Cannabis and Condos – You Can’t Light Up Just Anywhere

By Martin Rumack

October 2, 2018

Cannabis, Cannabis Act, Marijuana, secondhand smoke, smoking

October 17, 2018 is right around the corner.  When that date arrives, it will usher in a profound change in Canada, because it marks the point that smoking cannabis will be legal.  Under the federal Cannabis Act, Canadians will be legally permitted to buy, possess, use, and share up to 30 grams of cannabis, and to grow up to four marijuana plants at home.

But what condo owners and tenants may not realize, is that – in terms of location – the right to use cannabis is not unrestricted.   In other words, the legalization of marijuana does not give people free reign to smoke just anywhere they like.

Condo Non-Smoking Rules Can Cover Marijuana

Instead, condo owners and tenants can still be subject to non-smoking rules, which are designed to protect fellow owners and residents from being subjected to unwanted secondhand smoke of all types.

These are customarily embedded in the rules and declarations published by the condominium corporation as part of the corporate structuring set out in Ontario’s Condominium Act, 1997.  Under that Act, condo corporations are entitled to make these rules to “promote the safety, security and welfare” of the owners and property, and to prevent the “unreasonable interference with the enjoyment” of the units and common elements.

Enforcing the Rules – New and Old

When properly enacted, reasonable in scope, and regularly enforced, these rules can legally prohibit any kind of smoking in common areas.  (They may even ban smoking in the units themselves, although this can be a contentious issue:  Some owners dispute that their condo corporation’s ban on smoking in units is needed to prevent “unreasonable interference with enjoyment”, or to promote owners’ “safety, security and welfare”).

From the vantage-point of enforcing a valid rule, there is really no distinction between tobacco smoking and marijuana smoking. Any rule that tries to differentiate between them, by banning marijuana smoking but not tobacco smoking, would likely not pass the test of “reasonableness” that the Act requires.  Residents are likely to either kind of secondhand smoke equally offensive.  Condo corporations may want to “cover all bets” by enacting separate rules to cover marijuana specifically, or may want to shore up existing no-smoking bans to mention marijuana as being included.

For a condo corporation to validly pass these kinds of rules in the first place, it must alert the owners and requisition a meeting, as the legislation requires. Owners can veto a proposed rule if at least 25 percent of them attend the meeting and vote against it.

Can They Be Challenged?

Even if validly passed, a smoking ban can still be challenged by owners on the basis that it is unreasonable – meaning that it does not have a rational or logical basis.  Alternatively, it can also be challenged on human rights grounds, since under the provincial legislation a condominium corporation may have a duty to accommodate a proven disability on the part of an owner. At least theoretically, this means that in some cases a condo corporation may have to tolerate medical marijuana use among its unit-owners.

The Bottom Line

Even though the October 17, 2018 passing of the Cannabis Act will mark some significant changes in Canada surrounding the use and availability of marijuana, from the standpoint of a condo corporation’s ability to pass valid non-smoking rules for its owners and tenants, there may be very little change.

Otherwise-valid rules that ban smoking by condo owners and tenants will not – without more – be illegal.   The usual processes governing owners’ ability to veto new rules and challenge them on certain grounds, will still apply.

Indeed, what many condo corporations have done in recent months, is to hasten their efforts to pass condo rules that prohibit all smoking inside units, on balconies, or in common areas.   Others have added rules to ban the cultivation of cannabis, to circumvent the 4-plant individual allowance that the Cannabis Act includes, or have included provisions that restrict a building’s concierge to accept marijuana deliveries on behalf of residents, as a means of limiting corporate liability.  (Note that in order to be in place for the October 17, 2018 enactment of the cannabis law, the deadline for initiating these bans was August 13, 2018).

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