Cannabis and Condominiums in Ontario

With the legalization of cannabis in Canada as of October 17, 2018, condominium corporations across Ontario have had to face some important decisions regarding how to regulate smoking cannabis inside condominium units and on the grounds of the condo property. The Cannabis Act contains provisions which apply to condominium units. So, if you are looking to purchase a condo, currently own a condo, or are part of a condominium board, then there are some key points that you should be aware of concerning cannabis use.

How does cannabis legalization affect condominium living?

Since owners of condo units share a building with other owners, issues such as noise, smoke, and air quality are all important factors that impact quality of life. While the Cannabis Act has legalized cannabis in Canada, this does not mean that condominium corporations cannot enact rules to limit or prohibit the use of cannabis on the property or inside the units.

In fact, condominium corporations already enjoy an ability to limit a wide range of issues that impact life inside of the building, including tobacco use in units, animals in the building, and even the amount or type of furniture allowed on balconies. The use of cannabis is no different in the eyes of a condominium board. Tobacco is legal in Canada, yet its use is still regulated inside of condominiums according to the rules set by the board. Cannabis will be treated similarly as condo boards across Ontario start to grapple with the issues that crop up as occupants voice their position on the usage of this substance inside of the building

How does the Cannabis Act apply to condominiums?

Under the Cannabis Act, the provinces and territories were given the authority to set their own restrictions regarding access, possession and use of cannabis. In Ontario, individuals that are 19 years of age or older can possess up to 30 grams of legal cannabis in public and can grow, from licensed seed or seedlings, up to 4 plants per residence for personal use.

However, just because the Cannabis Act allows this, does not mean that condominium boards must also allow it. This is because condominium boards have the power to make rules and institute by-laws which can restrict and regulate behaviour within the condominium. As long as the rules and by-laws are implemented in accordance with the applicable condominium legislation, it is possible for a condominium to fully prohibit consumption and growth of cannabis anywhere inside of the building. Therefore, even though the Cannabis Act operates to legalize the consumption, possession, and growing of cannabis in general, it remains open to condominium corporations to restrict these behaviours, even within the four walls of owners’ units.

In fact, some condominiums in Ontario have already declared their buildings completely smoke free. Reasons for this position could be numerous: fire prevention, mold prevention, odor control, or simply marketing to a demographic that wants a smoke free building.

Why can condo boards restrict cannabis?

If the new cannabis legislation allows individuals who are 19 years of age or older to use and possess cannabis, why can condominium boards in Ontario impose restrictions? The answer is the provincial Condominium Act (the “Act”), which allows condo boards to make or amend rules, including those that apply to cannabis. Section 58 of the Act allows condo boards to:

a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or

(b) prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation.

Rules

Section 58 of the Act allows condo boards in Ontario to create, amend or repeal rules that affect the use of the units in the condo, as long as these rules aim to:

a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or

b) prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation.

For condo owners and also condo boards looking to make decisions on cannabis, it is important to understand that rules regarding cannabis need to be specific and they always need to be reasonable. Since cannabis can be smoked, vaped or eaten, and since condominium buildings include units, common areas, balconies, and external grounds, there are a variety of approaches that must be considered when making decisions on which behaviours are being restricted and where they are being restricted. If a rule is unreasonable and/or arbitrary, it may not be enforceable.

Can cannabis use be “grandfathered” in a condominium?

Condominium corporations often have a provision in their rules that allows owners to be exempt from new rule changes. In these cases, only new owners or occupants are affected by a changed rule. This is often referred to as “grandfathering”.. Keep in mind that grandfather clauses are usually not transferrable and will expire if the unit is sold or the owner moves out, for example, to permit tenants to move in. However, the exact operation of a grandfather clause depends on its specific wording.

Providing notice to condo owners about cannabis usage

When new rules are proposed, or old rules amended, condo corporations must provide proper notice. According to the Act, this means:

Notice of rule

(6) Upon making, amending or repealing a rule, the board shall give a notice of it to the owners that includes,

(a) a copy of the rule as made, amended or repealed, as the case may be;
(b) a statement of the date that the board proposes that the rule will become effective;
(c) a statement that the owners have the right to requisition a meeting under section 46 and the rule becomes effective at the time determined by subsections (7) and (8); and
(d) a copy of the text of section 46 and this section.

Owners may also amend the rule:

Amendment by owners

(5) The owners may amend or repeal a rule at a meeting of owners duly called for that purpose.

Regulations on smoking and vaping cannabis in Ontario

The Smoke Free Ontario Act (SFOA) specifically contains provisions regarding cannabis. Section 12(2) of the SFOA states that the regulations in the SFOA apply equally to tobacco, cannabis, vapour products and prescribed products and that smoking is prohibited in:

“Any indoor common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.”

The SFOA allows for smoking and vaping in private residences, unless an agreement is in place in a condominium with bylaws that prohibit it. As we have seen above, condominium boards are well within their rights to prohibit and restrict cannabis smoking.

In terms of edibles, it is perfectly legal to consume edible cannabis (for recreation or medical purposes) in your condo unit in Ontario.

Cannabis for medical purposes and condominiums in Ontario

. Since cannabis is used medically to treat a variety of conditions, its usage can be protected under the Ontario Human Rights Code. As such, condominium rules that prohibit individuals from using cannabis in their units may not be enforceable against people who use cannabis for medical purposes related to a disability. In such cases, it is important that condominium corporations are cognizant of their “duty to accommodate” these individuals. This duty extends to the point of “undue hardship” which means that sometime, accommodation may not be possible. This is a very fact-specific determination, which will depend on the circumstances of each case.

It is important to note that consumption of cannabis for recreational purposes is not protected by the Ontario Human Rights Code.

Condo corporations must adjust to cannabis legalization

Since cannabis legalization is a new phenomenon in Ontario, there are bound to be many issues that condo owners will have to face as condo corporations adjust to the many changes and the various impacts these changes are having on condominium living.

While the Condominium Act itself contains sets out the framework for implementing new condo rules, holding proper meetings, and generally regulating condominium life in Ontario, it can get complicated and it is usually worthwhile to consult with a law firm that specializes in condominium law before taking any action as a condo unit owner or as a member of the board.

If you have further questions regarding recreational or medicinal cannabis use in condominiums, or if your condominium corporation needs help with drafting new rules, contact Chuck Merovitz at Merovitz Potechin LLP.

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