Many strata corporations choose to install or operate video surveillance systems in order to enhance security (or at least the perception of it) around the building/complex. Individual owners often want to do the same with respect to their own strata lot and the area around it. But can they?
The Privacy Guidelines for Strata Corporations and Strata Agents published by the Office of the Information and Privacy Commissioner restrict strata corporations from operating such systems unless:
• They can establish the need for the system (i.e. other methods of enhancing security have been tried and found not to be effective);
• The operation of the system has been authorized by way of a bylaw passed by the owners; and
• The strata corporation has enacted a privacy policy to govern how the information captured by the system is stored, viewed and used.
Individual owners, acting in their personal capacity as an owner, are not governed by the Personal Information Protection Act (PIPA). As such, they are not subject to the requirements of PIPA, including the condition to justify the need for the system.
Many strata corporations assume that the operation of video surveillance systems which capture activity on the common property are prohibited by Standard Bylaw 3(1)(c) which provides:
“An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that… unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot.”
However, when the case law related to a breach of privacy under the Privacy Act (which is different legislation from PIPA) is reviewed it becomes clear that might not be the case.
Section 1 of the Privacy Act provides as follows:
Violation of privacy actionable
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.
(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.
(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.
(4)Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
The law establishes different expectations of privacy depending on one’s location (i.e. inside their home or outside of it). In Milner v. Manufcaturers Life Insurance Co. 2005 BCSC 1661 the court succinctly summarized the law regarding expectations of privacy. The basic principles are:
(a) The location of the subject of the surveillance is the key to determining whether a person’s expectation of privacy is reasonable;
(b) person’s entitlement to privacy is highest where the expectation of privacy would be greatest (i.e. in their home);
(c) there is no reasonable expectation of privacy for actions taking place in public.
It then went on to the say the following regarding expectations of privacy on private property:
[78] Even if actions take place on private property, the circumstances may suggest that there is not a reasonable expectation of privacy. The authors of Privacy Law in Canada observe that it is generally permitted to videotape a plaintiff in a public place or a place visible to the public such as a parking lot or the front yard of one’s house (Colin H.H. McNairn & Alexander K. Scott, Privacy Law in Canada, (Markham and Vancouver: Butterworths, 2001) at 78). This is what happened in Silber v. British Columbia Television Broadcasting System Ltd.(1985) 1985 CanLII 316 (BC SC), 69 B.C.L.R. 34, 25 D.L.R. (4th) 345 (S.C.). In that case, a news crew taped an altercation between the plaintiff and the reporter on the private parking lot of the plaintiff. Although the plaintiff was on private property, it was in full view of any passersby and therefore there was no reasonable expectation of privacy.
In Wasserman v. Hall 2009 BCSC 1318 the court had to deal with a number of issues that had arisen out of a dispute between two neigbours, including one filming the activities of the other. The court concluded that:
“…the Halls had no reasonable expectation of privacy when working on or in the immediate area of the fence line but did, at all times, have a reasonable expectation of privacy when inside their own home. Unlike, the investigator in the Milner case, the dispute with Mr. Wasserman did not entitle him to any information that might be obtained as a result of surveillance of activities inside the Hall residence. Accordingly, the Halls’ expectation of privacy inside their home was very high throughout the entirety of the dispute.”
With respect to being under the constant view of a camera, the court determined that “… any owner of rural property would find it intolerable to have a tree-mounted video camera constantly aimed in the direction of his or her residence.” It did not comment on the expectations of an urban dweller, but presumably they are much less.
In Aschenbrenner v. Yahemech 2010 BCSC 905 the court held that one’s expectation of privacy in their back yard was low, such that having photographs taken by a neighbor was not a breach of their privacy.
Even if a person’s actions would amount to a breach of privacy, s.2(2)(b) of the Privacy Act provides for a defence where “the act or conduct was incidental to the exercise of a lawful right of defence of person or property”; being the reason most owners would say they want system. However, there are limits to that defence. It must be necessary to have a particular area under surveillance in order to protect one’s property. In Wasserman the court held that it was not necessary to keep a neighbour’s home under surveillance in order to protect your own.
Applying these principles to a strata corporation it is clear that:
(a) a video surveillance system which captures the activities of the residents of another strata lot would be an invasion of privacy.
(b) a video surveillance system which captures only activity on the common property or limited common property (even if that area were a deck or yard), where one’s expectation of privacy is at its lowest, would not be an invasion of privacy.
(c) the mere fact that a person’s activities are captured by surveillance is not automatically an unreasonable interference with their enjoyment of the common property.
The Civil Resolution Tribunal has also had the opportunity to consider the issue of video surveillance. In Parnell v. The Owners, Strata Plan VR 2451, 2018 BCCRT 7 it held that the installation of cameras outside of a strata lot constituted an alteration because they were mounted to the wall. It also held that the strata corporation was justified in refusing permission because of its view that it needed to comply with PIPA given the placement of the cameras on common property. The CRT determined that the owner had no inherent right to install the cameras unless and until the bylaws provided that right (ie. they did not require council approval for the alteration aspect).
In Parnell the CRT expressed its view that PIPA provides a means for the strata corporation to deny an owner the ability to operate a video surveillance system. It was of the view that the fact that the “owner is not bound by PIPA is irrelevant, because the camera system is in a common property hallway managed by the strata, which is subject to PIPA.” With respect, the writer disagrees. Even though the camera was located on common property, the strata corporation is not collecting the personal information of those captured by the camera; the owner is. So long as the strata corporation does not have access to what the system records, it would not be doing any of the things (collection, use and disclosure of personal information) which would invoke PIPA’s application. At any rate, if the cameras were located inside the strata lot, the reasoning expressed in Parnell would not apply and they could not be prevented based on PIPA compliance.
Given the variety of options for the placement of cameras, what they might capture, the methods of their attachment and whether PIPA applies, strata corporations should consider specifically regulating video surveillance system operated by owners. Such systems should either be prohibited outright or, if permitted, a comprehensive set of regulations for their installation and use set out in the bylaws. The Standard Bylaws might not be sufficient to prohibit such systems in every circumstance.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
