People, Pets, Parking … and Photons?

Introduction 

Most condominium disputes boil down to the three Ps: people, pets, parking. Recent caselaw from the CAT shows that a new type of nuisance is gaining traction: light. In the past year, four CAT decisions have confirmed that bright, excessive or annoying lights can be actionable at the Tribunal. The following four cases are all different, but they share an important element: the complaining parties all won and every light was literally turned off.

The Cases

First, in Nikolov v Halton SCC 476, 2022 ONCAT 65, the condominium installed a security light that allegedly shined through the unit’s windows and created a nuisance. The spotlight could not have been the primary source of light, as it was installed at a 90-degree angle away from the unit, but it may have been an indirect source of light. A simple test could have confirmed this: turn the spotlight off and see if there is any light still going into the unit. The board, however, insisted on having a board member present inside the unit for the test. The owner objected and the test never took place. As a result, the condominium had no evidence to contradict the owner, and the CAT ruled in the owner’s favour, stating that the security light must have baffles installed to direct light away from the unit. This was the first time light was litigated at the CAT.
Second, in Lake v Bruce VLCC 19, 2023 ONCAT 28, the condominium installed fountain lights as an aesthetic feature in the common elements. Most owners liked and appreciated these lights, but one complained that it produced glare and shadows within their unit. The condominium canvassed its owners and changed the operating time of the lights as a result. The CAT, however, said the complaint was not about the light’s duration but its intensity. The condominium had done nothing to reduce the effect these lights had on the complaining unit, and so even though most owners approved of the lights, they were ordered turned off until the glare against this one unit could be addressed.

Third, in Bates v Cannon et al, 2023 ONCAT 118, a unit had to replace its outdoor coach light. A neighbouring unit complained immediately. The owner installed progressively lower-wattage bulbs, but the complaints persisted. The CAT said that the light was annoying but did not go so far to call it a nuisance. However, the light was deemed to be unreasonable because the replacement coach light did not provide “diffused” lighting, as required by the Declaration. This case, therefore, turned not on a finding of nuisance but on the wording of the condominium’s governing documents, but the light was nonetheless ordered removed.

Finally, Jalbout v Brown et al, 2023 ONCAT 147 showed a complete falling out between two neighbours. Each side made complaints and allegations against the other for every reason under the sun: odour, smoke, noise, vibration, general nuisance and, of course, light. Almost all were dismissed without analysis, but the light complaints were allowed. Specifically, light must not “spillover” into another’s yard, and motion-activated security lights should only activate based on motion in the unit’s own yard. It would have been easy for the CAT to dismiss these light complaints along with all the other allegations, but the Tribunal evidently decided that this light spillover was serious enough to make an order stopping it.

The Bottom Line

On a micro-level, these four cases can be distinguished quite easily. On a macro-level, though, it’s telling that in every case the complainants succeeded. From bright fountain lights to a single lightbulb, the CAT has ordered lights to be turned off, sometimes with very little analysis. This area is still new, but so far, it seems that the CAT takes light complaints very seriously. Given the high density and close proximity of many condominium communities, we expect these light spillover cases to grow, and we may have to add a fourth P to the standard list of disputes: people, pets, Parking and photons.