06/07/2024 – Jurisdiction Ontario
Part 87 published on 01/09/2024
Owner had improperly installed a video surveillance camera on the common elements
The Court held that the Respondent owner had improperly 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. She had also sent abusive messages to management.
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.
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The applicant cited no specific section of the corporation’s declaration or bylaws disallowing the respondent’s placement of a camera in her mailbox. It relied principally on the provision in s. 117(1) of the Act prohibiting the use of a common element could “cause an injury or an illness to an individual.” Having regard to the Court of Appeal’s decision in (Jones v. Tsige), this use of the mailbox is prohibited by s. 117(1) because it could cause harm the law recognizes as compensable in damages. I therefore find that the planting of a camera was a misuse of a common element belonging to the corporation, even if it is of exclusive use. Ms. Davies was wrong to have done this and to have uploaded the clips to a YouTube account. The clips should be taken down.
The Court noted that the inappropriate actions of the respondent had been provoked by misbehaviour of others in the building (including the condominium corporation), and ordered no costs.
The Court also said:
Accordingly, I will order compliance in respect of the unauthorized filming and the inappropriate communications with the applicant’s board, management, and other personnel. I will not impose a complete bar on the respondent from communicating with such persons, because of the risk of inadvertent non-compliance and because the respondent has rights under the Act, declaration and bylaws, to participate in the life and governance of the condominium. Despite my compliance orders, I hereby order that there be no costs of the proceeding.
Metropolitan Toronto Condominium Corp. No. 905 v. Davies, 2024 ONSC 3288