Wednesday, 26 December 2012

Have you been hurt on your landlord's property?

Due to carelessness, negligence, or sometimes simple misfortune, people get hurt through accidents on apartment properties.  The injuries may arise from dog bites (dogs owned by other tenants), slip and falls due to ice or snow, trips or falls caused by crumbling concrete, steps or walkways, or even injuries inside rental units due to neglect and lack of repair.  If you or someone you know has suffered an injury inside a rental apartment or house--what can you do?

The fact is that both a tenant and a landlord may be liable in tort for the injuries sustained by a guest.  What is sometimes less clear is that a landlord may be liable for the injuries sustained by a tenant of that landlord if the injury is caused by the landlord's negligence or neglect.  A landlord does not have any special protection from being sued simply by being in a landlord and tenant relationship---regardless of what the lease says!

Given the serious consequences of suffering a personal injury (pain and suffering, loss of income, loss of future income, loss of earning capacity, special expenses including medical and medical assistive devices) it is important to explore all sources of compensation to help the injury victim get through the ordeal.  

My law-firm, located in Ottawa, Ontario, is considered a leading boutique personal injury law firm.  This label "boutique" means that personal injury work is the primary focus of the firm.   We currently have eight lawyers in the firm focusing exclusively on personal injury claims.   Needing a personal injury lawyer in Ontario is actually less stressful than needing any other kind of lawyer from a financial perspective.  Almost all personal injury matters are handled on a "don't pay unless you win basis" meaning there is no risk of having to pay us for services unless you win or settle your claim.  Accordingly, it is worthwhile to get an opinion about injuries that happen on a landlord's property.  Consultations are free and I would be pleased to hear from you.

Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario
613-563-1131

17 comments:

  1. A tenant of mine would like to get a bladder pool, it is less than 30 inches high so according to the city (Cambridge) bylaw it is not considered a "pool" and fencing is not required by bylaw. If a tenant does get a bladder pool and a drowning or injury occurs in the pool, as the landlord, would I be liable? How can the landlord protect themselves from this liability?

    Thank you.

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    1. Hi and thank you for the question. There is no definitive answer to your question. Would you be liable if someone drowned in that pool? The answer can only be "yes" or "no" or "maybe" or "partly". The liability theory would likely be one of occupier's liability under the Occupier's Liability Act (an Ontario statute). An occupier of property can be more than one person and certainly as an owner of the lands you would meet the definition of an occupier. Your tenant would also meet the definition of an occupier. In the event of an injury you and your tenant might find yourselves being sued for the damages caused.

      There is case law that limits liability of landlords in occupier's liability context where they have delegated responsibilities properly (responsibly). Unfortunately, the question of whether a landlord is liable or not for the accident/incident that happened on the property is a matter that is determined in a lawsuit. Insulating yourself from litigation altogether is not really possible.

      So what can you as a landlord do? This is where the terms of the lease can be very useful. By example--landlord's of apartment buildings often prohibit the use of BBQ's or fire pits on balconies or patios (regardless of how they are constructed). The reason for the restriction is insurance/liability based. Certainly, at the commencement of a lease a landlord is free to include restrictions in the lease with respect to how the property is used (i.e. you could prohibit the installation of a pool) just so long as the restriction is not contrary to the RTA or the Human Rights Code (HRC). After entering into a lease it can be difficult to impose new restrictions as the tenant may regard the new restrictions as taking away rights that they had and therefore they may assert that the imposition of the restriction is a breach of the lease.

      So, check your lease terms. If you used a standard form lease there may already be restrictions on setting up pools. If there are no rules or restrictions then it would be up to you to inspect the premises/yard where the pool is. If you look at it do you think it is safe? Is the way this pool is being used safe? By that I mean, is an adult present at all times when there is water in the pool? Can neighbour children have direct access to the pool (no gate, no fencing). Does the tenant leave the pool unattended so that this pool is a beacon to children who might fall in and be injured or die? If there is a concern like this then perhaps the presence of the pool may be characterized as "Impaired Safety". You may terminate a tenancy for Impaired Safety. Perhaps the presence of the pool, filled with water, unattended, prevents neighbour tenants from letting their kids outside out of fear of them going to the unguarded pool--if so, you might have a case for substantial interference with reasonable enjoyment (Form N5) which is also a basis to terminate the tenancy if behaviour is not changed. All of this is contextual and it depends on how the pool is being used. If the tenant is responsible, fills up the pool, allows children to use it, supervises the use, an adult remains near the pool, and the pool is drained when done, then it becomes more difficult to argue for impaired safety or substantial interference. In such circumstances, you really need a rule prohibiting the use in the lease.

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    2. Another way for landlords to minimize liability or risk of litigation is to require tenants to have insurance. A tenant's insurance policy--like homeowners insurance policies--will have general liability coverage. You could stipulate that all tenants have insurance with a certain amount of coverage--for a proper policy amount perhaps speak with your own broker for guidance. Then insist that the tenant provide you with confirmation--perhaps see if you can also be named as an insured--for the purpose of being notified of cancellation or default on the policy and also to prevent subrogation against you. Of course, a further protection for a landlord is your own insurance coverage with your own insurer for general liability. Make sure to consult with your broker to ensure that your policy will cover a claim against you in the event of an injury not only on the rented property but on the entire residential complex (remember there are parts of the property that will not be rented to tenants and for which you, as the landlord, remain exclusively responsible).

      Hope that helps get the discussion going. Protecting oneself from liability requires continual assessment on how the property is being used and making sure that the property is being used reasonably and responsibly. Make sure to take steps to address unsafe behaviours and uses and insure against the risks of injury or death with broad based insurance policies.

      Michael K. E. Thiele

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  2. I have a broken rib resulting from the issue of the tub wall..It is unsafe broken unclued from the wall and while taking a shower I went to hold on but it is lose and cause me to fall resulting in a broken.This problem was reported to them before my incident but they refuse to do any work..They said they would but never do.Same with the carpet stinky old was suppose to remove them but again lied.My furniture is mounted on pieces of wood to level them and I told them about my allergies but in vain.My health is suffering while they make empty promises..This time their negligeance did cause me injury ..Should they be hold responsible?

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    1. Hi:

      What you describe as happening to you definitely sounds like a valid claim against the landlord for the injury you suffered. The only way to know for certain is to consult with a personal injury lawyer. You should at least consult with a personal injury lawyer and then you can decide whether it is something that you want to pursue or not. The great news about seeing a personal injury lawyer is that they will generally see you for a free consultation and there is normally no fee unless you settle or win your claim. It works this way because personal injury lawyers normally take a percentage of the winnings or settlement and zero if there is no settlement or winning. The percentage is often higher than what you would pay on an hourly basis but this seems to be a fair trade off for getting a lawyer to work for you without having to pay anything out of your pocket.

      Now, for a shameless plug, the lawyers in my firm (aside from myself) do exclusively personal injury work for plaintiffs. If you are located anywhere in eastern ontario please feel free to give me a call and I can refer you to one of my colleagues. Be aware though, you may choose whoever you wish and there are a great many personal injury lawyers in Ontario who I'm sure would be pleased to hear from you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Just one last point. Please be aware that there are timelines that you must meet in order to not lose your right to sue. The timelines vary but the standard one is 2 years from the date of the accident. Alternatively, there is an argument that the time limit is one year based on RTA limitations. Because of this I recommend that you get in to see a personal injury lawyer as soon as possible.

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  3. Hi

    My question is, my landlord caused me injury, do I sue by filing a complaint with the tenancy board?

    Without going into great detail, yes, it is the landlords fault and the landlord has admitted fault to what he did, and what he did caused my injury.

    Thanks for your reply,

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    Replies
    1. Hi: If you suffered a personal injury my recommendation to you is to seek out a Personal Injury Lawyer. Do not file anything with the landlord and tenant board unless you are approaching a limitation period and there is a risk of losing your entire case. Typically, limitations at the LTB are one year. Regular personal injury claims typically have a two year limitation period. Be aware though, the timelines are all different hence the best thing to do is find a personal injury lawyer.

      Why am I recommending a personal injury lawyer to you? The best answer is that you get really good legal advice for free. Personal injury lawyers generally work on a contingency fee basis meaning you only get charged if there is a settlement or win at trial. Otherwise you don't get charged legal fees. Take advantage of what Personal Injury Lawyers offer and see what your rights are.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

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  4. My wife slipped and fell on the side walk of our apartment complex 3 weeks ago. There was freezing rain during the night but we left for work together at 8:15 am, plenty of time for the side walks and parking lots to be cleared and salted. She was wearing proper boots but I held her arm as we walked. Unfortunately I was unable to catch her when she slipped and it resulted in her breaking her wrist, requiring a cast. She had informed the property manager later that day through e-mail and asked if the landlord had any policy for compensation. She did not want to take a litigious route. The response was to ask her what she proposed they should do. She responded that it should not be up t her to ask and that in all good faith the landlord should state their position first. She lost 3 days of work and also lost an opportunity to become the permanent manager at her company. The company had mad her interim manager when the previous one resigned. She was in the midst of a process of vying for the position but because she was absent and because the company needed a manager asap, the outsourced and hired someone new. In addition to that the pain and suffering she is still going through has caused her to be less effective in her job and she is losing sleep every night. After the first response she got from the property manager she has sent numerous emails asking what they planned to do. Finally I decided to write an e-mail as the primary lease holder and state that until we got a response either way, I would withhold my lease payments. I'm concerned that I may not have the right to do that. We enjoy our apartment and have been well treated here hence the reason we do not wish to take a litigious route. However it has been three weeks and we have not head a word from them.

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    1. Hello:

      The first point that I should clearly make is that you are not entitled to withhold your rent. Withholding rent will lead to the service of an N4--notice of termination for non-payment of rent. While you may indeed raise as a defence to any N4/L1 application to terminate your tenancy for non-payment of rent the fact of the non-repair/maintenance this is likely not the best way to go. The fact is that your wife's injury and the rent are considered as separate matters by the Landlord and Tenant Board.

      The second question I have for you is whether you are certain that the spot that your wife fell was indeed on the landlord's property. Is the spot where she fell owned by the landlord or is it city property? Are there persons/companies aside from the landlord that are responsible for maintaining that spot? If the location is potentially belonging to someone other than your landlord you need to put those owners or occupiers of the location of the fall immediately. This is especially true with city or government owned property as there are strict notice periods that might preclude successful recovery if proper notice is not given.

      Aside from these issues, I think you need to acknowledge that you are indeed seeking to engage a legal process and that you want compensation for the injuries sustained by your wife. This is part of the litigation process and it is litigious. It may not be a statement of claim issued in the Superior Court but it is indeed a part of the process that a lawyer follows in getting to a settlement or a lawsuit.

      I do not think that you can realistically expect a satisfactory outcome from the way you are approaching this with your landlord. I think you need to approach this from a litigation perspective to get action on the issue. Otherwise you will be waiting for godot.

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    2. Fortunately, in Ontario, there is a very strong personal injury bar with many lawyers who specialize in that area. My own firm--Quinn Thiele Mineault Grodzki LLP--is almost 100% personal injury work (I am the hold-out with my landlord and tenant law practice) though even I handle a fair number of personal injury cases. The nice thing about personal injury law cases for Ontario residents is that contingency fee arrangements give you access to legal advice without ever needing to pay for it upfront. You should expect representation for "free" subject only to paying for the fees from a settlement or lawsuit. Your lawyer(s) should carry the entirety of your case and if you lose you will not owe your lawyers anything.

      That being said, the normal process would be for your lawyer to send a demand letter to your landlord. The landlord would advise their insurer, and the insurer would appoint an adjuster to investigate. The lawyer and the adjuster might agree on a settlement or not and the lawyer will then either issue a claim in Court or advise you against doing so.

      The adjusting phase of the claim will result in your wife being interviewed and evidence being gathered about the condition of the area in which you fell. The weather records will be reviewed, the salting/sanding schedule will be reviewed, any third party contractors will also be put on notice of the claim. The point of this phase is to determine whether anyone was negligent and whether any duty of care to your wife was breached by anyone. The "anyone" could be more than one person or company. If there is liability then the lawyer and adjuster will look at the nature of the injury and the quantum of damages appropriate for the injuries suffered and losses sustained. The losses you describe are not unusual and they are claimable (but first you need liability).

      Nothing in this process is likely to lead to 100% certainty. There is always some risk in either sides position. This is what leads to settlements and resolutions without actually litigating.

      This process that I have described is how it is done in Ontario with personal injuries. You will note that your landlord is unlikely to pay anything for this as it will be an insurance company that steps in and pays your claim (if there is liability).

      Good luck with this. I wish your wife a speedy recovery.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  5. Original patio door in rental unit.
    Maintenance was aware of malfunctions such as drafts, snow and rain inside, bugs, and extremely dangerous to open and close.

    Paper trails (via email) are have been made between myself and the property manager about the patio door with promises to do repairs/replacement.

    Door came right off the track onto my fiances foot. Biggest toe is broken and extremely busted open. Stiches were needed. Had to burn the nail open to release collecting blood. I posses the medical charts and receipts or air cast and medications.

    Potential job opportunity has been lost due to this injury.

    Looking for compensation of any sort.

    What can I do?

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    Replies
    1. Hi Becky: There are two broad issues here. The first is in relation to the maintenance issue in your unit. The patio door needs to be fixed or replaced. You can pursue that through the Landlord and Tenant Board (Form T6) and/or you can ask the City's Property Standards Department to investigate and make an order for the door to be repaired. Take lots of pictures and video showing the problems as evidence.

      The second broad issue is the injury that your fiancé sustained. Your fiancé has a personal injury claim against the landlord for the injury suffered. If he is a tenant on the lease or noted as an occupant then the main focus of his claim will be the landlord. If he is not on the lease, nor an occupant, he may also have a claim against you. This is something to explore if you are insured. If he sued you, your insurer would likely seek indemnity from the landlord. This is a fairly usual and normal thing to do. With respect to the personal injury claim, your fiancé should make an appointment with a personal injury lawyer. Not sure where you are living, but take your time to find a good local personal injury lawyer--try to avoid the super large firms with offices all over the province.

      Lastly, note that the passage of time is problematic for both the repair issues and the personal injury. There are timelines and if not met you can lose your right to sue---so best to get on with it. There is both a one year limitation period and a two year on your facts so best not to let it drag.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. A relative of mine was physically assaulted by another tenant within the public space (main hallway) of the building. She sustained first and second degree burns and the police had taken all statements from my relative and witnesses.
    There are no CCTV cameras throughout these public spaces and the superintendent of the building didn't respond to the emergency even after the police/ambulance had taken my relative to the hospital.
    I was wondering if there is justifiable cause for a personal injury claim against the other tenant and the landlord.
    Thank you for your assistance.

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    Replies
    1. Hi: I'm sorry for your family member who suffered this assault. Whether or not your family member has a good claim and whether it is worth pursuing is something that s/he should take up with a personal injury lawyer. That being said, I do indeed think that your family member has a claim against the person who assaulted her/him. It sounds like it may be an intentional assault (i.e. not the result of an accident/negligence) so there may be an issue over the availability of insurance to fund any judgment or settlement. With respect to the landlord I don't immediately see a claim against the landlord or the superintendent. However, this does not mean that there is no claim and your family member should again consult with a personal injury lawyer. With respect to the landlord I think you need a theory of liability that suggests negligence on the part of the landlord or its staff. How was the landlord negligent? Aside from a negligence based theory your lawyer may want to consider whether the landlord's obligations under the Residential Tenancies Act have been breached and whether that breach allows for a claim for damages---take a look at part three of the Residential Tenancies Act---Responsibilities of Landlords (starting at section 20).

      Aside from these possible claims it may be that your family member was the victim of a criminal act. Victims of crime may file a claim for compensation with the criminal injuries compensation board. This process is reasonably straightforward and you can explore this on the website of the Criminal Injuries Compensation Board---fortunately, there is no real risk in filing such a claim and if it is determined that your relative was a victim of crime and suffered an injury s/he is likely to get some compensation.

      How to coordinate a claim, who to claim against, and determining all of the options is something that your family member should do with a personal injury lawyer. Find one that you like, the consultation should be free, and your family member should quickly know the options.

      Lastly, be aware that there are limitation periods that apply to claims. Your family member does not have an unlimited time to decide about this. I can't offer the exact timelines but there are 1 year limitation periods (in respect of Residential Tenancies breaches under the RTA) and 2 year periods generally. Also, if governmental authorities are involved there can be much short notice periods--hence it is worthwhile getting your family member in to see a lawyer at the earliest opportunity.

      Good luck to you and your relative--I hope s/he is recovering well from the burns.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Hi there.

    I fell 15 ft from a balconey and broke my pelvis. I dont remember much as I did lose consciousness at least once, so I'm not exactly sure what happened. I do know there was rotten boards on the balconey and a very wobbly wooden railing approximately 40 years old and much shorter than current 2nd floor building code. I have pictures and video of both, but did not inform the landlord of the problem prior to the accident. It had been like that since I moved in the house about 4 years prior.

    I was bedridden for 12 days and couldn't walk for 3 months. I am walking cautiously now, with frequent pain in my hip, knee and foot.

    I have been advised to seek council and am just wondering your thoughts, considering the fact I didn't ask for repairs prior to falling.

    Regards

    DP

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    Replies
    1. Hi DP:

      Please email me at mthiele@pqtlaw.com and I will reply privately to you. The injuries you suffered are potentially and likely life altering and it isn't appropriate to give you advice on this issue publicly (in this open blog that anyone can read).

      Michael K. E. THiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.