Canada has not yet seen widespread use of drones for surveillance. Fewer still are any judicial decisions commenting on its legality. In Tugayli v The Owners, Strata Plan BCS3444, 2019 BCCRT 902, a condo resident alleged that the use of drones by the condo’s governing body to conduct surveillance breached his privacy rights. Even though the resident ultimately failed to present evidence of the use of drones, this case raises the interesting question about the legality of drones for surveillance by condominium corporations.
Summary of the Tugayli decision
A self-represented strata resident in British Columbia brought an application against his strata corporation for a number of alleged violations of the strata corporation’s governing bylaws.[1] Among other complaints, the strata resident claimed that the strata council president was violating residents’ privacy through the alleged use of non-authorized drone and closed-circuit television (CCTV) surveillance technology.[2] Evidence regarding the nature and frequency of drone usage was not submitted.[3]
In its written decision, the BC Civil Resolution Tribunal (CRT) dismissed the applicant’s allegation of improper drone surveillance as unproven for lack of evidence. The CRT did not provide any helpful commentary on the legality of using drones for this purpose.[4] The strata corporation’s bylaws made no reference to drone use, but did include a bylaw that permitted CCTV surveillance in common areas, with the footage to be used “only for the purposes of law enforcement and/or for the enforcement of those strata corporation bylaws and rules which relate to the safety and security of the building and its occupants.”[5]
What is the upshot of the Tugayli decision?
While the CRT unfortunately did not weigh in on how privacy rights are impacted when drones are used for surveillance, we expect that there will be future cases where an adjudicator considers this interplay and provides guidance to those operating drones for surveillance.
If drones become more routinely used for condo surveillance, a condo corporation’s bylaws can and will play an important role in determining the privacy entitlements and reasonable expectations of the residents. Condo corporations that explore drone surveillance technology and commercial drone operations would be subject to the federal regulations applicable to drones set out in the Canadian Aviation Regulations, and would be expected to comply with the principles that govern any business when collecting personal information under PIPEDA or under any applicable provincial legislation.[6] With the potential use of drone technology for condo surveillance on the horizon, condo boards and residents alike should know the laws governing drone use and privacy rights.
For more information, please do not hesitate to reach out to Kathryn McCulloch, or any other member of Dentons’ Aviation team.
Check out another Drone Law Canada blog post about a recent French judicial decision relating to the use of drones for surveillance by police during the COVID-19 pandemic, or another blog post about the general application of privacy laws to drone operations in Canada.
A special thank you to Hannah Bourgeois, summer student, for her assistance with the preparation of this post.
[1] Tugayli v. The Owners, Strata Plan BCS3444, 2019 BCCRT 902 at para 1 and 6.
[2] Tugayli, supra note 1 at para 3.
[3] Tugayli, supra note 1 at para 45.
[4] Tugayli, supra note 1 at para 45 and 56.
[5] Tugayli, supra note 1 at para 48; The bylaw described in the case is not contained in the Strata Property Act [SBC 1998] Ch. 43, Schedule of Standard Bylaws, therefore it is a strata-enacted “amended” bylaw, <http://www.bclaws.ca/civix/document/id/complete/statreg/98043_18>.
[6] Transport Canada, “Privacy guidelines for commercial drone operators,” supra note 22; Research Group of the Office of the Privacy Commissioner of Canada, “Drones and Canadian Privacy Laws and Guidance,” online: Office of the Privacy Commissioner of Canada (March 2013), <https://www.priv.gc.ca/en/opc-actions-and-decisions/research/explore-privacy-research/2013/drones_201303/#heading-005-2>.
