Can a Landlord Be Liable For Injuries Caused By Poor Maintenance If the Maintenance Was Outsourced?
As Owner of the Premises a Landlord Holds the Care and Control For the Maintenance of the Premises and May Be Liable For Negligent Maintenance. If Maintenance Is Responsibly Outsourced to a Qualified Contractor the Landlord May Avoid or Reduce Liability.
A Helpful Guide For How to Determine and Understand the 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:
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
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:
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
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:
6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
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.
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.