In a recent Manitoba case, a court had to consider whether a neighbour had violated a condo owner’s privacy rights when he installed video surveillance cameras in his doorway.

Neighbour Installs Video Surveillance Devices

From 2007 to January 2019, Ms. Z and her husband owned and lived in a condo, unit 3, in Winnipeg.

Beginning in December 2015, Mr. D moved into the same condo building, in unit 5.

The two units shared a common entryway. The door to Mr. D’s unit was just over five feet away from the door to Ms. Z’s unit.

After someone repeatedly tampered with his exterior porch light, in July 2016, Mr. D installed both a camera inside his unit viewing outwards towards his light and a “Ring Doorbell” that included a camera which could be triggered by motion detection and captured part of the entryway.

Condo Owner Asks Neighbour to Remove Video Surveillance Devices

In August 2016, Ms. Z met with the condo building’s owner and operator to ask that Mr. Z remove the video surveillance devices.  She claimed 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.

Although she complained to both Mr. D and the condo board, she said they did not take her complaints seriously.

Ms. Z sold her unit and moved out in 2019.

Condo Owner Sues Neighbour for Invasion of Privacy

Ms. Z subsequently brought a motion for summary judgment against Mr. D and the condo corporation.

She sought damages against Mr. D for invasion of privacy, “intrusion upon seclusion”, nuisance, and wilful infliction of nervous shock arising from his installation of the two cameras.

Ms. Z claimed that Mr. D’s constant surveillance and harassment invaded her privacy, constituted nuisance, and met the test for wilful infliction of nervous shock.

Ms. Z also brought claims against the condo corporation in negligence for failing to address Mr. D’s surveillance. She argued that the corporation had breached its duties under The Condominium Act by failing in its mandate and duties to act with a view to the best interest of the corporation and as a reasonable and prudent person. She submitted that the corporation had acted negligently when it failed to prescribe rules or protocols for occupants’ use of cameras and failed to take any measure to prevent or remedy the violation of her privacy rights.

Finally, Ms. Z claimed that both Mr. D and the corporation’s conduct had resulted in her suffering a psychiatric illness and had forced her to urgently sell her unit at less than its listing price.

As such, Ms. Z sought non-pecuniary damages in the range of $20,000, and sought special damages of $15,000, for the diminished purchase price of her condominium unit.

Neighbour Denies Wrongdoing

In response, Mr. D argued that Ms. Zhad no privacy right in the entryway captured by the cameras. He further submitted that if Ms. Z had a reasonable expectation of privacy, she had not established her privacy right was violated or her use and enjoyment of her property was interfered with. He further argued that Ms. Z could not claim in nuisance as she was captured on video in the shared entryway in a common area and not her unit and that, to the extent that there was recording of Ms. Z or the entrance to her unit, it was incidental to the protection of his property. Mr. D stated that his sole motivation in installing the cameras was a desire to protect his property and in so doing, he attempted to minimize any effect of his actions on Ms. Z. Finally, he denied harassing Ms. Z.

The condo corporation argued that Ms. Z had been the one to tamper with Mr. D’s porch light. As such, it stated that she had been the cause of the installation of the cameras in the first place. It submitted that if Ms. Z had acted reasonably from the start, the cameras would not have been installed and there would be no litigation.

Law on Invasion of Privacy 

Ms. Z based her claim of invasion of privacy on provisions of The Privacy Act.

The relevant provisions provide as follows:

Violation of privacy

2(1)  A person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person.

Examples of violation of privacy 

3  Without limiting the generality of section 2, privacy of a person may be violated

(a)  by surveillance, auditory or visual, whether or not accomplished by trespass, of that person, his home or other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying, besetting or following;

(b)  by the listening to or recording of a conversation in which that person participates, or messages to or from that person, passing along, over or through any telephone lines, otherwise than as a lawful party thereto or under lawful authority conferred to that end;

Defences

5  In an action for violation of privacy of a person, it is a defence for the defendant to show

(b)  that the defendant, having acted reasonably in that regard, neither knew or should reasonably have known that the act, conduct or publication constituting the violation would have violated the privacy of any person; or

(c)  that the act, conduct or publication in issue was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of person, property, or other interest of the defendant or any other person by whom the defendant was instructed or for whose benefit the defendant committed the act, conduct or publication constituting the violation; or…

Court Dismisses Condo Owner’s Claims

At the outset, the court found that there was sufficient evidence to prove that Ms. Z and her husband had been responsible for tampering with Mr. D’s porch light.

Further, it held that Ms. Z had not set out a proper claim for invasion of privacy and had failed to disprove Mr. D’s defences. It stated:

“I am not satisfied that Mr. [D] substantially, unreasonably, and without claim of right, violated Ms. [Z]’s privacy. In any event, I am satisfied that Mr. [D] has shown that his acts and conduct were reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of his property….

There is no doubt that Ms. [Z] 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. [Z] were not recorded so as to substantially violate her privacy.”

As such, the court rejected Ms. Z’s claim for invasion of privacy and, for similar reasons, rejected her other claims.

In the result, the court therefore dismissed Ms. Z’s actions.

Get Advice  

At DBH Law in Calgary, our real estate lawyers have more than 25 years of combined experience acting for purchasers, lenders, and developers through all stages of real estate transactions.

We help our clients avoid huge areas of risk, including poorly drafted or incomplete agreements of purchase and sale, hidden fees, encroachment or easement issues, complex concerns like properties held in trust, and similar pitfalls. We also look for contract language which may impose unfavourable duties or obligations. To learn more about how we can help, contact us online or by phone at 403.252.9937.