Audio & Video Recording - Re: Consent

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1051
Page Categories:	[Privacy], [Category:Interference of Reasonable Enjoyment (LTB)]
Citation:	Audio & Video Recording - Re: Consent, CLNP 1051, <https://rvt.link/2l>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/04/28

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Personal Information Protection and Electronic Documents Act

4 (3) Every provision of this Part applies despite any provision, enacted after this subsection comes into force, of any other Act of Parliament, unless the other Act expressly declares that that provision operates despite the provision of this Part.

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5 (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

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(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

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7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if

(a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way;

(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;

(b.1) it is contained in a witness statement and the collection is necessary to assess, process or settle an insurance claim;

(b.2) it was produced by the individual in the course of their employment, business or profession and the collection is consistent with the purposes for which the information was produced;

(c) the collection is solely for journalistic, artistic or literary purposes;

(d) the information is publicly available and is specified by the regulations; or

(e) the collection is made for the purpose of making a disclosure

(i) under subparagraph (3)(c.1)(i) or (d)(ii), or

(ii) that is required by law.

(2) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if

(a) in the course of its activities, the organization becomes aware of information that it has reasonable grounds to believe could be useful in the investigation of a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, and the information is used for the purpose of investigating that contravention;

(b) it is used for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual;

(b.1) the information is contained in a witness statement and the use is necessary to assess, process or settle an insurance claim;

(b.2) the information was produced by the individual in the course of their employment, business or profession and the use is consistent with the purposes for which the information was produced;

(c) it is used for statistical, or scholarly study or research, purposes that cannot be achieved without using the information, the information is used in a manner that will ensure its confidentiality, it is impracticable to obtain consent and the organization informs the Commissioner of the use before the information is used;

(c.1) it is publicly available and is specified by the regulations; or

(d) it was collected under paragraph (1)(a), (b) or (e).

(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;

(b) for the purpose of collecting a debt owed by the individual to the organization;

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law,

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province, or

(iv) the disclosure is requested for the purpose of communicating with the next of kin or authorized representative of an injured, ill or deceased individual;

(c.2) made to the government institution mentioned in section 7 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act as required by that section;

(d) made on the initiative of the organization to a government institution or a part of a government institution and the organization

(i) has reasonable grounds to believe that the information relates to a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or

(ii) suspects that the information relates to national security, the defence of Canada or the conduct of international affairs;

(d.1) made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

(d.2) made to another organization and is reasonable for the purposes of detecting or suppressing fraud or of preventing fraud that is likely to be committed and it is reasonable to expect that the disclosure with the knowledge or consent of the individual would compromise the ability to prevent, detect or suppress the fraud;

(d.3) made on the initiative of the organization to a government institution, a part of a government institution or the individual’s next of kin or authorized representative and

(i) the organization has reasonable grounds to believe that the individual has been, is or may be the victim of financial abuse,

(ii) the disclosure is made solely for purposes related to preventing or investigating the abuse, and

(iii) it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the ability to prevent or investigate the abuse;

(d.4) necessary to identify the individual who is injured, ill or deceased, made to a government institution, a part of a government institution or the individual’s next of kin or authorized representative and, if the individual is alive, the organization informs that individual in writing without delay of the disclosure;

(e) made to a person who needs the information because of an emergency that threatens the life, health or security of an individual and, if the individual whom the information is about is alive, the organization informs that individual in writing without delay of the disclosure;

(e.1) of information that is contained in a witness statement and the disclosure is necessary to assess, process or settle an insurance claim;

(e.2) of information that was produced by the individual in the course of their employment, business or profession and the disclosure is consistent with the purposes for which the information was produced;

(f) for statistical, or scholarly study or research, purposes that cannot be achieved without disclosing the information, it is impracticable to obtain consent and the organization informs the Commissioner of the disclosure before the information is disclosed;

(g) made to an institution whose functions include the conservation of records of historic or archival importance, and the disclosure is made for the purpose of such conservation;

(h) made after the earlier of

(i) one hundred years after the record containing the information was created, and

(ii) twenty years after the death of the individual whom the information is about;

(h.1) of information that is publicly available and is specified by the regulations; or

(h.2) [Repealed, 2015, c. 32, s. 6]

(i) required by law.

PIPEDA Report of Findings #2010-008

18. At issue is whether the Respondents’ on-site collection of personal information via video surveillance is excessive and unreasonable.

19. Principle 4.4 states the collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair or lawful means. Principle 4.4.1 requires that organizations not collect personal information indiscriminately. Both the amount and the type of information collected shall be limited to that which is necessary to fulfill the purposes identified. Subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

20. This Office has developed a four-point test to determine whether the standard set out in subsection 5(3) has been met in specific circumstances.

21. The first point of the test measures whether the measure used is necessary to meet a demonstrable need. Given the incidents of break-ins, theft and vandalism experienced by the owner and tenants of the Respondent (which have been documented by both the tenants’ organization and the building manager), I am satisfied that the Respondent has identified a valid purpose―to protect tenants and premises―for installing video cameras.

22. The second point assesses whether the video surveillance system is effective in meeting the security need. In this regard, the quantitative and qualitative data we obtained during our investigation have convinced me that the signage and the presence of the cameras in and around the building have in fact been an effective deterrent against various forms of crime and misconduct. Specifically, we noted that the number of incidents has markedly declined in areas where the video images are being captured.

23. The third point of the test evaluates whether the loss of privacy is proportional to the benefits gained. In my view, there is a definite loss of tenant privacy due to the positioning of some of the cameras. A better balance should be struck between the respecting of tenants’ privacy rights on one hand, and the amount and type of information currently captured by the cameras on the other.

24. For example, it is unreasonably invasive for the apartment door of tenants to be under constant video surveillance, means by which their daily comings and goings can be easily monitored. And it is equally intrusive for images of the inside of their apartments to be caught as part of 24-hour video surveillance of the hallways. Regardless of whether the video recording is regularly monitored in real time (an assertion the building management has denied) or instead reviewed only when an incident occurs, the fact that tenants are being video recorded at all while carrying out their daily activities amounts to an invasion of privacy.

25. Moreover, by positioning cameras so they are aimed not only at the exit doors and elevator landings but also the entire length of a hallway, capturing tenants as they routinely enter and leave their apartments, it is my view that personal information is being collected indiscriminately―beyond the purpose of protecting tenants and premises―thereby violating Principles 4.4 and 4.4.1 of the Act. While the Respondent has provided some documentary evidence of acts of vandalism whereby light bulbs and walls were damaged in the hallways, as well as a break-in to the storage locker area and to vehicles, it has not provided any documented evidence of break-ins to the apartments themselves.

26. The fourth point asks whether there is a less privacy-invasive method of achieving the same end. The Respondent has stated its commitment to implementing different types of security measures in the building since 2005. However, one cannot help but note a marked increase in video surveillance coverage of the building, especially since 2007, and the tendency of the Respondent to favour further video surveillance coverage as the solution of choice to deal with vandalism that building management believes is mainly perpetrated by specific tenants.

27. While I acknowledge that the property management has a duty to protect the building and it is frustrated by the actions of a few individuals whose sole goal appears to be the aggravation of building management (by throwing eggs at a wall inside the lobby or overturning trash cans), these reasons alone and the nature of the pranks do not justify the marked proliferation of the use of video cameras in and around the Respondent. While potentially curbing the actions of the wrongdoers, the vast extent of the video surveillance coverage now adversely impacts, from a privacy perspective, the law-abiding tenants in the building. It also underscores, in my view, the need for re-considering less privacy-invasive methods to achieve the same end. Until this occurs, I cannot deem that the third and fourth points of the four-point test have been addressed and the standard set in subsection 5(3) has been met.

PIPEDA Case Summary #2006-349

Findings
Issued August 24, 2006

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In making her determinations, the Assistant Commissioner deliberated as follows:

• The property management company contended that no improper collection or use of personal information took place. It questioned whether any personal information was in fact collected at all. In its view, it did not act in a manner contrary to the Act and therefore had no obligation to inform other tenants that their apartments were photographed.

• The Assistant Commissioner stated that the company would likely agree that the act of taking a photograph is a collection of data, but that that was where the agreement would likely end. While the company did not generally view the information in these photographs as personal information (although it could acknowledge that some of the photographs revealed personal information), the Assistant Commissioner felt that they did contain information of a personal nature.

• For example, she noted that, while the purpose of a particular photograph might be to show the state of the walls or the condition of a kitchen or bathroom of a certain unit, it also revealed information about the unit dweller and his or her standard of living. It might show whether they are tidy or not, whether they can afford expensive media equipment or not, whether they love music, or art, or cooking.

• Under section 2, personal information is defined as information about an identifiable individual. She noted that itstates only that the individual must be “identifiable,” not necessarily identified. Under each unit photograph is the street address of the building, and the unit number, thereby ensuring that each photograph of a unit could be traced back to the individual living in the unit.

• The Assistant Commissioner therefore concluded that the information at issue was information about an identifiable individual, and was personal information for the purposes of the Act.

• The Assistant Commissioner noted that the purpose was not to photograph the contents of the unit but rather to record the state of the unit. Nevertheless, she was of the view that the company ought to have been cognizant of the fact that by photographing the units, it might also be collecting the personal information of the people dwelling in those units. Moreover, she considered that the company ought to have been sensitive to the fact that people consider their homes, above all, to be a very private sphere.

• She noted that it may very well be an industry practice to photograph the interior of apartment units, but that this did not mean that it is acceptable under the Act, to do so without informing tenants and obtaining their consent.

• The Assistant Commissioner commented on the organization’s obligations with respect to the collection of personal information – the purposes must be identified prior to or at the time of collection, the individual’s knowledge and consent must be obtained, and a reasonable effort must be made to ensure that the individual understands how the information will be used or disclosed. The Act also requires organizations to be open about policies and practices related to personal information management.

• In this case, the company notified its tenants that it would be accessing certain units, as required under the TPA, for insurance purposes. No mention was made that photographs of the units would be taken.

• The Assistant Commissioner noted that Principle 4.3.2 stresses the link between knowledge and consent and underscores the importance of the individual’s reasonable expectations. In other words, if an individual is being asked to consent to a collection of his or her personal information, he or she would reasonably expect to be informed of the reason for the collection. The Assistant Commissioner also believed that the individual would reasonably expect to be informed of the means of this collection.

• The tenants in this case were neither fully informed of the purposes for which any information collected would be used, nor were they told that photographs would be taken of their units.

• Thus, she concluded that, since photographs were taken that contained the personal information of identifiable individuals, the tenants should have been informed that not only was the landlord entering the premises for insurance or mortgage financing purposes, but also that photographs would be taken by a consultant to be used in a report prepared by him. The tenants should also have been told how the photographs would be safeguarded, and should have been provided with any other relevant information regarding the company’s privacy policies and practices. Only then would the tenants have had enough information upon which to base their decision to consent.

• She determined that this was clearly not the case and that the company had contravened Principles 4.2, 4.3, 4.3.2, and 4.8.

• The Assistant Commissioner recommended that the company inform the other tenants whose apartments were photographed for the report. She also recommended that the company indicate that it would, in any future notices to tenants, clearly state why tenants’ apartments were being accessed and that the units would be photographed, and obtain their consent beforehand.

• On the matter of consent, the company amended its notice of entry form, which now lists the reasons for entry (which are checked off) and notifies tenants that photographs may be taken of the unit, as required. The Assistant Commissioner noted that such an action met the requirement to inform tenants of the purpose and the means of collection, as outlined in Principles 4.2 and 4.3.2.

• However, the company stated that it would not obtain consent from tenants to enter their units or photograph them and indicated that the notice of entry form was in accordance with the lease and the requirements of the Tenant Protection Act.

• The Assistant Commissioner reiterated that taking photographs of an individual’s apartment is a collection of personal information, and knowledge and consent are required for any such collection.

• While acknowledging that that the company is subject to the Tenant Protection Act, she reminded it that it is also subject to this Act and must act in accordance with it.

• She therefore determined that its stance with respect to consent was in contravention of Principle 4.3.

• As for accountability, the company did not inform the other tenants that photographs had been taken of their units, as recommended. It stated that it did not believe that personal information was collected or misused during or after the inspection of the units.

• The Assistant Commissioner commented that this was a disappointing response and one that revealed a lack of understanding of personal information protection generally and the organization’s obligations under the Act, specifically.

• She therefore found that the company remained in contravention of Principle 4.8.

Bissonnette v. Windsor Police Services Board, 2018 HRTO 1701

[13] Under Section 184.2, a police officer can also obtain authorization to intercept a private communication by application to a judge. In order to obtain authorization the judge must be satisfied that there are reasonable grounds to believe that an offence has or will be committed.

[14] Sections 184.1 and 184.2 of the Criminal Code are clearly related to how evidence may be obtained by a police officer in the course of a criminal investigation, and when such evidence would be admissible in criminal proceedings. Though "on duty" at the time, the applicant was obviously not involved in a criminal investigation when she met with the Deputy Chief for the debrief.

[15] Furthermore, it is not clear that this amounted to a “private communication” as defined in the Criminal Code. The prohibition applies to a third party intercepting communication; for example, a police officer recording a phone conversation between an informant and an individual being investigated for an offence. There was no third party here; the recording was conducted by the applicant, a peace officer, who was also “the person intended by the originator to receive it”, under the definition of “private communication” in s. 183.

[16] I do not accept the respondent’s argument that the Criminal Code imposes a higher legal standard on a police officer in a situation such as the December 2013 meeting between the applicant and Deputy Chief Derus, such that the “one party consent” rule would not apply. There is a fundamental difference between the circumstances of how the recording was made in this case and the circumstances where s. 184.1 applies. As such, I do not agree that that the recording is inadmissible at the Tribunal under s. 184.1 of the Criminal Code.

[17] As I found that the recording was relevant to this proceeding, and is not otherwise inadmissible, I permitted the recording to be entered into evidence.

Nickoladze v Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII)

[9] Further, the fact that photographs were taken does not, by itself, constitute an infringement of the tenant’s privacy rights. It would only constitute an infringement if it was done for an improper purpose. In this case, the Board determined that the photographs were taken for the purpose of the inspection and for use at the hearing of the tenant’s outstanding applications. It was open to the Board, on the evidence, to reach that conclusion. In this day and age, it is not at all surprising that either a tenant or a landlord would take pictures of relevant items in order to use them at a hearing before the Board. Indeed, I understand that, on a prior occasion, the tenant had done precisely that to advance his position.

Juhasz v Hymas, 2016 ONSC 1650 (CanLII)

[27] The Nickoladze decision is distinguishable from this case. In Nickoladze, the tenant raised issues about his privacy interest being compromised. Justice Nordheimer concluded that, as the photographs were taken in the context of a proceeding before the Board initiated by the tenant, no privacy interest was engaged. We also note that this decision was in relation to an inspection of the rental unit, an activity which is a specifically permitted ground for entry pursuant to s. 27(1)(4) of the RTA.

[28] We distinguish the decision of Nordheimer J. in Nickoladze. By way of contrast, in this case, taking photographs of a person’s home and personal belongings without their consent and posting these photographs on the internet clearly infringes privacy interests. In this case, a privacy interest is clearly engaged – an interest enhanced, perhaps, by the tenant’s disability of a post-traumatic stress disorder.

[29] We agree with the conclusion in the Review Order of the Board in File No. CEL-31023-13-RV (Re) that absent a specific term of the lease, or with the tenant’s consent, there is no authority under s. 27 of the RTA to require entry into a tenant’s premise to take photographs for marketing purposes to advance the sale of the property. It follows that the refusal by a tenant to allow entry for such purpose cannot be proper grounds for eviction.