As temperatures rise, Toronto tenants told to not use window air conditioners due to risk of falling units

Open this photo in gallery:

Thousands of tenants across Toronto have received messages from large landlords and property managers warning them not to install window-mounted air conditioning units just ahead of the scorching summer months.

“We’ve had hundreds of calls in the last month on this,” said Geordie Dent, an executive director of the Federation of Metro Tenants Associations (FMTA), which operates a hotline for renter concerns. The FMTA is extremely concerned about potential impact of the letters, he said. “This is going to kill people. A bunch of people sheltering at home are going to not use their AC units because they think they are not allowed to.”

For the past 70 years Toronto has averaged about 120 heat-related pre-mature deaths a year, according to a 2005 study by Environment Canada.

What’s unclear is how landlords would go about enforcing their demands. The Globe and Mail has reviewed examples of these notices that contain a mixture of legal threats and deadlines to sign a waiver of liability for major property managers Medallion Corp., and Briarlane Rental Property Management Inc., who manage thousands of rental apartments in the city.

“We recognize this may inconvenience some residents … however the safety of people attending at the residential complex must be given priority,” Briarlane’s letter said. The company did not respond to requests for comment.

The letters describe these units as posing a safety risk, and though not explicitly outlined, spokespersons for the landlords and tenants groups agree the risk they refer to spring from a 2019 incident at a Toronto Community Housing Corporation building where a window-mounted AC unit fell in November, 2019 and killed two-year old Crystal Mirogho. Following that tragic death the TCHC replaced more than 8,500 window-mounted AC units at its buildings at no costs to tenants.

So far, no private landlord reached by The Globe is proposing to pay for replacement units. Briarlane’s letter suggests tenants sell their “non-compliant” units over the Internet “hopefully any funds realized from the sale can be used toward the purchase of in-suite units.”

Tracey Heffernan is the director of the tenant duty counsel program run by the Advocacy Centre for Tenants Ontario, which gives legal advice to tenants during Landlord and Tenant Board hearings, and she said unless a tenant has signed a lease that includes terms relating to air conditioning units landlords can’t change the rules on their own.

“A tenancy agreement is a contract and neither party can make a unilateral change,” she said. Tenants cannot be forced to sign any waiver of any of their contractual rights, but the language of the letters could be interpreted by some tenants as leaving them no choice.

Medallion sent a three-page letter titled “Acknowledgement, representation, warranty, indemnification and waiver,” that asks tenants to take on all liability of any injury related to a window unit. It refers to a previous notice from September, 2020 that only floor-model AC units, ones where the mechanical parts are not mounted in a window frame are “permitted.”

“Per tenant leases, installation of air conditioning units needs management’s consent, and that consent will require reasonable yet necessary conditions, including assertation by an engineer or HVAC contractor certifying both the safe installation and operation of the units, as well as appropriate indemnifications from residents. This requirement is consistent with municipal standards for installation of air conditioning units,” said Danny Roth, president of the public relations firm Brandon Communications and a spokesperson for Medallion.

However, it’s not consistent with municipal standards for tenants to provide the inspection of the installation: Since 2020 it has been the policy of Toronto’s Municipal Licensing & Standards department that only landlords are required to provide that inspection. Mr. Roth also acknowledged that an indemnification or waiver is not a municipal requirement, but said it was a “reasonable” precaution for property managers.

The letter also warns that anyone with a window-mounted unit that is not above a balcony had to provide “proper documentation” to the landlord by June 4, 2021, and if not the tenant “will be subject to legal action from the landlord.”

“A landlord may apply to the Landlord and Tenant Board asking the Board to issue a ‘conditional’ order to comply,” Mr. Roth said. “We do not anticipate that our residents will fail to comply with these requirements, and as such, we won’t speculate through the media on what actions we might take should they fail to do so.”

Ms. Heffernan said she’s not aware of any such cases arising at the LTB, nor is Mr. Dent. “There is no grounds I can see under the law that this would win in court,” he said. However, there may be an alternative for tenants who feel harassed by the waiver demand. “The tenant could file a tenant application and cite substantial interference because the letter is threatening and very confusing. That said, right now we know tenant applications are taking a long time to be heard,” said Ms. Heffernan.

ACTO released a report in June that raised alarms about the digital hearing system established by the LTB as part of the provincial pandemic response. It found fewer tenants were able to attend digital hearings than when they were held in-person and from March to May 2021 tenants joined online only 44.6 per cent of the time (landlord participation was 86 per cent). When a tenant didn’t appear, the adjudicator didn’t even inquire as to why not 69 per cent of the time, and when they were present only 31 per cent were represented by legal counsel or were able to connect with ACTO’s duty counsel representatives, compared to 77 per cent of landlords who had legal counsel.

The Medallion waiver also included clauses that attempt to modify the lease of tenants: one line in the waiver says the tenant agrees “I will pay the Landlord’s additional prescribed charge for electricity consumption wherein electricity charges are included in my rent”; another line says the tenant will obtain liability insurance for the unit. Briarlane’s letter also informed tenants it was imposing a $40-a-month surcharge for air conditioning units if electricity was included in their rent payment.

“If the lease says nothing about extra charges for AC, the landlord cannot charge more. If the landlord is contravening this, the LTB should overturn it. However, tenants should dispute this sooner rather than later,” Ms. Heffernan said.

Your house is your most valuable asset. We have a weekly Real Estate newsletter to help you stay on top of news on the housing market, mortgages, the latest closings and more. Sign up today.