Agent of the Landlord (General)

From Caselaw.Ninja


Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act, ...

“landlord” includes,
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household. 2006, c. 17, s. 22.

29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20 (1) or section 161.
2. An order determining that the landlord, superintendent or agent of the landlord has withheld the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfered with the reasonable supply of any vital service, care service or food.
3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.
4. An order determining that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the rental unit.
5. An order determining that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.
6. An order determining that the landlord, superintendent or agent of the landlord has illegally entered the rental unit. 2006, c. 17, s. 29 (1).

...

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;
(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,
(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and
(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;
(c) order an abatement of rent;
(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;
(e) order that the tenancy be terminated;
(f) make any other order that it considers appropriate. 2006, c. 17, s. 31 (1).
(2) If in an application under any of paragraphs 2 to 6 of subsection 29 (1) it is determined that the tenant was induced by the conduct of the landlord, the superintendent or an agent of the landlord to vacate the rental unit, the Board may, in addition to the remedies set out in subsection (1), order that the landlord pay a specified sum to the tenant for,
(a) all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit; and
(b) reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur. 2006, c. 17, s. 31 (2).
(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else. 2006, c. 17, s. 31 (3).
(4) An order under subsection (3) shall have the same effect, and shall be enforced in the same manner, as a writ of possession. 2006, c. 17, s. 31 (4).
(5) An order under subsection (3) expires,
(a) at the end of the 15th day after the day it is issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located; or
(b) at the end of the 45th day after the day it is issued if it is filed in the manner described in clause (a). 2006, c. 17, s. 31 (5).

[1]

TET-64613-15-RV (Re), 2017 CanLII 48853 (ON LTB)[2]

27. But I also agree with the Tenants that the task before the Board was not to determine whether or not the contractor was the Landlord’s agent at common law; rather, the task was to determine whether or not the Landlord was responsible for the contractor’s default under the Act. In other words, was the contractor an agent of the Landlord’s for the purposes of s. 29(1)3? That is a statutory interpretation exercise. Although the common law usage of a word may be what the Legislature intended when it used the word “agent” in s. 29(1)3, it does not necessarily follow. The word agent can have many meanings. (See: Town of Timmins v. Brewers’ Warehousing Co. Ltd., 1962 CanLII 188 (ON CA)[3].) So the Board Member here was required to do a more nuanced and purposive analysis of the provision than simply accept the Legislature intended the word “agent” to be the same as the common law meaning.

28. The conclusion of the Member on this issue is found at paragraphs 26 through 28 of the order under review which say in part:

26. The legal obligation to perform the work in accordance with the Act rests solely with the Landlord, not a third party or independent contractor. The landlord can either meet this obligation by doing the work itself or retaining an agent to perform the work. If the Landlord did the work itself, there is no doubt that it would be subject to s.8 and could be held liable if the interference caused by the work was unreasonable in the circumstances. To suggest that if the Landlord instead hires a contractor to perform the work s.8 is of no applicability because the Landlord cannot be held responsible for the substantial interference caused by their contractor would be an absurd result. As virtually all landlords hire contractors to perform significant maintenance and repair projects, this interpretation would render s. 8 virtually meaningless as the Tenants cannot pursue the contractor directly.
27. I further find to make the statement that the Contractor is not an agent of the Landlord because the Landlord does not exercise control over the Contractor is factually incorrect. The Landlord entered into a contract with the Contractor and pays the Contractor directly. The Landlord could have sued the contractor for improper work done or work not done in time.
28. Thus, the Contractor is an agent of the Landlord as defined in the Act…

29. To put it in my own terms what the Member essentially decided was that a landlord cannot avoid legal liability for its obligations under the Act by contracting out those obligations to a third party. A landlord is responsible to its tenants for maintenance and repair and not its contractor. Tenants have no privity of contract with the contractor and cannot seek a remedy against it for the impact on them of the contractor’s defaults. To find that a landlord is responsible for poor or slow work done by an employee of a landlord but not a contractor would be an absurd result.

...

43. In that case the landlord had contracted with a sub-metering company to install suite meters and tenants then contracted separately with the sub-metering company for the provision of electricity. The tenants sought to recover from the landlord payments made to the sub-metering company that they argued were illegal. The Board found that the sub-metering company was not the landlord’s agent and therefore not properly a party before the Board. This result was upheld by the Divisional Court. (See: Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Second Ave., 2012 ONSC 6733, at para. 7.[4])

44. So the Gonte situation is not analogous to the situation here either. The tenants in Gonte had contracts with the sub-metering company independent of the landlord and presumably could sue on those contracts in the case of breach or illegality.

45. Given the above, I am not satisfied that the Board seriously erred in how it handled the interpretation of the word “agent” in s. 29(1)3 given the context and circumstances before it.

[2] [3] [4]

Fitkid (York) Inc. v. 1277633 Ontario Ltd., 2002 CanLII 9520 (ON SC)[5]

[39] This is not a case where Living Properties is alleged to have caused damage to the property of the plaintiff, as in London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299[6]. There, employees were held to owe a duty of care to their employer’s customer when dealing with the customer’s property. Here, the allegation is that Living Properties was negligent in the administration and termination of the lease, causing economic loss to the plaintiff.

[40] In my view, even if it was reasonably foreseeable that the wrongful termination of the lease would harm the plaintiff’s business, Living Properties was not in a sufficiently proximate relationship with the plaintiff so as to give rise to a duty of care in the administration of the lease. Living Properties was at all times the agent of the landlord in the management of the leased property. It operated under a management agreement which set out its duties and made it the exclusive agent of the landlord. Essentially, it was responsible for the day to day administration of the building, the collection of rents, and the payment of expenses. A detailed list of its duties is found in paragraph 5. Clearly, it was to act in the landlord’s interests in the administration of the lease - for example, in collecting rents and dealing with tenant complaints and problems and enforcing rules. As well, Living Properties acted on the instructions of the landlord, especially where the landlord decided to terminate a tenancy.

[41] While Mr. Vucenovic stated that he had a duty to be fair to the tenants, that does not translate into a legal duty of care. This is not a case where a tenant like Fitkid acted in reliance on statements by Living Properties. Nor could Fitkid reasonably expect Living Properties to be acting in its interests in administering the lease, given the contractual relationship between Living Properties and the landlord. In my view, there was no duty of care owed to the tenant by the landlord’s property manager in the administration of the lease, given the lack of proximity between the tenant and Living Properties.

[5] [6]

TST-64055-15 (Re), 2015 CanLII 77845 (ON LTB)[7]

6. I would observe at this point that the Landlords’ agent clearly believed the Landlords were not responsible for the bed bug problem from the very beginning. The Landlords’ agent told the Tenant it was his problem to deal with so it was actually the Tenant who called the condominium corporation.

7. The Landlords also seek to rely on the fact that the condominium corporation took the position that under the corporation’s rules it was responsible for dealing with pest control eradication. This fact also does not assist the Landlords; rather all it means is that when the condominium corporation addressed the pest control issue it did so as the Landlords’ agent.

8. As indicated above, under the Act the landlord is legally responsible for maintenance and repairs; but the landlord does not have to physically do those duties. The condominium rules may mean the condominium corporation is physically responsible for carrying out pest control duties and legally responsible to the Landlords for doing them but that does not shift legal responsibility with respect to the Tenant from the Landlords to the condominium corporation. The relationship between the Landlords and the condominium corporation may be a legal relationship but it is not one the Tenant is a party to. If the Landlords are unhappy with the way the condominium corporation dealt with the situation they may have some sort of recourse against it; but that is not relevant to the Tenant’s application under the Act.

[7]

References

  1. Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17>, reterived 2021-03-17
  2. 2.0 2.1 TET-64613-15-RV (Re), 2017 CanLII 48853 (ON LTB), <https://canlii.ca/t/h539s>, retrieved on 2021-03-30
  3. 3.0 3.1 Town of Timmins v. Brewers' Warehousing Co. Ltd., 1962 CanLII 188 (ON CA), <https://canlii.ca/t/g18gl>, retrieved on 2021-03-30
  4. 4.0 4.1 Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave., 2012 ONSC 6733 (CanLII), <https://canlii.ca/t/fv38h>, retrieved on 2021-03-30
  5. 5.0 5.1 Fitkid (York) Inc. v. 1277633 Ontario Ltd., 2002 CanLII 9520 (ON SC), <https://canlii.ca/t/1cl1g>, retrieved on 2021-04-12
  6. 6.0 6.1 London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 SCR 299, <https://canlii.ca/t/1fs8w>, retrieved on 2021-04-12
  7. 7.0 7.1 TST-64055-15 (Re), 2015 CanLII 77845 (ON LTB), <https://canlii.ca/t/gm94f>, retrieved on 2021-04-13