Delegating Maintenance Obligations:

Question:When a tenant or guest is injured due to unsafe property maintenance, can a landlord reduce liability by hiring professional contractors in Ontario?

Answer:Yes. Under Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 20(1), landlords must keep a rental complex in a good state of repair and fit for habitation and meet health, safety, housing, and maintenance standards, and they can delegate the work to qualified contractors while still holding overall responsibility for making sure it gets done.   Separately, the landlord also owes a reasonable safety duty as an occupier under Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3(1), so professional property maintenance helps reduce the risk of negligence-based injury claims.   If the damage is caused by an independent contractor’s negligence, the landlord may be protected under Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 6(1) when the landlord acted reasonably in selecting a competent contractor and the work should reasonably have been undertaken by that contractor.   For guidance on how your maintenance records, contractor qualifications, and delegation arrangements affect liability, contact Hall Paralegal Services at (519) 258-2400 in Ontario.

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Benefits of Hiring Professional Property Maintenance Services

By law, it is the landlord that is legally required to provide various property maintenance services, among other things, to the tenant; however, the landlord is also legally free to hire a contractor as a service provider engaged for the purpose of performing the maintenance duties as statutorily prescribed per section 20 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 which says:

Note: Please contact Hall Paralegal Services by phone at: (519) 258-2400 to discuss any specific questions that you may have.

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.