Juhasz v. Hymas, 2016 ONSC 1650
CITATION: Juhasz v. Hymas, 2016 ONSC 1650 DIVISIONAL COURT FILE NO.: 328/15 TSL-59801-15 DATE: 20160307
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT J. WILSON, STEWART AND CONLAN JJ.
BETWEEN:
JUDY JUHASZ Appellant (Tenant)
– and –
JAMES IAN HYMAS Respondent (Landlord)
COUNSEL: Dania Majid, for the Appellant (Tenant) Martin P. Zarnett, for the Respondent (Landlord) Brian A. Blumenthal, for the Landlord and Tenant Board
HEARD at Toronto: March 7, 2016
J. WILSON J. (ORALLY)
The Appeal
[1] The tenant, Judy Juhasz, is appealing the final order from the Landlord and Tenant Board (the “Board”) dated April 24, 2015, which was upheld on review in a decision dated June 1, 2015. The landlord, James Ian Hymas, successfully sought an order to evict the tenant when she repeatedly denied access to her rental unit for the purpose of taking photographs.
This Court’s Jurisdiction
[2] Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) provides a right to appeal decisions of the Board to the Divisional Court, but only for questions of law. Section 210(4) then empowers this Court to “affirm, rescind, amend or replace the decision or order, or … remit the matter to the Board with the opinion of the Divisional Court.”
Standard of Review
[3] The appellant submits that the appropriate standard for this appeal is correctness. Her argument is based on: the important privacy concerns involved in this matter; the existence of a statutory right of appeal in the RTA; and the Board’s lack of expertise interpreting the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 and the Human Rights Code, R.S.O. 1990, c. H.19. Also, the appellant argues that this matter addresses questions of central importance to the legal system.
[4] The Board submits that the appropriate standard is reasonableness. The Court of Appeal in First Ontario Realty Corporation Ltd. v. Deng (2011), 2011 ONCA 54, 274 O.A.C. 338 (C.A.) determined that a deferential standard of reasonableness applies when the Board is interpreting its home statute or making determinations with respect to its core functions. This deference holds even though there is a statutory right of appeal in the RTA, and even when decisions engage the Human Rights Code. The respondent adopts the arguments of the Board, and adds that the appellant is mischaracterizing this case as the Board asserting jurisdiction over privacy issues, when it is rather a case of the Board making an order under the RTA.
[5] As the Board is interpreting its home statute, we concur with the Board and the respondent that the appropriate standard of review in this case is reasonableness.
The Issue
[6] The appellant challenges the finding that in the facts of this case, s. 27(1)(5) of the RTA allows a landlord access to a rental unit to take photographs for the purpose of the sale of the property.
[7] She raises further arguments including whether there was substantial interference with the landlord’s right of access and whether the Board adequately took into account her disability in accordance with the Human Rights Code. As we find that the Board erred in law in its conclusion that s. 27(1)(5) of the RTA permits photographs to be taken for the purpose of a sale, we do not need to review the other issues raised. These issues are largely fact driven, and are not questions of law.
The Board’s Decision
[8] The Board accepted the landlord’s argument that the tenant had substantially interfered with the landlord’s ability to list the property for sale by not allowing him or his agents access to the property for the purpose of measuring the unit and taking photographs.
[9] The crux of the tenant’s objection to taking photographs was that they would show her and her children’s personal belongings to the world over the internet in furtherance of a sale.
[10] The tenant did allow measurements to be taken until the agent or inspector began taking photographs. Then she objected.
[11] As noted by the parties, s. 26 and 27 of the RTA are the only two provisions that provide the authority for when a landlord may enter a tenant’s rental premise. Section 26 does not apply. The respondent relies on section 27(1)(5) of the RTA as the authority to enter the premises.
[12] Section 27(1) of the Act states that 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:
- To carry out a repair or replacement or do work in the rental unit.
- To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
- 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.
- 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.
- For any other reasonable reason for entry specified in the tenancy agreement.
[13] We note that the Board in its reasons highlighted s. 27(1)(5) as applying in this case. The member concluded at para 23: “I find that the Landlord has complied with section 27 of the Act because the lease between the parties specifically reserves to the Landlord the right to enter upon notice in any circumstance.” [Emphasis added]
[14] Curiously, the lease was not filed as an exhibit before the Board. The lease is in our materials for this appeal. It is clear from reviewing the lease that there is no clause providing that the landlord is permitted entry “in any circumstance.”
[15] We are of the view that the Board made a fundamental error in law in reaching the conclusion that s. 27(1)(5) of the RTA applied to allow entry to take photographs.
[16] The respondent argues that the lease was not the only governing document. That is, we should also look to the separation agreement between the parties. This agreement provides that the appellant has the right of first refusal if the property is to be sold. It is not particularly helpful to the landlord. As well, he argued, we should consider an “oral implicit agreement” that the property was to be listed for sale.
[17] We conclude that the lease and the provisions of the RTA govern the rights and obligations of the parties as a landlord and a tenant.
[18] There are several specialized clauses attached to the lease in Schedules A and B. The lease does permit the landlord or his agent to enter on notice “for showing the premises to prospective tenants or purchasers”. There is no clause permitting entry by an agent to take photographs in furtherance of a sale.
[19] We agree with the respondent that the reasons of the Board must be read as a whole, in context and in accordance with the principles outlined in Newfoundland Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[20] When considering the reasons as a whole and in the context of these proceedings, it is clear that the Board was incorrect in its conclusion that the lease provided the right of entry “in any circumstances” underpinning the finding that s. 27(1)(5) of the RTA permits the taking and dissemination of photographs for marketing purposes.
Legal Analysis
[21] The Board did not consider any case law in reaching its decision, as it decided the issue based upon a misunderstanding of the terms of the lease.
[22] Are landlords entitled to insist upon taking photographs for the purpose of sale without the consent of the tenant, or without a permissive clause in the lease? Is failure to do so grounds for eviction?
[23] The respondent argues that if landlords are not permitted to send in realtors to inspect and take photographs when a property is rented, there will be a serious chilling effect in the rental market.
[24] Two decisions were referred to us during the oral arguments.
[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 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. 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:
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.
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.
[27] The Nickoladze decision is distinguishable from this case. In Nickoladze, the tenant raised issues about his privacy interest being compromised. Justice Nordheimer concluded that, as the photographs were taken in the context of a proceeding before the Board initiated by the tenant, no privacy interest was engaged. We also note that this decision was in relation to an inspection of the rental unit, an activity which is a specifically permitted ground for entry pursuant to s. 27(1)(4) of the RTA.
[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.
Conclusions
[30] Counsel for the appellant confirmed in oral argument that her client was not objecting to the realtor or inspector taking measurements, nor was she objecting to designs being prepared as to the layout of the property. These concessions are reasonable. There can be no privacy interest in measurements or neutral diagrams.
[31] The sole objection taken by the tenant before us was the taking of photographs of her and her children’s personal possessions that would be disseminated to the public via the internet to advance the sale of the property.
[32] We note that nothing in this decision precludes the parties in this case, or in any other case where there is no specific clause in the tenancy agreement allowing for photographs, from coming to a mutually, agreeable accommodation to address a tenant’s privacy concerns. For instance, counsel suggested in argument that the photographs could be “photoshopped” to delete the visibility of personal items belonging to the tenant. Alternatively, personal items could also be moved at the landlord’s expense to facilitate photographs being taken that would not infringe privacy interests.
[33] For these reasons, we conclude that the finding of the Board that the tenant substantially interfered with the landlord’s ability to take steps to sell the property, including taking photographs for marketing purposes, is unreasonable. The order terminating the tenancy must therefore be set aside.
Costs
[34] Costs fixed, as agreed between the parties in the amount of $3,000, payable by the landlord to the tenant forthwith.
___________________________ J. WILSON J.
STEWART J.
CONLAN J.
Date of Reasons for Judgment: March 8, 2016 Date of Release: March 11, 2016
CITATION: Juhasz v. Hymas, 2016 ONSC 1650 DIVISIONAL COURT FILE NO.: 328/15 TSL-59801-15 DATE: 20160307
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. WILSON, STEWART AND CONLAN JJ.
BETWEEN:
JUDY JUHASZ Appellant (Tenant)
– and –
JAMES IAN HYMAS Respondent (Landlord)
ORAL REASONS FOR JUDGMENT
J. WILSON J.
Date of Reasons for Judgment: March 8, 2016 Date of Release: March 11, 2016