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    The Residential Tenancies Act (the RTA)

    The Residential Tenancies Act (the RTA) provides for a wide range of remedies for tenants when a landlord fails to comply with its responsibilities as established by the RTA. For example, landlords have a responsibility to maintain a residential dwelling in a good state of repair. If it is found that a landlord failed to meet this obligation, the tenant may be entitled to an abatement in rent, among other remedies.

    When a dwelling requires repair and a landlord makes a genuine effort to effect the repair, however runs into difficulty, will the landlord be found to be in breach of its obligation under the RTA? The Ontario Court of Appeal has recently addressed this question. The answer is, not necessarily.

    The Ontario Court of Appeal, in, Onyskiw v. CJM Property Management Ltd., recently decided that a landlord who acted diligently in efforts to maintain the dwelling may not be found to have failed to comply with the landlord’s duty to maintain under the RTA.

    In this case, the elevator in a six-storey apartment building was being properly maintained until it broke down as a result of a defect. Due to the nature of the defect, the elevator had to be replaced. When the elevator broke down, the landlord attempted to keep the elevator running while it took steps to replace it. Ultimately, the elevator was out of service for 96 days within a one year period. It is noteworthy that during the period that the elevator was not working and being repaired, there was a province-wide elevator technician strike, resulting in a delay to the repairs. The landlord also attempted to keep the tenants updated about service interruptions, however several interruptions were unplanned so this was not always possible.

    The tenants of the building brought an application before the Landlord and Tenant Board (the LTB) for a rent abatement based on the allegation that the landlord failed in its duty to maintain the elevator. The LTB dismissed the application and held that the landlord responded to these circumstances in the best way it could have, and the interference and inconvenience caused to the tenants was reasonable in the circumstances. The board also found that the landlord took reasonable steps to keep the tenants informed, to provide them with assistance while the elevator was not working and to ensure staff was ready to assist tenants, occupants and guests, to reduce any hardship resulting from the interruption in service. Accordingly, no rent abatement was awarded as the landlord was found to have rectified the maintenance problems fully, effectively, and in a reasonable timeframe, given the challenges that it faced.

    The tenants appealed to the Ontario Court of Appeal and the decision of the LTB was upheld. The Ontario Court of Appeal held that the a landlord is not automatically in breach of its obligation to repair and maintain under the RTA as soon as an interruption in service occurs. In other words, the landlord is not in breach simply because it is unable to provide a service.

    Based on this case, the reasonableness of the landlord’s maintenance and repair efforts will be considered when a court is determining whether landlord has breached its duty under the RTA. In this particular case, the factors that the court took into consideration in coming to the finding that there was no breach were that the elevator was defective, there were difficulties in obtaining replacement parts, the province-wide strike, and the length of time it took to install the new elevator and that the landlord acted reasonably in trying to help the tenants deal with the absence of service.

    It is important to note that this case does not create a requirement that a tenant must prove that the landlord acted unreasonably before a breach of a landlord obligation can be found. Rather, this case provides that the court will consider the entirety of the facts before it determines whether a landlord has breached its obligations.

    The tenants’ request to appeal this case to the Supreme Court of Canada was denied. Accordingly, the Ontario Court of Appeal decision is the current law.

    The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.

    Noah Potechin

    Posted By: Noah Potechin (Of Counsel) of Merovitz Potechin LLP

    Of Counsel