On Oct. 17, Canadians will be able to legally smoke cannabis, but many condo owners and tenants won’t be able to do so at home, nor will they be entitled to smoke tobacco, even if previously permitted as condo corporations rush to put restrictions in place.
When cannabis legalization appeared on the horizon, smoke penetration into the units of non-smokers became a concern demanding action, says Denise Lash, founder of Lash Condo Law in Toronto. Condo lawyers decided the best way to control what owners saw as an impending nuisance was to develop rules banning smoking inside units, on balconies and common areas.
“All my stats show that, at the end of the day, the vast majority of condo owners are in favour of some ban of some sort,” says Rodrigue Escayola, a civil litigator with experience in condominium law, a partner at Gowling WLG and the elected director of his own condominium board in Ottawa.
Condo corporations are taking the cannabis issue as an opportunity to tackle a source of another nuisance: tobacco smoking, says Escayola.
“Is there going to be a full ban? Is it going to be a ban just on balconies? Is it going to be a ban just in the unit? The vast majority, 80 per cent I would say, are in favour of some form of a ban,” he says.
Condo rules have power under s. 58 of the Condominium Act to “promote the safety, security and welfare” of owners and property and to prevent “unreasonable interference with the enjoyment” of units and common elements, according to Ontario’s provincial legislation. These rules must meet a reasonableness threshold, says Lash.
“You really can't distinguish between tobacco and marijuana for the purposes of a rule,” she says. “We don't think it would be a reasonable rule to say no smoking marijuana but you can smoke tobacco.”
Lash says condo lawyers had taken the position for years that while condo corporations could prevent owners from smoking in common areas they could not prevent them from smoking in their units.
When neighbours would complain, the corporation would use provisions about causing a nuisance to other owners to confront the smoker.
“In any given week, I have two files dealing with a tobacco dispute,” Escayola says.
Lash says condo corporations are developing rules to prohibit cannabis cultivation and delivery of product to the concierge as well to avoid liability.
When a condo corporation creates a rule, it is required to alert owners, who have 30 days to summon 15 per cent of their fellow owners to requisition a meeting. If a meeting is called and at least 25 per cent of the owners show up to that meeting and then a majority vote against the rule, the rule is dead.
Even with a smoking ban in place, corporations can allow a grandfather clause to let owners or tenants who already smoke to continue doing so for a specific period of time, under certain conditions, says Escayola.
They are not legally required to grandfather someone, but the industry generally accepts that including this clause “would be in line with any rule’s statutory requirement to be reasonable,” Escayola said via email.
Aug. 13 was the date condo corporations needed to initiate the process of creating a smoking ban, to be able to have the rule in place in time for legalization on Oct. 17, says Escayola. The further from that date a smoking ban was in place, the more persuasive an argument for grandfathering a cannabis smoker would be and the longer the duration of that grandfathering period.
“I would say if the consumption of cannabis has been legal for a day, or a week, or even six months, how much grandfathering do we need to grant people? When you bought your condo, did you buy it knowing that you'd be able to smoke cannabis here?” he says.
The standard grandfathering period for a tobacco smoker would be two years, Escayola says. The period for cannabis smoking would be much shorter, considering the period during which it will have been legal.
Those smoking cannabis medicinally would also need to be grandfathered, as they have previously been permitted to do so, says Lash.
There will be two grounds on which Escayola foresees these bans being challenged in court: reasonableness and accommodation. The reasonableness of a tobacco smoking ban has already been tested in court and Escayola says he predicts a cannabis-smoking rule will be maintained if challenged on reasonableness.
Condo corporations have a duty to accommodate a disability, he says. But a successful challenge on those terms will need to prove the disability, that they are prescribed cannabis for treatment, that they are required to consume cannabis by smoking and other methods of ingestion will be insufficient and that they must smoke inside the unit and cannot just go outside.
“I don't think it's going to be that easy. I don't think that just waving ‘disability’ will necessarily result in the rule being bent to accommodate,” he says.
Canadians will be legally permitted to purchase cannabis, possess and share up to 30 grams and grow cannabis plants at home, according to the Cannabis Act. Provinces are in charge of retail and setting the minimum purchase age.
The City of Ottawa's Public Health Officer has proposed prohibiting cannabis smoking inside and on the balconies in “all multi-residential buildings,” according to a blog post written by Escayola.
Dash and Escayola say they have heard from condo owners who are upset that their board is dictating to them what they do inside their own private home, especially when the federal government has made it a legal activity.
“The fact that it's permitted at a higher level doesn't prevent you from being more restrictive. [Condo] corps can be more restrictive than the city, which can be more restrictive than the province, which can be more restrictive than the federal [government],” Escayola says.
Condos have rules about the colour of drapes, whether an owner can barbecue on their balcony and what kind and what size of pets owners are allowed to have, says Escayola.
“There's already tons of rules in condos,” he says. “We tell you ‘not to’ because this corporation has decided that these are the collective rules that we want to live by. And people flocked to this condo because they like these rules.”