08/06/2021 – Jurisdiction Manitoba
Part 75 published on 01/09/2021
Doorbell camera an acceptable breach of privacy
Two owners in the condominium shared a common entryway. The entryway is part of the common elements and affords access to each owner’s residential unit and also to each owner’s storage locker.
One of the owner’s (Mr. Dunn’s) “exterior porch light located in the entryway was repeatedly tampered with, rendering it inoperative”. As a result, Mr. Dunn installed a camera inside his unit (to view the entryway through a window). Then, when someone obstructed the view of this camera, Mr. Dunn installed a doorbell camera, which was triggered by motion detector. At the request of the condominium corporation, Mr. Dunn subsequently deactivated the motion detection feature. Instead, the doorbell camera would then only be activated when someone pressed the doorbell.
The neighboring owner (Ms Zeliony) ultimately moved out of her unit. She also asserted a claim in which she alleged that the cameras constituted a breach of her privacy. She included a claim against the condominium corporation for negligent failure to prevent this breach of privacy. Ms Zeliony deposed that the angle and placement of the cameras were such that the cameras captured the front entrance and storage space of her unit and the cameras were able to capture the interior of the storage space of her unit whenever the door was open.
The Court dismissed Ms Zeliony’s claims. The Court agreed that the cameras may have constituted a breach of Ms Zeliony’s privacy, but held that any such breach of privacy was acceptable in the circumstances of this case. The Court said:
Mr. Dunn’s counsel argued there was no reasonable expectation of privacy in the entryway as it was part of the common element property in a condominium complex into which anybody could enter and exit and be seen by others when doing so. While the nature of the place where the surveillance occurs will always be an important factor to consider in determining whether a person has a reasonable expectation of privacy in the circumstances, it is not determinative. A person who is situated in what would normally be characterized as a public place may well have a reasonable expectation of privacy (Heckert, para. 81, quoting from R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36 at 62). In the context of the case at hand, the concept of the entryway, which was part of the common element in a 128-unit condominium complex, that was required to be used by both Ms Zeliony and Mr. Dunn to access their respective units and was open for use by other unit owners and visitors, was accepted by Ms Zeliony as part of living in such a condominium complex. While by no means determinative, this points to a lowered nature and degree of reasonable expectation of privacy by Ms Zeliony when using the entryway.
There is no doubt that Ms Zeliony enjoyed the right to be left alone upon entering and exiting her unit and her storage unit. However, in my view, the images of Ms Zeliony were not recorded so as to substantially violate her privacy.
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In my view, relevant to the contextual analysis is Ms Zeliony’s participation in tampering with Mr. Dunn’s light and obscuring his cameras. Also relevant is Ms Zeliony’s incredible denial of tampering with Mr. Dunn’s light. It is my view that Ms Zeliony’s acts and conduct are relevant as they provide context to assessing Mr. Dunn’s acts and conduct for the purposes of ss. 2(1) and 5 of The Privacy Act. While Ms Zeliony’s participation in tampering with Mr. Dunn’s property is relevant, regardless of who was tampering, it is my view that with repeated tampering (by whomever), by placing the cameras in the manner that he did in this shared entryway, which included limited function of the original camera that was then reinstalled in February 2017 above Mr. Dunn’s storage locker, limiting the doorbell recording to motion only within the minimum setting of five feet (with no credible evidence of continuous recording), keeping recordings for police and to give to his counsel, and deactivating the motion detection when asked by Mr. Keough, to the extent that Mr. Dunn violated Ms Zeliony’s privacy, albeit not substantially, (whether by recording or deterrence), he acted reasonably and with claim of right.