Broken Records
Privacy Commissioner’s comment on examination of records
By Andrea C. Krywonis
Gardiner Miller Arnold LLP, Barristers and Solicitors
1202 – 390 Bay Street, Toronto, Ontario M5H 2Y2
PH: 416-363-2614 | FX: 416-363-8451
gerry.miller@gmalaw.ca | www.gmalaw.ca
When the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) was first introduced in 2000, some condo lawyers took the position that condominium corporations were exempt from its application because condos do not accumulate private information for commercial purposes. Instead, condos function within the authority of the Condominium Act, 1998 (the “Act”) to manage the property and assets of the condo, as a non-profit organization.
Nonetheless, court and Privacy Commissioner’s rulings have taken the opposite stance and equate the operation of condominium corporations to commercial activity. The Privacy Commissioner’s Case Summary #301 found that a condominium corporation must implement practices to protect personal information and ensure that there is a complaint and inquiry process available with respect to privacy. In Rodgers v. Calvert, the Ontario Superior Court found that any organization, whether non-profit or for-profit, that collects, uses or discloses personal information in the course of commercial activity is subject to PIPEDA.
If we apply the Rodgers principle to condos, the hiring of a property manager or maintenance contractor can be considered commercial activity and most condos collect, use or disclose personal information in the course of administration. Therefore, in most cases where a property manager is hired (and in most condos, such is the case), PIPEDA correspondingly applies and creates restrictions on disclosure of personal information. What then, of requests for examination of records under sec-tion 55(3) of the Act? While access to records came before the courts under the Old Act in the context of the provision or appropriateness of disclosure, it has not yet been adjudicated in the context of PIPEDA.
A colleague of ours has circulated a copy of a letter from the Acting General Counsel of the Office of the Privacy Commissioner of Canada. This letter provides the Privacy Commissioner’s com-ment on PIPEDA and its interaction with section 55 of the Act. An excerpt from the letter states:
“Section 55 of the provincial [Condominium] Act sets out a list of records that a condominium corporation is required to keep, and gives the owner of a unit the right to examine the records of the corporation, subject to specified exceptions. I note under the exception in paragraph 55(4)(c), a unit owner does not appear to be entitled to records relating to specific unit owners.
To the extent that records requested by a third party contain personal information about other individuals, and do not fall within the exception in paragraph 55(4)(c) of the Ontario [Condominium] legislation, the relevant provision under PIPEDA is paragraph 7(3)(i). This provision permits an organization to disclose personal information without the knowledge or consent of the individual if the disclosure is “required by law”. This provision has been interpreted by our Office to include provincial laws. Thus, to the extent that a condominium corporation is required under Ontario legislation to disclose personal information to a third party requester, PIPEDA enables that disclosure to take place.
As noted however, it appears that at least some categories of personal information are protected under Ontario’s Condominium Act.”
This commentary is not groundbreaking. Moreover, the Privacy Commissioner’s letter and Case Summary are not binding precedent. They are, nonetheless, helpful in reinforcing what we have come to accept about how PIPEDA and condos interact and emphasize the need for condominium corporations to have a privacy policy.
PIPEDA has crept into the condo world and it appears that disclosure of records relating to specific owners, normally excepted by s. 55(4)(c), must be made if “required by law.” “Required by law” could mean required under provincial or federal laws or legislation and we suggest that the definition is easily be expanded to federal statutes such as the Criminal Code or Income Tax Act. Hopefully, a condo will not be put into the position to make such a judgment call – as always, take heed and consult your lawyer should you have any concerns with a request to examine records or to implement a privacy policy in your condo.
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Contact the Jeffrey Team for more information – 416-388-1960
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