Fine in connection with fries must be reversed, the BC tribunal rules

B.C. condo owners were fined $200 for violating a bylaw because their tenant dropped one french fry in the elevator lobby, according to a decision by the province’s Civil Resolution Tribunal.

The apartment owners challenged the french fries fine, as well as another fine of the same amount, on the grounds that evidence of the bylaw violations had been obtained from CCTV footage, in breach of provincial privacy legislation.

The dispute between BCFS Residential Rentals Ltd., a company that owns and rents two units in the building, and the municipality, which imposed the fines, dates back to 2022 and was settled last week. In BC, the common assets of a condominium building are owned by a strata corporation and managed by a strata council.

BCFS asked the tribunal to find the fines were invalid and to order the strata to “stop using CCTV recordings to monitor residents and enforce the bylaws,” the decision said.

The strata, in turn, argued that the fines were valid and that the tribunal had no jurisdiction to rule on the privacy issues.

The issue of the CCTV video arose when tenants challenged the two fines – one for “dropping food” and another for “loud noises”, the tribunal explained.

“Other than the CCTV recordings, there is no corroborating evidence, such as witness statements, that corroborates the tenant’s alleged conduct,” wrote tribunal member J. Garth Cambrey, adding that the complaint form filed stated that it was filed by “the local authority”.

It was only upon reviewing the recordings that BCFS realized that the dropped food complaint was based on the errant fries.

In September 2022 – when BCFS realized the complaints were based on CCTV video – the company contacted BC’s Office of the Information and Privacy Commissioner to inquire whether the Personal Information Protection Act was at play.

“The PIPA regulates how private organizations, including strata corporations, can collect, use and disclose an individual’s personal information,” the decision said.

“In general, organizations must be authorized to collect, use and disclose personal information with prior notice and express or implied consent.”

In May 2023, the OIPC wrote to BCFS and the tenants, saying the use of CCTV footage to enforce the bylaws was contrary to the law. The tribunal found that this made the fines “significantly unfair”.

“Without the recordings, it would not have been possible for the strata to identify the tenants as there is no other corroborating evidence as to who was responsible for the noise and fries other than the council’s complaints,” Cambrey wrote.

However, the tribunal also ruled that it could not order the strata to stop using their CCTV video in this way, noting that the OPIC has “exclusive” jurisdiction to order organizations to stop “collecting, using or disclosing personal information.”

The strata were ordered to repay BCFS $400 in statutory fines, as well as pay $225 in court costs and $38.99 in prejudgment interest.