Can a Landlord Take Pictures During an Inspection? Part 2

Privacy is an important value in Canadian society.  Of course, in the residential tenancy context there are privacy provisions contained in the Residential Tenancies Act.  In yesterday’s post I reviewed a decision of the Landlord and Tenant Board that addressed whether the landlord had a right to photograph a tenant’s unit for damage.  However, privacy rights may arise from other statutes, as well. What might be permitted by one statute may be limited by other statutory provisions. 

In response to the concern for privacy in our society, the Canadian Government enacted the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA creates an enforceable right of privacy for individuals with respect to the collection, use and disclosure of their personal information by the private sector.  Under PIPEDA, “personal information” means “information about an identifiable individual...”.  This is quite wide as we will see. 

Can a Landlord Take Pictures During an Inspection? Part 1

I found this posting on the Ontario Landlord Advice Forum site  . Here’s what it said:

“Yes they can!

Sometimes tenants freak out when my staff start taking photos. Sometimes the tenants call the police. Sometimes the police, because of lack of knowledge relating to the RTA, side with the tenants and tell the landlord or the rep to put the camera down. NOT OKAY.

Think about it: you need an accurate record of the entire rental unit for several reasons: insurance, proper record of appliances included with the unit (get those serial numbers!), for defence of bogus maintenance claims down the road (anyone who has ever experienced trial by ambush via s.82 at the board knows what I mean here), and of course, if you take your photos in July and the place looks ok, then in August the tenants vacate and kick the hell out of the house in the process, you have great evidence for wilfull [sic] damage/criminal charges.

I was recently involved in a nasty case out in Kitchener/Waterloo. This point about photos was a huge bone of contention. The Member agreed with us, and the Order is phenomenal and well written, and something to be relied upon if your tenants balk at your right to take a photo record of the unit.”

A similar question was posted over on the Federation of Metro Toronto Tenants Associations Forum  here. 

I requested a copy of the decision from the original poster to the Landlord Forum. If you are interested, you can access a copy of the decision HERE. 

I don't share the original poster's view optimistic view of the decision. Member Hommeniuk's comments regarding the specific issue are found in paragraph 19 of her reasons. I believe her comments should be treated with caution for three reasons.

Divisional Court Says Oral Agreements to Terminate a Tenancy Not Permitted

Are oral agreements to terminate a tenancy effective to terminate a tenancy in Ontario.  No, at least according to the Divisional Court's decision in In Nistap Development Corporation v. McIntyre, 2009 CanLII 37002 (ON S.C.D.C.).

Member Says Service by Registered Mail Not Permitted by the Residential Tenancies Act

I found this decision under “Selected Decisions” section of the Board’s Website.  These decisions were selected by the Board because they:

• interpret or explain an area of law;
• provide a clear analysis of a point of law;
• apply or distinguish decisions of a court of competent jurisdiction, including the Divisional Court;
• apply an Interpretation Guideline of the Board or provide clear reasons for not applying an Interpretation Guideline; and/or
• raise new or interesting issues.

 The Selected Decisions are examples of the types of decisions the Board makes but these decisions:

•  are not binding on Members of the Board who may be considering the same, or similar, issues in a subsequent case and
• are not intended to reflect the official position of the Board on how to interpret or apply the Residential Tenancies Act, 2006, the Statutory Powers Procedure Act or any other law.

 With this in mind, let's look at  TEL-23178 (2009).  This is what the Member had to say:

A Questionable Decision by the Landlord and Tenant Board?

In SP and TP v. AS and GS (2009) SWL-23161 the Board found the Eviction Notice alleging persistent late payment of rent was invalid.  It’s not clear whether the Tenants raised the issue or the Board Member raised it on her own. 

Here is what the Board had to say:

The Notice of Termination (form N8) given to the Tenants on January 16, 2009 is defective. On the Notice, the Landlords provided a list of NSF cheques tendered by the

Tenants, and the dates of N4 notices and other notices, letters and e-mails, but the Landlords failed to provide information relevant to the Notice of Termination, specifically

the date the rent was due and the date the rent was paid, for each relevant month. On the Notice, the Landlords also stated that there has been only one month since the Tenants moved in that the rent was paid in full and on time, which conflicted with the Landlords’ own evidence at the hearing. The Landlords also included unnecessary, inflammatory statements on the Notice, specifically: “Every month there are excuses and attitude. No more benefit of the doubt. Enough is enough!” The Notice of Termination is so defective that it is void and cannot form the basis for an eviction order.

 That’s the total decision.  I question whether this decision is good law, however. 

Ball v. Metro Capital Corporation - the Downfall of Many an Eviction Notice

I wanted to discuss the Divisional Court decision in Ball v. Metro Capital Property [2002] O.J. No. 5931 (Divisional Court).  This is probably one of the most referred to, and in my opinion, most often misapplied decisions by the Landlord and Tenant Board.  For those who are unfamiliar with the decision making hierarchy, Board Members decisions may be either:

• appealed to the Divisional Court on a question of law, or
• reviewed by the Board for errors of fact or law. 

Decisions made by the Divisional Court are binding on Members of the Board, who are required to follow the decision in making future decisions. 

Are you risking giving your tenants a rent holiday?

I came across this decision of Member Phillips (request for review denied by Member Wallace).  It is interesting as it raises the importance of a landlord complying with section 12 of the Residential Tenancies Act, which provides:

Special Rules Apply to Notices Given by Tenants in January and February

A tenancy agreement does not automatically end when the lease runs out. It is also simply not enough for a tenant to tell the landlord they will be moving. Unless proper notice is given terminating the tenancy, or the parties agree to terminate the tenancy, it becomes a month-to-month tenancy on the same terms and conditions.

To be proper, the notice must:

Tenants May Not Be Limited to Seeking Relief for Only One Year Prior to Application

Traditionally, the Landlord and Tenant Board (and before the Ontario Rental Housing Tribunal) has ruled that any remedies available to a tenant are limited to a period of one year prior to the application being brought by the Tenant.  This was based on section 32(2) of the Tenant Protection Act [now section 29(2) of the Residential Tenancies Act].  Section 29(2) states “No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.”

All this appears to have changed with the Divisional Court’s decision in Goodman v. Menyhart, [2009] O.J. No. 1602 (Div. Ct.).  

Using the Indutsry Standard Notice to Enter a Rental Unit May be Costly to Landlords

In Wrona v. Toronto Community Housing Corporation, the landlord gave written notice it would be conducting annual smoke alarm checks in the tenant’s unit between 8:00 AM and 5 PM. It appears the notice was the industry standard notice. Mr. Wrona had permitted the agents to enter his apartment to carry out an annual inspection of smoke detector equipment.  The tenant filed an abatement application on the basis that the landlord’s entry to the unit was illegal because the notice gave too large a “window” for entry and should have been more specific as to time.

Who won? 

Snow Removal - who is responsible

I have just returned from Christmas holidays in Florida...before the cold weather arrived there.  Like almost everywhere else, it is starting to snow in Essex County, also known as the “Banana Belt”.  The label is probably an attempt to convince ourselves (and other Canadians) Essex County does not have winter. Weather reports show however, that in an average year Windsor has 28 hours of blowing snow. Surprisingly, this is 13 hours more than Edmonton. So Essex County does have its winter, but overall it is shorter and milder than in most other areas of Canada. This has brought to mind the old question of who is responsible for the removal of snow.

Reminder of Changes in Procedure at the Landlord and Tenant Board

As of December 15, 2009, the grace period for those Landlords using the old Notice of Termination for Non-Payment of Rent (N4) has expired.  Landlords who give a notice for non-payment of rent after this date must use the revised N4 notice.  The new notice was prompted by a minor change made to the wording on the Notice (the explanation as to the amount the tenant must pay to avoid termination has been reworded).  The revised notice is available here on the Landlord and Tenant Board’s website.  Failure to use the revised

My First Blog Post

Thanks for reading my first blog post.  I struggled with what would be my first post.  I guess it’s like meeting a bunch of people you never met.  The first step is that you introduce yourself.  After that I thought I’d explain why I decided to create this Blog. 

First the introduction.  I’m a lawyer currently carrying on a sole practice in Essex County.  In 1998 I was privileged to be appointed by the Province of Ontario to the newly created Ontario Rental Housing Tribunal in the government’s attempt to make residential landlord tenant matters more accessible.  I served as an adjudicator, and later a Vice Chair of the Ontario Rental Housing Tribunal (now the Landlord and Tenant Board) for more than 9 years before returning to private practice.