28/08/2023 – Jurisdiction Ontario
Part 83 published on 01/09/2023
Respondent owner’s outdoor light found to be an unreasonable nuisance.
The Applicant and the Respondent were neighbours in Dufferin Vacant Land Condominium Corporation No. 22. Their townhome units faced each other. The Applicant claimed that a light on the exterior of the Respondent’s unit was an unreasonable nuisance to him. The Tribunal agreed, because the particular light did not comply with a requirement in the condominium’s Declaration that such lights be subtle and diffuse. The Tribunal said:
In the absence of the qualification in the declaration that light be subtle and diffused, the light from Mr. Cannon’s fixture might well be found to be reasonable, particularly since the bulb has now been reduced to the equivalent of a 25-watt bulb and because of the limited impact of the light on Mr. Bates’ ability to enjoy his unit. However, because of the qualification, I conclude that the light is unreasonable.
The Tribunal also considered the fact that the condominium corporation had concluded that the light complied with the Declaration. The Respondent argued that the “business judgment rule”, which requires deference to decisions of a condominium corporation, should apply and that the light should therefore be deemed to be reasonable. The Tribunal rejected this argument. The Tribunal said:
The business judgment rule does not mean that all decisions of a condominium board are conclusive. There must be evidence that the board acted fairly and reasonably and that it is consistent with the facts of the case. In this case, the board’s finding of compliance is not consistent with the fact that the light is not diffused.