The Court recognizes landlords’ right to get tenants’ social insurance number

In a ruling handed down by the Court of Québec, Judge Jacques Tremblay overturned a decision by the Commission d’accès à l’information (CAI), which had ordered a rental building owner—also a CORPIQ member—to stop asking for specific personal information, including the social insurance number and salary.

This is a major win for the landlord and for CORPIQ, which supported the landlord’s legal case, but also for all rental building owners and managers in Quebec. The ruling has not yet been made public. The CAI has 30 days to decide if it wants to appeal.

According to the claims of the CAI and its commissioner who wrote the decision in 2017, only a prospective tenant’s name, address and phone number are needed to conduct an investigation before approving the person for renting. It felt the social insurance number was not necessary to do a credit check.

That was not the Court’s opinion, which found that the CAI overstepped its authority as defined in Section 83 of the Act respecting personal information in the private sector. The ruling states :

“This section gives the power to implement practices that respect the privacy of potential tenants without irrevocably impairing the possibility of rental building owners receiving (and keeping) information used to build a contractual relationship based on the good faith of both parties.”

Regarding the specific personal information the CAI wants to keep from being gathered, the Honourable Judge Tremblay explained:

“The absolute character of the conclusion that orders the cessation of collecting information such as the employer’s name, the position held and the salary, is not compatible with the procedure, taken directly from Section 9 of the Act, to have the information required to conclude and carry out the lease.”

The Judge also confirmed that a landlord had the right to require a tenant’s social security number if it is needed to do a pre-rental screening. He specified:

“Everyone would agree that the social insurance number is probably not an element that is regularly needed, but if it becomes so due to a roadblock, the landlord must be able to require it as necessary information.”

Indeed, CORPIQ and landlords have pointed out many times that without the social insurance number, it is impossible to find the credit file. In the worst case scenarios, not having a social insurance number might actually result in receiving a credit report for someone else. Subsequently, deciding to rent to a candidate based on an incorrect file may lead to serious consequences for the tenant and the owner. In most screenings done by CORPIQ, the potential tenants have agreed to provide the SIN. Note that the social insurance number is systematically required to open a Hydro-Québec account.

Distinguish between past behaviour and ability to pay

In his case, the owner successfully proved to the court that accessing a candidate’s credit file and contacting past landlords only shows the person’s past behaviour regarding rent payment. It doesn’t create any guarantee about the future. This information does not in any way show whether the potential tenant has enough income to pay the rent, if the person is employed or if he or she has the money if receiving an annuity. That is why the landlord’s management practice is to ask for the employer’s name, and the candidate’s salary and bank references. Yet the CAI had ordered him to limit his demands to retrieving a credit report and asking for references from past landlords.

The Court of Québec’s decision overruled all the restrictions laid in the first instance and ruled in favour of this landlord from Québec City. The Court has returned the case to the CAI for further investigation and to revise its decision made against the landlord. The case was about a lease transfer that was not approved because the assignee refused to provide the requested information.

The next Proprio magazine will feature a more in-depth analysis of this ruling by the Joli-Coeur Lacasse Avocats legal firm, which was representing the landlord in this case. 

The CAI’s very restrictive interpretation in its latest decisions (that no landlord had challenged in superior court until now) is reminiscent of the Government of Quebec’s Bill 26, presented in 2001 and debated in a parliamentary commission. The bill aimed to limit the information a landlord could request to the name, address and phone number of a potential tenant. CORPIQ was firmly against the bill, which was never adopted.