Many condo corporations and individual unit owners are taking advantage of easy-to-access technology and implementing additional security features for the common elements and units.

An increasing use of security cameras in and around condo communities has come with more questions and issues condo boards, property managers and condo lawyers are forced to deal with. The installation of security cameras raises numerous legal issues under the Condominium Act, the Criminal Code and privacy legislation.

Below are some of the most common questions I’ve been answering over the past year, which can provide a starting point to engage in further investigation. As every condo corporation and its governing documents are not identical, it is advisable to seek further legal advice about your specific situation.

Can a condominium corporation install security cameras on the common elements?

Yes, condo corporations can install security cameras on the common elements. One of the duties of the corporation is to manage the safety and security of the common elements and persons that enter the property. Security cameras can help with fulfilling this duty. However, before a board decides to install cameras, they need to clearly identify what the purpose of the cameras are and determine if there is a less intrusive method that would meet the needs of the corporation.

In addition, it is very important that corporations establish policies regarding surveillance and privacy. These policies, at a minimum, should cover issues such as:

• Purpose of surveillance;
• General location of cameras;
• Types of personal information that will be captured;
• Who has access to surveillance and who will review it;
• How will surveillance be stored and for how long;
• Process for requests for access to surveillance;
• How owners and residents will be advised of any changes or expansion of camera locations;
• Process for responding to privacy breaches.

There will be some common element areas, such as washrooms and change-rooms, where there will be a higher expectation of privacy than a hallway or garage. There will be few if any legitimate reasons for installing cameras in such areas. Wherever cameras are installed, it is imperative that clear signage is posted giving everyone notice that surveillance is in place. It is also important to remember that no cameras should be directed at any one unit and they should not capture the inside of units when the doors are opened.

Do condominium corporations have to get owner approval to install security cameras?

Section 97 of the Condominium Act deals with situations where a condo corporation makes changes to the common elements or assets. Under Section 97 (2)(b), a change such as installing security cameras would not require notice to the owners if the purpose of installation is for the safety and security of the property and persons using the property. If the installation is for some other purpose, then a more careful review of s. 97 and a discussion with your condo lawyer would be prudent to determine whether or not notice and/or a vote is required.

However, even if you are not required to give notice to owners in advance of installing the cameras, it is always important to give notice once they are installed. It is important that you post signage which indicates to owners, residents and anyone visiting the property that there is surveillance in place. In addition, when giving owners and residents notice of the installation of the cameras, do not forget to share your surveillance and privacy policy with them.

Can owners install security cameras?

It depends where the owners are installing the cameras. There will likely not be an issue if the owner is installing the camera within their unit; the images captured are of the inside of the unit only and the owner is not making any changes to the common elements as a result of the installation. However, if owners are installing cameras (such as doorbell cameras) on the outside of their units or are making changes to the common elements in order to install a camera, s. 98 requires that they get approval from the board and enter into a s. 98 agreement.

If boards are contemplating allowing owners to install cameras on the outside of the front doors, the board should consider developing a policy and set of conditions that must be followed with respect to this type of installation. Door cameras raise privacy concerns as they tend to capture images and/or sounds that take place on the common element hallways, walkways etc. They may also capture images/sounds from other units within the vicinity of the camera.

As such, when giving owners approval for this type of installation, be mindful of the images and sounds that may be captured by the device being installed. Ensure that the privacy rights of others are not being violated before approval is given. Many condo corporations have banned the installation of door cameras for this very reason. If the board is considering banning door cameras, you will want to amend your governing documents to do so.

Can the security footage capture private conversations or just images?

It is important that any security camera the owner or corporation installs captures only images and not conversations. The recording of private conversations is an offence under Section 184 of the Criminal Code of Canada when the person making the recording is not a party to the conversation.

There are exceptions to s. 184, such as a warrant is obtained authorizing the capture of the private conversation as in the cases of wiretaps. Corporations and owners should seek legal advice if they intend to record private conversations. In most situations involving the corporation’s or owner’s security cameras, the exceptions will not be applicable. As such, it is recommended that audio recording options should be shut off for any cameras the condo corporation or owners install.

Can owners access security footage from the corporation’s cameras?

Owners should not have automatic access to security footage. The corporation’s policy regarding cameras should clearly state who has access to the footage and if someone wants access to the footage, the procedure that must be followed.

Recently, I had a case where an owner was injured as a result of the actions of another owner on the condo property. The incident was captured on the security cameras. The owner who was injured wanted a copy of the surveillance footage as he had commenced a claim against the other owner.

In this type of situation, the proper procedure is to advise the owner (or their legal counsel) requesting the footage that they must obtain a court order requiring the corporation to release the footage. It is a common procedure in civil claims to get court orders for third party records. A court order protects the condominium corporation, the board and property management from any allegation that the footage was improperly released.

Although you should not hand over the footage unless a court order is obtained, it is important to make sure when such a request for the footage is made that you preserve the footage in its original, unaltered format in a safe location. Many security systems will overwrite footage every certain number of days. You want to make sure that the footage is not overwritten and it is preserved in case the court orders you to release it.

Does a condo corporation have to hand over security footage to the police?

During a police investigation it is not uncommon for the police to ask property management or the board for video surveillance footage that has been captured on the corporation’s cameras. While you may want to assist the police in their investigation and be cooperative, it is important that when you are faced with such a request, you ask the police to obtain a warrant.

Once the warrant has been obtained, it would be wise to have your condo lawyer review it before any footage is handed over to ensure the footage complies with the terms of the warrant. In addition, once the request is made, ensure that you preserve the footage in its original format in a safe location in case the court orders you to hand it over to the police.

Can the board or property management give police permission to install police cameras on the common elements for the purposes of an investigation?

No. If the police request permission to install cameras on the common elements for the purposes of investigation, the board and property management should advise the police that they will cooperate once the police get an order from the court authorizing same.
Are surveillance recordings considered “records” under the Condo Act that could be subject to a records request by an owner?

Video surveillance could be considered a “record” under the Condo Act (the Act) and subject to a records request. As with any records request, it is important to remember that section 55(4) of the Act will apply and there may be situations that fall under the s. 55(4) exemptions, which would prohibit disclosure.

Although video surveillance is not a record that a condo corporation must keep under s. 55 of the Act, that does not mean it is not a record if it is created. A 2022 CAT decision (Kent v. Carleton Condominium Corporation No. 268) held that a record of the corporation is something that is created and maintained by the corporation for a purpose that is related to the ongoing role of managing the corporation. Video surveillance could fall into this category.

In the Kent case, which involved the recording of an owner’s meeting, the CAT held that although there is no obligation to create the recording, by choosing to create it and retain it, the corporation makes the recording a record under the Act and subject to an owner’s right to access and examine the record in accordance with s. 55. The same analogy could be applied to surveillance recordings.

In addition, a 2020 CAT case (He v. Waterloo Standard Condo Corp No. 541) ordered on consent that video surveillance be disclosed under a records request. The condominium corporation did not oppose the disclosure of the record, which was not surprising as the video footage supported their allegations that the owner or their tenants violated the rules. I am unaware of any CAT case to date in which the corporation refused to release video footage when requested by the owner and the CAT ordered it released.

As condo corporations are permitted under s. 55(1)(12.) and 55(2)(3.) of the Act to stipulate additional records they must keep in their bylaws and for how long these additional records will be kept, a board may want to consider amending their bylaws to include video surveillance as a record of the corporation in order to be able to manage this type of record and to specify how long the recording will be kept.

Any provisions in the bylaws should align with the surveillance and privacy policy created by the board and with the practical realities of the equipment and software used to record and store the surveillance footage.

Sonja Hodis is a condominium lawyer as well as an independent arbitrator and mediator for condominium disputes. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums. She represents parties at all levels of court, various Tribunals and in mediation/arbitration proceedings. She also acts as independent mediator or arbitrator helping parties resolve disputes or rendering decisions when they cannot. Sonja can be reached at (705) 737-4403, [email protected] or via her website at www.hodislaw.com.

This article is provided as an information service and is not intended to be a legal opinion. Readers are cautioned not to act on the information provided without seeking legal advice with respect to their specific unique circumstances. Sonja Hodis, 2024 All Rights Reserved.

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