requires that a landlord provide property maintenance services to tenants; however, with this said, the law allows the landlord to outsource such work to qualified contractors and service providers the actual performance of the various maintenance responsibilities that are mandated by section 20 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 which states:

Accordingly, concerns such as mowing the lawn, plowing the snow, salting the ice, among other things, are duties for which the landlord is responsible to perform on behalf of the tenant.  Of course, while the maintenance is statutorily stated as the responsibility of the landlord, the performance of the maintenance may be delegated to others.  Simply said, while the landlord holds the responsibility to make sure the maintenance gets done, the law allows the landlord to outsource the maintenance rather than the landlord needing to perform hands-on.  This is somewhat plain and obvious as a landlord would surely be personally unqualified to perform every maintenance duty that may arise (eg. plumbing, electrical, roofing, structural repairs, pest control, etc.).

In addition to the section 20 of the Residential Tenancies Act, 2006 requirement that the landlord be responsible for ensuring that maintenance work gets done, per the Occupier's Liability Act, R.S.O. 1990, c. O.2, the landlord also holds duties to ensure that the premises are reasonably safe for all persons, other than trespassers, while upon the premises.  Accordingly, the landlord is both responsible to ensure that the work is done and the landlord is potentially liable if the work is done unreasonably and an injury results.  Specifically, the Occupier's Liability Act states:

As an "occupier", per section 1 of the Occupier's Liability Act, and the duty prescribed in section 3 as above, a landlord must act reasonably in the performance of maintenance to ensure that persons, including the tenant but also guests of the tenant as well as strangers to the premises such as delivery persons, neighbours, etc., are reasonably safe.  Furthermore, when the landlord diligently hires a contractor to perform services for which the contractor is adequately qualified to perform, the landlord may become protected from liability should the contractor fail to fulfill the Occupier's Liability Act obligations as delegated to the contractor by the landlord.  This protection is provided by section 6 of of the Occupier's Liability Act which says:

With the above said, it is an obvious concern that the section 6 protection is likely unavailable where the landlord hires an unqualified contractor, such as the tenant, whereas the landlord may use a separate contract or clauses severable from a lease so to hire the tenant to perform the maintenance.  While there are ways to legally hire the tenant, and thereby delegate the performance of maintenance to the tenant, the downside to the landlord is the loss of the protection provided within section 6 of the Occupier's Liability Act.  Of course, if the tenant is genuinely a qualified contractor, the section 6 protection may be in place.  Even more simply said, when a landlord hires a genuinely qualified contractor, the landlord is better protected from potential liability if a person is injured upon the premises due to a maintenance concern.

Conclusion

A landlord is both responsible to ensure that maintenance is performed as well as potentially liable for injuries if a person is injured upon the premises due to poor maintenance.  A landlord may find certain liability defence avenues available when the landlord reasonably outsourced the property maintenance services to a properly qualified contractor.