Recreational cannabis use to become legal this fall
What can condo boards and property managers in Ontario do to prepare?
By Michelle Ervin
27 June 2018
Is it time for condo boards and property managers to brace for reefer madness? It may depend on which condo lawyer they ask.
Many condo boards in Ontario are hurrying to ban pot in their buildings
before recreational cannabis becomes legal in Canada on Oct. 17. Shawn
Pulver, partner at Macdonald Sager Manis LLP, says, in the absence of
opposition, passing a rule is a low-risk way to set expectations ahead
of the roll-out of federal and provincial laws that will converge to
make it permissible to spark up in apartment units and on balconies.
But is yet another rule needed to address the potential side effects of
the legalization of recreational cannabis, such as pungent odour and
smoke migration? Robert Mullin, partner at SV Law, points out that,
between the Condominium Act and their governing documents, condo
corporations have a number of tools at the ready to deal with nuisance
complaints and safety concerns, including charge backs, dangerous
activity prohibitions, non-interference clauses and suite entry rights.
These different approaches were among the range of options presented to
condo boards and property managers in the recent CAI Canada seminar Waiting in the Weeds … Everything You Need to Know About Marijuana and Condos.
What the laws say
Recently passed federal legislation will allow Canadians of the minimum
age — in Ontario, 19 — to buy and possess up to 30 grams of cannabis
for personal use starting this fall as well as grow up to four plants
per household for the same purpose.
Accompanying provincial legislation will add another layer of
jurisdiction-specific rules, including provisions governing where
cannabis can be consumed. Public and workplaces are among the areas
that will be off-limits to activities such as pot-smoking.
“Cannabis consumption can be thought of as an expansion of the rules
for alcohol in the Liquor Licence Act, so where you can’t drink, you
can’t smoke,” said Det. Sgt. Tony Melaragni, Peel Regional Police.
However, Det. Sgt. Melaragni added, this handy point of reference won’t
apply in all cases. Take, for example, he said, patients who are
authorized to use marijuana for medical purposes, which has been legal
in Canada since 2001. This is the kind of scenario where the duty to
accommodate may come into play, as the condo lawyers discussed,
imposing on condo corporations the obligation to work with residents
who have a demonstrated need to find a solution that doesn’t negatively
impact their neighbours.
Considering the community
Many communities have likely had some exposure to cannabis use, whether
it’s the legal medical kind or the currently illegal recreational
variety. One of the unknowns facing condo corporations is whether the
coming legalization will change the status quo.
Condo lawyer Mullin encouraged condo boards to take the temperature of
their community, whether that’s through an owners meeting or survey. He
also said communication and education could be potentially potent tools
in addressing recreational cannabis use in condos.
“Did you know that you’re in a high-density condo? Did you know that if
you leave your windows open while you smoke it might go into your
neighbour’s unit?” Mullin offered by way of example.
Mullin said that, if there’s no call for action on recreational
cannabis, the corporation may want to postpone intervention, instead
reviewing the issue every month at board meetings and in manager
reports, watching out for increases in complaints. If there is a call
for action on recreational cannabis, he recommended taking a measured
approach, looking at passing a rule before amending the declaration.
Rules can be passed within 30 days if no owners object, but they also
have to be reasonable. Time will tell whether cannabis prohibitions
will meet this test if subject to a court challenge.
“Let’s say you do pass that rule prohibiting cannabis in units, and you
get that,” Mullin added. “Be careful what you wish for, because now the
enforcement is going to be upon you.”
Rules can become unenforceable if they are not enforced consistently.
Rules can become unenforceable if they are not enforced consistently.
The alternative to passing a rule, amending the declaration, is less
prone to court challenge, because it doesn’t need to be reasonable, but
it also requires more support from unit owners. The condo lawyer
cautioned that efforts to prohibit pot this way could backfire if the
board fails to capture the affirmative votes of at least 80 per cent of
owners and ultimately reinforces the forthcoming rights of residents to
consume recreational cannabis.
Production and distribution
Rather than legitimize Ontario’s many illicit dispensaries, the
outgoing provincial Liberals set in motion plans at Queen’s Park to
restrict the sale of recreational cannabis to government-run retail
outlets similar to the LCBO. Whether premier designate Doug Ford might
change course remains to be seen.
Even if procuring recreational cannabis is as easy as going to the
Ontario Cannabis Store, some people, including condo residents, will
want to grow their own product. The decision to go DIY could stem from
a desire to avoid higher retail prices or to take it up as a craft
hobby, observed Max Zavet, co-founder of Emblem Cannabis, a licenced
producer of medical cannabis.
the odour from a single plant has the potential to permeate multiple floors in apartment buildings.
Whereas a commercial operation such as Emblem’s is run from a
high-security facility equipped with expensive HVAC and irrigation
systems that work to prevent mould, mildew and pests, a home-grow
operation in a condo might consist of little more than a plant, small
fan and tent, said Zavet. He also noted that the odour from a single
plant has the potential to permeate multiple floors in apartment
“Four weeks after you see a seedling, you’re going to start smelling
the plant,” said Zavet. “On top of that, if somebody has done something
to the electricity to circumvent electricity costs or to get more
amp-age out of their unit, that could obviously cause fire, and
flooding as well if they have some kind of irrigation system that’s
Under the current plan, the Ontario Cannabis Store will also give
consumers the option of purchasing product online, which puts
concierges in condos in the position of intercepting these potentially
pungent packages on behalf of residents.
“That’s another thing to keep in mind if your buildings are looking to
take more active steps to go beyond what’s in your current rules and
declaration — having language in there about the use of the marijuana,
the growing of the marijuana, but also the storing and delivery of the
marijuana,” said condo lawyer Pulver.
Getting ahead of legalization
The way Pulver sees it, establishing a rule serves to clarify how the
general tools condo corporations have for addressing pot-related
problems such as nuisance complaints and safety concerns specifically
apply to recreational cannabis, narrowing the scope of what’s open to
interpretation by the courts.
Condo communities eying pot bans may want to get ahead of legalization
on Oct. 17 in order to head off requests from residents to be
grandfathered (i.e. exempted) from retroactive rules.
“If a building decides they don’t want it, and they pass a rule, and
it’s not objected, the timing shouldn’t be critical, but it would be
better to do it before if they plan on it,” said Pulver.
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