drone

Drone use comes with flight risks for condos

Technology could capture more than building data, raising privacy concerns
Tuesday, June 13, 2017
By John De Vellis

Anyone who has attended a condo trade show in the past few years has no doubt seen the wonderful new array of tech gadgets available for the condo community. They range from super high-resolution cameras to commercial drones that can quickly diagnose water penetration and other issues without ever leaving the ground. Tech nerd or not, the possibilities are exciting.

But the very features that make powerful new technology attractive to condo corporations also create potential risk of invasions of privacy. For example, a drone can capture data about the building structure as it scales the envelope, but consider too the images or video it could unintentionally (or intentionally?) capture as it flies past residents’ windows. And that’s important because developments in privacy law have created increased liability risk for persons who invade the privacy of others.

In 2012, the Ontario Court of Appeal in Jones v. Tsige found that an individual whose privacy has been breached in a serious way may sue for damages in civil court. In the Jones case, the defendant, a bank employee, had, for personal reasons that had nothing to do with her job at the bank, snooped into the plaintiff’s account information on numerous occasions.

The court said that the new tort is not meant for trivial privacy breaches but is limited to “deliberate and significant” invasions of personal privacy that would be considered “highly offensive.” Only intrusions related to financial or health records, sexual practices and orientation, employment, diary or private correspondence would be described as highly offensive.

Damages are generally capped at $20,000 but could be higher if the plaintiff can prove economic losses (such as loss of income) or if the privacy breach is so serious as to warrant punitive damages. Generally, damages would depend on the frequency of the breaches, the effect on the plaintiff’s life, and the degree of annoyance and embarrassment suffered by the plaintiff.

Although this principle has yet to be applied in the condo context, it’s not hard to imagine that a snooping drone catching someone in a compromising position could fall into the category of a highly offensive invasion of privacy. Imagine how a plaintiff in such a scenario would describe the impact that the breach has had on his/her life, personal relationships, ability to enjoy his/her home, etc.

What about surveillance technology in places such as hallways and other common areas? Surely there are no privacy issues there. Actually, in a 2015 criminal case called R. v. White, the Court of Appeal found that persons living in multi-unit buildings may have a reasonable expectation of privacy even in the common areas of the building. In that case, the police had broken into the common areas of the building, walked through the hallways, entered the storage area and viewed the contents of the accused’s storage locker. The detective also hid in the stairwell, where he observed the accused’s unit and listened to what was going on inside the unit.

Now, because White was a criminal case the court’s decision related only to the issue of whether the evidence gathered by the police should be excluded as a warrantless search. In general police need a warrant to search an individual but the requirement only applies to homes and other places where the accused person had a reasonable expectation of privacy. But by recognizing a reasonable expectation of privacy in common areas the court may have opened the door to a civil claim based on unreasonable surveillance in those areas.

Even if the behaviour is not serious enough to warrant civil damages against the condo corporation, it may still run afoul of federal privacy legislation (Personal Information Protection and Electronic Documents Act, or PIPEDA for short), which governs the collection, use and disclosure of personal information.

That doesn’t mean condo corporations should all ditch technology. It just means that some reasonable precautions should be taken to protect residents’ privacy and the condo corporation from possible liability.

First, the condo corporation should have a privacy policy that governs the collection, use and disclosure of all personal information. Contractors who potentially have access to personal information should be aware of and agree to the policy.

The policy should specify who may view surveillance video, key fob information and other potentially sensitive personal information. Other personal information, such as financial records, should also be covered by the policy.

With respect to video surveillance specifically, it should only cover public areas and, generally, there should be a notice that the area is subject to video surveillance. In addition, it should only be monitored by designated representatives such as security personnel and property management. Directors should only view video footage if it relates to a specific health, safety, security, rules violation and/or trespassing incident or issue.

In some cases it may be reasonable to have surreptitious surveillance to, for example, catch a vandal in the act. In that case the surveillance should only be used for that purpose and not to secretly track someone’s daily movements and other personal characteristics.

Any use of the corporation’s assets to unfairly target a particular owner can also lead to claims of oppression against the condo corporation. Therefore, the board and management should take care to ensure that video surveillance is not used for self-dealing, discriminatory purposes or to settle political scores within the building.

Finally, in the case of drones, just like a condo corporation would want to notify residents of window washing so they can draw their curtains shut for privacy, the corporation should notify residents when drones will be used for building inspections. It’s a good idea to warn residents so they can shut their curtains for privacy.

It sounds like a long list, but really avoiding liability in these areas likely comes down to this: be reasonable. Use technology only for the purposes for which it was intended, and take reasonable precautions to ensure residents’ privacy is protected.

John De Vellis is a partner and a member of the condominium law group at Shibley Righton LLP. He acts for condo corporations throughout south and southwestern Ontario on all aspects of condominium law including compliance and governance issues, general litigation, employment and human rights disputes, construction deficiency issues, shared facilities disputes, and commercial matters such as contract review and drafting, and advice on loan agreements and re-financing.

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