Delegating Maintenance Obligations:

Question:How does hiring a qualified property maintenance contractor help landlords reduce liability in Ontario?

Answer:In Ontario, a landlord must maintain the residential complex in a good state of repair under Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 20(1) and also take reasonable care to keep the premises reasonably safe under Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3(1).nbsp; When the landlord hires an independent contractor who is competent and the work is properly entrusted and performed, the landlord may reduce exposure to injury claims, because Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 6(1) can help protect the occupier if negligence was caused by the contractor.nbsp; If you’re a landlord or property manager in Ontario and want help drafting or reviewing a maintenance approach that reduces risk, 'Byfield Legal Services' can guide you.nbsp; Call '(289) 927-7365' to discuss your situation with a paralegal and take practical next steps.

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Benefits of Hiring Professional Property Maintenance Services

A landlord is free to engage a contractor as an outsourced services supplier hired to perform the maintenance work that is statutorily prescribed as a duty of the landlord per section 20 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 and the extensive case law on the issue.  Specifically, the Residential Tenancies Act, 2006, says:

Note: Please contact Byfield Legal Services by phone at: (289) 927-7365 to discuss any specific questions that you may have.

As above, per the Residential Tenancies Act, 2006, exterior maintenance of the rental complex such as tree care, lawn mowing, snow plowing, ice salting, among many other things, as well as interior maintenance of rental units, such as repairs to plumbing, electrical, windows, doors, and even reasonably necessary painting, are legally the responsibility of the landlord. With this said, and although maintenance responsibilities are statutorily mandated upon the landlord, a landlord is permitted to delegate tasks to contractors, among other service providers. Indeed, it is common sense that although the landlord is responsible to ensure that maintenance is performed, the landlord may hire others to perform that maintenance. The right to outsource maintenance is obviously necessary as undoubtedly a landlord is personally unqualified and unequipped to perform each and every task that may be required such as snow plowing, plumbing repairs, electrical work, 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.