BC Supreme Court finds no “invasion of privacy” by rental property manager

Demcak v. Vo, 2013 BCSC 899

A strata corporation is legally required to collect and distribute certain records under s. 35 and 36 of the Strata Property Act (the “SPA”). Some of those records may contain “personal information” as that term is defined in the Personal Information Protection Act of BC (the “PIPA”). Generally speaking, private information can only be collected and used with a person’s consent. As a result, property managers (and their strata) sometimes find themselves on the business end of a complaint under the PIPA, and occasionally, even a lawsuit that alleges a breach of privacy rights. Although most strata managers are familiar with privacy complaints under the PIPA, few have ever heard of the Privacy Act. The Privacy Act sets out the circumstances in which a person may sue someone for a breach of privacy.

In Demcack v Vo the plaintiffs were sub-tenants of a residential property in the City of Richmond. Someone complained to the City about the plaintiffs’ practice of keeping derelict vehicles on the property. The City inspected the property and ordered the plaintiffs to remove their vehicles. The head tenants gave the plaintiffs a notice to end tenancy after they failed to remove the vehicles and the notice was upheld by the Residential Tenancy Branch (“RTB”). The plaintiffs applied for a review of the RTB decision, but the decision was upheld. Not content with those results, the plaintiffs filed a lawsuit in the BC Supreme Court naming the head-tenants, the rental manager, and the City of Richmond as defendants. One allegation that stood out in the plaintiffs’ pleadings was claiming that the defendants had breached the plaintiffs’ “privacy” rights by entering on the property and snapping photos of the cars.

In striking and dismissing the plaintiffs’ claim, the Court observed that there is no common law tort for breach of privacy in BC. The Court also held that a breach of privacy is only actionable in BC under the Privacy Act, if a plaintiff can establish that a person “willfully and without a claim of right” violated the plaintiff’s privacy. The Privacy Act also recognizes that there are circumstances where the use of private information will not be actionable. Two notable examples are where the use of the private information “was incidental to the exercise of a lawful right of defence of person or property” or where the use of the private information was “authorized or required under a law in force in British Columbia, by a court or by any process of a court”. The Court then found that the rental manager could not be found liable for a “breach of privacy” because the property manager was acting under the landlord’s right to enter upon and inspect property pursuant to the Residential Tenancy Act.Similarly, the City could not be found liable for a “breach of privacy” because it too had statutory authorization to enter and inspect property including residences and uses of property within the City boundaries under the Community Charter. As a result, the plaintiffs’ claims were dismissed and the plaintiffs were ordered to pay special costs to the rental manager and to the City.

The Demcak case should give some comfort to property managers when dealing with requests for records under to sections 35 and 36 of the SPA. Some of those records will contain personal information about owners and tenants. Provided that the information is part of a record that the strata must keep and disclose pursuant to the SPA, the disclosure should meet one of the exceptions under the Privacy Act noted above.

The Office of the Information and Privacy Commissioner has published a very helpful privacy guide for strata corporations and strata managers. Strata corporations should review the guide and consider implementing a privacy policy so that owners are aware of how the strata may use and disclose their personal information.

What we do: Lesperance Mendes advises strata corporations and owners on matters such as construction defects, warranty claims, bylaw enforcement and collections. We have also successfully represented strata corporations to obtain injunctions and significant fines against troublesome owners. For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or by email at pgm@lmlaw.ca.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567