Volume 24, Issue Number 2, Winter 2018
Purchasing/Living in a Condominium

"He Said She Said"

The Legality and Prudence of Audio Recording Devices at Concierge & Security Desks

By Quintin Johnstone | Other articles by Quintin Johnstone

The current "elephant in the room" impacting condominium risk and security is the installation of audio recording devices that augment CCTV cameras. Contrary to detractor belief, audio serves an important function, as it reduces "he said, she said" outcomes for investigations into inappropriate behaviour. Without independent eyewitnesses, investigations of audio-less recorded incidents often fail, opening condos to liability.

As the central hub and gathering point of most condo communities, and therefore the location where confrontations most often occur, concierge/security desks can greatly benefit from audio recordings. Expert employment and labour lawyer, Michael Smyth, at Hicks Morley LLP in Toronto, discusses this point from the perspective of condos as employers,

"Having audio and CCTV cameras at the concierge desk provides a tool that can be used by the employer to investigate incidents involving interactions between their staff and members of the public, tradespersons, delivery workers and residents. If the incident is one where there are allegations of verbal abuse, obviously having audio will potentially assist in determining the actual events that took place and allow the employer to make a more definitive conclusion about the alleged misconduct and take steps to address it. Without audio, unless the misconduct involved physical or threatening behaviour that can be seen on a CCTV camera, it is more difficult to reach a definitive conclusion about the behaviour, particularly if the accused party denies any wrongdoing."

While there continues to remain a balancing act between the right to privacy versus the safety and protection of residents and workers, recording devices are widely accepted security tools which, as this article will demonstrate, condos should utilize.

One Party Consent & The Expectation of Privacy

Under the Criminal Code of Canada, only one person needs to consent to the recording of conversations. That means that if you are part of the conversation, you do not need the permission of others present to record the conversation. This "one party consent" exception applies to conversations in person and by telephone. That being said, the permissibility of recordings in a condo setting is not without limitations.

Pursuant to the Office of the Privacy Commissioner of Canada's "Guidelines for Overt Video Surveillance in the Private Sector", surveillance is a reasonable expectation in locations requiring protection where there is a lesser expectation of privacy. As such, it is reasonable to expect recordings (including audio recordings) at concierge/security desks which are routinely traversed and where conversations frequently occur. However, notices and signage should be clearly displayed indicating that recordings are being made. Furthermore, information collected through surveillance should only be used for the purpose the surveillance is being undertaken, or for purposes that are permitted by law

Protection Against Workplace Harassment & Abuse

Recordings are a particularly useful tool to help condos, as employers, to ensure that their workplaces are safely maintained. As Mr. Smyth explains,

"From an employer's perspective, having audio and CCTV cameras in areas where there is the potential for harassment or violence makes practical sense. Such surveillance can be used to assist in maintaining a safe workplace and investigating complaints as long as privacy responsibilities have been adequately accounted for and addressed."

According to Mr. Smyth, pursuant to Ontario's Human Rights Code and the Occupational Health and Safety Act, condos, as employers, have a duty to provide a violence and harassment-free workplace, develop policies and programs regarding violence and harassment, investigate incidents and implement corrective measures. As it concerns recordings, Mr. Smyth goes so far as to state that,

"If an employer has resisted implementing audio and CCTV recordings for fears of intruding on privacy rights, it should reconsider it in such circumstances, or risk being found liable for failing to take all reasonable steps to protect the health and safety of its employees."

The Prudence of Audio in Condominium Expert condominium lawyer, Gerald Miller, managing partner of Gardiner Miller Arnold LLP, points out that with the recent implementation of amendments to the Condominium Act, 1998, boards and managers are under increased pressure to utilize technology to enforce rule compliance and ensure condo security,

"Audio visual surveillance with recording capability at the security or concierge desk should become the norm in all high-rise buildings. It becomes critical that property management have audio and visual records of what exactly transpires in all circumstances in cases when an owner or tenants complains. Similarly, when owners, tenants or guests complain about the behaviour of the concierge or security guards, the recording can verify the truth of any allegations made against the condominium corporation's employees or contractors. This is especially true when allegations of sexual or other forms of workplace harassment are made."

The Risks of Not Having Audio

It is no surprise that risk evaluators, who now commonly work with condos, consider the lack of audio at security/concierge desks a serious concern that should be mitigated. Expert condominium insurance broker, Basel Kaskas, from the Paisley- Manor Insurance Group, provides a real-world example of the consequences of not including audio as part of a condo's risk mitigation process,

"A security guard was alleged to have been careless in his duties with respect to access control to the complex. Complaints were made by residents reporting that the security guard regularly left the gate open and let anyone pass without confirming that they were a resident or invited guest of a resident. The company employing the security guard never took the complaints seriously, as no audio was available at the desk so that they could confirm any problems. During a shift, this security guard left the gate wide open and, as result, a vehicle inside the parking garage was entered and an iPad taken. The security company was hit with a 'Failure to Perform' lawsuit and was found liable."

Conclusion

As the experts have indicated, installing audio recording devices in high-traffic condo areas, and, in particular, at concierge/ security desks, is very prudent. The question is no longer whether audio is appropriate or not, but rather what the consequences are for not having it.