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. 

A code for the protection of personal information is included as Schedule 1 to the PIPEDA. 

The code contains 10 principles of fair information practices, which form ground rules for the collection, use and disclosure of personal information. These principles give individuals control over how their personal information is handled in the private sector. The 10 principles are:

1. Accountability
2. Identifying purposes
3. Consent
4. Limiting collection
5. Limiting use, disclosure, and retention
6. Accuracy
7. Safeguards
8. Openness
9. Individual access
10. Challenging compliance

The Privacy Commissioner is responsible for overseeing and monitoring compliance with PIPEDA. The Commissioner has broad powers, including the power to:

• audit or investigate an organization
• summon individuals to give oral or written evidence under oath for an audit
• enter the premises of an organization in order to assess compliance
• converse in private with individuals on such premises
• carry out any such on the premises any inquires he/she sees fit
• examine or obtain copies of or extracts from records found on the premises

After an audit, the Commissioner will provide the audited organization with a report that contains the findings of the audit and any recommendations. The Commissioner may also make public the information of the audit.

If an individual is not satisfied with the Commissioner's report they may apply to the Federal Court of Canada. The Commissioner can also apply to the Court on his or her own or on the complainant's behalf. The Court may order an organization to change its practices and/or award damages to a complainant, including damages for humiliation suffered.

This brings me to the application of PIPEDA in taking photographs of a tenant’s unit. You may also wish to consider whether or not taking photographs violate PIPEDA.  In at least one DECISION the Federal Privacy Commissioner found a violation occurred.

According to the landlord, all potentially affected tenants were given proper notice of entry and were aware that unit information was being gathered. The landlord also noted that, as the tenant was present at the time, he could have asked for an explanation. In this case, photographs were taken to determine and document the state of repairs to the ceilings, walls, floors, bathrooms, kitchens, fixtures, and appliances – not to gather personal information. The landlord indicated that the photographs were used in a report prepared by a consultant on behalf of the property management company and the building owner to estimate the current market value of six particular apartment buildings. The appraisal was intended to provide assistance with mortgage financing. The tenant’s apartment was one of a number of units inspected.

The landlord acknowledged that personal information may have been visible in the  photographs, but that the consultant at no time made any connection between the unit number and the names of the individuals residing in each apartment unit.

While acknowledging that that the landlord is subject to the Tenant Protection Act (now the Residential Tenancies Act), the Assistant Privacy Commissioner cautioned that the Landlord is also subject to PIPEDA and must act in accordance with it.  She also stressed that the landlord ought to have been cognizant of the fact that by photographing the units, it might also be collecting the personal information of the people dwelling in those units. She considered that the company ought to have been sensitive to the fact that people consider their homes, above all, to be a very private sphere.

The Assistant Commissioner recognized that the purpose was not to photograph the contents of the unit, but rather to record the state of the unit. While the purpose of a particular photograph might be to show the state of the walls or the condition of a kitchen or bathroom of a certain unit, it also revealed information about the unit dweller and his or her standard of living. It might show whether they are tidy or not, whether they can afford expensive media equipment or not, whether they love music, or art, or cooking. Under section 2, personal information is defined as information about an identifiable individual. She noted that it states only that the individual must be “identifiable,” not necessarily identified. Under each unit photograph was the street address of the building, and the unit number, thereby ensuring that each photograph of a unit could be traced back to the individual living in the unit. The Assistant Commissioner therefore concluded that the information at issue was information about an identifiable individual, and was personal information for the purposes of the Act.

The Assistant Commissioner also commented on the organization’s obligations with respect to the collection of personal information – the purposes must be identified prior to or at the time of collection, the individual’s knowledge and consent must be obtained, and a reasonable effort must be made to ensure that the individual understands how the information will be used or disclosed. In this case, the landlord notified its tenants that it would be accessing certain units, as required under the Tent Protection Act [now the Residential Tenancies Act], for insurance purposes. No mention was made that photographs of the units would be taken.

She concluded that, since photographs were taken that contained the personal information of identifiable individuals, the tenants should have been informed that not only was the landlord entering the premises for insurance or mortgage financing purposes, but also that photographs would be taken by a consultant to be used in a report prepared by him. The tenants should also have been told how the photographs would be safeguarded, and should have been provided with any other relevant information regarding the company’s privacy policies and practices. Only then would the tenants have had enough information upon which to base their decision to consent. She determined that this was clearly not the case.