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.

First, this is just one statement made by a single member.  In the strict sense, since the Landlord and Tenant Board is not a court, the doctrine of precedent does not apply.  Members are not bound by decisions of other members.  It is dangerous for anything said in a decision represents the law.  The adjudicator’s view may not represent the prevailing view. 

A passage may be inessential to the resolution of the case.  I believe Ms. Hommeniuk’s comments are what lawyers would call obiter dicta.  Obiter dicta is a Latin phrase meaning "things said by the way". That’s not to say that the comments are irrelevant.  These statements are often meant to clarify the legal principle which an adjudicator proposes to apply in his or her decision.  For this reason, obiter dicta often take the form of analogies, illustrations, points of contrast or conclusions based on hypothetical situations.  Nevertheless, since consistency and predictability are at the heart of good decision making, earlier rulings by adjudicators should not be ignored.  A strong and well reasoned obiter may be persuasive authority and can be taken into consideration in later cases. 

Second, what Member Hommeniuk actually said may be much more limited than what the original poster suggests.  What Member Hommeniuk said was that the Charter did not apply to the situation, and the tenants provided no authority for the proposition that tenants enjoy a privacy rights that takes precedence over the right of a landlord to enter the rental unit in accordance with the Residential Tenancies Act. 

Finally, the value of any case as a precedent in practical terms is inseparable from the material facts.  The danger is that conceptual differences between circumstances of cases are papered over by superficial similarity between facts.  Would the introduction of a single new fact create a different decision? 

Landlords and those doing their bidding need to tread cautiously when taking photos of rental properties. My next posting addresses the issue of a case in which the Federal Privacy Commissioner found that the tenant’s privacy rights were violated when the landlord took photographs during an inspection for insurance purposes.