Can a Tenant Be Liable For Damage or Injury Suffered By the Landlord Even Though the Tenant Is Without Insurance Coverage?
Tenant Insurance May Provide Protection For the Tenant If Claims Are Brought Against the Tenant By a Landlord Alleging Damage or Injury Caused By the Tenant.
Understanding Liability Risks Faced By a Tenant That Arise Within Landlord Relations and Extend Far Beyond to Others
Firstly, this article is intended to provide information only in regard to what legal concerns may arise in the event that a tenant causes, or is accused of causing, a loss by damage, or a liability by injury, that affects a landlord. For specific insurance advice, such as what type of insurance to carry or how much insurance to carry, among other things, always obtain advice from a licensed insurance professional.
During the tenancy relationship between a landlord and tenant, it is possible that the tenant may cause an incident that results in loss, injury, or liability, which directly or indirectly affects the landlord. Indeed, it is even quite possible that the could cause an accident that injures the landlord; such as, among thousands of scenarios, failing to pick up after a child thereby unwittingly leaving a toy on stairs which causes a fall to a landlord.
Losses By Damage
An example of loss to the landlord, again among thousands of possibilities, would be a situation where a tenant, or children of the tenant, accidentally cause an overflow of water resulting in damage to the rental unit and therefore cause the landlord to incur the cost of repairs. This type of situation occured in the case of P.R.E.S.C. v. J.N., TSL-08531-19 (Re), 2019 CanLII 134460 where the tenant was found liable for water damage resulting in losses due to the expense of repairs incurred by the landlord. Specifically, the Landlord Tenant Board said:
23. Pursuant to subsection 89(1) of the Residential Tenancies Act, 2006, SO 2006, c 17 (the 'RTA'), the Tenant is liable for the reasonable cost the Landlord has incurred or will incur to repair damage to the residential complex.
24. The Landlord does not own the unit below, but the unit is part of the residential complex and the Landlord is required to pay for the repairs.
25. The building management sent two contracting companies to respond to each of the two floods. This resulted in four invoices of $1,471.21, $1,966.78, $389.85, and $316.40, respectively.
26. Although the first two invoices seem quite high, in the circumstances I am satisfied that the amounts are reasonable. I say that for two reasons. First, because a flood is an emergency, the building management would not have had time to source quotes and identify the cheapest way to do the work. To respond quickly, management had to use the contractors they had available, even if the fees were high. Second, it is common knowledge that contractors often charge extra fees to respond to an emergency.
27. There is also a fifth invoice for $1,853.20. This was for repair work done on May 27, 2019 to repair the ceiling drywall in the unit below the Tenant’s, with associated plastering and painting. Baseboards were also replaced. The work was done by a contractor selected by the building management. The Landlord approved that contractor because it worried that if it were to choose its own contractor, the unit’s owner might be dissatisfied with the quality of the repairs.
28. The Tenant argues that the Landlord could have sourced quotes to try and find a contractor that could do the work more affordably, and that $1,853.20 was not the reasonable cost to do this portion of the repairs.
29. In the circumstances, I am satisfied that it was reasonable for the Landlord to use the building management’s contractor. The amount charged was in the range one would expect for work of this nature. It was not necessary for the Landlord to consider using a different contractor, and potentially causing a dispute with the other unit’s owner, where the amount charged by the building management’s contractor was reasonable.
30. As a result, I am satisfied that the total claim of $5,997.44 is the reasonable cost of repairs.
Liable in Injuries to Others
An example of liability loss to the landlord, once again among thousands of possibilities, involves a third party person other than the landlord or tenant, where both the landlord and tenant are partially liable; however, where a tenant is without insurance coverage or insufficient coverage the landlord bears a disproportionate payment of the financial compensation due to the third party victim. Such a circumstance could be where a guest of the tenant trips and falls due to an object left by the tenant upon the steps to the rental unit and the injured guest then sues both the tenant and the landlord. Disproportionate payment by the landlord may occur where the landlord is found twenty-five (25%) percent liable for providing inadequate lighting to the steps and the tenant is seventy-five (75%) percent liability for leaving the object on the steps; however, per joint and several liability and operation of the Negligence Act, R.S.O. 1990, c. N.1, whereas the tenant lacks insurance coverage and is unable to pay the seventy-five (75%) percent portion owed to the victim, the landlord is legally required to compensation the victim in full. A split liability situation where a landlord was found partly liable and tenants were found mostly liable occurred in the case of Taylor v. Allen, 2010 ONCA 596 wherein it was said:
 I agree with the appellant. Sections 94(1) and 80(1) of the LTA read as follows:
94. (1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.
80. (1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.
 Section 94(1) imposes a statutory responsibility on the landlord of residential premises to maintain and repair the premises. Section 80(1) provides that this responsibility prevails, despite any agreement or waiver to the contrary. See Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 per Sharpe J. (as he then was).
 Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm.
 The combined effect of ss. 94(1) and 80(1) of the LTA is therefore that, for the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the maintenance and repair of the premises. Equally, for the purposes of s. 8(2), the rental agreement could not prevent the landlord’s default being actionable at the suit of the tenants. As a consequence, the respondent landlord had a duty of care under s. 8(1) of the OLA, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
 In other words, s. 8(1) imposes on the respondent the same duty of care to the appellant that the respondent would have under s. 3 of the OLA as an occupier for a danger arising from his failure to maintain the premises.
 In summary, therefore, the respondent not only had a duty of care as occupier to the appellant under s. 3 of the OLA. He had a duty of care to the appellant under s. 8(1) of the OLA. The trial judge therefore erred in finding that the respondent owed no duty of care to the appellant.
 In my view, the findings of fact by the trial judge also necessarily entail the conclusion that the respondent breached his duty of care to the appellant imposed by s. 8(1) of the OLA. Particularly given that he created the danger in the first place by installing the cinder blocks surrounding the fire pit, by permitting the danger to continue the respondent landlord failed in his statutory responsibility to maintain the premises. The danger that caused the appellant harm arose from this failure. The respondent therefore breached his duty of care to the appellant under s. 8(1) of the Act.
 I conclude that the respondent landlord breached his duty of care to the appellant, both his duty under s. 3 of the OLA as an occupier and his duty under s. 8(1) of the OLA as a landlord with the responsibility to repair and maintain the premises. Taking into account the appellant’s contributory negligence, assessed by the trial judge at 50%, the respondent is therefore responsible for 50% of the damages suffered by the appellant jointly and severally with the tenants. I would split the fault between the landlord and the two tenants equally, just as the trial judge did with the tenants. Each of them should be found at fault for one third of 50% of the appellant’s damages.
Duties as Owed to Public
The duties and responsibilities owed to all persons, whether as guests of the tenant, agents of the landlord, strangers other than unlawful trespassers, and even as between the landlord and the tenant, are found within the Occupier's Liability Act, R.S.O. 1990, c. O.2 and the common law. Furthermore, the potential for the landlord, or technically the tenant (albeit unlikely), to bear the financial brunt of paying full compensation to a victim despite being only partially liable is found within the Negligence Act. Specifically, the Occupier's Liability Act and the Negligence Act, say:
1 In this Act,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises; (“occupant”)
“premises” means lands and structures, or either of them, and includes,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation.
Common Law Duty of Care Superseded
2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Obligations of Landlord as Occupier
8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.
(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.
Application of Section
(4) This section applies to all tenancies whether created before or after the commencement of this Act.
Extent of Liability, remedy over
1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
Recovery as Between Tortfeasors
2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.
A tenant will sometimes argue that a landlord must, or should, be required to make claims against the insurance carried by the landlord rather than seeking compensation from the tenant. This argument is meaningless whereas, even if the landlord did make claims against the insurance carried by the landlord, and indeed where the landlord actually did make claims, the insurance company of the landlord may then bring claims against the tenant in a process called subrogation. Simply said, subrogation is the process where an insurance company seeks to recoup losses paid to, or on behalf of, the client of insurance company when the incident was actually caused by someone else. As such, whether the landlord pursues compensation directly from the tenant, or whether the insurer of the landlord seeks to recoup monies paid to the landlord, the tenant remains in the same financial position of owing compensation to either the landlord or the insurance company of the landlord. In response to the attempted argument that a landlord should make claim against the insurance company of the landlord rather than pursuing the tenant, in the case of P.R.E.S.C. as referenced earlier as above, the Landlord Tenant Board said:
31. The Tenant argues that the Landlord ought to have mitigated its losses by making a claim to its insurance company. I am not persuaded by that argument. An insurance claim shifts loss but does not reduce it and does not affect liability. If a claim had been made, the insurance company would have been entitled to bring a subrogated claim against the Tenant for the damage.
This right of an insurance company to stand in the shoes of the client of the insurance company who suffered a loss, such as an insurance company standing in the shoes of a landlord while seeking to recover monies paid to, or on behalf of, the landlord due to damage or injuries caused by the tenant arises statutorily per the Insurance Act, R.S.O. 1990, c. I.8 which says:
152 (1) The insurer, upon making a payment or assuming liability therefor under a contract to which this Part applies, is subrogated to all rights of recovery of the insured against any person, and may bring action in the name of the insured to enforce such rights.
A tenant that causes accidental injury to the landlord, losses due to damage to property of the landlord, or injury to a third party person who then brings claims that result in disproportionate payouts by the landlord, may become liable to the landlord. If the landlord makes claims against the insurance carried by the landlord, the insurer of the landlord may then bring claims against the tenant. For these reasons, among other reasons including the risk of liability to persons beyond just the landlord, a tenant should carry proper liability insurance.
A tenant wishing to obtain insurance that may provide protection against claims brought by the landlord should consult a professional insurance advisor.