Delegating Maintenance Obligations:

Question:How do professional property maintenance services help reduce a landlord’s legal risk in Ontario?

Answer:Hiring professional property maintenance services helps landlords meet their statutory duty to keep a rental complex in good repair and fit for habitation under Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 20(1)   and manage safety risks for tenants and visitors under Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3(1). When a landlord responsibly entrusts work to a competent independent contractor, the landlord may strengthen liability defences tied to negligence by independent contractors under Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 6(1). For landlord-tenant maintenance issues, contractor outsourcing questions, and bilingual guidance in English and français across Ontario, Thamar Bilingual Legal Services Ontario can help, call (647) 818-7974.

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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:

Note: Please contact Thamar Bilingual Legal Services Ontario by phone at: (647) 818-7974 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.