Two recent cases emerging from Alberta and Manitoba have brought attention to the legal implications of smart camera and doorbell use in condominiums.
The case from Alberta Court of Queen’s Bench, Lupuliak v Condominium Plan No. 8211689, 2022 ABQB 65 resulted in a unit owner who installed a video doorbell being directed to remove the device. The issue arose when Lupuliak installed a motion-sensor video doorbell in response to an attempted break-in at her unit. The camera captured the comings and goings of Common Property (the common hallway, including a neighbouring unit’s front door). The neighbour was uncomfortable with this surveillance and expressed her concern to the Board of Directors of the Condominium Corporation (the “Board”) as well as by making an obscene gesture at the camera on occasion. Lupuliak posted footage of the neighbour’s gesture on Facebook alongside a hashtag identifying the neighbour’s employer. The Board requested the camera be removed, citing the contravention of the Condominium Corporation Bylaws, which required that a unit owner:
1. not make any additions or alterations to the exterior of their unit without first obtaining board approval;
2. not unreasonably interfere with the use and enjoyment of the common property by other owners; and
3. not use their unit to cause a nuisance or a hazard to any occupant of another unit.
After refusing to remove the camera, Lupuliak used footage captured by the camera to report the same neighbour to Alberta Health Services for not complying with COVID-19 public health orders as well as in various complaints to Calgary Police Services.
When multiple requests to have the camera removed failed, the property manager (on behalf of the Board) gave Lupuliak a deadline within which to take down the video doorbell. The day before the expiration of the deadline, counsel for Lupuliak applied to the court by way of Originating Application for a declaration that she need not remove the doorbell. In this application, Lupuliak took the position that Respondents (the Condominium Corporation) engaged in “improper conduct” as defined in s. 67(1) of the Condominium Property Act by acting in a manner that was oppressive towards her. Specifically, she claimed that the Board disregarded her objectively reasonable expectations in respect of her unit’s front door by not consistently enforcing the Bylaws in the past. She specifically argued that other unit owners had altered their front doors to install peep holes and keypads without prior Board approval, resulting in her reasonable expectation that she could install the video doorbell without Board approval.
In response, the Condominium Corporation maintained that the camera was an invasion of other owners’ privacy, which was exacerbated by Lupuliak’s use of the footage for purposes far outside the scope of what Lupuliak claims to have installed the camera for in the first place (preventing another break-in).
Justice Feasby stated:
[85] Ms. Lupuliak’s conduct in using the video footage captured by the doorbell to bolster her complaints about the Respondents to the Calgary Police Service, Alberta Health Services, and the Alberta Privacy Commissioner, along with her posting video footage from the doorbell on social media, was improper. The weaponizing of the doorbell in this fashion validates all of the concerns expressed by the Respondents and is not conducive to peaceful co-existence in the context of a condominium complex such as Riverhill Gardens.
Justice Feasby also noted that it would be “absurd” to equate non-enforcement of the Bylaws for the installation of peepholes with unfettered permission to install any type of security device.
Regarding balancing the need for both security and privacy in condo complexes, Justice Feasby advised:
[90] [I]n the present case, the better course for Ms. Lupuliak after the attempted break-in at her unit would have been to petition the Condominium Board for increased security measures for the building, including in its common areas. Had she raised this concern, the Condominium Board should have taken her suggestion seriously. For instance, a security system with video, operated by the property manager and paid for by the Corporation, would not have raised the same privacy concerns and would have cost much less for everyone involved, both emotionally and monetarily, than this litigation.
The case out of Manitoba, Zeliony v Dunn, 2021 MBQB 136, dealt with a similar dispute between neighbours over a video doorbell, but resulted in the opposite conclusion.
Dunn installed a video doorbell in a shared common entranceway to determine who was tampering with his porch light. The camera was aimed away from any entrances to the other units but captured doors to the units’ storage lockers. The culprit of the porch light tampering was apparently the Plaintiffs, the husband and wife who lived in the unit beside Dunn, who objected to the insects attracted to the light. The camera was then repeatedly vandalized by being obstructed with tape. The Plaintiffs lodged a complaint to the Board through the property manager, who asked Dunn to disable the motion-sensor and limit the range of the camera, which was complied with. Additional complaints by the Plaintiffs were made to the Board, but no further action was taken. Approximately two years after the camera was installed, the Plaintiffs listed their unit for sale and subsequently moved.
In this action, the Plaintiff Ms. Zeliony claimed that Dunn’s video recording constituted an invasion of privacy under the Privacy Act of Manitoba and sued for the torts of intrusion upon seclusion and nuisance, also claiming damages for the wilful infliction of nervous shock. The Plaintiffs additionally sued the Condominium Corporation, WCC 87, in negligence for lack of response to the issue of surveillance. They sought $20,000 in non-pecuniary damages and special damages of $15,000 for the diminished purchase price of the unit resulting from a rushed sale due to Ms. Zeliony’s mental suffering.
The Court in this case found that the Plaintiffs had vandalized the Defendant’s property and that the Defendant’s installation of the video doorbell was a reasonable response in the circumstances. Given that Dunn’s motivation was solely the protection of his property and surveillance of the Plaintiffs was purely incidental, the Court concluded that any violation of the Plaintiffs’ privacy was not substantial and was justifiable.
These cases depart in their respective approaches to this emerging area of litigation. In Lupuliak, the claims concerned breaches of condominium bylaws rather than specific claims of civil wrongs as seen in Zeliony. As video doorbells become increasingly ubiquitous in condominium settings, Condominium Bylaws may have to adapt to the changing technological and privacy expectations of unit owners.
For more information, please reach out to one of our Condominium lawyers: Dionne Levesque, Kate Kozowyk, John McDougall, or Stuart Gray. Case law summaries prepared by Mary Wilkinson, Summer Student.