IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Heckert v. 5470 Investments Ltd., |
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2008 BCSC 1298 |
Date: 20080926
Docket: S078803
Registry: Vancouver
Between:
Wendy Heckert
Plaintiff
And
5470 Investments Ltd.
Defendant
Before: The Honourable Mr. Justice Walker
Reasons for Judgment
| Counsel for Plaintiff |
M. Thompson |
| Counsel for Defendant |
D. Curtis |
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Date and Place of Trial: |
August 21 & 22, 2008 |
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Vancouver, B.C. |
INTRODUCTION
[1] This case involves the competing claims of a tenant’s right to privacy and a landlord’s right to protect its property and its obligation to protect the interests of other tenants in a residential apartment building. As far as I am aware, there is no reported decision in Canada dealing with the issue.
[2] The plaintiff, Ms. Heckert, is a tenant in an apartment building owned by the defendant who purchased the building in 2006. The apartment building (the “Building”) is a high rise located at 12th and Granville Streets in Vancouver, British Columbia. Apart from the main floor, where there is one rental suite, there are twelve floors to the Building with four suites located on each floor, so that there are 49 suites in total.
[3] Ms. Heckert has lived on the 12th and top floor of the Building as a tenant, continuously since 1993. She took possession of her residential suite, unit 1203, when she signed a residential tenancy agreement on March 31, 1993 (the “Tenancy Agreement”). She currently pays $807 and $45 per month for rent and parking respectively.
[4] Ms. Heckert’s tenancy has remained in effect throughout. For reasons that I will set out later, the Tenancy Agreement also showed an individual named “David Kelk” as a tenant. It appears that Mr. Kelk also signed the Tenancy Agreement.
[5] Once the defendant took possession of the Building in January 2007, it installed Ms. Joanne Strcic as its building manager.
[6] Ms. Heckert brought this action against the defendant seeking damages for breach of the Privacy Act, R.S.B.C. 1996, c. 373, as a result of the defendant’s conduct in placing a video surveillance camera in the hallway of the 12th floor of the Building. This camera records the movements of any person in and about the hallway, including and especially, Ms. Heckert’s entry and exit of her rental suite.
[7] Ms. Heckert also claimed, either alternatively or additionally, for breach of her right to quiet enjoyment pursuant to the Residential Tenancy Act, S.B.C. 2002, c. 78 (“Res. Ten. Act”) and the Tenancy Agreement, as a result of the placement of the video surveillance camera as well as the following conduct of the defendant:
(a) in posting notices in the Building advising tenants that the premises would be patrolled by guard dogs; and
(b) withholding from Ms. Heckert a key to the front entrance to the Building after the high security lock had been changed, effectively denying her ready access to the Building for some 28 days.
[8] The defendant denied liability of all of Ms. Heckert’s claims on the basis that:
(a) Ms. Heckert has no right to privacy in and about the 12th floor hallway or, alternatively, even if she did it was and remains so diminished so as not to be capable of interfering with the defendant’s right to protect its property and the tenants of the Building;
(b) the issue of the key has been the subject of a determination by a residential tenancy officer so that the matter before me should not be heard on the basis of the doctrine of res judicata; and
(c) Ms. Heckert’s right to quiet enjoyment has not been interfered with.
FACTUAL BACKGROUND
A. The Security Cameras
[9] Although there is no dispute that a security camera was installed on the 12th floor, the date of the installation is in dispute. Ms. Heckert said that at some point during the first week in September 2007, she noticed a device, which appeared to be a smoke detector, affixed to the wall of the hallway just outside the entrance door to her suite. She said she asked her roommate, Ross Chamberlin, to check to see if the device was “real”. While he was looking at it, Ms. Strcic’s son, whose age was not identified in evidence, came out of suite 1204, which is almost directly across the hall, and asked them: “What are you doing?” It was not clear if it was at that moment or at some point prior that Ms. Heckert and Mr. Chamberlin realized the device contained a hidden camera.
[10] Ms. Heckert said she wondered why the camera was installed. Upon looking through the rest of the Building, including all of the floors, lobby and basement, she could not find any other camera having been installed.
[11] Further, she said that at all times material to this action there was only one other tenant living on the 12th floor, a fact not disputed by the defendant.
[12] The 12th floor hallway was described as being approximately 4½ feet wide and some 15 to 20 feet in length. The elevator Ms. Heckert uses to access and exit the 12th floor sits further south towards the other end of the hallway, between units 1202 and 1203.
[13] Eventually, two successive cameras were installed at different times to replace the first camera, which had resembled a “smoke detector”. These two cameras were dome shaped in appearance and were said to withstand tampering. Ms. Heckert claimed that the first two cameras installed were pointed directly at her suite, while the third one was aimed in the general direction of the hallway. She was never contacted about, nor did she ever consent to, the installation of the cameras. Ms. Heckert said that up until examinations for discovery took place in the case, she had no knowledge of the disposition of the video images taken from the cameras.
[14] Ms. Strcic’s evidence was that the first camera was installed shortly after September 28, 2007, following a notice she placed throughout the Building for the attention of the tenants. The notice (“Notice”) read, in part:
To: Residents of Granville Court
From: Jo Ann
Date: September 28, 2007
Re: Building security
In light of recent events we are increasing security in the building.
Video cameras
We are installing video cameras throughout the building.
Canadian K9 Detection Security and Investigation
An agreement with this company for patrols of the building is now in place.
…
Rekeying will occur in October. New keys will be available for pick beginning October 3, 2007 and will be given upon showing of identification and verification of signature on leases. Rekeying will be done by October 17, 2007. Call me to schedule pick up…
[15] According to Ms. Heckert, while the initial camera was installed on the 12th floor in early September, it was only after the Notice was published that other cameras were installed in the main lobby and the entranceways to the Building, as well as the underground parking area.
[16] It was agreed between the parties that no other cameras were installed anywhere else in the Building.
[17] There are four entrances to the Building, all of which are secured with high security locks. The main entrance has a telephone system that allows guests to be buzzed in by tenants.
[18] The tenants in the Building access their suites via the elevator or through one of two stairwells. Neither stairwell is secured, but the stairwells are locked from the outside of the Building. Access to the elevator is available to anyone inside the Building as it is not locked or keyed. None of the tenants have the ability to regulate who enters or exits each floor. Access to any floor, including the 12th floor, is open to anyone inside the Building. Ms. Strcic described the common areas to be the lobby, the laundry room, hallways, parking lot, and stairwells.
[19] Since the defendant took possession of the Building in January 2007, Ms. Strcic has been the Building’s manager. She is responsible for maintenance, cleaning, security, leasing, and tenants’ concerns. Ms. Strcic maintained that tenants have no special right to control the hallways on the floors they live on, asserting that in effect access to those hallways is not limited.
[20] Ms. Strcic gave evidence as to the circumstances leading up to the installation of the cameras. She said that when she first took over as building manager, she learned from various tenants that they thought the Building was a “drug building”. She claimed tenants expressed concerns over security for property and person and that she was asked by tenants to deal with the issue of security. Independently of those complaints, Ms. Strcic had “personal experiences” with the 12th floor that caused her concern. She gave the following examples:
(a) she found two people, on two different occasions, sleeping on that floor. She found one of them to be “pretty scary”. Even though she asked that person to leave, she later found him sleeping behind a couch in the main lobby. It took a call to “911” to get this person to leave;
(b) she noticed the smell of urine; and
(c) she found the door to the roof, which is on the 12th floor, to have been tampered with.
[21] Ms. Strcic said she also saw evidence of other people having slept in stairwells connected to other floors and also of people coming into the Building whom she thought were unauthorized, dishevelled, and undesirable. She became worried about the safety of the tenants, the security of the Building and, indeed, the safety of anyone who might obtain unauthorized access to the roof from the 12th floor.
[22] Ms. Heckert agreed that once the defendant took possession, it appeared that there was a lot more traffic in the Building. She acknowledged that there were rumours about the front entrance door being propped open with rocks and of the door to the roof being damaged. She denied seeing any homeless people coming in or out of the Building. In her opinion, all Ms. Strcic had to do to solve any security problems was to get the entrance doors to the Building “under control”. Having said that, Ms. Heckert claimed she was not aware of any security problems remaining as of September 27, 2007.
[23] In April 2007, Ms. Strcic observed from her newly built office in the main lobby a person trying to gain access through the intercom system. She overheard him speaking into the speaker of the Building’s intercom system saying: “No one will let me in – I’ve got good stuff. No one will let me in”. She described the person as having one-half of a nose and carrying a duffel bag. Ms. Strcic said that next she heard the elevator operating and she then saw Ms. Heckert “peep” her head around the corner. Ms. Heckert, she said, eventually saw Ms. Strcic and once she did, she immediately pulled her head back. Shortly thereafter, she observed Ms. Heckert and the man whom she called “half nose” walk by an interior stairwell located at the Building’s west entrance. This event led Ms. Strcic to conclude that Ms. Heckert was letting undesirable people into the Building.
[24] Ms. Strcic claims that the culminating incident which led to the installation of the security cameras took place on September 28, 2007. She observed a man “looking the worse for wear” walk into the elevator from the lobby. She decided to accompany him. This person travelled to the 12th floor and then walked to the door of Ms. Heckert’s suite. Ms. Strcic then saw the door to Ms. Heckert’s suite open, a hand come out and an exchange take place of something she said that looked no bigger in size than a matchbox. Ms. Strcic said she was immediately suspicious and called the police. She said the police told her there was nothing they could do, but suggested she call them back the moment it reoccurred. She said that at some point during her telephone conversation with the police department, the prospect arose of installing a surveillance camera system or of hiring a dog patrol, as possible deterrents to unwanted or criminal activity. As of that time, Ms. Strcic arranged for the camera to be placed on the 12th floor hallway.
[25] Ms. Strcic did not file a police report. She conceded that she is not an expert on drug trafficking and ultimately admitted that she had no notion of what in fact took place at Ms. Heckert’s door. Even so, she defended her decision to install the first camera on the 12th floor outside Ms. Heckert’s door, on this basis: “But ultimately I saw something---enough to know it was suspicious”.
[26] Subsequently, Ms. Strcic had cameras installed in the main lobby and the parking garage, as she believed that if she was able to “get these people on camera”, meaning those people she characterized as being “undesirable” and “frightening to look at”, she could show the film to the police to see if they were “wanted” individuals. Ms. Strcic said she hoped to get “one of these people coming into the Building reported to the police or to have them go away, which thankfully they did”. She defended her decision to install the camera on the 12th floor since this was where the undesirables were ending up and also because of her concerns regarding unauthorized access to the roof.
[27] No documentary evidence, such as an invoice or installation document, was tendered on behalf of the defendant to show the dates of installation of any of the cameras.
[28] I was told that it was later, when cameras were installed in the main lobby and parking garage, that the 12th floor camera was changed to the dome style in order for it to be tamper proof.
[29] Ms. Strcic also explained that the reason for the proximity of the camera on the 12th floor to Ms. Heckert’s suite was due to the location of a power source. Unit 1204, which sits directly across the hall from Ms. Heckert’s suite, was being renovated, which meant easy access to an electrical supply.
[30] Ms. Strcic claimed she instructed the company who installed the cameras on the 12th floor to monitor only the hallway and the elevator, which sits at the far end of the camera’s field of vision. She denied that the first two cameras were pointed directly at Ms. Heckert’s suite. No corroborating evidence concerning the area being monitored by the first two cameras was adduced by either party. The cameras record only when a motion sensor is activated anywhere in the Building where cameras are located. Otherwise, they sit idle. Activation of one camera activates them all.
[31] According to Ms. Strcic, the video monitoring equipment used to watch the images from all of the cameras are stored on the hard drive of a computer. That computer is located in a “doubly” locked room built especially for this purpose, which Ms. Strcic said is to preserve the privacy of the tenants.
[32] The defendant has no written policy in respect of the cameras or of how the video images are to be dealt with. Ms. Strcic or her son, Adam, whom she says works for the defendant, view those images on a regular basis, usually every three days.
[33] Ms. Strcic agreed that once the cameras were installed, the problem with undesirable people in the Building fully resolved itself. As she put it, installation of the cameras: “has absolutely solved our problem”. Even so, both she and her son continue to view the video images from the cameras approximately every three days to see if there is anything “on there that would concern us regarding security”. They look for anything they believe to be suspicious and, in many cases, they skim through the video images. No one else views the video, although on one occasion following a break-in, Ms. Strcic and Adam provided the video image to the police and to ICBC to prove the break-in occurred and in an effort to identify the thief.
[34] Even though the problem with unauthorized persons entering the Building has been resolved, Ms. Strcic continues to maintain the camera on the 12th floor as well as those on the main floor lobby and parking garage. When asked why no other cameras had ever been installed on any other floor or in any stairwells, particularly since she knew people had been sleeping in stairwells not connected to the 12th floor, Ms. Strcic responded by saying: “there is only so much money”.
[35] Ms. Strcic also admitted that the problem with people sleeping in the stairwells, which I took to include those connecting to the 12th floor, had been resolved by March 2007, some six months prior to the installation of the first camera. As well, her observation of the damage to the lock on the door leading to the roof, which is located on the 12th floor, occurred in the Spring of 2007. There was no mention in her evidence of any further damage or attempts to break that lock.
[36] All three cameras placed on the 12th floor were located in the same area on the wall. Although a short clip of video evidence from the third camera was shown during the trial, no images from the previous two cameras were in evidence as the images are taped over approximately every 30 days. Ms. Heckert said that as a result of her personal observations, including her observations of the technician who installed the second camera, the first two cameras were pointed directly at her suite. Although this was denied by Ms. Strcic, no corroborative evidence was adduced.
[37] The video from the current 12th floor camera, marked in evidence, showed the entire length of the hallway, the elevator doors, and the door to the roof located towards the far end of the hallway. The door to Ms. Heckert’s unit is depicted in the immediate foreground. The camera is placed in such close proximity to the door to her suite that I was able to see a very detailed, close-up image of Ms. Heckert and her roommate, including her efforts to unlock the door, as well as the door knob and a very small portion of the front door. It is clear from the video shown to me that any person watching the video images from the 12th floor camera is able to see a very close-up and detailed image of anyone entering and exiting Ms. Heckert’s suite. While viewing the video evidence, I watched Ms. Heckert walk from the elevator down the hallway towards the door to her suite. As she approached within a few feet of the door to her suite, I was able to see a detailed image of her upper body and clothing, as well as her facial expressions. Due to the position of the camera, the observer has a view from an overhead vantage point, looking down on anybody entering or exiting Ms. Heckert’s suite. This view is quite intrusive of personal privacy.
[38] The camera is located at one end of the 12th floor hallway, in between Ms. Heckert’s unit 1203 and unit 1204 (these units sit across the hall from each other). The elevator is located approximately in the middle of that hallway. In reviewing the images of Ms. Heckert and her guest exiting the elevator and walking towards her suite, it is not possible to recognize the facial features of either party as they exit the elevator, nor is it possible to identify their facial features until they are close to Ms. Heckert’s suite.
[39] The video images I saw did not show the interior of Ms. Heckert’s apartment.
[40] Ms. Heckert denied having ever been involved in drug dealing or illicit activities. She also denied ever allowing homeless people to sleep in the Building. She further denied similar allegations in relation to her roommate, Mr. Chamberlin. She has lived at the Building for some 15 years without incident, she said.
[41] Regarding her claim for damages, Ms. Heckert told me it was “very creepy” to have the camera installed outside her door. She described her entire living arrangement at the Building since the defendant took possession as “insane”. She said she continues to feel uncomfortable and stressed, so much so that she claims she was forced to see her chiropractor and acupuncturist, whom she had seen for quite some time prior to the matters giving rise to this litigation, on a more frequent basis for treatments because she was “extremely stressed and locked up”. Apart from some invoices from both the chiropractor and acupuncturist, no medical reports, records or documents were put into evidence, nor was any evidence provided to support Ms. Heckert’s statement that “stress kills”. The amount paid to those health practitioners was $1,995.00 and $920.00 respectively.
B. Dog Patrols
[42] It was agreed that although the Notice spoke of dog patrols, none in fact ever took place. The reason given by Ms. Strcic is that as the video cameras solved the problem and she saw no need to pay for dog patrols. She has, however, left open the possibility for them to be utilized at some future date. The plaintiff objects to the notion of dog patrols. She described Ms. Strcic to be “running the place as a prison; like we were locked down”. The claim for damages in respect of this issue pertains to an alleged breach of the plaintiff’s right to quiet enjoyment. No evidence was led as to actual damages suffered.
C. Withholding Key to Entrance to Building
[43] Ms. Heckert’s complaint is that Ms. Strcic would not provide a set of keys to her and to Mr. Chamberlin until they provided identification and signed for them, something both refused to do. The authority of the defendant to require identification as a condition precedent to being provided with a key to the entrance to the Building was ultimately rejected by a residential tenancy officer following a hearing on November 13, 2007. At that hearing, Dispute Resolution Officer Wakefield ordered the landlord to issue a key to the plaintiff.
[44] Ms. Strcic also requested the tenants in the Building to provide her with the names of all parties living in each rental unit prior to receiving those keys, for security and safety reasons. She did so pursuant to a notice sent to tenants dated September 7, 2007 (“September 7 Notice”) which stated:
To alleviate tenant security concerns we will be rekeying the building access doors and will require identification and a signature to issue a new key. A key will only be issued to tenants on our leases.
A notice will be posted when keys are ready for pick up.
[45] When asked to explain what she meant by the words “security concerns” in the September 7 Notice, Ms. Strcic said, contrary to her admission that the problem had not occurred since Spring 2007, she “needed to take care of security in the Building, that people were sleeping on the 12th floor”. She said she was also concerned over the fact that a tenant who inadvertently left his keys sitting in his front door lock had them stolen.
[46] The basis for Ms. Heckert’s claim is an assertion that since she refused to provide identification to Ms. Strcic, she was forced to go without access to the Building for some 28 days since she had no key to the entrance doors. She claimed she had to rely on other tenants of the Building to admit her into the Building until the determination of the dispute before Officer Wakefield. On those occasions where her access was delayed, Ms. Heckert said she was forced to eat meals outside her rental suite at extra expense. No receipts were tendered in evidence. She was never locked out overnight.
[47] Although Ms. Heckert’s refusal to provide identification was said to be based on her concerns about Ms. Strcic, it became apparent that she was worried about what Ms. Strcic would do when she learned that Mr. Chamberlin was not listed on the Tenancy Agreement, nor previously identified to any previous landlord.
[48] The Tenancy Agreement provides:
Unless children are listed herein and agreed to by the parties, the building is adult only. The Tenant covenants that the above persons shall be the only permanent occupants during the term of this agreement unless the Landlord agrees in writing to other persons becoming occupants. The Tenant acknowledges and agrees that this covenant is a material covenant of this Residential Tenancy Agreement and that its breach will provide grounds for termination.
[Emphasis added]
[49] The only persons identified on the Tenancy Agreement are Ms. Heckert and David Kelk who (I was told) is now deceased. According to Ms. Heckert, Mr. Chamberlin has been living with her in the suite “off and on” since 1995.
[50] Ms. Heckert claimed Ms. Strcic knew of Mr. Chamberlin’s presence and knew that his name was not disclosed in relation to the Tenancy Agreement. Even though denied by Ms. Strcic, it became clear to me that she knew of Mr. Chamberlin’s occupancy of the suite, but she did not know his name.
[51] Ms. Strcic sought to justify her request for identification and signature as something she needed to do in order to show the tenants she was looking after security concerns. Even so, she had in mind the further purpose of making a positive identification of Mr. Chamberlin as an unauthorized person living in Ms. Heckert’s suite contrary to the Tenancy Agreement.
[52] During submissions, counsel made me aware that Ms. Strcic lost her most recent attempt to evict Ms. Heckert because of Mr. Chamberlin’s occupancy. The decision of the Residential Tenancy Dispute officer is now the matter of an action before this Court by way of judicial review. None of the material relating to that matter was put in evidence before me or provided to me in submissions.
D. Animus between Plaintiff and Ms. Strcic, and their Credibility
[53] It was apparent that a great deal of animus exists between Ms. Heckert and Ms. Strcic. Ms. Strcic has sought to evict her from the Building on a number of different occasions and for different reasons, all of which have been unsuccessful. Although their initial dealings were cordial, matters did not remain that way for long as Ms. Strcic has sought to evict Ms. Heckert for, inter alia, allegedly disturbing other tenants, having an “unauthorized” cat in the Building, and causing property damage.
[54] Ms. Heckert denied ever having any problems with the previous landlord and its building managers, a statement that was not contradicted on the evidence.
[55] Ms. Heckert described a conversation she claims to have had with Ms. Strcic at the outset of their relationship, where Ms. Strcic is reported to have remarked that she “enjoys watching people on video” and making them “squirm on arbitrations”. Ms. Strcic denied most vehemently making this statement. Ms. Heckert was extremely critical of Ms. Strcic throughout her evidence, describing her at one point as “that bug”.
[56] Although Ms. Strcic maintains that she holds nothing against Ms. Heckert and denied any wish to have her leave the Building, her description of Ms. Heckert as a “volatile” person as well as her persistent efforts to evict her even now after the security problems at the Building have been resolved, demonstrate otherwise.
[57] There was no evidence to corroborate that claim as to volatility, only Ms. Strcic’s claim that she “cannot reason with Ms. Heckert because they always end up in arbitrations” (all of which the landlord, through Ms. Strcic’s participation, have lost to date). Further, at no time during the trial did Ms. Heckert present herself with a volatile demeanour.
[58] Oddly, Ms. Strcic sought to justify one of her efforts to evict Ms. Heckert on the basis that Ms. Heckert had failed to “control the cat” by allowing it to roam throughout the Building. Ms. Strcic said she sought to “protect it [the cat] from injury” by having Ms. Heckert evicted. The Tenancy Agreement provides for pets to be allowed, with written permission from the landlord, something Ms. Heckert had not obtained. There is no question that Ms. Strcic sought to use that omission as a basis for an eviction.
[59] It was also very clear that Ms. Strcic thought Ms. Heckert had been and continued to be engaging in inappropriate and illicit activities. Ms. Strcic perceived it to be her role to protect the Building if there was something she thought was improper taking place in the hallway.
[60] Ms. Strcic agreed that should Ms. Heckert vacate the premises, then her suite would be renovated and rented out at a higher amount, which is what the landlord has done with other suites.
[61] It was clear to me that Ms. Heckert and Ms. Strcic loathe each other, so much so that their antipathy towards each other impacts adversely on their credibility and their objectivity.
THE ISSUES
[62] The issues arising in this case for determination are:
(a) Has there been a breach of Ms. Heckert’s privacy due to the presence of the security cameras on the 12th floor?
(b) Has there been a breach of Ms. Heckert’s right to quiet enjoyment pursuant to the Res. Ten. Act and the Tenancy Agreement due to the presence of the cameras, advice as to dog patrols contained in the Notice, or the withholding of the key to the entranceway, or any one or more of them?
(c) Is Ms. Heckert’s claim in relation to withholding the key issue barred due to the findings and the order made by Mr. Wakefield?
(d) What are the damages, if any, arising from any breaches that may be found?
DISPOSITION
A. Breach of Privacy
[63] The starting point is the Privacy Act.
[64] The Privacy Act provides for a statutory cause of action for invasion of privacy in s. 1(1) as follows:
1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another…
[65] Sections 1(2) and 1(3) of the Privacy Act make clear that the right to privacy is not absolute:
1(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
1(3) In determining whether the act or conduct of a person is a violation of another’s privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
[66] Section 2(2) provides a list of defences to a claim made under s. 1 of the Privacy Act. Relevant to this case is the defence provided for in s. 2(2)(b):
(2) An act or conduct is not a violation of privacy if any of the following applies:
…
(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property;
…
[67] The Privacy Act also requires an action brought under it to be heard and determined by this Court: s. 4.
[68] There are two crucial questions with respect to this issue. First, is Ms. Heckert entitled to privacy, as the area in dispute is the hallway common to all tenants, existing and prospective, living on the 12th floor? Second, if Ms. Heckert is entitled to privacy, did the defendant wilfully and without claim of right violate Ms. Heckert’s privacy interest?
[69] As there was no corroborating evidence showing the direction that the first two cameras were pointed at and given the animus between Ms. Heckert and Ms. Strcic, I have based my decision in relation to that issue on the objective evidence, the video images marked in evidence at trial.
[70] The definition of privacy and the right to it was dealt with by this Court and subsequently by the Court of Appeal, shortly after the Privacy Act was first promulgated in 1968. In Davis v. McArthur, 10 D.L.R. (3d) 250, [1969] B.C.J. No 249 (S.C.) [Davis, S.C.], Mr. Justice Seaton noted that the term “privacy” was not defined in the Privacy Act. Even so, he referred to US cases and text writers who sought to define the meaning and nature of the tort of invasion of privacy.
[71] Seaton, J. at 254, referred to the decision of the Court of Appeal of Louisiana in Hamilton v. Lumbermen’s Mutual Casualty Co. (1955), 82 So. 2d 61, where the term “privacy” was defined at 63 as:
…“the right to be let alone” and as the “right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity.”
It is a part of the general right of the immunity of the person. “It is like the right not to be maliciously prosecuted, the right not to be defamed.” It is the right to an “inviolate personality”.
[72] Although the decision in Davis was reversed, the Court of Appeal agreed in an overall sense with the meaning given to the definition of privacy by Seaton, J.: 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 [Davis, C.A.]. In writing for the court, Mr. Justice Tysoe chose, at 763, to adopt the definition set out in Black’s Law Dictionary, 4th ed. as “largely consonant with the provisions of s. 2 of the Privacy Act, and particularly with those of s.-s(2)”. That definition is set out in Davis, C.A. at 763:
The right to be let alone, the right of a person to be free from unwarranted publicity…The right of an individual (or corporation) to withhold himself and his property from public scrutiny, if he so chooses.
[73] According to the learned American author on the law of torts, Professor Prosser, there are four distinct privacy interests tied together by the common name, having “almost nothing in common except that each represents an interference with the right of the plaintiff…to be let alone”: (William Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383 at 389). They are:
1. Intrusion upon a person’s seclusion or solitude, or into his private affairs;
2. Public disclosure of embarrassing private facts about the person;
3. Publicity which places the plaintiff in a false light in the public eye;
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
[74] Here, as in Davis, S.C., we are dealing only with the first privacy interest.
[75] Simply adopting an explanation or definition of privacy does not, of itself, determine a person’s rights since the Privacy Act provides that an individual’s right to privacy, as well as a defendant’s obligation not to violate it, are not fixed: Davis, S.C. at 254. This point is made clear in s. 1(2) of the Privacy Act which entitles citizens to a privacy interest that is reasonable in the circumstances.
[76] The concept of privacy has an inherent elasticity and requires that all of the varying circumstances of each case be taken into account: Davis, S.C. at 255. The Court of Appeal said in Davis at 763-764:
It is plain that whether there has been a violation of the privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment…: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2).”
[77] See also: Getejanc v. Brentwood College Assn., 2001 BCSC 822, 6 C.C.L.T (3d) 261, at para. 19.
[78] Counsel drew my attention to a number of criminal law cases that dealt with the existence of an expectation of privacy based on the nature of the location: R. v. Beune, [2005] B.C.J. No. 1082 (P.C.); R. v. Piasentini, [2000] O.J. No. 3319 (ONCJ); R. v. Thomsen, [2005] O.J. No. 6303 (ONCJ). For example, in Piasentini, the court held police officers were entitled to search the hallway of a residential apartment building without a warrant since it was a public place and where no reasonable expectation of privacy existed (see paras. 34-43). Those cases refer to the Supreme Court of Canada’s decision in R. v. Edwards, [1996] 1 S.C.R. 128. In that decision, the Supreme Court of Canada viewed the nature of the location to be one of a number of factors in assessing whether a reasonable expectation of privacy existed and had been violated. The majority judgment, written by Mr. Justice Cory (in which he was joined by Chief Justice Lamer and Madam Justice McLachlin as she then was), states at para. 31:
It has since been determined that this assessment must be made in light of the totality of the circumstances of a particular case. See, for example, R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 54, and R. v. Wong, [1990] 3 S.C.R. 36, at p. 62.
[79] The point has been addressed in the civil context by Mr. Justice Lysyk in Silber et al. v. British Columbia Television Broadcasting System Ltd. et al., 25 D.L.R. (4th) 345, [1985] B.C.J. No. 3009, at 351:
In citing this passage, the only point I wish to make is that the character of the property where the act or conduct complained of took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.
[80] The matter does not depend, however, simply on the nature of the location involved. A number of cases, including Silber, have held that in appropriate circumstances, a reasonable expectation of privacy does not exist on private property: Milner v. Manufacturers Life Insurance Company, 2005 BCSC 1661, B.C.J. No. 2632; and Druken v. R.G. Fewer and Associates Inc., 171 Nfld. & P.E.I.R. 321, [1998] N.J. No.312. See also Colin McNairn & Alexander Scott, Privacy Law in Canada, (Markham and Vancouver: Butterworths, 2001) at 78.
[81] Conversely, a reasonable expectation of privacy may exist in public places such as a restaurant. In R. v. Wong, [1990] 3 S.C.R. 36, Chief Justice Lamer applied a contextual approach at 62:
The nature of the place in which the surveillance occurs will always be an important factor to consider in determining whether the target has a reasonable expectation of privacy in the circumstances. It is not, however, determinative. A person who is situated in what would normally be characterized as a public place (a restaurant, for example), may well have the reasonable expectation of privacy. For example, he or she would not reasonably expect that the police will surreptitiously monitor and record the private conversation taking place at his or her table. By the same token, that which would normally be characterized as a private place (a personal residence, for example), may well, by the manner in which it is utilized, become a place in which one does not have a reasonable expectation of privacy.
[82] Although the approach of Lamer, C.J.C., in Wong (in which he was joined by McLachlin, J. as she then was) was in dissent, it has been subsequently adopted by the Supreme Court of Canada in R. v. Colarusso, [1994] 1 S.C.R. 20, at 38 and 52-54, and R. v. Edwards at para. 31.
[83] The contextual approach was also endorsed more recently in this Court by Mr. Justice Melnick in Milner. While Melnick J. stated that the location was key in determining whether an individual possessed a reasonable expectation of privacy, he also went on to say that, depending on the circumstances, a reasonable expectation of privacy may not exist for actions taking place on private property. Furthermore, Melnick J. concluded at para. 79:
These principles are just general guidelines; there remains a high degree of discretion for a trial judge to determine what is a reasonable expectation of privacy in the circumstances. However, it should be noted that section 1(2) requires a person’s entitlement to privacy be weighed against the lawful interest of others.
[84] The contextual approach also explains the results in cases where employers have conducted video surveillance of their employees: Eastmond v. CP Rail, 2004 FC 852, F.C.J. No. 1043; Pope & Talbot Ltd. V. Pulp, Paper and Woodworkers of Canada Local No. 8, 123 L.A.C. (4th) 115, [2003] B.C.C.A.A.A. No. 362 (Munroe); Unisource Canada Inc. v. Communications, Energy and Paperworkers’ Union of Canada, (CEP) Local 433, 121 L.A.C. (4th) 437, [2003] B.C.C.A.A.A. No. 309 (Kelleher); Doman Forest Products Ltd. v. International Woodworkers, Local 1-357, 13 L.A.C. (4th) 275, [1990] B.C.C.A.A.A. No. 401 (Vickers); St. Mary’s Hospital and H.E.U. (Re), 64 L.A.C. (4th) 382, [1997] B.C.C.A.A.A. No. 855 (Lawson); and Steels Industrial Products v. Teamsters, Local 213, 24 L.A.C. (4th) 259, [1991] B.C.C.A.A.A. No. 500 (Blasina).
[85] Even where an employer has a right to utilize surveillance, this right is not without qualification. It must be carefully controlled and used for legitimate purposes. In CP Rail, Mr. Justice Lemieux concluded the employer’s use of video surveillance was both justified and reasonable in the circumstances as there were adequate protections in place to protect the privacy interests of employees. In particular, the images were not viewed by anyone unless there was a workplace incident which required investigation. The surveillance was brief and not continuous. It only captured a person’s image when they walked within the area being monitored by the camera. Further, the employer had a written policy with respect to destroying the surveillance images and kept the images in a secure location which was only accessible by certain managers or CP police: CP Rail at paras. 174-181.
[86] Here, Ms. Heckert enjoyed a reasonable expectation of privacy, i.e., the right to be left alone upon entering and exiting her apartment suite. Even though the hallway of the 12th floor is a public place, as are the hallways to the other residential floors, Ms. Heckert is reasonably entitled to be free from the scrutiny of a surveillance camera recording her every movement in and out of her suite especially where the positioning of the camera allows the person watching the video a view that is disturbingly intrusive.
[87] If capturing an image of the trespassers on the 12th floor in order to show them to the police was the real motive in installing the cameras, then a camera would have been placed elsewhere in the hallway or a different camera lens would have been used. I say that because the images I viewed of Ms. Heckert and Mr. Chamberlin exiting the elevator some distance down the hallway does not show their faces with any degree of clarity. The facial features of Ms. Heckert and Mr. Chamberlin are only discernable when they are in close proximity to the door to Ms. Heckert’s suite. The utility of the camera as a means to assist the police in identifying any trespassers is seemingly minimal at best.
[88] Even if I were to accept Ms. Strcic’s stated purpose for installing the cameras on the 12th floor, there came a point in time when the problems of unauthorized persons entering that floor and sleeping in the stairwells ceased. With the exception of the matchbox incident on September 25, 2007, Ms. Strcic admitted that those problems ceased by Spring 2007. Even if it could be said that the matchbox incident justified the installation of a security camera on the 12th floor in September 2007 in the location chosen, which I doubt, the legitimate interests and needs of the defendant, as landlord, requiring a camera to monitor vagrants and people getting onto the roof from the 12th floor, ultimately came to an end. Yet, the camera remains on the 12th floor with the video footage taken from it monitored approximately every three days by Ms. Strcic and her son.
[89] Unlike CP Rail, this is not a case where the defendant maintained strict policies in respect of the video footage, considered alternative means, and monitored the footage only when necessary, all in order to protect its property. Further, this is not a case where Ms. Heckert complains of the cameras installed in the very public areas of the entrance way and parking garage, where the legitimate security interests of the landlord and all tenants can be seen as incidental to the exercise of a lawful right of defence of persons or property: s. 2(2)(b), Privacy Act.
[90] I find that Ms. Heckert enjoyed a reasonable expectation of privacy of her person and her movements into and out of her suite and in the hallway. As well, the defendant had every right to be in the hallway at any time of the day. Yet, this right and the fact that the hallway is not truly private does not, in my view, matter in the context of this case. There is no legitimate reason for the close-up imaging of her person and her activities immediately outside her door. Further, while there may have been circumstances existing at one point in time justifying surveillance on the 12th floor generally, resulting in a reduced expectation of privacy for Ms. Heckert and any tenant residing on the 12th floor, they have come and gone. Further, the defendant’s right to protect its property and its obligation to provide for the security of its tenants did not justify the defendant’s view of Ms. Heckert as she enters and exits her unit.
[91] Section 1(1) of the Privacy Act states that an actionable breach of a person’s privacy must be wilful and without claim of right. The term wilful means an intention to do an act which the person committing the act knew or should have known would violate the privacy of another person: Hollinsworth v. BCTV, a division of Westcon TV Group Ltd., 59 B.C.L.R. (3d) 121, [1998] B.C.J. No. 2451 (C.A.), at para. 29.
[92] The phrase “without a claim of right” has been characterized as “an honest belief in a state of facts which, if it existed, would be a legal justification or excuse…”: Hollinsworth, at para. 30; Davis, S.C., at 253-254.
[93] The violation of Ms. Heckert’s privacy was wilful. Ms. Strcic went to considerable effort to build a “doubly locked” secure room in which to watch the video footage in order to, as she put it, protect the privacy interests of the tenants. She well knew that Ms. Heckert’s privacy interests were involved.
[94] Placement of the cameras in September 2007 on the 12th floor right outside Ms. Heckert’s apartment door was, I find, intrusive and a step taken by Ms. Strcic to facilitate her efforts to evict Ms. Heckert.
[95] I find that the defendant has violated Ms. Heckert’s right to privacy.
B. Quiet Enjoyment
[96] Given the defendant’s position that the doctrine of res judicata bars the plaintiff’s claim with respect to the key issue, it is important to set out the nature of the cause of action for breach of quiet enjoyment.
[97] The provision for quiet enjoyment in the Tenancy Agreement states:
STATUTORY INFORMATION. A Tenant has a right to quiet enjoyment and privacy, basic maintenance standards and proper notices for termination, etc…These and other rights are contained in the Act. This Agreement has been made to conform to the Residential Tenancy Act (and other Acts).
[98] Section 28 of the Res. Ten. Act sets out a non-exhaustive list of a tenant’s rights to quiet enjoyment, which include reasonable privacy, freedom from unreasonable disturbance, and use of common areas free from significant interference:
Protection of tenant’s right to quiet enjoyment
28 A tenant is entitled to quiet enjoyment including, but not limited to, rights to the following:
(a) reasonable privacy;
(b) freedom from unreasonable disturbance;
(c) exclusive possession of the rental unit subject only to the landlord’s right to enter the rental unit in accordance with s. 29 [landlord’s right to enter rental unit restricted];
(d) use of common areas for reasonable and lawful purposes, free from significant interference.
[99] The right to “quiet enjoyment” is defined at common law to be the right to use the premises for all of the usual purposes incidental to occupation. A breach of quiet enjoyment requires proof of an interference with the use and enjoyment of the rented or leased premises. The interference must be substantial. In Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2008 BCSC 235, at para. 55, Mr. Justice Kelleher said it must also be “of a grave and permanent nature such that it constitutes serious interference with the ability of the tenant to exercise its right of possession”.
[100] Mere temporary inconvenience is not enough: “It must be a serious interference with the tenant’s proper freedom of action in exercising its right of possession”: Firth v. B.D. Management Ltd., [1990] C.L.D. 1076, 73 D.L.R. (4th) 375 at 379-380 (B.C.C.A.).
[101] In Evergreen, Kelleher, J. set out at para. 57, examples of conduct which have been found to constitute substantial interference with the tenant’s right of possession: seepage of greasy, smelly fluid onto leased premises so as to prevent a tenant from carrying on business; putting a tenant out of possession; and interfering with the power and water supply to leased premises: Shun Cheong Buildings B.C. Ltd. v. Gold Ocean Supermarket Ltd., 2002 BCCA 451, 4 B.C.L.R. (4th) 234; Selaive v. Meyer, [1998] B.C.J. No. 2629 (C.A.) (QL); Canadian Pacific Hotels Corp. v. Van Raniga Jewelers and Designers Inc., [1995] B.C.J. No. 2759 (S.C.) (QL); Eagles Hall Association of Swift Current Ltd. v. Bertin, [1922] 1 W.W.R. 374, 65 D.L.R. 232 (S.K.C.A.); and Pedwell v. Wright, [1972] 1 W.W.R. 645, 23 D.L.R. (3d) 198 (B.C.S.C.).
[102] Conversely, an invalid notice to vacate served on a tenant did not amount to such a breach in Factory Footwear Outlet Limited v. Taylor (1982), 41 Nfld. & P.E.I.R. 91 (Nfld. Dist. Ct.), as no evidence was led in that case of any actual interference with the enjoyment of the demised premises. The Newfoundland District Court said mere annoyance was not enough to found the claim (at 96):
The sending of the notice was no doubt an annoyance to Factory Footwear, however, there is no evidence to show that their enjoyment of the premises had been in any way interfered with up to the date of trial, November 30, 1982.
[103] According to Williams & Rhodes Canadian Law of Landlord and Tenant in England, a breach of quiet enjoyment may occur even where there is no direct physical interference with the tenant’s possession and enjoyment: C. Bentley et al., eds., Williams and Rhodes Canadian Law of Landlord and Tenant, 6th ed. (Toronto: Carswell, 1988) at 9-4. The authors of that text note that a persistent course of intimidation and threatening conduct may suffice (at 9-4):
The statement of Fry L.J. in Sanderson v. Berwick upon Tweed, supra, at p. 551 (“where the ordinary and lawful enjoyment of the demised land is substantially interfered with by acts of the lessor,…the covenant appears…to be broken”) is generally acceptable, although there may be a question whether there must be some physical interference with the demised premises. It is clear, however, that the interference need not take the form of an actual physical irruption: Owen v. Gadd, [1956] 2 Q.B. 99, [1956] 2 All E.R. 28 (C.A.) (erection of scaffolding before the demised premises, in order to repair landlord’s premises above, held to be a breach).
It has been held in England that a persistent course of intimidating and threatening conduct by the lessor was a breach of the covenant, even if there were no direct physical interference with the tenant’s possession and enjoyment: Kenny v. Preen, [1963] 1 Q.B. 499. [1962] 3 All E.R. 814 (C.A.). However, it does appear that in this particular case there were certain aspects of physical interference, such as repeated knocking on the door and the shouting of threats through it. Woodfall, Landlord and Tenant, 28th ed., reaches the following conclusion at §1-1305 (p. 54):
It is therefore submitted that even though no direct or physical interference with the enjoyment of the demised premises may be present, there may yet be a breach of the covenant if the interference is so substantial or intolerable as to justify the tenant in leaving the demised premises, provided that the consequence was either intended [Kenny v. Preen, supra] or was reasonably foreseeable [Booth v. Thomas, [1926] Ch. 397 (C.A.)].
See also Franco v. Lechman (1962), 36 D.L.R. (2d) 357 (Alta. C.A.) and “The Covenant for Quiet Enjoyment” by H.D. Guthrie: Law Society of Upper Canada, Special Lectures (1965), The Lease in Modern Business.
[104] The same point was made in Pellatt v. Monarch Investments Ltd., [1981] O.J. No. 2258 (On. Co. Ct.). There, the plaintiff, a law student, was disturbed in her studies for the Ontario Bar exams by renovations carried out to the apartment building where she lived. She was unable to study at her apartment for some three weeks due to extensive noise from machinery. She was inconvenienced by dust that got into her suite, unauthorized entry into her suite by workmen, and the emission of obnoxious pungent odours from a machine used to pump tar. In considering whether a breach of quiet enjoyment had occurred, Borins, Co. Ct. J., as he then was, cited the decision of Lord Denning M.R. in McCall v. Abelesz, [1976] Q.B. 585, where at 594 the learned jurist said:
This covenant is not confined to direct physical interference by the landlord. It extends to any conduct of the landlord or his agents which interferes with the tenant’s freedom of action in exercising his rights as a tenant…It covers, therefore, any acts calculated to interfere with the place or comfort of the tenant, or his family.
[105] Borins, Co. Ct. J. was satisfied that the construction to the tenant’s own apartment and: “in a larger sense to the apartment building in which she lived, as a result of the noise, the odours and the mess, constituted an invasion of the tenant’s right to the ‘peace and comfort’, to use the words of Lord Denning, of her apartment”: at para. 29.
[106] Pellatt was applied by this Court in Sundberg v. J.E.D. Holdings Ltd., [1984] B.C.J. No. 183 (Chambers). Noting that, historically, a breach of quiet enjoyment would only be found if there was overt physical interference by the landlord preventing quiet enjoyment, Mr. Justice Gibbs went on to say, at para. 3, that: “Persecution and intimidation by a landlord is a breach of quiet enjoyment”.
[107] In addition, he described, at para. 4, the modern trend in the case law:
…the modern trend is towards relaxing the rigid limits of purely physical interference towards recognizing other acts of direct interference as breaches. See Platt [sic] vs. Monarch Investments Limited 1981 23 Real Property Reports 8.
[108] That a breach of quiet enjoyment can occur without direct physical interference with the tenant’s enjoyment appears to have been settled in Ontario. Pellatt and Sundberg were applied by the Ontario Court of Justice General Division in Albamor Construction and Engineering Inc. v. Simone, [1995] O.J. No. 2099 (ONCJ), at paras. 19, 21 and 24. Pellatt was referred to with approval in Watchcraft Shop Ltd. v. L & A Development (Canada) Ltd., [1996] O.J. No. 2252 (ONCJ), at para. 29.
[109] The fact that a landlord may have acted reasonably is not relevant to whether the tenant’s right to quiet enjoyment has been breached: Pellatt, at para. 30 and Watchcraft, at para. 32.
C. Res Judicata and Key issue
[110] The defendant says that Ms. Heckert’s claim for damages in respect of the key issue should be dismissed based on the doctrine of res judicata or issue estoppel, as the claim was previously determined by Residential Dispute Officer Wakefield on November 17, 2007 pursuant to ss. 60 and 62 of the Res. Ten. Act.
[111] The issue before Officer Wakefield was whether the defendant had the right under the Res. Ten. Act to insist on photo identification and a signature from each tenant as a condition to being provided with a key to the front door of the Building. He concluded that although there was no requirement for photo identification, it was “not unreasonable to require that the tenants sign for the keys so that there is a record of how many keys have been issued to each tenant”. He also decided that the tenants must give to the landlord the names of all parties in the rental unit prior to receiving keys for the rental unit, for security, and for safety reasons. Officer Wakefield ordered the defendant to pay for the costs of the filing fee paid by Ms. Heckert for the hearing, which was $50.
[112] The doctrine of res judicata is a doctrine of public policy designed to advance the interests of justice: Danyluk v. Ainsworth Technology Inc., 2001 SCC 44, 2 S.C.R. 460, at para. 19. When applicable, res judicata serves as an equitable estoppel, its purpose to ensure that: “Justice is done, to prevent abusive process and fulfill the societal interest of finalising litigation”: Fournogerakis v. Barlow, 2008 BCCA 223, at para. 16.
[113] Two branches of the principle are recognised: cause of action estoppel and issue estoppel.
[114] According to Mr. Justice Binnie in Danyluk, a number of techniques have developed to prevent abuse of the decision-making process, with one of the oldest being the doctrine of estoppel per rem judicatem.
[115] Mr. Justice Binnie said at para. 20:
The law has developed a number of techniques to prevent abuse of the decision-making process. One of the oldest is the doctrine estoppel per rem judicatem with its roots in Roman law, the idea that a dispute once judged with finality is not subject to relitigation: Farwell v. The Queen (1894), 22 S.C.R. 553, at p. 558; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel): G. S. Holmested and G. D. Watson, Ontario Civil Procedure (loose-leaf), vol. 3 Supp., at 21 s. 17 et seq. Another aspect of the judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it: Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Sarson, [1996] 2 S.C.R. 223.
[116] Those doctrines have been extended, with modifications, to decisions characterised as quasi-judicial in nature. In Danyluk, Binnie J. said at para. 21:
These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided.
[117] The two branches of the principle are well described in Farwell v. Canada (Attorney General), [1894] 22 S.C.R. 553 at 558:
Where the parties (themselves or privies) are the same, and the cause of action is the same, the estoppel extends to all matters which were, or might properly have been, brought into litigation. Where the parties (themselves or privies) are the same, but the cause of action is different, the estoppel is as to matters which, having been brought in issue, the finding upon them was material to the former decision.
[118] Cause of action estoppel was characterised by the Court of Appeal in Mohl v. University of British Columbia, 2006 BCCA 70, 52 B.C.L.R. (4th) 89, which concerned judicial review of an administrative decision and a subsequent action in relation to the same person. In that case, at para. 23 of the reasons for judgment, reliance was placed on the principle as stated in the House of Lords in Arnold v. National Westminster Bank Plc., [1991] 2 A.C. 93 at 104 (H.L.) at 104:
Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment.
[119] A cause of action was described by the Supreme Court of Canada in Danyluk at para. 54:
A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 33 O.L.R. 125 (C.A.). Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success.
[120] In Mohl, the Court of Appeal defined it at para. 24, as follows:
The meaning of "cause of action" in this context is clear. In Letang v. Cooper (1964), [1965] 1 Q.B. 232 (Eng. C.A.) at 242-43, Diplock L.J. said, "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." In Johnson v. Refuge Assurance Co. Ltd. (1912), [1913] 1 K.B. 259, 82 L.J.K.B. 411 (Eng. C.A.) at 264, Kennedy L.J. said that the word "action" in its usual meaning "refers to any proceeding in the nature of a litigation between a plaintiff and a defendant".
[121] In writing for the court in Fournogerakis, Mr. Justice Lowry defined the essential nature of cause of action estoppel at para. 22:
It is then - where the factual situation material to the determination sought in the first action is the same as the factual situation material to whatever determination may be sought in the second action - that the estoppel arises. The principle does not apply to distinct causes of action: Lehndorff Management Ltd. v. L.R.S. Development Enterprises Ltd. (1980), 109 D.L.R. (3d) 729 at 734, 19 B.C.L.R. 59 (C.A.), citing in particular Hall v. Hall (1958), 15 D.L.R. (2d) 638 (Alta. C.A.). It is not that litigants have to raise every cause of action they may have against each other in one action to avoid the estoppel being raised in another later action; rather it is they must exhaust reliance on any given cause of action - any one series of material facts - in an action where such facts are first put in issue and adjudicated upon. Generally, a cause of action can only be raised and adjudicated upon once. The focus of the inquiry is on whether the material facts on which the determinations sought in any two actions are the same.
[122] The fact that different causes of action may involve one or more material facts is not, of itself, determinative. In Danyluk, Binnie, J. said at para. 54:
It is apparent that different causes of action may have one or more material facts in common. In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant's wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that "issue" in the prior proceeding.
[123] Although some of the facts relating to the claims for the delivery of the key and for breach of quiet enjoyment are the same, those facts concern only the decision of the landlord to withhold the key pending identification and signature and Ms. Heckert’s refusal to comply.
[124] Section 31 of the Res. Ten. Act prohibits a landlord from changing locks to the residential property, which in this case includes the Building, unless the landlord provides the tenant with new keys or other means of access. The claim before Officer Wakefield concerned the issue of possible preconditions to delivery of the new key. That claim is entirely distinct from a claim for breach of quiet enjoyment that involves in part the defendant’s refusal to deliver a new key.
[125] This is not a case where Ms. Heckert seeks to relitigate Officer Wakefield’s decision. The claim for breach of quiet enjoyment, which I have described in some detail, involves individual acts, as well an alleged pattern of conduct on the part of the defendant and its building manager, for which damages are sought.
[126] The question remaining is whether the doctrine of issue estoppel applies? The preconditions to the operation of that doctrine are set out in Danyluk at para. 25:
The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[127] In my view, the defendant is not able to satisfy the first precondition. The question to be decided by Officer Wakefield was entirely different than Ms. Heckert’s claim for damages suffered as a result of an alleged breach of quiet enjoyment. In the circumstances, I do not need to consider the other two preconditions to the doctrine.
[128] Should I be incorrect in my analysis of the application of both doctrines, then I would exercise my discretion not to invoke res judicata.
[129] I rely on the dictum of Finch, J.A. (as he then was) in British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc., 50 B.C.L.R. (3d) 1, [1998] B.C.J. No. 1043, at para. 32, which was cited with approval in Danyluk at para. 63:
In Bugbusters, Finch J.A. (now C.J.B.C.) observed at para. 32:
It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.
Apart from noting parenthetically that estoppel per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable in origin), I think this is a correct statement of the law. Finch J.A.'s dictum was adopted and applied by the Ontario Court of Appeal in Schweneke, supra, at paras. 38 and 43:
The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrine exist... . The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances. In exercising the discretion the court must ask -- is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?
...
... The discretion must respond to the realities of each case and not to abstract concerns that arise in virtually every case where the finding relied on to support the doctrine was made by a tribunal and not a court.
[130] The same point is also made in Fourngerakis at para. 16.
[131] The rules governing issue estoppel should not be mechanically applied. In Danyluk, Binnie, J. remarked at para. 33:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation in the public interest in ensuring that justice is done on the facts of a particular case.
[132] It would be wholly inappropriate to preclude Ms. Heckert from advancing a claim for breach of quiet enjoyment on the basis that she applied to have the key delivered up to her, especially where Ms. Heckert was not in a position to know the full extent of her claim for damages.
[133] That, however, is not the end of the matter. In my view, the claim for breach of quiet enjoyment is not properly before me in this action.
[134] When read in conjunction with ss. 58(2) and 62(3), s. 67 of the Res. Ten. Act allows for an award to be made in a hearing before a residential tenancy dispute officer where “damage or loss results from a party not complying with this Act, the regulations or a tenancy agreement” where the claim is for an amount that is within the monetary limit for claims under the Small Claims Act, R.S.B.C. 1996, c. 430, which is currently $25,000: Small Claims Act Regulation, B.C. Reg. 179/2005, s.1.
[135] No such claim was made before Officer Wakefield. Ms. Heckert now seeks an award for damages, which she claims were caused by the defendant’s refusal to provide her with a key to the entrance doors.
[136] Section 58(1) of the Res. Ten. Act permits a person to make an application to resolve a dispute before the persons designated by the director appointed to administer that Act, where that dispute falls within any one or more of a series of enumerated categories. Two of those categories deal with the tenant’s use, occupation or maintenance of the rental unit and the tenant’s use of common areas, services or facilities: s. 58(1)(b)(ii)(A) and (B).
[137] Section 58(2) of the Res. Ten. Act states the director must hear those disputes unless: the claim exceeds the monetary limits provided in the Small Claims Act; the application was not made within the applicable time period; or the dispute is linked substantially to a matter that is before this Court.
[138] Ms. Heckert initiated the dispute resolution process with respect to the key issue pursuant to s. 62 of the Res. Ten. Act, which provides:
(1) The director has authority to determine
(a) disputes in relation to which the director has accepted an application for dispute resolution, and
(b) any matters related to that dispute that arise under this Act or a tenancy agreement.
(2) The director may make any finding of fact or law that is necessary or incidental to making a decision or an order under this Act.
(4) The director may dismiss all or part of an application for dispute resolution if
(a) there are no reasonable grounds for the application or part,
(b) the application or part does not disclose a dispute that may be determined under this Part, or
(c) the application or part is frivolous or an abuse of the dispute resolution process.
[139] Section 67 of the Res. Ten. Act allows the director to make an order for damages suffered as a result of breach of that Act:
Without limiting the general authority in section 62 (3) [director’s authority respecting dispute resolution proceedings], if damage or loss results from a party not complying with this Act, the regulations or a tenancy agreement, the director may determine the amount of, and order that party to pay, compensation to the other party.
[140] Section 77(3) makes clear that the director’s decision is final and binding on the parties:
(3) Except as otherwise provided in this Act, a decision or an order of the director is final and binding on the parties.
[141] A decision of a residential tenancy officer may be reviewed on application before the director or its designate. Section 78.1 provides that certain provisions of the Administrative Tribunals Act, S.B.C. 2004, c. 45, apply to such review as if the director were a tribunal.
[142] According to s. 84.1 of the Res. Ten. Act, the director has exclusive jurisdiction to inquire into, hear, and determine “all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding”. Further, a decision or order of the director is “final and conclusive and is not open to question or review in any court”.
[143] Through incorporation by reference to certain sections of the Administrative Tribunals Act, ss. 56 to 58 and 61, judicial review of a decision by an officer or the director’s authorized designate is permitted before this Court on specified grounds.
[144] Ms. Heckert did not seek recovery of losses, including non-pecuniary damages, in her application heard by Officer Wakefield. She says the matter is open to her to make that claim in this action even though her claim is for non-pecuniary damages that fall well within the monetary jurisdiction of the Small Claims Act. The defendant says that Ms. Heckert’s claim for breach of quiet enjoyment could have been argued in that hearing had she acted with “reasonable diligence”. Although preferable for administrative and judicial economy if she had done so, Ms. Heckert’s counsel quite rightly makes the point that a tenant’s damages in respect of such breach may not be known or fully determined until some later date. Here, Ms. Heckert needed to gain access to a key to the front door of the Building; she was not afforded the luxury of waiting until her damages were known.
[145] In his decision, Officer Wakefield described Ms. Heckert’s application as having been brought pursuant to ss. 62 and 70 of the Res. Ten. Act. The latter section deals with the landlord’s right to enter a rental unit. The reference to s. 70 is peculiar since, I was told, it was not a case where the defendant sought to change the lock to Ms. Heckert’s suite or to prohibit her entry. The claim heard before Officer Wakefield was for delivery of the key to the Building. It did not concern damages for an alleged breach of quiet enjoyment, the nature of which cause of action I have described in detail at paragraphs 96 to 108.
[146] Ms. Heckert’s claim for damages for breach of quiet enjoyment should be made in accordance with the Res. Ten. Act. As the value of that claim was stated in the submissions to be within the monetary jurisdiction of the Small Claims Act, her claim should be pursued in accordance with the dispute resolution process outlined in the Res. Ten. Act. The breach of quiet enjoyment claim may only be before me by way of a judicial review application. The time limit governing any application Ms. Heckert may make is set out in s. 60.
[147] In summary, it is inappropriate for me to decide a breach of quiet enjoyment claim. If it is to be pursued it should be done in accordance with the process set out in the Res. Ten. Act. It is not, in my view, barred by the doctrine of res judicata.
DAMAGES
[148] I find Ms. Heckert’s damages to have been nominal, although not de minimus. The only evidence as to damages were Ms. Heckert’s general statements that she felt stressed and needed to see her chiropractor and acupuncturist for additional visits.
[149] While there is no doubt that the presence of a surveillance camera posted right outside her apartment door as well as knowledge (gained in this litigation) that Ms. Strcic and her son were regularly observing her movements in and out of her suite, were and continue to be stressful, there was simply no medical evidence adduced to support an award beyond nominal damages.
[150] The fact that a camera remains on the 12th floor depicting Ms. Heckert as it does where there have been no incidents since the end of 2007 aggravates the affront to Ms. Heckert.
[151] I award damages in the sum of $3,500 to Ms. Heckert for breach of her privacy. Of that sum, I attribute $500 towards the costs paid for chiropractic and acupuncture treatments.
[152] Entitlement to prejudgment interest, pursuant to s. 1(1) of the Court Order Interest Act, R.S.B.C 1966, c. 79, will run on the pecuniary portion of the award from September 28, 2007, the date the defendant says, in its submissions, a security camera was installed on the 12th floor.
COSTS
[153] The plaintiff was successful in respect of the privacy issue. The breach of quiet enjoyment claim is not properly before the Court. In view of the divided success, I order the parties to bear their own costs.
__________________________________________
The Honourable Mr. Justice Paul W. Walker
October 1, 2008 – Revised Judgment
Please be advised that the attached Reasons for Judgment of Mr. Justice Paul W. Walker dated September 29, 2008 have been edited.
· On the front page, the date of release of the Reasons for Judgment should read “20080926” instead of “20080929”.
October 3, 2008 – Revised Judgment
Corrigendum to the Reasons for Judgment issued advising that paragraphs 151 and 152 are amended to read:
[151] I award damages in the sum of $3500 to Ms. Heckert for breach of her privacy. Of that sum, I attribute $500 towards the costs paid for chiropractic and acupuncture treatments.
[152] Entitlement to prejudgment interest, pursuant to s. 1(1) of the Court Order Interest Act, R.S.B.C 1966, c. 79, will run on the pecuniary portion of the award from September 28, 2007, the date the defendant says, in its submissions, a security camera was installed on the 12th floor.