Is a Landlord Required to Protect the Privacy of a Tenant?
A Landlord Is Required to Protect and Respect the Privacy of a Tenant By Securely and Confidentially Holding Private Information About the Tenant As Well As Providing Proper Notice Prior to Entering the Rental Unit of the Tenant.
Privacy Rights Owed By a Landlord to Residential Tenants
The home of a tenant, like anyone, is private refuge that the law protects with a fair balance between the reasonable access needs of a landlord and the reasonable privacy expectations of a tenant. To protect and limit access into the privacy concerns of tenants, the law also requires that a landlord keep in confidence, meaning keep quiet about, and keep safe and secure, the personal information about the tenant.
General Privacy Breach
The Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, being the statute law applicable to many issues involving landlord and tenant relations, offers vague information as limited guidance regarding the duty to respect privacy. Other than an explicit details regarding entry into the rental unit, per the explanation below, the Residential Tenancies Act, 2006 says very little. Accordingly, as the Residential Tenancies Act, 2006 is so vague about privacy rights, to gain a better understanding, actual decisions by the Landlord Tenant Board should be reviewed whereas prior cases do show that section 22 and section 23 of the Residential Tenancies Act, 2006, which explicitly address issues involving interference in reasonable enjoyment of the rental unit, including harassment, are legally interpreted by the Landlord Tenant Board as also involving general privacy concerns. Specifically, section 22 and section 23 respectively state:
22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
23 A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.
As mentioned above, section 22 and section 23 of the Residential Tenancies Act, 2006 are absent of precise references to the issue of privacy; however, it is the case decisions of the Landlord Tenant Board that interpret section 22 and section 23 as applicable to the issue of privacy. This interpretation was shown in the case of C.R. v. R.A.D.P., TNT-75619-15 (Re), 2015 CanLII 93370 wherein it was said:
32. The Tenant testified that on September 30, 2015, she saw the Landlord come out of his office waving the Tenant’s social assistance cheque which was stapled to an opened envelope. The Tenant testified that the Landlord told her that a member of the Landlord’s staff, Kim, had opened the Tenant’s mail accidentally. The Tenant testified that the next day the Tenant asked Kim about the opened mail and Kim stated that she did not open the Tenant’s letter. The Tenant testified that after her conversation with Kim, the Tenant asked the Landlord again about the opened mail and the Landlord blamed it on another tenant.
33. The Tenant testified that on or about September 15, 2015 the Tenant was told by another tenant, Chantal, that the Landlord had told Chantal that the Tenant owes the Landlord $5,000.00 in arrears.
34. At the hearing the Tenant submitted a copy of an e-mail from the Landlord, dated May 26, 2015, in which the Landlord discusses in detail a payment plan that has been negotiated with the Tenant. The e-mail was carbon copied to a number of third parties who are not related to the tenancy.
35. The incidents to which the Tenant testified establish that the Landlord has breached the Tenant’s privacy. The Tenant is entitled to receive her mail unopened and to have communications with the Landlord about rent payments kept confidential by the Landlord. Opening the Tenant’s mail, telling another tenant about alleged arrears owed by the Tenant, and carbon copying unrelated third parties on a communication containing private details about a payment plan with the Tenant all constitute breaches of the Tenant’s privacy.
36. Based on the Tenant’s uncontested evidence about the Landlord’s breaches of her privacy, I am satisfied that the Landlord has harassed the Tenant and substantially interfered with the Tenant’s reasonable enjoyment of the rental unit or the residential complex.
Interestingly, cases involving breach of privacy by conduct other than illegal entry appear rare. A review of the CanLII.org (Canadian Legal Information Institute) website reveals few cases addressing breach of privacy by way of wrongful publication of private information regarding the tenant. It may be that this issue arises infrequently or that tenant complaints are submitted for attention by the Office of the Privacy Commissioner of Canada rather than litigated as an issue for dispute within Landlord Tenant Board proceedings.
Allegations of interference in reasonable enjoyment involving concerns for the presence of security cameras arise from time-to-time where tenants raise the issue of privacy breach; however, where cameras are installed legitimately for a bona fide purpose, such as to curtail vandalism or other wrongful conduct, any interference with privacy is, generally, deemed a reasonable interference rather than as a substantial interference. This issue arose in the case of M. K. and S. A. v. R. B., CET-63266-16 (Re), 2017 CanLII 28532 wherein the Landlord Tenant Board said:
30. I am not satisfied that the presence of cameras outside the rental unit substantially interferes with the reasonable enjoyment of the Tenants. I acknowledge the concerns of the Tenants regarding the privacy of their daughters, this may be interference but it does not arise to the level of substantial. The Landlord has a legitimate purpose for the installation of the cameras which is to provide security to both parties. The information is stored on the Landlord’s computer. The cameras are located outside the home and it is reasonable that the cameras cover the common entry door to the home as this is likely where an attempted break and enter would occur. This claim is dismissed.
Of course, had the landlord made use of cameras for an illegitimate purpose, such as peeping, it is quite likely that the Landlord Tenant Board would find such conduct as a substantial interference in the reasonable enjoyment that falls within section 22 of the Residential Tenancies Act, 2006 and a sanction or penalty for such conduct would occur.
A very common dispute between a landlord and tenant alleging breach of privacy involves concerns for illegal entry by the landlord, or an agent of the landlord such as a building superintendant, into the rental unit without first providing proper notice of entry to the tenant. The requirements of proper notice require that a landlord only enter the rental unit of a tenant for specific reasons outlined within the Residential Tenancies Act, 2006 whereat section 25, section 26, and section 27, it is stated:
26 (1) A landlord may enter a rental unit at any time without written notice,
(a) in cases of emergency; or
(b) if the tenant consents to the entry at the time of entry.
(2) A landlord may enter a rental unit without written notice to clean it if the tenancy agreement requires the landlord to clean the rental unit at regular intervals and,
(a) the landlord enters the unit at the times specified in the tenancy agreement; or
(b) if no times are specified, the landlord enters the unit between the hours of 8 a.m. and 8 p.m.
(3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if,
(a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other;
(b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and
(c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so.
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
1. To carry out a repair or replacement or do work in the rental unit.
2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
4. To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection.
5. For any other reasonable reason for entry specified in the tenancy agreement.
(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit.
The privacy rights of a tenant are prescribed within the Residential Tenancies Act, 2006 as well as other laws including previous decisions of the Landlord Tenant Board. As for the requirements provided within the Residential Tenancies Act, 2006, a landlord is required to hold in confidence the private information known to the landlord. A landlord must also ensure that the use of any security cameras or other monitoring equipment is implemented appropriately and for a legitimate purpose. Additionally, a landlord is required to refrain from entering the rental unit of the tenant unless for a proper reason and with proper notice of intent to enter provided.