Co-written by Alexander Rigante, Articling Student

With the increase of access to technology, private sector organizations have taken to integrating video surveillance cameras to augment the security, efficiency and productivity of their operations. Within the real estate context, property managers are employing video surveillance technology to increase tenant safety and protect private property[1]. This article will briefly examine the current rules governing the private sector's use of video surveillance technology within the property management context.

Private-sector organizations must remain informed and compliant with the regulatory climate surrounding data privacy and video surveillance technology. Bill 64, An Act to modernize legislative provisions as regards the protection of personal information (hereafter “Bill 64”)[2], provides a legislative overhaul to Quebec’s privacy framework with the goal of better adapting privacy laws to our ever-evolving, technologically oriented, economic and social reality. In particular, Bill 64 sets forth a significant increase in penalties for private sector entities that fail to comply with existing and newly proposed legislative privacy standards[3]. Bill 64 also permits individuals to pursue private sector entities for damages caused by infringement of the Act respecting the protection of personal information in the private sector (hereafter “Private Sector Act” or “Act”)[4] and articles 35 to 40 of the Quebec Civil Code[5].

These proposed legislative modifications call into question the obligations imposed upon organizations who wish to use video surveillance technology in their daily operations.

The Act Respecting the Protection of Personal Information in the Private Sector

The current rules governing the collection, holding and communication of personal information relating to third persons in the course of operating a business are outlined in the Private Sector Act[6]. The Private Sector Act defines personal information as any information that relates to a natural person and allows that person to be identified[7]. The moment a business collects, holds, uses or discloses such personal information, it becomes subject to the standards set forth in the Act[8]. By and large, the Private Sector Act allows for businesses to collect personal information via the use of video surveillance technology as long as the information is collected through “lawful means”[9]. But what constitutes lawful means in a real estate or property management context? The analysis conducted by the Commission d’accès a l’information du Quebec (“CAI”) and higher courts is highly factual and evaluated on a case-by-case basis. Below is a brief summary of the criteria and factors employed by adjudicators in this assessment.

Judicial Assessment

Adjudicators have indicated that the collection of personal information via video surveillance technology must have a purpose or objective that is legitimate, important, urgent and real. In the property management context, the CAI has considered matters of tenant safety and property protection as satisfactory objectives in this analysis[10].

Moreover, the use of video surveillance technology is subject to a proportionality test, meaning that the infringement of the right to privacy resulting from the collection of such personal information must be considered proportional or justifiable to the purposes or objectives sought in a given context[11].

Courts have established that the collection of personal information is considered proportional if the intended use of the information is rationally linked to the purpose at hand, if the invasion of the right to privacy is minimized, and if the disclosure of the required information is more useful to the business than harmful to the persons being filmed[12].

Within the property management context, the factors considered in this analysis include, but are not limited to the following[13]:

1. Are the camera's motion sensors activated

2. Are the cameras perpetually recording and registering video, or do they only register video when activated by movement?

3. How are registered and recorded videos stored?

4. How and when are the registered and recorded videos deleted?

5. Where and how is the information collected stored?

6. Are copies of the registered and recorded video created and kept by the business?

7. Are there visual signs on the property that indicate the presence of surveillance cameras? Has the consent of the persons being filmed been obtained by the business?

8. Do the cameras point towards private windows, private doors or other private areas of residential buildings?

9. Were other less invasive measures or alternatives pursued before the installation of the cameras?

10. Was the installation of the cameras due to one (1) isolated incident or multiple incidents involving the safety and security of tenants and employees?

While these factors may help determine whether one’s use of video surveillance technology conforms to the established standards, they should not be determinative in one’s analysis.

Potential Consequences

If a private person believes their personal information is being collected illegally or unnecessarily, they can file a complaint in writing with the CAI’s surveillance division. The CAI has the power to conduct inquiries, inspections and render decisions on privacy matters[14].

Should a complaint be filed, and should the CAIs’ analysis be in favour of the complainant, the CAI may recommend or order remedial measures to ensure the protection of personal information in the disputed context[15].The CAI may administer monetary administrative penalties capped at $50,000 for individuals and, in all other cases, “$10,000,000 or the amount corresponding to 2% of worldwide turnover for the preceding fiscal year”, if said amount exceeds $10,000,000[16].

Moreover, Bill 64 provides private parties with the ability to claim damages for injuries resulting from the unlawful infringement of a right conferred by the Privacy Act and/or articles 35 to 40 of the Quebec Civil Code. For greater clarity, articles 35 to 40 of the Quebec Civil Code set out rules regarding the respect of reputation and privacy of private individuals.

Conclusion

The CAI has previously published a best-practice guide on video surveillance technology with the goal of assisting organizations to better navigate the regulatory framework standards established by provincial and federal privacy laws.

In the event that businesses seek to employ such technology in their daily operations, we highly recommend they consult this guide as well as the new modifications brought about by Bill 64 as a general first step in conforming to present and future regulatory frameworks.

[1] N.A., “Guidelines for Overt Surveillance in the Private Sector” (2008), Office of the Privacy Commissioner of Canada,https://www.priv.gc.ca/en/privacy-topics/surveillance/video-surveillance-by businesses/gl_vs_080306/.

[2] Bill 64, An Act to modernize legislative provisions as regards the protection of personal information, 1st session, 42nd Legislature, Quebec, 2020 (hereafter, "Bill 64").

[3] Millan, Luis. “ Quebec Plans Ambitious Overhaul of its Privacy Law” (2020) , The Lawyer’s Daily (blog), https://lawinquebec.com/quebec-plans-ambitious-overhaul-of-its-privacy-law/; Gratton, Eloise, Proposed Amendments to Quebec Privacy Law: Impact for Businesses, https://eloisegratton.openum.ca/files/sites/4/2020/06/P-39.1-english-and-bill-64-amendments-English-version.pdf

[4] Act respecting the protection of personal information in the private sector, CQLR c P-39.1 (hereafter, “Private Sector Act”).

[5] Millan, Luis. “Quebec Plans Ambitious Overhaul of its Privacy Law”, supra note 3.

[6] Private Sector Act, supra note 4.

[7] Private Sector Act, supra note 4, article 2.

[8] Private Sector Act, supra note 4, article 1-3.

[9] Private Sector Act, supra note 4, article 5.

[10] Coopérative d’habitation de la Solidarité Cartierville c. X, [2017] C.A.I. 1005283-S2; X. c. 9038-5055 Québec inc. (Le Palace), [2012] C.A.I. PV070551; Coopérative d’habitation Chung Hua c. X, [2016] C.A.I., 1004929-S; Enquête à l’égard de Gestion immobilière PST inc. c. X, [2020] C.A.I. 1017998-S; X. c. Y. (Propriétaire), [2013] C.A.I., 111686; X c. Resto-Bar le Rack N’Roll, [2011] C.A.I., 090265 (herafter, “Privacy Case Law”).

[11] Privacy Case Law, supra note 13.

[12] Laval (Société de transport de la Ville de) c. X, [2003] C.A.I. 667 (C.Q.).

[13] Privacy Case Law, supra note 13.

[14] Private Sector Act, supra note 3, article 80-81.

[15] Bill 64, supra note 2, article 90.3.

[16] Bill 64, supra note 2, article 90.12.

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