The tenant’s peace and quiet enjoyment of rented premises is one of the cornerstones of the landlord and tenant relationship. This can be extended to ensuring that the premises are safe, but providing rental accommodation and adjoining premises that are free from criminal activity is an obligation that will not be imposed on a landlord as it would be impossible to guarantee no matter how many resources were put into the task. A popular and economical tool being used to deal with safety issues and criminal activity is video surveillance.
The landlord’s objective of video surveillance is most often to deter criminals that might jeopardize the safety and security of the tenants but it might also serve to deter vandals and thieves from damaging or stealing property of the tenants or the landlord. In this age of information and privacy, video surveillance has turned into quite a tricky puzzle and landlords are to be advised that implementing video surveillance is not as simple as putting up a camera and switching it on. There are many issues a landlord has to consider before installing video surveillance, almost all of which have a genesis in the privacy laws.
One recent case which proceeded under the British Columbia Privacy Act was where a tenant sued a landlord because they felt video surveillance set up by the landlord was unnecessary and intrusive. In the case of Heckert v. 5470 Investments Ltd., 2008, BCSC 1298, the court awarded damages of $3,500.00 to the tenant for breach of her privacy by the landlord. The landlord installed a camera in the hallway of the 12th floor in an apartment building which was plainly directed at the Plaintiff’s door on the 12th floor. The faces of those entering and exiting were easily recognizable. The landlord said that the reason for the installation of the camera was to catch trespassers. The court found:
- That the tenant had a reasonable expectation to privacy and it was unreasonable to have her every move watched;
- That the real motive of installing the camera was not to catch trespassers but to watch the Plaintiff, and;
- There came a point when surveillance was no longer necessary as it was apparent that the trespassing problem has ceased. Nevertheless, the landlord kept on with the surveillance of the tenant.
It appears that this case might be a situation where the landlord simply didn’t like the Plaintiff tenant and thought that the Plaintiff tenant was the source of all the problems on the 12th floor. The landlord’s justification was that the camera, as set up, could be used to observe the entire 12th floor. This was not believed by the trial judge.
While the facts of this case are very likely not common within the industry, it does serve as a warning for landlords to be careful in how they set up video surveillance, to have clear objectives when setting up their video surveillance and to ensure that reason for setting up the video surveillance still exists.
The British Columbia Office of the Privacy Commissioner provides some guidance to landlords who wish to set up video surveillance:
- When setting up and installing operating cameras, the system should be set up and operated to collect the minimum amount of information to be effective. This setup reduces the intrusion on individual’s privacy. There is no guidance as to how a landlord is supposed to decide the minimum amount of information needed to be effective, but some examples are provided. The office of the privacy commissioner says that cameras that are turned on periodically are preferable to cameras that are always on. For example, if the landlord sets up a video surveillance camera in the underground parkade for the purpose of monitoring cars for break ins, and break ins always occur in the evening, then it would make sense to turn on the video cameras only in the evening hours to comply with suggestions of the office of the privacy commissioner.
- Cameras should be positioned to reduce images of individuals who are not being targeted. This would be a point taken from the Heckert case above where the court found that part of the problem with the positioning of the camera was that it was recording images of untargeted individuals.
- Don’t aim your camera in areas where persons would have heightened expectations of privacy such as change rooms or showers. In addition, you should be careful about what lies beyond the area that you are watching over. For instance, is there another residential building in the background of the area over which you have surveillance and is it possible for your camera to see into the windows of that adjacent premises?
- Sound should not be recorded unless for some reason it is necessary.
- If the camera is being monitored, the recording function of the camera should only be turned on when unlawful activity is suspected or occurring. This means that the landlord would have to leave it up to the person who is monitoring the video link on the camera to use their judgment to start recording when they think something unlawful or irregular is about to happen. Therefore, it would appear that unmonitored cameras would be a better choice for landlords because you would not have to rely on the uncertainties of a person trying to decide as to when a situation would be recordable.
There are many more topics that the landlord should consider when implementing video surveillance. For further information, please see “Guidelines for Overt Video Surveillance in the Private Sector– March, 2008”, a publication by the Office of the Information and Privacy Commissioner of British Columbia and the privacy commissioners of Canada and Alberta.
Published online on July 24, 2016.