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Privacy is a continually evolving legal issue and perennial hot topic in our increasingly technology-dominated world. In this guide, we’ll provide a broad overview of tenants’ privacy rights under applicable federal and Ontario law, and cover privacy-related best practices for landlords.
PIPEDA
Ontario landlords are subject to Canada’s federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). PIPEDA applies to commercial operations across Canada, except where limited by supervening provincial data and privacy legislation, such as in Alberta and British Columbia. Ontario has no supervening data and privacy legislation, and accordingly, PIPEDA is binding on all for-profit landlords operating in the province, from small ‘mom and pop’ residential homeowners with tenants, to large property management companies, and everything in between.
Data Collection
Personal information under PIPEDA includes any “factual or subjective information” about an identifiable individual, such as their:
name, date of birth, banking information and other financial records;
identification numbers, such as driver’s licence number and Social Insurance Number; and
photographs and video recordings about them.
Landlords collecting, using, and disclosing tenants’ personal data are subject to the rules of PIPEDA, including the following:
A landlord must obtain their tenant’s consent when they collect, use or disclose personal information.
The landlord must identify the reasons for collecting this information before or when they collect it. In addition, they should ensure that these purposes would be considered appropriate under the circumstances by a reasonable person.
The landlord may only use the tenant’s personal information for the purpose(s) for which it was collected. If they share the information with a third party, such as a property management company or an entry system vendor, they must disclose this to the tenant, either when the tenant’s personal information is collected or before.
The landlord must provide the tenant with access to any personal information that they hold about them, and permit them to correct this information if it is not accurate.
The landlord is responsible for ensuring that the personal information they collect is protected by appropriate safeguards.
Landlords should also ensure rental agreements contain provisions which address what personal information is being collected from their tenants and how it will be used. They should outline for tenants potential third-party recipients of any personal information they collect.
Cameras
The Office of the Privacy Commissioner (“OPC”) permits cameras in residential buildings to the extent “reasonable”.
Generally, cameras in common areas such as the lobby will be regarded as reasonable, whereas those in more intrusive places, such as the inside of the unit, may be seen as crossing into interference territory. In one case, the OPC determined that maintaining 26 cameras in a single building - providing 24-hour surveillance of all entrances, the lobby, the laundry room, the inside of the elevator, all interior hallways, and the garbage and bicycle storage areas outside the building - was unreasonable.
The OPC recommends landlords using cameras abide by the following best practices:
Post signs and distribute policies that clearly explain how the camera footage will be used, and when it will be accessed.
Be cautious in positioning the cameras so as not to capture the inside of a person’s unit.
Secure the footage captured, and only access it for the purposes that have been disclosed to the tenants concerned.
The Residential Tenancies Act
While tenants have no explicit right to privacy pursuant to the Residential Tenancies Act (the “RTA”), under s. 22, a landlord may not “substantially interfere with [tenants’] reasonable enjoyment” of their rental unit. Excessive landlord entries, for example, may be regarded as substantial and unreasonable interference, depending on the facts of the case.
Entering a Tenant’s Unit
Landlords must provide 24 hours' written notice before entering a tenant’s unit. They may enter between 8:00 a.m. and 8:00 p.m for (reasonable) reasons set out in the rental agreement to:
Inspect the rental unit (if reasonable to do so);
Determine if any repairs are required;
Conduct repairs;
Allow a potential mortgagee or insurer to view the rental unit;
Allow a “qualified person,” such as an architect or engineer, to inspect the unit, where the landlord has filed an application to convert the property to a condominium and inspection is required under subsection 9(4) of the Condominium Act.
The landlord’s written notice must specify the date, time and the reason for entering the rental unit. The landlord may enter anytime, however, if:
There is an emergency;
The landlord has obtained the tenant’s consent;
The landlord is required by the rental agreement to clean the rental unit (between 8:00 a.m. and 8:00 PM, unless the tenancy agreement says otherwise);
The landlord is showing the rental unit (between 8:00 AM and 8:00 PM) to a new prospective tenant, after either the landlord or the tenant has given a notice of lease termination (or the landlord and the tenant have otherwise agreed to terminate the tenancy);
The landlord is required by the tenancy agreement to check on the condition of a tenant in a care home.
Tenants’ Guests
There is no legal right for a landlord to monitor or restrict who a tenant allows in as a guest, as long as overcrowding bylaws aren’t violated. Clauses in rental agreements stipulating that the landlord has such a right are void.
Photographs of a Unit
A landlord may photograph a unit, including a tenant’s belongings, provided the photos are taken for a “proper” purpose. Taking photos for the purpose of property maintenance and inspections has been accepted as “proper”, whereas publishing photos in a virtual tour to help sell a property - without the consent of the tenant - may unlawfully infringe on a tenant’s privacy interests.
Landlords should obtain consent for photographs from tenants. If photos will be taken on a visit, a landlord should state this in their written notice of entry, including an explanation of why.
Our legal professionals help both landlords and tenants dealing with privacy-related matters. If you’re interested in learning more about our ability to assist with your privacy matter, take a look at our housing practice page and book a free or paid consultation with us using the button below.