Can a Lease Legally Contain a Clause Requiring a Tenant to Carry Liability Insurance?
The Requirement of Insurance Is Prudent Risk Management By the Landlord and a Wise Purchase By the Tenant Regardless of Requirement By the Landlord. A Tenant May Be Evicted For Failure to Comply.
Understanding Whether a Tenant May Be Evicted For Failing to Carry Liability Insurance Coverage
It is a simple and obvious fact of life that accidents can and do happen and that accidents can happen to anybody at anytime. In a housing situation, a tenant may accidentally cause damage to the rental complex or to the property of other people living within the rental complex. Additionally, a tenant may accidentally cause an injury to another person who lives at, or is visiting, the rental complex.
If a person is injured by a tenant due to an unfortunate accident caused by the conduct of the tenant, the injured person may bring a lawsuit against the tenant for causing the incident as well as the landlord who, depending on the circumstances, may be liable as an occupier of the rental premises. There are literally thousands of ways that a tenant could cause an unfortunate accidental situation that results in injury to another person. Just a few examples that could happen include, among others:
- Where a tenant causes a fire in the rental unit and injuries result to other persons;
- Where a tenant causes a trip & fall by leaving an object on steps, stairs, or walkways;
- Where a tenant fails to secure objects or equipment on a balcony or in a window; and
- Where a tenant allows children to climb a tree on the rental complex lands.
Similarly to the possibility that a tenant may cause accidents that result in injuries to other persons, a tenant may also cause accidents that result in damage to the rental unit occupied by the tenant, to the rental complex, or to the belongings of other people living at the rental complex. Just as a landlord may be liable to people injured, a landlord may also be liable for damage to the belongings of people living at the rental complex. Again, there are literally thousands of ways that a tenant could cause an incident that results in liability risk to the landlord. Just a few examples that could happen include, among others:
- Where a tenant causes a water overflow incident with damage to the rental unit below;
- Where a tenant causes a fire that results in smoke damage suffered by other tenants; and
- Where a tenant accidentally drops an object off a balcony damaging vehicles below.
Liability Risk Concerns
At first glance, it may appear strange and unusual as to why a landlord would require a tenant to carry liability insurance for incidents caused by the tenant as opposed to incidents caused by the landlord; however, there actually is a very logical reason and therefore a very rational explanation whereas such simply relates to prudent risk management protocols and procedures. The logical reason and rational explanation will make sense when it is first understood as to how a landlord may be found liable, whether partly liable, jointly liable, or wholly liable, despite that it was the conduct of a tenant that caused the accident and resulting injuries or damage to other persons. This risk of being liable, whether in part or in full, arises from statute law; specifically, the Occupier's Liability Act, R.S.O. 1990, c. O.2 as well as the Negligence Act, R.S.O. 1990, c. N.1 which combine together and create significant liability risk to the landlord.
Regardless of whether a landlord lives on the premises, as the owner, a landlord is defined as an occupier of the premises as per the Occupier's Liability Act; and accordingly, the landlord is therefore potentially liable for injuries or damage that occur upon the premises. Furthermore, even if the landlord is found without liability for injuries or damage that occur upon the premises, the landlord, or the insurer of the landlord, may incur significant legal expenses to defend a lawsuit that contains allegations of liability for injuries or damage that occurred upon the premises.
Whereas the owner of premises, the premises being defined as the lands and structures, may be legally liable for damage or injuries that occur on the premises, a landlord will want to ensure that liability insurance is place. Of course, the landlord will first obtain liability insurance in the name of, and to the benefit of, the landlord. The carrying of insurance by the landlord is a common requirement within a mortgage contract. Additionally, whereas the assets of the landlord will warrant protection via insurance, even if the landlord is without a mortgage requiring insurance, the landlord will prudently arrange insurance coverage on behalf of the landlord.
When a landlord arranges insurance coverage, the insurer of the landlord will often inquire whether, and perhaps mandate that, the landlord ensure the tenants are also carrying insurance. As the insurer of the landlord, the interest of the insurer is an assurance that should a tenant cause an incident that damages the building or other objects covered under the insurance for the landlord, of if the landlord becomes named in a lawsuit arising from the conduct of a tenant, that the insurer will be able to recoup some, or all, of the monies paid out on behalf of the landlord. In particular, as explained below, a landlord deemed jointly liable for injuries or damage caused primarily by a tenant, may be required in law to pay a disproportionate share of the liability in accordance to the principle of joint and several liability as well as per the mandates prescribed within the Negligence Act as explained below.
The Occupier's Liability Act and the Negligence Act are general statutes applicable to many situations, unlike the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 which addresses only issues involving landlords and tenants. As general statutes, applicable to many circumstances including legal issues involving landlords and tenants as well as involving landlords and everyone else, or tenants and everyone else, it is necessary to appreciate the intent of, and the legal issues arising out of, the Occupier's Liability Act and the Negligence Act. Although each act is an independent statute, and each can operate independently of the other, the legal issues arising out of the Occupier's Liability Act and the legal issues arising out of the Negligence Act can also interact.
As above, the Occupier's Liability Act defines as "occupiers" persons such as landlords as the owners, and tenants, among any other persons, who have care and control over the physical condition of premises. Subsequently, the Occupier's Liability Act states that all occupiers have a duty of care owed to all persons who come onto the premises. The duty of care owed to all persons requires that the occupiers, again being both landlords as owners as well as tenants, to take all care to ensure that the persons that come onto the premises as well as belongings as property of those persons brought onto the premises, are reasonably safe.
Also as above, the Negligence Act, makes all persons who cause, or contribute, to an incident involving negligent conduct jointly liable for the negligent conduct in such a way that the victim can bring a claim against either of the jointly liable persons. Accordingly, a landlord who may be held only one (1%) percent liable for allowing a certain activity upon the premises may be required to pay one hundred (100%) percent of a claim brought by the victim despite that it was the tenant who was deemed ninety-nine (99%) percent liable for causing the incident. Of course, per the Negligence Act, if the victim seeks to collect from the landlord more than the actual share of liability allocated against the landlord, then the landlord may seek to recover the disproportion from the tenant; however, it is plain and obvious that if the tenant is unable to afford the share of liability allocated against the tenant, then the effort by the landlord to recover the disproportion from the tenant will be a useless and wasted effort. It is also plain and obvious that if the tenant carries liability insurance, then the effort to recover any disproportion from the tenant will, likely, be successful.
The relevant sections of the Occupier's Liability Act and the Negligence Act specifically state:
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.
As above, there is literally an endless number of possible incidents that could be caused by the tenant. Furthermore, there is literally an endless number of possible incidents where the landlord could be deemed as a contributor to the injury despite the lack of presence or immediate knowledge or approval of the conduct of the tenant. Some might perceive that whereas a landlord is without direct involvement in the incident caused by the tenant, the landlord is therefore without liability risk; however, such is an inaccurate perception.
As an example, consider the case of Taylor v. Allen, 2010 ONCA 596 wherein the landlord was found partly liable for injuries that occurred to a guest of the tenant during a social gathering. In the Taylor case, Taylor was a guest of the tenants. The tenants were hosting friends at a bonfire party. The landlord had built and maintained the firepit that was being used for the bonfire party. The firepit was constructed with a perimeter of cinder blocks. When two women who were guests at the bonfire party began to fight, Taylor stepped away; however, while in a drunken state, Taylor tripped over the cinder blocks and fell into the fire and was seriously burned. Taylor sued the tenants and the landlord as occupiers of the premises for having caused, or contributed, to the injuries suffered by Taylor. In the original trial decision, Taylor v. Allard, 2009 CanLII 10986 at paragraph 41, the judge deemed Taylor fifty (50%) percent liable for his own injuries and found the two tenants twenty-five (25%) percent liable with zero (0%) percent liability upon the landlord. However, Taylor appealed and the Court of Appeal agreed with a finding of liability against the landlord. Specifically, the Court of Appeal 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.
It is important to note that the references within the Taylor case to section 94 and section 80 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7 occur whereas the incident involving Taylor occurred in 1995, prior to the enactment of the Residential Tenancies Act, 2006; however, with this said, and despite the replacement of the previous law, the same result would be expected whereas section 94 of the old Act was replaced by the same or substantially similar section 20 of the new Act and section 80 of the old Act was replaced by the same or substantially similar section 4 of the new Act.
As an example, consider the case of Youssef v. Redi-Mix Limited, 2018 ONSC 6409 (upheld by Court of Appeal and leave for appeal to the Supreme Court denied), which involved Redi-Mix as the owner and thus landlord of a property rented to a tenant who was keeping donkeys upon the premises. Redi-Mix was aware of the presence of donkeys, including the use of fenced fields for grazing by the donkeys; however, despite such knowledge, Redi-Mix failed to implement procedures for inspecting, and repairing if necessary, the fences. Subsequently, wholly or partly as a result of the failure to maintain the fence including gates, the donkeys escaped the fields and wandered onto an adjacent roadway whereupon a motorcyclist collided with one of the donkeys and suffered serious and permanent injuries. In determining a portion of liability, as against Redi-Mix, the court stated:
 I am satisfied that the tenant Mark Burnfield was negligent in allowing the mules to wander from the property onto Winchester Road by means of his failure to secure the gate or fence along the side of the property. By the time the investigating officer arrived the donkeys had congregated near this fence and the officer, with simple human force, was able to pry open the gate or fence and the donkeys returned to the field. Mr. Burnfield has not disputed the claims against him and has been noted in default with respect to the plaintiff’s claim and the defendant’s third party claim.
 I am also satisfied that the defendant Redi-Mix was negligent with respect to its duties and obligations as a residential landlord of rural property. The following points assist me in drawing that conclusion:
• Redi-Mix purchased this residential rural property with existing fences.
• Redi-Mix leased this property to Mr. Burnfield in 2006 with the knowledge that he had domestic animals there.
• The accident happened approximately three years after the lease was entered into but Redi-Mix had no policy or procedure in place to inspect or repair the fences knowing it was their obligation to do so. The controller Carmen Kulesza had no knowledge of any inspection of fences. Dominic Suppa, the chief financial officer, indicated he had never inspected the fence. His only knowledge about fencing came from information provided to him by Mr. Lamanna. Mr. Lamanna made several visits to the property over the years. One such visit was to repair a certain area of fence. The other visits were unrelated to fencing. Mr. Lamanna was unsure whether his last inspection was before or after the accident.
• The Residential Tenancies Act sets out that landlords are responsible for providing and maintaining a residential complex in a good state of repair.
 I am satisfied that the record before me provides the court with sufficient information to make a determination with respect to the landlord’s negligence without the necessity of a trial. I therefore grant judgment in favour of the plaintiff Amir Youssef against the defendant 693316 Ontario Limited o/a Toronto Redi-Mix Limited on the issue of liability. The issue of damages remains a triable issue.
Landlord Requiring Insurance Coverage
When a landlord requires a tenant to obtain insurance coverage the reasons for doing so will include the business interest of the landlord and perhaps also with a moral concern for the tenant. The business interest usually relates to obtaining better terms and conditions, such as the premiums and deductibles, from the insurer of the landlord when the landlord can confirm to the insurer that the tenants are required to, and do, carry insurance coverage.
When a tenant causes an injury incident and the landlord becomes a party to the litigation, or where the tenant causes damage to the premises, the insurer of the landlord will want to recoup the monies that the insurer paid out to, or on behalf of, the landlord where such monies were paid disproportionate to the fault of the landlord. The process of an insurer recovering monies is called subrogation. Subrogration against the tenant may happen where the tenant caused a fire or water damage or other type of harm to the rental unit or rental complex and the insurer pays the cost of repair to the landlord. Subrogation may also happen where the tenant caused a liability situation and the insurer incurred the cost of defending the landlord and perhaps was required to pay out a disproportionate sum on behalf of the landlord due to the doctrine of joint and several liability including operation of the Negligence Act mandates. When a tenant carries insurance, the insurance company of the landlord will receive any monies due from the insurance company of the tenant; however, if the tenant is without insurance, or without adequate insurance, the tenant may suffer the burden of paying the debt owed to the insurance company of the landlord for a lifetime or suffer the consequences of declaring personal bankruptcy.
Right to Evict
The Law, statutory
The Residential Tenancies Act, 2006 provides a landlord with the right to pursue eviction of a tenant where the tenant, among other things, substantially interferes with the rights of the landlord. Specifically, the Residential Tenancies Act, 2006 states:
Termination for Cause, reasonable enjoyment
64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
(a) provide a termination date not earlier than the 20th day after the notice is given;
(b) set out the grounds for termination; and
(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.
Notice Void If Tenant Complies
Termination for Cause, Reasonable Enjoyment of Landlord in Small Building
65 (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord.
The Law, jurisprudence (actual cases)
As to whether the failure to comply with a lease term requiring that a tenant carry insurance, the Landlord Tenant Board case of York University v. C.W., TNL-96606-17 (Re), 2018 CanLII 48258, while citing the Divisional Court decision in Stanbar Properties Ltd. v. Rooke,  O.J. No. 6363, 2005 CarswellOnt 10519 confirmed that such was an interference in the rights of a landlord; however, and seeming contradictory to the York University decision is the Landlord Tenant Board decision in the case of L.D. v. N.G., TEL-98422-19 (Re), 2019 CanLII 86986 which denied an eviction for failing to carry insurance whereas the Landlord Tenant Board deemed that the lack of insurance failed to "substantially" interfere with the rights of the landlord. In these cases, it was specifically said:
25. Misbehaviour under section 64 can include conduct which contravenes a landlord’s contractual rights set out in the tenancy agreement. In Stanbar Properties Ltd. v. Rooke,  O.J. No. 6363, the tenant’s lease required that he provide the landlord with proof that he had liability insurance. As a matter of principle, the tenant refused to provide the required proof. The Divisional Court held that the tenant’s refusal to comply with the tenancy agreement substantially interfered with the landlord’s lawful contractual right.
19. The second thing the notice of termination says is that the Tenant failed to provide proof of tenants’ insurance which is a requirement of her lease. The Tenant provided proof of that insurance at the hearing before me.
20. The lease agreement between the parties requires the Tenant to have tenants’ insurance, but it does not actually require the Tenant to provide proof of that insurance to the Landlord.
21. That being said, given the certificate of insurance the Tenant produced, it appears that at the time the notice was served the Tenant did not in fact have tenant’s insurance, so the Tenant was in breach of the tenancy agreement.
22. But not every breach of a tenancy agreement will justify serving notice of termination. Section 65 requires that the interference be “substantial” rather than minimal. Given that the Tenant’s failure to obtain contents insurance prior to the hearing before the Board has had no impact on the Landlord whatsoever, it is not clear to me the test of “substantially” has been met.
23. But even if I were to accept that the Tenant’s failure to have contents insurance “substantially”, rather than minimally, interferes with a lawful right, privilege or interest of the Landlord’s, section 83(2) of the Act requires the Board to review the circumstances and consider whether or not it should exercise its powers under subsection 83(1) to grant relief from eviction. As the Tenant’s default has been cured and the Landlord suffered no impact from her behaviour in failing to provide proof of insurance prior to the hearing, it would not be unfair in all of the circumstances to refuse the Landlord’s application.
Despite the decision of the Landlord Tenant Board in the L.D. case, especially whereas the York University case was a Divisional Court decision, it seems sensible and reasonable that the requirement that a tenant carry insurance would be enforced. In the L.D. case, it appears that the Landlord Tenant Board failed to appreciate that the lease containing an insurance provision enables the landlord, via an insurer, to subrograte to recover losses that may be in the millions of dollars. It seems illogical that the potential recovery of millions of dollars was insubstantial. It also seems illogical that failure to comply with a risk management strategy becomes substantial only after the risk that an insurance mandate was intended to avoid or resolve has actualized. Furthermore, whereas the landlord may have given undertakings to insurers or mortgagors to require and ensure that tenants carry liability insurance, the failure of a tenant to do so, and thereby put the landlord in breach of terms with insurers or mortgagors, also appears as a substantial concern; and accordingly, in the case of M.N.C.L.P. v. H.N., TSL-85766-17 (Re), 2017 CanLII 60837 the tenant was evicted for failing to carry insurance contary to the lease term requiring that the tenant do so. In the M.N.C.L.P. case, the Landlord Tenant Board did deem the failure to carry insurance as a substantial interference and issued an Order to evict the tenant wherein it was said:
1. The Landlord served an N5 Notice of Termination (N5) upon the Tenant because the Landlord received notification that the Tenant’s insurance policy was cancelled effective May 3, 2017.
2. According to paragraph 33 of the tenancy agreement the parties signed, the Tenant is required to have fire, property damage and tenant’s liability insurance at all times and to provide written proof of such coverage to the Landlord. The Tenant also signed a separate form entitled “Tenant Insurance”, acknowledging the terms of the tenancy agreement that require the Tenant to have insurance throughout tenancy.
3. By failing to comply with the requirement to have insurance, the Tenant has substantially interfered with a lawful right, privilege or interest of the Landlord. If a fire was to occur in the rental unit when the Tenant did not have insurance coverage, the associated risks (property damage, liability) could potentially shift to the Landlord. Therefore, the Landlord has an interest in having the Tenant insure the rental unit. Further, the Divisional Court has held that the breach of a consensual provision in a tenancy agreement falls within the scope of section 64 of the Residential Tenancies Act, 2006 (the “Act”) and constitutes substantial interference with the Landlord’s lawful rights (see the decisions in Stanbar Properties Ltd. v. Rooke,  O.J. No. 6363 and Morguard Residential v. Asboth, 2017 ONSC 387).
When a valid lease contains a term requiring a tenant to carry liability insurance and the tenant fails to do so, the tenant may be evicted for a substantial interference in the rights of the landlord. Whereas the requirement of insurance is often imposed as a reasonable and prudent risk management strategy, including management of the risk that a landlord, or the insurer of the landlord, may otherwise carry a disproportionate brunt of the financial burden, due to application of the joint and several liability doctrine as well as application of the Negligence Act, following a liability incident caused primarily by the tenant, it is both wise and legally enforceable for the landlord to require a tenant to carry liability insurance. Furthermore, it is wise for the tenant to do so regardless of a requirement imposed by the landlord.