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Pointing surveillance cameras at your neighbour’s house constitutes nuisance and intrusion upon seclusion

April 2, 2020

Landscaping contract gone bad results in eleven day Small Claims Trial and damages for privacy invasion

In Cecchin v Lander, the Ontario Small Claims Court found that placing surveillance cameras on your own property but pointing at your neighbour’s property can be “intrusion upon seclusion” and nuisance. The case was the result of a residential landscaping arrangement between neighbors that went sideways, with the two parties winding up in an eleven day trial in the Ontario Small Claims Court.

The plaintiffs, Dario and Elaine Cecchin, had initially hired their neighbor (or their neighbor’s company) to carry out landscaping work, which was cancelled by the plaintiffs about two weeks into the job. The plaintiffs alleged that the work was substandard, and the Small Claims Court agreed that the plaintiffs were justified in terminating it.

Following the termination of the landscaping job, matters escalated. The replacement contractors were harassed by the defendant, as were the plaintiffs. (The Court concluded that the act of harassment did not create a civil cause of action.) The defendant also installed additional surveillance cameras on his property, pointing at the neighbor’s property. The Court noted how they were positioned:

94. On the other hand I accept the evidence of the plaintiffs’ surveillance expert Mr. Jon Kuiper concerning these cameras and the extent of the areas they capture (Exhibit 3, Tab 9, last two pages). The defendants’ rear camera pointed at the plaintiffs’ property would capture essentially all of their backyard and the side of their house facing 920 [the defendant’s property]. The front camera would capture substantially all of the plaintiffs’ front yard and part of the front side of their house facing 920.

95. Photographic evidence plainly shows both Mr. Bradbury and Ms. Lander pointing their mobile phones at the plaintiffs’ property on various occasions as if taking photographs or video. Their stance is aggressive. They are often right at the property line and essentially “in the faces” of the plaintiffs and/or TNT personnel as the case may be. On at least one occasion they enlisted the participation of a worker to join in their camera game (see Exhibit 2, Tabs 18-A, 18-F (lower)). I find that the defendants were using video recording devices, including the surveillance cameras, as weapons in their retaliation campaign against the plaintiffs.

96. I accept that the surveillance cameras are pointed so that they capture the plaintiffs’ bedroom window and washroom window in addition to the entirety of the backyard including the patio area.

The plaintiffs also had evidence of the positioning of motion activated floodlights that were pointed at the same bedroom and washroom windows, and that the defendant had parked vehicles in an obstructive manner.

The court concluded that nuisance was made out and similarly found that the placement of the cameras constituted intrusion upon seclusion:

90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.

With respect to damages, the court awarded each of the plaintiffs $8,000 in general damages, just slightly below the middle of the range established in Jones v Tsige.

The defendant counter-claimed, alleging breach of contract, nuisance and intrusion upon seclusion, all of which were dismissed.

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