Some special considerations apply to privacy issues in the condominium setting.
The basic concept in law is that privacy rights apply whenever there is a “reasonable expectation of privacy”. Recently, the Ontario Court of Appeal has recognized a tort of “intrusion upon seclusion”, which is essentially the tort of violation of privacy rights (see Jones v. Tsige, 2012 ONCA 32).
So privacy rights are now clearly recognized by our courts, but how do these rights apply in a condominium setting? The key question is: what are an owner’s reasonable expectations of privacy?
The answer will depend to a certain extent on the nature of the condominium community (highrise, townhomes, etc.), as well as the condominium’s governing documents (including the Condominium Act, and the corporation’s Declaration, Description, By-laws and Rules). In other words, an owner’s privacy rights may vary from condominium to condominium.
In each case however, condominium owners and residents will have certain rights of privacy in relation to:
- their personal information;
- their personal property;
- the use and enjoyment of their unit; and
- the use and enjoyment of the common elements.
But the key is that there will be limits on these privacy rights because of the sharing and co-operation that comes with condominium living. For instance:
a. Rights of Entry: Condominium corporations have general rights to enter the units and exclusive-use common elements, on reasonable notice, in order to perform the corporation’s objects and duties. So condominium owners and residents do not have complete privacy in their homes.
b. Surveillance: Condominium corporations have rights to arrange for surveillance of the common elements, again in order to perform the corporation’s objects and duties. Note however that, subject to some exceptions, the surveillance must be disclosed (to persons attending on the property) and must be confined to locations where there is no reasonable expectation of privacy.
c. Records: As part of their record-keeping responsibilities, condominium corporations collect personal information related to owners and occupants. All condominium owners have rights to inspect the records of the corporation. However, these inspection rights do not apply to certain types of records, including records relating specifically to other owners or to other units. Still, this right of privacy in relation to an owner’s “personal records” may become blurred if the personal information is part of a record that has general or common application to all owners or to the corporation as a whole.