Photographs of Rental Unit by Landlord

Juhasz v Hymas, 2016 ONSC 1650 (CanLII)

[25] The first is a decision of the Landlord and Tenant Board, and a Review Order from that decision, dated January 29 and March 6, 2014, respectively, in File No. CEL-31023-13 (Re), 2014 CanLII 28552 (Ont. L.T.B.) and File No. CEL-31023-13-RV (Re), 2014 CanLll 28550 (Ont. L.T.B.). These decisions conclude that a landlord does not have the right to enter a tenant’s premises for the purpose of marketing or taking photographs or videos in the absence of the tenant’s consent, or a specific clause in the tenancy agreement permitting such steps to be taken.

[26] The Divisional Court recently considered the issue of entering a tenant’s premises for the purpose of taking photographs in the context of a dispute raised by the tenants about appropriate repairs and maintenance of the rental unit: see Nickoladze v. Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII). In that context, the decision upheld the right to take photographs as to the maintenance and repairs of the unit: see, for instance, paras 8 and 9 of that decision:

8. While it might be prudent for a landlord to expressly state in a notice to enter a rental unit that photographs may be taken, the failure to do so does not render the entry unlawful. Section 27 if the RTA expressly authorizes a landlord to enter a rental unit for the purposes of conducting an inspection and that it is what happened in this case. The entry was therefore lawful.

9. Further, the fact that photographs were taken does not, by itself, constitute an infringement of the tenant’s privacy rights. It would only constitute an infringement if it was done for an improper purpose. In this case, the Board determined that the photographs were taken for the purpose of the inspection and for use at the hearing of the tenant’s outstanding applications. It was open to the Board, on the evidence, to reach that conclusion. In this day and age, it is not at all surprising that either a tenant or a landlord would take pictures of relevant items in order to use them at a hearing before the Board. Indeed, I understand that, on a prior occasion, the tenant had done precisely that to advance his position.

[28] We distinguish the decision of Nordheimer J. in Nickoladze. By way of contrast, in this case, taking photographs of a person’s home and personal belongings without their consent and posting these photographs on the internet clearly infringes privacy interests. In this case, a privacy interest is clearly engaged – an interest enhanced, perhaps, by the tenant’s disability of a post-traumatic stress disorder.

[29] We agree with the conclusion in the Review Order of the Board in File No. CEL-31023-13-RV (Re) that absent a specific term of the lease, or with the tenant’s consent, there is no authority under s. 27 of the RTA to require entry into a tenant’s premise to take photographs for marketing purposes to advance the sale of the property. It follows that the refusal by a tenant to allow entry for such purpose cannot be proper grounds for eviction.

CEL-31023-13-RV (Re), 2014 CanLII 28550 (ON LTB)

5. The hearing member determined that that Landlord’s notice of entry was not for one of the permitted reasons for entry set out in section 27 of the Act.

6. The notice of entry stated that the purpose of the entry by the Landlord’s real estate agent was to measure the unit and take photos/video of the unit to market the property and list it for sale.

7. It is clear from section 27 of the Act that a Landlord can not enter a rental unit for any reason they choose. The permitted reasons are specified.

8. I agree with the Landlord that the Landlord has a lawful right to list their property for sale and show the property to potential purchasers. This right to show the property is specifically set out in subsection 27(2) of the Act.

9. However, this right does not mean that the Landlord has the right to enter the unit to market it, take photos/videos etc. The Landlord would also not be permitted to “stage” or decorate the unit as is often now done when a property is listed for sale. It is acknowledged that it may be more difficult to sell and show a unit when it is occupied by tenants. However, this does not change the permitted reasons for entry specified in section 27 of the Act.

Nickoladze v Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII)

[7] It was entirely within the discretion of the Board to find, as a fact, the reason why the photographs were taken and to determine that, since they were taken for use before the Board and for no other purpose, the tenant could make no legitimate complaint regarding the landlord’s conduct. There is nothing that arises from that determination that can be fairly characterized as giving rise to a question of law.

[8] While it might be prudent for a landlord to expressly state in a notice to enter a rental unit that photographs may be taken, the failure to do so does not render the entry unlawful. Section 27 of the RTA expressly authorizes a landlord to enter a rental unit for the purposes of conducting an inspection and that it is what happened in this case. The entry was therefore lawful.

[9] Further, the fact that photographs were taken does not, by itself, constitute an infringement of the tenant’s privacy rights. It would only constitute an infringement if it was done for an improper purpose. In this case, the Board determined that the photographs were taken for the purpose of the inspection and for use at the hearing of the tenant’s outstanding applications. It was open to the Board, on the evidence, to reach that conclusion. In this day and age, it is not at all surprising that either a tenant or a landlord would take pictures of relevant items in order to use them at a hearing before the Board. Indeed, I understand that, on a prior occasion, the tenant had done precisely that to advance his position.

[10] There is no error of law arising from the Board’s decision in this matter. There is consequently no error in the Board’s order dismissing a review from that decision.

[11] The appeal is dismissed.