Condo corporations scramble to get rules in place ahead of cannabis legalization
Written By Aidan Macnab
22 August 2018
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.
Can't distinguish between tobacco and marijuana
“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
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.
Reasonableness and accommodation
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
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
“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.”