Are Condominium Residents Entitled to Privacy on the Common Elements?

The Supreme Court of Canada recently ruled on the circumstances that may give rise to a reasonable expectation of privacy in R v Jarvis. While the case was decided in the criminal context (with respect to the charge of “voyeurism”), it has potential wide-reaching implications on privacy rights in general.

The Supreme Court found that privacy is the concept of “freedom from unwanted scrutiny, intrusion or attention.” For instance, people will have a reasonable expectation of privacy where they would reasonably expect not to be the subject of a recording – even when that recording is taken in a public, or semi-public space. Relevant considerations in making this determination include (but are not limited to): the location where the recording took place; whether or not the subject of the recording was aware of or provided consent to the recording; whether there are any applicable rules, regulations, or policies that governed the recording; and, the purpose for which the recording was done.

This decision raises the question: to what extent do condominium residents (and others accessing condominium property) have a reasonable expectation of privacy when using or accessing the common elements?

While the answer will likely depend upon the particular circumstances, the Supreme Court’s decision confirms that there may certainly be situations where residents can reasonably expect that their privacy will be maintained by the condominium corporation – despite the fact that the common elements are available to the condominium community in general. Given this, condominiums may want to consider the following questions before utilizing recording equipment on the common elements:

• Is there signage to advise residents and guests that the common elements are under surveillance?
• Has the condominium corporation passed a rule or policy regulating how recordings are taken, stored, and used by the corporation?
• Is the location of the recording equipment in an area where there may be increased expectations of privacy (such as a swimming pool or spa area; or an area where some owners may have exclusive use rights)?
• Is the recording equipment located in such a way that particular residents may feel “targeted”?
• What is the purpose of the recording? (For the most part, the answer to this question will be safety and security.)

Note as well that others (like residents) wishing to record conditions or activities on the common elements also likely need to consider these principles of privacy. Again, a rule passed by the condominium corporation can be a great way to regulate these privacy issues.

As a final point, it is worth noting that the considerations above would likely also be relevant when determining owners’ entitlement to privacy at owner’s meetings (regardless of where those meetings take place). Alerting the meeting to the fact that a recording is being taken (for minutes, or otherwise) will go a long way to avoiding any complaint of breach of privacy.