An Emerging Concern for Condominium Boards

by Tom Frohlinger & Sandy Mollard

Due to low-cost options the growing popularity of surveillance cameras is proliferating. Most commonly these are doorbell cameras, or cameras mounted independent of an entrance door. In a condominium setting these cameras can be an important tool of safety, monitoring while away, checking for deliveries and so on. Cameras may be an important tool to record incidents that happen and may be helpful in identifying a perpetrator. The recordings can be shared with the authorities (private or public) in seeking prosecution. However, there must be a balance in ensuring that legally protected individual privacy rights are respected and also protected.

The Condominium Act provides that a condominium corporation may make rules respecting the

use of the common elements and units to promote the safety, security and welfare of the occupants of the condominium regime and to prevent unreasonable interference with the use of the common elements and units. The directors of a condominium corporation are obliged to act prudently in the best interest of the condominium corporation. In other words, a director of a condominium corporation must act as a reasonable person would in similar circumstances.

As the balance between privacy rights and the rights of others is evolving in Canada and has rarely been considered in the context of the role played by condominium corporations, prudent boards of directors are embarking on developing policies and rules pertaining to the private use of security cameras by occupants of condominium properties.

The foundation for such policy is that all cameras must receive prior board approval for because:

damage may be done to the common elements by residents attaching cameras to the building;
privacy rights may be violated with certain cameras and their recording settings; and,
there is a need to keep an inventory of where all the cameras are on the condominium site for safety and security reasons.

These developing protocols have attempted to balance the individual camera owner’s rights, the rights of others of expectation of privacy on the condominium common elements and the protection of the legal privacy rights of other owners or occupants of individual units.

What follows is not an exhaustive list but is merely a compendium of possible considerations for condominium boards:

All cameras that are directed at or installed on the exterior of a unit, must receive approval. This includes existing cameras.
Failure to obtain approval for a camera will result in a warning and followed (if required) by the camera being removed at the owner’s expense, or fines as per the By-laws or both.
A resident has to apply for permission to install a camera.
A screenshot (or several screenshots if required) from each camera showing what will be recorded must be included with the camera application.
The applicant must sign an undertaking before approval is given, that:

all existing cameras must receive approval by the Board and failing approval must be removed.
they will not record conversations;
if the images are being retained these will not be accessed without a valid reason and will be erased not later than 90 days from the date of recording;
will not allow public access to the recordings under any circumstances (other than to the a government authority with jurisdiction);
will not violate another person’s privacy; and
the applicant indemnifies the condominium corporation and its board from any claims as a result of any breach by the resident giving the undertaking.

An approval may be revoked at board’s sole discretion if there are changes to the camera or there are recordings that would, in the boards opinion, violate this rule or any privacy laws.
Where a camera is being affixed to a common element a fee may be required for each camera that is installed to provide for repair of any future damage to the building envelope by the installation.
The fee must be paid at the time of application.
Doorbell cameras (that are attached to the unit rather than common elements) may not require a fee.
Cameras must be set to video recordings only.
Recording audio/conversations is strictly prohibited.
Variable range, motion triggered cameras must be set at the absolute minimum range for the protective purpose intended.
If at the camera’s minimum range may still record in violation of another person’s privacy the camera will not be approved.
Cameras must not be able record in a way that records another person’s property or their ingress or egress to and from their property.
Fake or decoy cameras are absolutely prohibited and are subject to removal without notice at the owner’s expense. Any violation may be subject to a fine at the discretion of the Board.

Currently there are no cases in Manitoba to have addressed the balancing of these competing rights. and we await any direction by the Manitoba Courts.

Tom Frohlinger is a commercial lawyer and corporate litigator at PKF Lawyers, in Winnipeg, Manitoba. Tom has extensive experience in condominium law and resolution of condominium related disputes.

Sandy Mollard is a senior corporate paralegal at PKF Lawyers, in Winnipeg, Manitoba.

This article offers general comments on selected current legal developments that may be of concern to condominium corporations and their boards of directors. Every effort has been made to ensure the accuracy and timeliness (as of March 31, 2021) of this information. This article is written for informational purposes only and should NOT be relied upon as legal advice or opinion. The reader should always obtain legal advice from a qualified lawyer or other qualified professional, which will be responsive to the case or circumstance of the individual. Please don’t hesitate to contact Tom Frohlinger should you have questions or comments.