Central Saanich neighbours embroiled in five years of legal battles over the ‘glare’ from a metal roof have finally reached a conclusion.
In 2013, Li Zhang purchased an east-facing home in the Tanner neighbourhood of Central Saanich. The home was on an elevated site, and with nothing built on the property across the street, Zhang had unobstructed views of the valley, the ocean and the mountains.
In 2015, Ben and Erin Davies purchased the property across the street and built their home on it. Zhang no longer had eastward views and moreover, claimed that on sunny days, the home’s metal roof created a glare of sun which was “very intense and uncomfortable” and made the rooms at the front of her home unusable.
In June 2015, Zhang filed a notice of civil claim against the Davies alleging a breach of a restrictive covenant and the tort of nuisance. The relief sought included an order requiring the Davies to replace or recover their roof with non-reflective material and an award of damages for interference with enjoyment of property.
In 2017, a trial judge found that the glare did, in fact, amount to a nuisance but denied the injunction.
“The duration of the interference caused by the glare is unpredictable,” wrote Justice Elaine J. Adair. “On cloudy or overcast days, there is no interference. Even on sunny days in the summer, the interference is limited to morning hours, to about noon.”
But Adair wrote that on sunny mornings, the glare did unreasonably and substantially interfere with important rooms in Zhang’s house.
“While the effects might be mitigated to some extent by window coverings, at best, that is a partial solution.”
Adair concluded that an appropriate award for Zhang was $7,500, but dismissed the injunction. Because the home had been marketed and purchased at least partially on its view – and a restrictive covenant guaranteed that view – the judge also assessed damages in favour of Zhang at $102,000.
In a 2018 cross appeal, Zhang asserted the trial judge had erred in refusing injunctive relief and failing to award a higher amount as damages for nuisance given the injunction was denied. That judge found that the trial judge had not erred.
But in 2020, the Davies informed Zhang they were selling the property and Zhang filed another claim seeking damages from the date of the 2017 decision forward. That claim also sought a mandatory injunction requiring the Davies remove the parts of the roof that created the glare and replace them with non-reflective materials to Zhang’s satisfaction.
But in September, a BC Supreme Court justice decided that previous compensation for the nuisance had been satisfied. She called the 2017 and 2020 claims nearly identical.
“Ms. Zhang received compensation for future glare in 2017,” wrote BC Supreme Court Justice Sheila Tucker. “Claiming against the purchasers in nuisance under the 2020 claim is seeking to be compensated twice over for the same glare over the same period of time. A plaintiff is not entitled to seek tort damages twice for the same injury.”
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