CONDOMINIUM AUTHORITY TRIBUNAL
DATE: June 14, 2022 CASE: 2022-00025N
Order under section 1.44 of the Condominium Act, 1998.
Member: Laurie Sanford, Member
The Applicant: Cheryl Nikolov Self-Represented, February 28, 2022 to May 9, 2022 Represented by Jackie Bartlett, Counsel, May 10,2022 to May 30, 2022
The Respondent: Halton Standard Condominium Corporation No. 476 Represented by Kelly Gencel, Agent
Hearing: Written Online Hearing – February 28, 2022 to May 30, 2022
REASONS FOR DECISION
A. INTRODUCTION
1Ms. Nikolov is a unit owner in Halton Standard Condominium Corporation No. 476 (“HSCC476”). She asserts that a spotlight style of security light recently installed by HSCC476 is causing a bright light to shine into one of her bedroom windows, creating a nuisance, annoyance or disruption that is unreasonable. She wants HSCC476 to replace the spot light with a light that has baffles on the sides to direct the light downwards. Her submission is that other security lights that HSCC476 has installed have these baffles and she does not anticipate an issue if a similar style of light replaces the spotlight currently in place.
2HSCC476 takes the position that their light cannot be the cause of the problem since it is installed on a wall that is at a 90-degree angle from the front of Ms. Nikolov’s unit. HSCC476 proposes several other possible sources of the light. Ms. Nikolov submits that the other light sources pre-date the new security light and that she did not have a light issue for the 12 years she has lived in the unit prior to the new spotlight being installed.
3The parties considered a simple test which was expected to determine if the new spotlight is the source of the light in her bedroom. The spotlight was to be turned off by HSCC476 to see the effect in Ms. Nikolov’s bedroom. The parties were unable to agree on the test procedure.
4For the reasons set out below, I have made the following findings. I find that the light in Ms. Nikolov’s bedroom is a nuisance, annoyance or disruption that is unreasonable. I further find that Ms. Nikolov has presented credible, circumstantial evidence that the new spotlight is, more probably than not, the cause of the problem. While neither party was reasonable in negotiating the proposed test of the light, I find that HSCC4576’s position ultimately led to the breakdown in negotiations. I conclude that HSCC476 had a straightforward way to demonstrate that its light was not the source of the light in Ms. Nikolov’s bedroom and declined to conduct the test on reasonable conditions.
5I am directing HSCC476 to replace its current spotlight style security light with a baffled security light like the ones it has installed on the sides of three other corner units. I am also directing HSCC476 to pay Ms. Nikolov $200 in reimbursement of her filing fees. While both parties claimed some form of recompense for their time and costs of the hearing, I find that the Tribunal Rules of Practice do not support a cost award in this case.
B. ISSUES & ANALYSIS
6The issues in this case may be summarised as follows:
- Is the light coming into Ms. Nikolov’s bedroom a nuisance, annoyance or disruption that is unreasonable?
- Is the spotlight shaped security light recently installed by HSCC476 the source of the light in Ms. Nikolov’s bedroom?
- If the spotlight is the source the light, what remedy should be directed in this case?
7Ms. Nikolov submits that the Tribunal has the jurisdiction to deal with these issues. She points to subparagraph 1(1)(c.1) of Ontario Regulation 179/17 to the Condominium Act, 1998 (the “Act”) which provides that the Tribunal has jurisdiction over “a dispute with respect to subsection 117(2) of the Act”. Subsection 117(2) of the Act in turn provides that:
No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,…..
(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.
Finally, section 26 of Ontario Regulation 48/01 to the Act states:
For the purposes of clause 117(2) of the Act, each of the following is prescribed as a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation if it is unreasonable:…..
- Light
8The Act does not define a “person”, the term used in subsection 117(2) of the Act. However, given that a business corporation is a legal person, I conclude that there is no reason why a condominium corporation should not have the same status. The combined effect of these sections of the Act and regulations is to give the Tribunal jurisdiction over this dispute.
Issue 1: Is the light coming into Ms. Nikolov’s bedroom a nuisance, annoyance or disruption that is unreasonable?
9Ms. Nikolov says that there is a bright light which is on all night and shines into her bedroom. Even when she draws her black-out blinds, the light shows as a bar or line of light at the top of the blinds. Ms. Nikolov produced photographs of