Montgomery v. Van, (2009) 256 O.A.C. 202 (CA)

• Judge: Laskin, Juriansz and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 29, 2009
• Jurisdiction: Ontario
• Citations: (2009), 256 O.A.C. 202 (CA);2009 ONCA 808

Montgomery v. Van (2009), 256 O.A.C. 202 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. NO.073

Lindsay Montgomery (plaintiff/appellant) v. Duc Van (defendant/respondent)

(C49935; 2009 ONCA 808)

Indexed As: Montgomery v. Van

Ontario Court of Appeal

Laskin, Juriansz and Rouleau, JJ.A.

November 16, 2009.

Summary:

In 2003, Montgomery slipped on ice on the walkway leading to her basement apartment and suffered injuries. She sued Van, the landlord. Van pled that the tenancy agreement provided that "Tenants are responsible for keeping their walkway and stairway clean (including snow removal)" and that Montgomery's injuries were due to her own negligence. Van brought a motion for the determination of whether this provision was void because it was inconsistent with the Tenant Protection Act. Montgomery brought a cross-motion to strike the paragraphs of Van's defence relying on the provision.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. 158, held that the legislation did not prohibit the landlord from contracting with a tenant to perform snow removal tasks. Montgomery's cross-motion was denied. Montgomery appealed.

The Ontario Court of Appeal allowed the appeal. The provision was void for inconsistency with the Act. The paragraphs of Van's defence that relied on the provision were struck.

Contracts - Topic 2721

Consideration - Necessity for - General - [See Landlord and Tenant - Topic 2283 ].

Contracts - Topic 5643

Unenforceable contracts - Uncertainty and vagueness - Uncertainty - [See Landlord and Tenant - Topic 2283 ].

Landlord and Tenant - Topic 2283

The lease - Statutory terms - Contracting out of - In 2003, Montgomery slipped on ice on the walkway leading to her basement apartment and suffered injuries - She sued Van, the landlord - Van pled that the tenancy agreement provided that "Tenants are responsible for keeping their walkway and stairway clean (including snow removal)" and that Montgomery's injuries were due to her own negligence - Van brought a motion for the determination of whether this provision was void because it was inconsistent with the Tenant Protection Act - Montgomery brought a cross-motion to strike the paragraphs of Van's defence relying on the provision - Under s. 16 of the Act, a provision in a tenancy agreement that was inconsistent with the Act or the Regulations was void - The combined effect of ss. 2(2) and 26(1) of the Maintenance Standards regulation made the landlord responsible for ensuring that common areas were free from unsafe accumulations of ice and snow - The motions judge held that the legislation did not prohibit the landlord from contracting with a tenant to perform snow removal tasks - The Ontario Court of Appeal allowed Montgomery's appeal - In order to be effective, a clause that stated that a tenant would provide snow removal services had to constitute a contractual obligation that was severable from the tenancy agreement - The legislation clearly made the landlord responsible for keeping walkways free of snow and ice - Under s. 16, a provision in a tenancy agreement that was inconsistent with that was void - Therefore, it could not be a term of a tenancy agreement that the tenant was to complete snow removal tasks - Here, the provision was inextricable from the tenancy agreement - There was no definite consideration for the task that was separate from the provision of premises - Further, the provision was too indefinite to create an autonomous contract for services - The individual tenant's task was not defined clearly enough - The provision was void for inconsistency with the Act - The paragraphs of Van's defence that relied on the provision were struck.

Landlord and Tenant - Topic 2354.3

The lease - Terms - Respecting snow and ice removal - [See Landlord and Tenant - Topic 2283 ].

Statutes Noticed:

Maintenance Standards Regulation - see Tenant Protection Act Regulations (Ont.).

Tenant Protection Act, S.O. 1997, c. 24, sect. 16 [para. 5].

Tenant Protection Act Regulations (Ont.), Maintenance Standards Regulation, Reg. 198/98, sect. 2(2), sect. 26(1) [para. 8].

Counsel:

Derrick M. Fulton and Kyle T.H. Smith, for the appellant;

Alan L. Rachlin, for the respondent.

This appeal was heard on June 29, 2009, by Laskin, Juriansz and Rouleau, JJ.A., of the Ontario Court of Appeal. On November 16, 2009, Juriansz, J.A., delivered the following judgment for the court.