The Elephant in the Room

Access to Private Information and Private Property

By Quintin Johnstone, CEO of Riskboss Inc.

As described by Wikipedia, “Elephant in the room” is an American English metaphorical idiom for an obvious problem or risk that no one wants to discuss.” Controversial yes; however, very necessary conversation(s) here at Riskboss Magazine. In every publication, Riskboss Magazine will address the latest Elephant in the Room to clearly answer hard asked questions.

The right for anyone (including police officers) to enter a private area or obtain private information is highly restricted in Canada and may only be permitted through due process or by authorization by law. While it is not the intent of this article to recommend unwarranted restrictions to anyone conducting legitimate and authorized business, it is intended to protect against unauthorized access to information and/or private areas in condominiums, commercial buildings and organizations. Consequences must be weighed very carefully before granting access or releasing information to anyone.

Albeit with the best intentions, people often request information and access without authorization as doing so is the least burdensome course of action. During my thirty years as a police officer with the Toronto Police Service nothing frustrated my peers and I more than barriers to evidence collection while solving cases but it is the law and it has to be respected.

Security and/or property management who provide authorization to enter private spaces or access private information without authorization can quickly find themselves involved in serious and unintended consequences. Such access may have dramatic and negative impacts to a criminal case or other quasi-judicial proceedings due to privacy legislation and the Canadian Charter of Rights and Freedoms unless done properly. For example, unless anyone is lawfully placed in a private area and/or has authorized access to information, a court may find evidence observed or collected to be prejudicial and therefore inadmissible thereby jeopardizing the case.

In most cases access to private information or access to a private/restricted area must not be made; however, there are exceptions to this rule:

Anyone may enter a private area or obtain private information when they have been invited by a person with the legal authorization to do so (e.g. Property manager, live-in owner or tenant) for issues such as parking or noise complaints, reporting thefts, etc.)

For greater clarity, private / restricted areas include any area past the front entrance or security desk (e.g. lockers, hallways, elevators and underground parking are all private / restricted areas).

Private information includes client, trade, employee and resident lists, suite, parking and locker assignments, site governance, CCTV footage, security reports and all direct and indirect knowledge that an employee of a security or property management firm may acquire through their employment.

Property managers very often struggle with the question of when to volunteer information to the police and others without authorization. Simply answering a question verbally can have negative consequences.

The following may assist:

When there is an internal issue between residents (e.g. Domestic violence or vehicle damage in the underground), then judicial authorization should be obtained, as there is a right and expectation of privacy for all residents.

When fire or ambulance services attend at a building, it is automatically assumed and readily accepted that an emergency is taking place and full access must be allowed to restricted areas and information immediately.

Police can enter a private area or obtain private information when they declare the situation to be an emergency (e.g. Child in need of immediate protection, assault in progress, medical emergency, etc.)

Police may enter a private area or obtain private information by way of a judicial authorization (e.g. search warrant or arrest warrant)

A judicial officer (e.g. Sherriff) may enter private property when authorized by law (e.g. Eviction by court order)

Summons servers, private bailiffs repossessing cars, process servers, etc. do not have a right of entry into private property or access to private information. Until property management verifies access rights and authorization, access should be denied.

For the purpose of the Residential Tenancies Act of Ontario with respect to access by an owner when a property is rented out to a tenant, an owner cannot have access to a unit without the permission of the tenant or by judicial authorization. Access to the unit by an owner who rents a suite may only be granted with authorized permission.

When a stranger enters the property to trespass, break and enter into a locker, cause damage or assault a resident, they have no right or expectation of privacy and therefore, the voluntary release of information without judicial authorization is appropriate.

Access to hallways is also legally allowed for the purposes of allowing authorized election representatives to canvass. Federal, provincial and municipal law allows access for the purposes of canvassing residents at their suite doors.

Limitations of times allowed for canvassing varies depending on the jurisdiction. It is recommended that property managers alert residents that such canvassing will be occurring in advance of elections. It is also recommended to ensure a clear policy is created for on site security on screening canvassers to ensure their authorization (e.g. Identification) and prohibitions against leaving canvassing materials in hallways.

Albeit the front entrance and security desk is private property as well as the adjoining privately owned land area, there is an assumed right of reasonable initial access to nonresidents for legitimate inquiry purposes.

The Elephant in the Room is when and how property managers and security should provide access to private areas and information.

The bottom line for property managers, Boards, security and organizations leaders alike is to ensure that no unauthorized access to private information and/or access to private / restricted areas is allowed to occur. Each condominium corporation and organization should have a clear policy on this matter that is clarified by legal counsel.