Lawyers say some Ontario condominiums have been looking to change their rules to restrict cannabis. They say there are options for legally prohibiting cannabis in buildings, such as grandfathering rules to existing residents or owners if those guidelines to prohibit smoking were not in place before the Oct. 17, 2018 legalization date.
Warren Kleiner, a partner with Shibley Righton LLP in Toronto, says condo boards can prohibit smoking, growing or processing cannabis within the building by either amending their declaration — essentially the constitution of the condo corporation — or passing a rule.
“A rule is easier to pass, but a rule has to be reasonable,” says Kleiner. “What we do think is problematic [is] when corporations take steps to ban cannabis but not tobacco,” says Kleiner. “Rules have to be reasonable, and if you’re smoking in your unit and it gets into the hallway, what’s the difference if it’s tobacco smoke or cannabis smoke? Smoke is smoke; otherwise, a rule risks being overturned.”
Denise Lash, founder of Lash Condo Law in Toronto, says her position is to treat smoking cannabis and tobacco the same.
Kleiner says condos can grandfather rules for existing smokers.
Rodrigue Escayola, a partner with Gowling WLG in Ottawa, says that, because the date of legalization of cannabis is so recent, new rules related to cannabis use shouldn’t require much of a grandfathering period because they are grandfathering the exercise of an existing right.
“What’s the proper grandfathering period?” Escayola asks. “The jury’s out on that.
“Most of my clients go for two years. The issue of grandfathering is often a political compromise. I’ve seen corporations grandfathering for the existence of the occupation — as long as you occupy the unit, you will be able to continue to smoke.”
Kleiner says because many corporations don’t pass rules, it’s important for people to understand that, even without a rule prohibiting smoking cannabis, it doesn’t mean that a resident could smoke to their heart’s content.
“You’re still subject to the other rules that say that you can’t unreasonably disturb others, you can’t create a nuisance,” says Kleiner. “A lot of buildings thought that they couldn’t do anything about tobacco smoke because it’s legal, and a lot of corporations didn’t take steps to put a stop to smoking when it was causing problems, but that was not right.”
Kleiner says that, throughout the implementation of cannabis legalization, a lot of condo corporations came to realize that they didn’t have to put up with tobacco smoke and that they were able to put a stop to cannabis and tobacco smokers who were causing disturbances. Kleiner uses the analogy of drums, which are also legal, but which can’t be played whenever someone wants or as loud as they want.
“The [condo board’s] rule-making authority is to promote the safety, security or welfare of the owners and of the property and assets of the corporation — right there, we have safety and welfare of the owners because of second-hand smoke,” says Kleiner. “It falls squarely there.”
Kleiner says rules can take different forms, such as banning smoking within units, on balconies and terraces or both depending on the building.
Escayola notes that interior common elements of the building, such as hallways and elevators, were already subject to a smoking prohibition under the Smoke-Free Ontario Act, though that was clarified by the Ford government to specify that it only applied to interior spaces, not common areas in general, some of which may be outdoors.
Lash adds that she also suggests that corporations create separate rules for prohibiting smoking in units and separate rules dealing with smoking on common-element balconies, as well as rules prohibiting the cultivation of cannabis.
“We’re finding that owners don’t seem to object to the cultivation, and some of them don’t really object to the common elements, but what they really object to is boards trying to prohibit smoking in units,” says Lash. “When you separate the rules, when the owners requisition a meeting, chances are they may just be calling it for one of the rules as opposed to all three.”
If there is a human rights concern relating to a disability, Escayola says, corporations can be forced to make accommodations for those users but accommodation must be linked to a medical treatment.
“For an owner who wants to be accommodated, there are four questions,” says Escayola.
“Do you have a disability? What is the treatment required? Do you need to smoke cannabis as opposed to another method of consumption? If yes, do you need to smoke it in the unit?”
If they don’t need to smoke within the unit, Escayola says, the rule prohibiting smoking does not have to be accommodated.