Are owners permitted to record activities on the common elements?

In the case of MTCC 905 v. Davies, the owner had installed a video surveillance camera behind the window of her mailbox (located in the condominium’s mailroom), with the goal of catching other residents defacing or removing her election signs placed on the mailroom bulletin board.

The Court said that this sort of video surveillance by an owner – on a condominium’s common elements – was a breach of the privacy rights of the other residents. Here’s what the Court said:

The respondent argued that the mailroom is a public area where anyone can photograph or videograph any activities. I disagree. The common elements of a condominium building are private property in which there is an expectation of privacy. It may be a lower expectation than the private units themselves, but it is not the same as a street scene, a public square, or a shopping mall. Apart from postal employees and delivery couriers, the only persons entitled to be present in a mail room are those collecting their post and deliveries. A non-resident has no business being in the mail room except to accompany a resident or to be a resident’s agent for picking up mail. A resident does not expect to be filmed from inside another unit owner’s mailbox. For example, a resident in a time of personal financial crisis might receive a collection letter and open it on the spot. Consider the impact on that person to find that the letter and his facial expression have been captured by a camera in another resident’s mailbox.

The respondent also argued that the common elements are all under video surveillance. There is an expectation of being captured by these cameras. It is one matter to expect security services contracted by the condominium to help keep residents safe. A resident’s own vigilante videography device does not fall within such expectation.

The Court held that the camera installed by the owner violated Section 117 (1) of the Condominium Act and ordered that the camera be removed. The Court also said that related video clips uploaded by the owner to a YouTube account should be taken down. [I also note that the Court did not award any costs in favour of the condominium corporation because the Court found that the owner’s actions had been provoked by misbehavior of other residents and of the condominium corporation – namely defacing and removing the owner’s election materials.]

We recommend that condominium corporations consider passing Rules confirming what (if any) recordings are permitted on the common elements.  In general, recordings by persons other than the condominium corporation should be prohibited except perhaps for some clear exceptions, such as video doorbells. Furthermore: If video doorbells are to be permitted, this should also typically be subject to the requirements of Section 98 of the Condominium Act (in relation to permitted modifications to the common elements) and should include appropriate terms and conditions to avoid any breach of the privacy rights of other residents. In cases where video doorbells are to be permitted, in our view a by-law can be an excellent way to meet these requirements.

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