In this recent case the court held that a residential landlord was precluded from relying on a waiver of liability provision in the residential lease as a defence to a lawsuit brought by their tenant for personal injury damages arising from a slip and fall on the rented premises.
The result is not surprising, because “the law is long established that landlords cannot escape by waiver, disclaimer, or exculpatory provision in the residential lease their statutory duties to maintain the repair and safety of their residential premises.”
This outcome has support both in statutory law, as well as common law. The applicable statutory provisions are sections 3(1), 20(1) of the Residential Tenancies Act, 2006, section 26 (1) of Ont. Reg. 517/06 (Maintenance Standards) enacted pursuant to the Residential Tenancies Act, 2006 , and sections 8 and 9(1) of the Occupiers’ Liability Act. The supportive case law includes: Taylor v. Allen, 2010 ONCA 596, Montgomery v. Van, 2009 ONCA 808, Caldwell v. Valiant Property Management (1997), 1997 CanLII 12127 (ON SC), 33 O.R. (3d) 187 (Gen. Div.), Phillips v. Dis-Management (1995), 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 (Gen. Div.), Fleischman v. Grossman Holdings Ltd. (1976), 1976 CanLII 673 (ON CA), 16 O.R. (2d) 746 (C.A.), and Cunningham v. Moore, 1972 CanLII 579 (ON SC), [1973] 1 O.R. 357 (H.C.J.).
The bottom line is that residential landlords cannot contract out of their duty to maintain and repair the rental property, and any such waivers, disclaimers, or exculpatory provision contained within the lease are unenforceable.
Lewis v. 3414493 Canada Inc., 2022 ONSC 2769
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2769/2022onsc2769.html