Landlord collected tenant’s personal information as part of investigation into breach of rental agreement

PIPEDA Report of Findings #2014-006

June 17, 2014


A tenant complained that his former landlord had collected his personal information without consent when photos of his residence were taken by an inspector conducting an inspection on behalf of the landlord. The tenant further alleged that his personal information was disclosed without his consent when the photos were allegedly shown to the local police service.

Upon investigating, our Office learned that when the parties had entered into a verbal tenancy agreement, the complainant advised the respondent that he possessed a licence issued by Health Canada to produce marijuana for medical purposes. The respondent agreed to allow the complainant "… to produce marijuana on this property in accordance with the Marihuana Medical Access Regulations" but stipulated that production be limited to four indoor plants.

During the tenancy, the respondent contacted the complainant to arrange for a plumber to enter the complainant's dwelling to attend to a plumbing problem reported by another tenant. The complainant denied access to both the plumber and respondent. According to the respondent, the complainant resisted allowing any access to his dwelling due to concerns about his "grow rooms."

The respondent provided the complainant with an official notice indicating that an inspector would visit the dwelling and take photos. While the complainant initially refused to provide access, he eventually allowed the inspector to enter. The inspector then took photographs of the dwelling. The complainant escorted the inspector during the inspection and was shown each indoor photograph after it was taken.

The report provided by the inspector documented that two locked rooms in the unfinished basement of the complainant's dwelling contained a total of 60 marijuana plants and that "wiring and plumbing has been added to facilitate the cannabis marijuana production operation." The report further documented that the complainant did not allow the inspector to photograph any of the plants and that the complainant stated that "it is nobody's business how many plants he [the complainant] is entitled to produce."

In general, Principle 4.3 of PIPEDA requires that personal information be collected with the individual's knowledge and consent. However, in our Office's view, the complainant's refusal to provide access to his dwelling, citing concerns about his marijuana production operation, raised reasonable doubts about the complainant's compliance with the tenancy agreement. Therefore, in accordance with the exemption noted in 7(1)(b), which allows for collection without consent if the collection is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province, we found that the respondent was allowed to collect the personal information of the complainant without his knowledge and consent.

For the issue of disclosure, our Office was not provided with any evidence to substantiate the complainant's allegation that certain photographs were shared with the local police service.

As such, our Office found that both the collection and disclosure without consent complaints were not well-founded.

Lessons Learned

  • In general, the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information.
  • In certain instances, however, individual knowledge and consent are not required. For example, under paragraph 7(1)(b), an organization may collect personal information without the knowledge or consent of the individual (i) if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information, and (ii) the collection is reasonable for the purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.
  • Take note that this exception does not allow landlords to collect without consent the personal information of others (e.g., via photographs or surveillance of tenants and/or premises) as the landlord sees fit. The precise circumstances of each situation should be analyzed beforehand to determine if paragraph 7(1)(b) is applicable to the situation. Certain conditions that remove the requirement of obtaining the consent of the individuals must first be met.

Report of Findings

Complaint under the Personal Information Protection and Electronic Documents Act (the “Act” or “PIPEDA”)

Overview

The complainant alleged that his former landlord collected his personal information without his consent when photos of his residence were taken by an inspector conducting a house inspection on behalf of the landlord. The complainant further alleged that his personal information was disclosed without his consent when the photos were allegedly shown to the local police service.

We were persuaded that in the circumstances the landlord reasonably anticipated that a breach of the rental agreement had occurred and that the landlord was acting in accordance with the requirements of paragraph 7(1)(b) of PIPEDA.

The investigation determined that the complainant had a verbal tenancy agreement with his landlord that restricted the number of marijuana plants that the tenant could grow for medical purposes in the dwelling at any one time. When the tenant flatly refused to let his landlord enter his dwelling for a legitimate maintenance issue, citing reasons of disruption to his marijuana production, the landlord became suspicious of the scope of the tenant's operation. Therefore, the landlord performed, with notice, an inspection of the complainant's apartment, taking photos, without his consent, in order to investigate whether the tenancy agreement had been breached.

Therefore, the collection complaint is not well-founded.

Concerning the allegation of disclosure without consent, our investigation found no evidence to support the allegation that the complainant's personal information in the form of photographs was disclosed to the local police service.

Therefore, the disclosure complaint is not well-founded.

Summary of Investigation

  1. The respondent is the complainant's landlord.
  2. In November 2010, the complainant and the respondent entered into a verbal tenancy agreementFootnote 1 for a dwelling to be inhabited by the complainant, which was one half of a semi-detached residential building owned by the respondent. At the beginning of the tenancy, the complainant advised the respondent that he possessed a licence issued by Health Canada to produce marijuana for medical purposes ("a personal-use production licence").
  3. The respondent then signed a consent form stating that, as property owner, he would allow his new tenant "… to produce marijuana on this property in accordance with the Marihuana Medical Access Regulations."Footnote 2
  4. Our Office reviewed a copy of the consent form signed by the respondent as well as the complainant's licence, issued by Health Canada. We noted that on the complainant's licence, the space intended to indicate the maximum allowable number of plants that could be grown on the tenanted premises was blackened.
  5. The respondent stated to our Office that the licence had already been blackened when provided to him by the tenant. However, our Office was informed by the respondent that the complainant and respondent had verbally agreed to restrict the maximum number of indoor plants under production to four.
Entry denied
  1. After more than two years into the tenancy, at the end of March 2013, the respondent contacted the complainant to arrange for a plumber to enter the complainant's dwelling. It was explained to the complainant that, due to an unusual plumbing configuration, this was necessary to attend to a plumbing problem reported by the tenant in the neighbouring dwelling whose bathtub would not drain.
  2. The respondent reported to our investigator that the complainant then vehemently resisted allowing any access through his dwelling, citing concerns about drywall, lights and wiring in the complainant's "grow rooms". Consequently, the complainant denied access to both the plumber and the respondent, despite further efforts and discussions.
  3. The next month, the respondent engaged the services of a licensed paralegal to deal with his tenant issues.
Inspection of premises
  1. On May 23, 2013, the complainant received at his dwelling the document Notice of Intent to Enter, issued by the licensed paralegal at the request of the respondent. The document's intent was to advise the complainant of a visit to the premises for an inspection, with photos, that would occur in 24 hours.
  2. The party named to inspect was described as an authorized agent for the respondent (the "inspector"). The inspector arrived at the address the next day, on May 24, 2013, and, although the complainant initially refused, he eventually allowed the inspector to enter. Based on the evidence our Office received, the inspector then took photographs in and around the dwelling, as the complainant escorted him around and was shown each indoor photograph after it was taken.
  3. An inspection report was produced after the visit. Our Office examined a copy of it.
  4. The inspection report documents that two locked rooms in the unfinished basement of the complainant's dwelling contained a total of 60 marijuana plants and that "wiring and plumbing has been added to facilitate the cannabis marihuana production operation." The report further documented that the complainant did not allow the inspector to photograph any of the plants and that the complainant stated that "it is nobody's business how many plants he [the complainant] is entitled to produce."
  5. On July 22, 2013, the Landlord and Tenant Board endorsed a settlement reached by the parties, and the complainant vacated the premises in August 2013.
  6. During the course of the investigation, our Office received a CD from the respondent containing a copy of the photos that had been taken. Although the complainant alleged that more photographs had been taken by the inspector, he did not substantiate his allegation. On this matter, the respondent confirmed to our Office that the only photographs taken by the inspector on that day were the photos submitted to our Office as evidence.
Disclosure
  1. 15. Although the complainant also alleged that certain photographs taken during the visit were shared with the local police service, our investigation was provided with no evidence to support this allegation. When questioned, the respondent denied sharing any of the photos with the local police service.

Application

  1. In making our determinations, we applied sub-section 2.(1) and paragraphs 4.(1)(a) and 7(1)(b) from Part 1, as well as Principle 4.3 from Schedule 1 of the Act.
  2. Sub-section 2.(1) states that "personal information" means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
  3. Paragraph 4.(1)(a) states that Part 1 of PIPEDA applies to every organization in respect of personal information that the organization collect, uses or discloses in the course of commercial activities.
  4. Principle 4.3 stipulates that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
  5. Paragraph 7(1)(b) states that for the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for the purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.

Findings

Personal information
  1. At issue in the first place is whether the complainant's personal information was collected.
  2. In a previous finding from our Office, available on our Web site as PIPEDA Case Summary #2006-349Footnote 3 (Photographing of tenants' apartments without consent for insurance purposes), our Office determined that photographing a tenant's apartment constituted a collection of personal information.
  3. In the case at hand, after examining the photographs taken by the inspector which clearly show the complainant's possessions, we are of the view that the complainant's personal information had been collected.
Collection without consent
  1. The second issue is whether the complainant's consent was required for the respondent to collect his personal information. In general, Principle 4.3 requires the individual's consent for the collection of personal information unless one of the Act's exemptions to consent applies.
  2. It is our view that, given the circumstances, the exemption from paragraph 7(1)(b) applied in this case and therefore the complainant's consent was not required for the collection.
  3. The evidence we received establishes that the condition of limiting the number of marijuana plants in production to four formed part of the complainant's verbal tenancy agreement with the respondent.
  4. We accept the validity of a verbal agreement, noting that verbal tenancy agreements are acceptable under the RTA.
  5. When the complainant flatly refused the respondent's request for access to his dwelling (to repair an urgent building maintenance problem), and cited reasons of serious disruption to the arrangement of his marijuana production operation, in our view, the respondent then had reason to doubt the complainant's compliance with an aspect of their tenancy agreement, specifically the number of plants in production.
  6. Thus, the respondent was justified in his investigating a possible breach of the tenancy agreement in view of his concern about the accuracy of the information. In accordance with the exemption to consent provision of paragraph 7(1)(b), it follows that the respondent was thereby allowed to collect the personal information of the complainant without his knowledge and consent — which would normally be required under Principle 4.3.
Disclosure
  1. Our investigation found no evidence to support the allegation that the complainant's personal information (in the form of the photographs taken) was disclosed to the local police service.

Conclusion

  1. Accordingly, we conclude that both the collection and disclosure complaints are not well-founded
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