Security Cameras in Condos: Privacy Interests vs. Safety & Security

[caption id="attachment_9612" align="alignnone" width="1880"] Photo by Scott Webb on Pexels.com[/caption] We are routinely asked to provide advice to our clients about the installation of security cameras on the common elements. Sometimes the cameras are installed by the condominium on the common elements to reduce vandalism and property damage. Other times an owner wants to install a camera on the common elements adjacent to his unit to protect the occupants of the unit. For both situations the primary concern is normally the privacy rights of the other residents, but secondary concerns are often possible damage to the common elements caused by the installation of the camera and compliance with the legal requirements of the Condominium Act, 1998. Privacy Concerns The use of cameras in condominiums is a tricky area with the increasing privacy rights of citizens. With the Personal Information Protection and Electronic Documents Act and other new privacy rights created by the courts, there is increasing pressure on organizations to protect the privacy of individuals. The installation of cameras could lead to civil and criminal liabilities if the cameras are used improperly or installed in a manner that violates a person’s expectation of privacy. The condominium must balance the privacy rights of owners with its obligations to the owners. Pursuant to section 17 of the Condominium Act, 1998 (the “Act”), the board of directors has a duty to manage the common elements and assets of the condominium. This obligation includes taking steps to reduce the risk of crime on the common elements and improve the safety and security of the residents. In addition, the condominium is responsible under the Occupier’s Liability Act to ensure persons entering upon the premises (and their personal belongings) are safe and secure. This obligation requires a condominium to take reasonable steps to alleviate any condition that could cause injury or damage to an individual or his or her property. Cameras can be an important tool in recognizing and reducing dangerous conditions, but the privacy rights of residents must be considered as well. Police Use of Cameras There have been some important court decisions in the past few years about police investigations and the involvement of condominiums. Most recently a decision was released where police installed hidden cameras in a common element hallway with the consent of the condominium's board of directors. The issue for the court was whether the accused's Charter rights were infringed, but the decision contains valuable lessons for condominiums about privacy rights and requests from the police for cooperation from the condominiums during criminal investigations. Some highlights of the case are:

• The expectation of privacy depends upon a variety of factors, including but not limited to the location of the cameras. The residents' expectation of privacy is highest within the units and lowest in common areas, like hallways, exterior common elements, and parking garages (albeit there is variation in the expectation of privacy within common areas).
• Police cannot install hidden cameras on the common elements or access the common elements (in buildings with controlled access) without the consent of the condominium corporation.
• Condominiums can grant access to the common elements to police, turn over surveillance footage from their own cameras, and provide other evidence to assist with police investigations. Condominiums should discuss the implications with a lawyer before engaging in any of these activities.
• Condominiums should not consent to the installation of hidden surveillance cameras on the common elements.
• Similarly, condominiums should not grant access to a unit to further police investigations without a court order. The police may use force to access the unit if they perceive it to be necessary in the circumstances (i.e. emergency).

Police investigations on common elements can benefit the residents (other than the one being investigated) as criminal activity in a unit often leads to property damage or increased safety or security concerns for the other residents. That said, there are a number of legal considerations related to a condominium's participation in police investigations so condominiums would be wise to seek legal advice before assisting with police on criminal investigations. If your condominium is experiencing criminal activities within the units or on the common elements, or you are interested in the topic, you should check out an upcoming seminar by the Grand River Chapter of CCI. A police officer, security expert, and property manager will provide suggestions for recognizing, preventing, and handling criminal activity in condominiums. For more information, visit their website here: https://www.cci-grc.ca/events/2020/02/28/professional-partners-lunch-learn-prevent-protect Other Considerations While privacy rights and police involvement are significant considerations, it is important not to forget the requirements of the Act. If a condominium intends to install cameras on the common elements it must consider if section 97 of the Act will require notice to the owners and/or approval of the owners. Currently, the primary factor in the application of section 97 is the cost of the proposed cameras relative to the condominium's annual budgeted common expenses. In some situations, a condominium may be able to install cameras without notice or approval of the owners, such as where the cameras are necessary to ensure the safety or security of residents or prevent imminent property damage. That said, even if notice is not required, it is generally best to keep owners informed about the decision. If the condominium receives a request from an owner to install cameras on the common elements adjacent to the owner's unit the board should consider section 98 of the Act. According to section 98 an owner may only make an addition, alteration or improvement to the common element with the approval of the board of directors and entry into an agreement with the condominium (note: there are other requirements that could apply in some cases so legal advice is recommended).  Ordinarily, it is recommended that the approval contain conditions designed to protect the privacy rights of other residents (i.e. the cameras may not point toward another unit or exclusive use area) and prevent damage to the property (i.e. the cameras must be installed by a properly licensed contractor and plans provided to the condominium in advance). It is often recommended that condominiums consider creating policies or rules with respect to cameras as well. For cameras installed by the condominium, privacy policies should be created that describe how the cameras will be used, who will have access to the images captured and/or stored, the destruction of images, etc. For cameras installed by owners, condominiums should consider rules about the use and installation of cameras on the common elements and units. These rules can be especially important where cameras would not require approval of the board of directors pursuant to section 98 of the Act because the camera does not involve an addition, alteration, or improvement to the common elements, such as where the unit boundaries include the entire structure and the camera would be installed on the unit. Guidelines for Cameras Here are some basic guidelines to consider when installing cameras:

• Cameras should be installed only to protect safety, prevent property damage, and detect or deter criminal activity;
• Cameras should be installed so that they only monitor the public areas of the property that are at risk of vandalism or are a security risk to persons;
• Cameras should not be installed toward the inside of an owner’s unit or in any other area where someone might have a higher expectation of privacy (i.e. changeroom or washroom);
• Signs should be installed to advise people that surveillance is in operation in the area;
• Any related equipment (i.e. back-up or storage equipment) should be strictly controlled to avoid unauthorized access to the images;
• Any images obtained should not be provided to any person unless required by law; and,
• Any images obtained should not be retained longer than is necessary to protect the property or persons.

As stated above in several places, cameras are a tricky issue in condominiums due to the privacy rights of residents and others attending the property. As such, it is generally wise to seek out legal advice before installing cameras on the common elements, even if the request is by an owner to install cameras adjacent to their unit only.