Getting Ready for Marijuana – Take Action Now to Protect Your Condo Community
As you know marijuana smoking and limited cultivation will become legal federally as early as July 2018. All of us involved in condominium governance are very concerned about its implications.
As the saying goes, it’s better to fix the roof on a sunny day. Therefore, you and your board should act NOW before marijuana use becomes legal this summer.
We’ve assembled links to the major articles, law blogs and news stories on this issue and we’ve excerpted key elements of the sources. At the risk of over simplifying, a very clear consensus has emerged:
- You should have the corporation’s lawyer draft a rule governing marijuana cultivation and processing, and banning smoking in the suites and on the common elements; and, the board should pass that rule now without delay
[all the major condo law firms have marijuana rules drafted and ready to go].
- If you can get the 80% approval required, you should amend your declaration.
Please see the list of seventeen (17) linked articles below and read the twelve (12) summarized comments.
Fine & Deo – February 16, 2018 - Cannabis in Ontario Condominiums – Bradley Chaplick
Passing a smoke-free environment rule
Section 58 of the Condominium Act, 1998 states that, in order to be valid, a rule must:
1. promote the safety, security or welfare of the owners; or,
2. prevent unreasonable interference with the use and enjoyment of the units, the common elements and the assets of the condominium corporation.
A rule to create a smoke-free environment would satisfy the first criteria, as eliminating smoke from the air clearly promotes the welfare of the owners.
Although it is sufficient if only one of these criteria are satisfied, if a condominium was faced with complaints regarding smoke transfer, then this would be considered a nuisance (as described above), and would therefore satisfy the second criterion for a valid rule.
The challenge when enacting a building-wide ban on smoking, including a prohibition on smoking in private residential units, is that rules must be “reasonable”.
In this regard, an existing resident who smokes might claim that, as long as he or she is not bothering his or her neighbours, it would be unreasonable to require the resident to refrain from smoking in his or her own home.
Furthermore, the resident in question may have purchased his or her condominium unit with the intention that he or she would be permitted to smoke in private.
The solution to this apparent problem is to incorporate a “grandfathered unit” exception for pre-existing smokers, so long as the smoking does not interfere with neighbouring residents. Once the smoker no longer lives in the unit, then that unit ceases to have the “grandfathered unit” exemption. Ultimately, and over time, the building will become a completely smoke-free environment.
Stopping cannabis smoking in an Ontario condominium
The best way for a condominium corporation to prevent the smoking and cultivation of cannabis is to pass a rule before recreational cannabis use becomes legal.
Due to the fact that cannabis is not legal in Canada until July of 2018, it would be reasonable to pass a rule now that prohibits the smoking and cultivating of an illegal substance.
If the rule comes into effect before recreational cannabis use becomes legal, then there would be no requirement to grandfather any existing residents, other than those who use cannabis for legitimate medicinal purposes. For those who use medical cannabis, there would be a reasonable human rights claim for accommodating residents with disability-related needs, so long as the use does not interfere with neighbouring residents.
A condominium board of directors should act without delay if it intends to effectively prohibit the smoking and cultivation of cannabis. In most cases, a new rule to create a smoke-free environment would still grandfather existing tobacco use and existing medical cannabis use, but only to the extent that such use does not create a nuisance for neighbouring residents.
Gowling – Jan 18 - Condos can regulate the consumption and growing of cannabis- Ron Escayola
We’re of the view that condos can regulate whether they will allow consumption and/or growing of cannabis on their property. We have already received numerous requests to implement rules dealing with this.
Globe & Mail – Jan 22 – Ontario landlords seek right to immediately ban marijuana use in rentals
Landlords have the right to include stipulations banning tobacco smoke when drafting a lease but if they do not, a tenant can smoke in their own unit. Those rules will likely apply to marijuana when it is legalized, the government says.
The province is also currently seeking public feedback on a proposal to allow designated outdoor smoking or vaping areas in multi-unit residences, an idea welcomed by some marijuana users who argue some tenants may otherwise have few places they can consume pot.
"It (would be) really leaving people with nowhere to go," Natasha Grimshaw, a manager at a Toronto marijuana dispensary, said of landlords banning pot in units. "You have more freedom (to smoke) now when it's illegal than you will when you're supposed to be free to smoke it."
Having a dedicated marijuana space for a rental property could provide a suitable compromise, Grimshaw said.
"Condos have theatre rooms, party rooms, so why not have marijuana rooms?" she said. "They could even make restrictions that you need to use vaporizers (instead) of smoking a joint so it's not a smoke and you're not going to necessarily be upsetting too many people in the building."
McLeod Law – Dec 2017 - Blowing Smoke: The new cannabis law and what it means for
Condominiums – David Cumming
To prevent growing and smoking of marijuana in a unit, Condominium Corporations will no longer be able to rely on the prohibition found in most Bylaws against doing something illegal in a unit but there are other Bylaw provisions that can be relied upon.
Many Condominium Bylaws prohibit individuals from smoking in their units or on common property. This applies to marijuana in the same way it does, tobacco. For condominiums with a smoking prohibition that want to prohibit tobacco but allow marijuana, or vice versa, would have to have their Bylaws amended to reflect this. For all other condominiums, it is open to them to prohibit smoking entirely.
The other concern is the possibility of growing marijuana plants within a unit, once legal to do so. Our first recommendation is to amend the Bylaws to prohibit unit owners from growing marijuana plants. Our Condominium Law Group includes a provision in Bylaws that prohibits the growing of marijuana plants. However, even Bylaws that do not have this provision have other sections which can be relied upon. The most applicable provision is the prohibition commonly found in Bylaws against an occupant doing anything which would void the insurance of the Corporation or increase premiums. It is common language in condominium insurance policies that coverage is void if you have a grow operation, and there is no reason to believe this will change with the passing of the new law. Hence Corporations will still be able to use this provision to stop residents from growing marijuana plants.
The other issue that is often raised is that of Human Rights. The use of marijuana to treat medical conditions is on the rise and will continue to increase once recreational use is legalized. As such, an attempt by a Condominium Corporation to stop a resident from smoking marijuana could be challenged under the Human Rights Act as discrimination on the grounds of disability.
Medicinal marijuana has been used for quite some time, but as far as I am aware there have been no cases in which the right of the resident to smoke marijuana in their unit has been brought before the Courts. When and if a challenge is brought, it is doubtful that that a Human Rights Tribunal would force the condominium corporation to allow smoking in the unit.
The first reason is that there is no compelling reason why a resident who requires marijuana for medical purposes cannot smoke off premises. A case was brought by an individual in British Columbia relating to tobacco smoking. In this case, the occupant brought a Human Rights complaint against the enforcement of a Bylaw prohibiting smoking. She argued that she was being discriminated against as an addicted smoker (addiction is considered a disability). The decision, upheld by the Court, was that there was no discrimination because there was nothing stopping the owner from smoking outside her unit in the designated areas. A similar reasoning could apply to marijuana smoking.
Secondly, and more significantly, we now have the advent of vaping devices wherein marijuana products are consumed resulting in much less combustion and hence, a negligible amount of smoke and smell. There are also a number of edible projects available. Hence if a Condominium Corporation makes it clear that they are willing to allow an occupant to consume marijuana in this way, a Tribunal would likely find that not only can a unit owner consume marijuana, but they can also consume it in any manner they choose, despite a completely satisfactory alternative does not create a nuisance to other occupants.
If a challenge is brought to court for growing plants under the Alberta Human Rights Act, it is unlikely that a Tribunal or Court would find that the occupant suffered undue hardship because they were compelled to buy their product from a dispensary rather than grow it themselves.
In summary, although it is difficult to predict what sort of growing pains society and condominiums, in particular, might have as a result of the changes in the law, I do not think it presents any significant legal difficulties for condominium owners and their Boards. Boards would be prudent to examine the Bylaws and make sure that they properly reflect the choices of the community now that the prohibition against doing anything illegal in one unit will not apply to smoking or growing marijuana. If an issue does arise, Boards should feel confident in enforcing their “no smoking” Bylaws, and if challenged under Human Rights, Boards should propose edibles and vaping as alternate modes of consumption.
[Note: the McLeod article refers to and recommends bylaws to deal with marijuana. However, McLeod is writing about condos in Alberta. In Ontario, the matters would require a change in the declaration or a reasonable rule. A by-law would not be suitable.]
Sutherland Kelly – Jan 29, 2018 - Marijuana in Condos – Michelle Kelly
New Tools for Condominiums
We are seeing more and more condominiums (7 just last week) passing new rules to address some of the issues discussed above, often along with restrictions on the smoking of tobacco and similar products. In addition to the health consequences associated with exposure to smoke, many condominiums are seeing an increased number of complaints related to smoking and odours. These concerns, along with the horror stories about the damage caused to units by grow-ops, make many boards uneasy about the legalization of marijuana and its possible consequences for condominiums.
In my view, a rule is likely the best option. An amendment to the declaration is almost impossible in many condominiums because it requires at least 80% of the owners to consent in writing. A by-law would be inappropriate as it may not be one of the uses of by-laws permitted in the Act. A rule can be approved by the board of directors. Notice of the rule must be sent to the owners. If a requisition is not received within 30 days of sending the notice the rule becomes effective. If a requisition is received within 30 days of the notice, the rule does not become effective until an owners’ meeting is held and the owners do not vote against it.
Some condominiums are prohibiting the smoking and growing of marijuana completely while others are creating restrictions on it. Some prohibit smoking only on the common elements and owners may smoke within their units or on their balconies. Most condominiums prohibiting smoking will allow owners to consume it in other ways, such as edibles. The rationale is that smoking is more likely to disturb the other residents and allowing owners to consume it in other ways strikes a balance between the rights of the owners wishing to consume it and those who do not want to consume it.
If a condominium is considering a new rule to prohibit smoking, now is the time to act. Once the legislation comes into force the condominium will need to consider grandfathering for existing marijuana users.
Medical Marijuana Users
It is important to note that, regardless of the restrictions put in place, some people will be able to possess and consume marijuana in their units due to medical reasons. The condominium has a duty to accommodate a person’s disability (up to the point of undue hardship), which may include allowing that person to consume marijuana even where it is prohibited in the condominium’s rules. The possible solutions depend on the facts. In some cases, the person can consume it in a way that does not disturb the other residents, such as edibles. A condominium facing an owner with a disability and a request for accommodation should seek legal advice to ensure it is not acting in a manner that could expose the condominium to a human rights claim by the owner.
Global News – January 24, 2018 – Condos will likely be able to ban residents from smoking marijuana: lawyers
Condo boards are well within their rights to ban smoking in units, said Trina Fraser, a lawyer who has worked on marijuana issues.
“For sure a condo board can ban smoking.”
Usually, said Michelle Kelly, a specialist in condominium law, these bans are done by creating a rule. The rule is circulated to owners, and unless owners call for a vote and vote against it, it enters into force. “They have to do it for two purposes though: they have to promote the safety, security or the welfare of the owners, or of the property itself, or prevent unreasonable interference with the use and enjoyment of the units.”
CBC News Edmonton – February 7, 2018 - Prohibition is best answer to cannabis in condos, legal expert says
Alberta condominium boards that fail to make their buildings cannabis-free before marijuana is legalized risk sparking serious discord within their properties, says a lawyer who specializes in condominium law.
The legalization of recreational cannabis is rife with potential problems for property managers, said Robert Noce.
Condo boards, and landlords responsible for multi-unit buildings would be wise to nip the problem in the bud, before the summer deadline, he said.
"In order to minimize conflicts, you've got to go with total prohibition," Noce said in an interview with CBC Radio's Edmonton AM.
"When you are living in a confined space with other people so close to you, you've got to have good rules in place to minimize the conflict you will eventually have with your neighbours."
Condo.ca - Ask the Lawyer: Condo owner worried about legalization of marijuana, if “every household can grow 4 plants… damage could be vast” - Richard Hoffman, Del Zotto, Zorzi LLP
The proposed Cannabis Act will legalize the possession and growing of limited quantities of marijuana. This may cause great concern to many condo unit owners. A condominium corporation may want to consider passing a rule that will ban the smoking of Marijuana within any common element area(s) whatsoever (including without limitation, any exclusive use outdoor patio, balcony or terrace area), or the growing of any marijuana or cannabis plant(s) whatsoever within the confines of any unit(s) and/or common element area(s).
I don’t think they will be able to ban the smoking of marijuana within dwelling units, as that will prevent those that require Marijuana for medical reasons, and it may lead to a human rights complaint.
[Note: Many lawyers point out that the medicinal benefits of marijuana don’t have to come from smoking it – users can consume edibles or vape it.]
Rabble.ca – July 28, 2017 – Will Ontario let landlords and condominiums ban smoking recreational marijuana? - Elliot Fonarev, Iler Campbell LLP
One important question is where cannabis can be used: where will individuals be allowed to smoke marijuana and who gets to decide that? As marijuana is legalized by the federal government, it will be up to the Province to regulate how it can be used in some spheres. For instance, the Province could restrict the ability of landlords and condominium boards to prohibit vaping and/or smoking within units. Provincial regulations could also determine whether condo boards will be able to restrict vaping and smoking marijuana recreationally in common spaces like rooftops and courtyards.
When it comes to vaping and smoking of recreational marijuana in individual units or common spaces in condo buildings, a regime that allows landlords and property managers to set their own rules and practices has important implications. Like with tobacco, landlords and condominiums may be inclined to ban residential use of recreational marijuana on account of health and safety risks and to head off complaints from residents.
A related issue is whether the Province will prohibit vaping and smoking in the public sphere -- and the mechanisms used to enforce such prohibition.
In Colorado, which legalized marijuana in 2014, public smoking remained prohibited. Parks and businesses such as hotels became go-to places for recreational use for those who could not smoke in their unit, resulting in an enormous 471 per cent increase in public consumption tickets (the mechanism used to enforce the prohibition). Though there do not yet seem to be comprehensive stats on exactly who was most affected by the ticketing, it is unlikely that single‑dwelling homeowners were affected and there are some indications that Black people have been disproportionately targeted.
Assuming Ontario follows a similar path allowing landlords and condominiums to set bans on smoking recreational marijuana while also banning public consumption, we can expect the same trials and tribulations experienced in Colorado. This solution would effectively re‑criminalize the public consumption of recreational marijuana, affecting most severely those who are unable to afford single-dwelling homes. It also creates the potential for abuses by landlords or condominiums who may discriminate against tenants or owners they dislike or towards whom they feel prejudice. This approach favours wealthy homeowners, while low‑income residents will lose out.
Toronto Star – Sept 30, 2017 - Condo corporations need to prepare plans to deal with marijuana use before it becomes a problem – Bob Aaron
Until now, court cases which focus on objections to second-hand smoke have usually been based on the legal principle of nuisance.
The first court case I was able to find on this topic is the pre-Confederation Upper Canada decision in Cartwright v. Gray in 1866. The plaintiff complained about smoke from a neighbour’s carpentry shop — which burned pine shavings and other refuse.
The judge said: “A man may not use his own property so as to injure his neighbour . . . Every man, by common law, has a right to pure air, and to have no noxious smells or smoke sent on his land…”
Court cases, rental housing tribunal decisions and human rights cases across the country, even as high as the Supreme Court of Canada, have followed this legal principle.
A British Columbia decision in 2003 involved drifting second-hand smoke in a social housing project. The tenant was evicted, even though he argued that he had a Charter right to grow and use marijuana.
The judge wrote that that the odour made neighbouring suites virtually unlivable and the government was obliged to protect them from unreasonably disturbing odours. The decision was upheld on appeal and the Supreme Court of Canada dismissed an application for permission to appeal to that court.
In the 2014 MacKay case in Toronto, the owners of a condominium were forced to move out due to noxious cigar smoke migrating from a neighbouring unit. The owners sued the condominium corporation for failing to respond adequately to their complaints. The judge was critical of the condominium corporation and ordered it to pay $32,500 in court costs.
In light of the impending legalization of cannabis, landlords and condominium corporations would be well advised to prepare action plans to deal with the issue before it becomes a problem.
Davidson Houle Allen LLP – May 4, 2017 - Marijuana in Condominiums- My Take On the Issue – James Davidson
(III) In order to minimize arguments about the reasonableness of a restriction, a provision in the Declaration may be preferable.
(IV) In summary, in my view the best approach is to deal with these issues fully and carefully, either in the Declaration (an original provision in the Declaration or an amendment to the Declaration) or in the Rules.
(V) Depending upon the specific circumstances, a medical marijuana user might still have the right to grow marijuana (pursuant to the Human Rights Code), notwithstanding any contrary Rule or provision in the Declaration. But I think that the grower could still be held responsible for any resulting harm or expense to the condominium corporation and/or other owners.
Gowlings Condo Advisor – April 18, 2017 - Is your Condo Ready for the Legalization of Marijuana? – Ron Escayola
The fact that Ottawa is legalizing marijuana does not, in our opinion, prevent a condominium corporation from restricting it or banning it altogether.