By: Daniel Katzman, JD
Exploring open source software opportunities.
Privacy amongst condominium owners is quickly becoming an issue of concern. This concern is compounded by the advent of new technologies, like video doorbells Ring or Nest, which remotely allow a condominium owner to view people at his or her door. The questions is; how much privacy should a condominium owner expect?
There is a statutory right to privacy provided in The Privacy Act (the “Act”) which states: It is a tort, actionable without proof of damage, for a person willfully and without claim of right, to violate the privacy of another person.
There is a statutory right to privacy provided in The Privacy Act (the “Act”) which states:
It is a tort, actionable without proof of damage, for a person willfully and without claim of right, to violate the privacy of another person.
This Act goes on to list examples of invasions of privacy, defenses to invasions of privacy and considerations in determining whether there is a violation of privacy. It also lists remedies available to an owner who has had his or her privacy invaded, like a monetary award, injunctions or any other order that would be relevant in the circumstances. A condominium owner might then think that his or her right to privacy is secure and easily enforceable.
Unfortunately, there have been very few court applications using the Act, and even fewer that have successfully done so. The problem with enforcing privacy rights has recently been discussed by the Saskatchewan Courts:
While these examples of violation of privacy are not intended to be exhaustive, the only other way violation of privacy can be established under the Act is pursuant to s. 6. This provision requires the plaintiff to establish some entitlement to privacy in relation to the acts of the defendant complained of, bearing in mind the considerations set out in that section. While it clearly is not possible to set out all circumstances that might entitle a person to some degree of privacy, it is possible to be certain that no one is entitled to privacy in relation to any and all information relating to himself or herself.1
At a minimum, should there be a claim of invasion of privacy, five things must be clear: the act complained of is within the Act, there is an act or actions which are claimed to be a violation of privacy which comes within the scope of the Act, the privacy violated is that of a person, the type of privacy interest violated is generally identifiable (being recorded or observed) and the violation is willful and without a reasonable excuse.1
What can be understood from the Saskatchewan cases interpreting the Act is that the courts are struggling with what is, and what is not, a violation of privacy. There is a careful balancing act that is done when a claim is brought, and the court does not want to allow every inadvertent invasion of privacy to become a legal action. This is both good and bad. It is good because people using devices like Ring or Nest do not need to worry about being sued when they remotely view someone ringing their doorbell, but it is bad because the limits on what people can do is vague. This vagueness has led legal researchers to call the Privacy Act “dead letters”, as so few cases have been brought under the Act since its creation in the 1970’s.
Can a condominium owner point a video camera down a common hallway to observe the comings and going of his or her neighbours? There is no Saskatchewan case that directly answers this question. This act may seem obscene, but there may be a reasonable explanation for it, like an increase in thefts or property damage. In that case it may be allowable. It is going to depend on the facts and circumstances of each instance.
However just, It may be better for the Condominium Corporation facing privacy issues to institute policies which can adapt to the law and technologies as they change. This would allow for Nest and Ring doorbells to be used, but would limit the use by owners of cameras in the hallways just to monitor the area. The reality of technology is that it will outstrip the law as a result of faster innovation, but there are safeguards to keep those technological innovations in check. We suggest your board look at your policies and the specifics around your building to develop something that works for you in the best interests of your owners and the Corporation.
Ahmed v. Canadian Light Source Inc., 2018 SKQB 320.
Constant-Daniels (Litigation guardian of) v. Tournier, 2014 SKQB 353.