Condo Living

November 21, 2022 Published by Toronto and Area Chapter - By Bradley Chaplick

The Right to Privacy in Condominium Buildings

From the Fall 2022 issue of CCI Toronto Condovoice Magazine, Volume 27, Issue Number 1.

In this article, we will discuss the right to privacy in Ontario condominium corporations with a particular focus on common area surveillance. This article also includes practical tips for condominium Boards of Directors and managers. The common areas of condominium buildings are commonly referred to as a "semi-public" space. They are neither fully private, nor fully open to the public. We begin with the case of hidden surveillance cameras in R. v. Yu.

R. v. Yu
In 2013, there were a series of retaliatory high-profile fatal shootings between rival criminal gangs in Toronto. This led to a massive police investigation, which culminated on May 28, 2014, with the arrest of 112 individuals for various offences including murder, drug and weapons trafficking, and human trafficking.

As part of their investigation, the police installed hidden cameras in the common areas of the condominium buildings that the suspects lived in. This was done with the consent of the Board of Directors or property manager, but without a judicial warrant. Some of the criminal defendants argued that these hidden surveillance cameras violated their constitutional rights. In 2019, the Ontario Court of Appeal released its decision, entitled R. v. Yu, in which the court considered the right to privacy in the common areas of a condominium building in the criminal law context.

The Court of Appeal described various condominium building common areas and considered whether there was a reasonable expectation of privacy:

1. In areas that were accessible to the general public, such as the visitor's section of a parking garage, the court determined that there was no reasonable expectation of privacy. In areas that were routinely accessed by all condominium residents, such as the elevator lobby, there was a low expectation of privacy.
2. The expectation of privacy increased as you approached an individual dwelling. For example, there was a greater expectation of privacy in a common area corridor next to your condominium unit, as compared to the more commonly used areas of the building.

The Court of Appeal then stated that the hidden cameras installed in the common area hallways were unconstitutional, but not surveillance in areas accessible to the general public.

The court went on to state that covert recording is highly invasive of individual privacy and that the Board of Directors and condominium manager did not have the legal authority to consent to the installation of hidden cameras on the common elements by the police.

In the writer's view, this case should serve as a warning to condominium Boards of Directors and managers not to install hidden cameras on the condominium property. For example, hidden cameras ought not to be used to prove that a person is breaking the condominium's rules.

R. v. Jarvis
Privacy is not an "all or nothing" concept. As we learned in R. v. Yu, the right to privacy exists on a continuum, especially in semi-public spaces such as common areas in a condominium building.

In R. v. Jarvis, a high school teacher was secretly and voyeuristically recording his female students with a video camera hidden in his pen. Mr. Jarvis was charged with voyeurism under the Criminal Code. His lawyers argued that no crime had been committed because the students who were being recorded had no expectation of privacy while at school.

The Supreme Court of Canada overturned the lower court's acquittal and found Mr. Jarvis guilty of voyeurism. Many of the Jarvis factors are applicable in the condominium context, but not all the factors will be relevant in every case.

In the writer's view, the following criteria are most applicable to the condominium context as it relates to the installation of security cameras and other forms of common area surveillance:

1. Location: As in R. v. Yu, the closer to the dwelling unit, or some other private space, the greater the expectation of privacy.
2. Awareness and consent to the recording: Are there signs indicating that the premises are under surveillance before you enter the area being recorded? Is the camera in plain sight, or is it hidden?
3. Manner of recording: Continuous recording is more invasive to privacy than a snapshot. Is the recording in high definition? Can the camera zoom in to view small details? Does the recording include sound?
4. Content of the recording: Is the person engaged in an activity that would normally be done in private, such as getting dressed? Are intimate body parts shown in the recording?
5. Rules relating to the recording: Is there a written privacy policy stating, for example, who has access to the recordings and under what circumstances can the recordings be examined? Is the policy followed?
6. Purpose of the recording: Is the recording for a legitimate purpose such as protection of personal safety or protection of property?

On the issue of "what is a proper purpose?", a privacy case from the Office of the Information & Privacy Commissioner of British Columbia, known as Re: Shoal Point Strata Council, held that the use of video surveillance for enforcement of condominium rules could be problematic in certain circumstances. In that case, the condominium directors were monitoring the cameras in the recreational facilities and were issuing fines to unit owners if any violations were observed. This kind of proactive monitoring of surveillance cameras was deemed to be excessive and unwarranted.

Practical Tips for Condominium Managers and Boards of Directors

1. In the writer's view, condominium buildings with surveillance cameras should install signage indicating that the property, or specific areas within the property, are under video surveillance. It is preferrable that the signs be visible before the person enters the area under surveillance.
2. Condominium corporations should avoid the use of hidden cameras, except in very rare circumstances, and should avoid recording sound unless there is a legitimate need to do so.
3. Condominium corporations should have a written privacy policy. Ideally, this policy should be prepared by a lawyer with relevant expertise. The policy would address procedures relating to video surveillance, as well as the collection and dissemination of owners' and residents' personal information. A copy of the privacy policy should then be made available to all unit owners and residents.
4. Boards of Directors should consider creating a Privacy Officer position on the Board of Directors who is tasked with ensuring that the corporation's privacy policy is properly implemented, and that owners' personal information is protected and kept up to date. The Privacy Officer would also be responsible for investigating potential privacy complaints and responding to privacy-related questions from owners and residents.
5. Residents should be permitted to view surveillance footage relating to themselves, so long as it does not interfere with the privacy rights of other residents. For example, if a resident trips and falls in the condominium lobby and requests a copy of the security camera footage showing the fall, then this request should be granted. There may also be situations where a legal opinion is required before security camera footage is released.
6. Quite apart from privacy concerns, compliance with section 97 the Condominium Act, 1998 (the obligation to give notice to owners before changing the common elements) must be considered when adding security cameras if the cost of the project exceeds 1% of the condominium corporation's annual budget.

If your condominium corporation does not yet have a written privacy policy, then consider contacting your condominium lawyer for a privacy policy that is appropriate and customized to your community's specific needs. A detailed privacy policy will ensure that you have the necessary protocols for collecting, retaining, disseminating, and deleting surveillance footage of the property and other personal information.