In July of 2018, recreational cannabis will become legal across Canada.
The relevant federal legislation, Bill C-45, will allow up to four cannabis plants to be cultivated within a “dwelling-house”. In our view, a condominium unit falls within the definition of “dwelling-house”.
The province of Ontario has also passed the Cannabis Act, 2017 in order to create a regulatory framework for cannabis legalization. For example, the Cannabis Act, 2017 sets the minimum age to purchase, possess, and cultivate cannabis at 19 years old, and regulates the use of cannabis to private residences, similar to alcohol.
How will cannabis legalization impact Ontario condominium corporations?
Condominium corporations can regulate cannabis use on the condominium property similar to the manner in which tobacco use may be regulated.
In this regard, a condominium corporation’s governing documents (the declaration, by-laws and rules) may contain restrictions on smoking, odour, and “nuisance”.
Unless specifically prohibited by the condominium corporation’s governing documents, condominium residents would not automatically be barred from smoking cannabis within their private residential condominium units.
What is a “nuisance”?
Most condominium corporations have rules that prohibit occupants from creating or permitting any nuisance that disturbs the comfort or quiet enjoyment of other residents. The word “nuisance”, when used in conversational English, means an annoyance. However, a “nuisance” is also a legal term of art.
A “nuisance” arises in law when one person uses his or her land in such a way that it unreasonably interferes with another person’s use of his or her respective land. Traditional examples of nuisance included creating an offensive odour and creating smoke or pollution that escaped onto a neighbour’s land. The early smoke cases dealt mainly with factories and industry, but the legal concept for tobacco or cannabis is the same: if smoke escapes your property and unreasonably interferes with your neighbour, then you have created a nuisance for which you are responsible at law.
Many condominium declarations also restrict owners from using their units in such a way that will “unreasonably interfere” with the use or enjoyment by others of the common elements or their respective units. This common language in condominium declarations and rules means that, in the absence of a specific smoking provision, most condominium corporations’ governing documents restrict the escape of smoke or offensive odours.
The current state of smoking in condominiums
Currently, smoking is illegal in indoor common elements. The Smoke Free Ontario Act provides, in relevant part, that “no person shall smoke or hold lighted tobacco in…any 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.” Note that this statute will soon be repealed and replaced with the Smoke Free Ontario Act, 2017.
The Smoke Free Ontario Act, 2017 contains similar restrictions on the smoking of tobacco indoors, and will also apply to the smoking and vaping of medical cannabis and electronic cigarettes.
Creating a smoke-free environment
A condominium community may create a smoke-free environment in one of two possible ways:
1. Amending the Declaration
Amending the condominium declaration to create a smoke-free environment would require, among other things, the consent of the owners of at least 80% of the units in the corporation.
2. Passing a Rule
Rules can be created by board resolution and with notice to the owners. The easiest and by far the most popular method to create a smoke-free environment is to pass a rule.
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 preexisting 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.
As of the date of writing this article, Jake Fine is an articling student at Fine & Deo, focused on all areas of condominium law. Jake is anticipated to be called to the bar in June of 2018. Jake can be reached at firstname.lastname@example.org or 905.760.1800 ext. 249.