October 17, 2018
In addition to permitting Canadians to legally purchase and use recreational marijuana, the federal Cannabis Act permits individuals to grow up to four cannabis plants inside their residence, including a condominium unit.
Condominium corporations will need to revise their by-laws and rules to tackle the cultivation of plants and cannabis use by their residents. Some condominium corporations have previously made their buildings tobacco smoke free and have prohibited tobacco smoke in public outdoor areas such as terraces. They will need to contemplate what issues may arise among residents as a result of cannabis consumption and plant growth can create among residents, while also being mindful of compliance with provincial legislation, which may have already banned smoking in indoor common areas.
Purchasers of recreational cannabis will likely consume it in their individual units. The manner in which cannabis is used has the potential to impact their neighbors. The seepage of cannabis smoke into neighbouring units, or the migration of the odor that comes from the smoke are the most likely ways that neighbouring residents can be disturbed. Furthermore, the harvesting of mature cannabis buds from the plants can produce a particularly strong odor that neighbors will undoubtedly be exposed to.
This potentially unwelcome exposure to cannabis could lead afflicted neighbors to assert that they have been subjected to a nuisance by the cannabis user or grower. A legal nuisance occurs in a condominium when a resident commits acts (such as smoking) within their unit that unreasonably interferes with neighbouring residents’ use and enjoyment of their units or the condominium’s common areas.
To address these potential concerns, condominium corporations will need to balance residents’ assertions that they should be permitted to use or grow cannabis within their units with non-cannabis users’ right to enjoy their personal space and the condominium’s common space in a way that is free from interference by cannabis users. The question that will need to be addressed is what are considered reasonable limitations that a condominium corporation can place on residents’ use of cannabis?
At least one condominium corporation has decided to pass by-laws and rules that provide for a complete prohibition of consuming or growing cannabis, with the exception of using vaping devices in individual units. Other condominiums have decided to ‘grandfather’ in those units whose residents were already smoking inside with permission to consume cannabis in any way they choose either permanently, or with a sunset clause that ends the permission after a certain amount of years. Also, thought will need to be given by condominiums on how to accommodate the needs of residents who use medicinal marijuana and/or wish to grow cannabis plants, in light of the condominium’s potential goal of making the building temporarily or permanently smoke free.
Undoubtedly, tensions will arise between residents and condominium corporations about the use of cannabis in the building. For example, residents might complain that so long as their consumption does not create a nuisance for their neighbors, they should be free to use cannabis in their units or on their balconies freely. Others might use cannabis permissibly or impermissibly, depending on the by-laws and rules adopted by the condominium corporation, in common elements and outdoor spaces. This manner of use has the potential to interfere with other residents’ comfortable use of those locations.
Furthermore, residents may challenge condominium corporations’ prohibitions on the ability to cultivate cannabis plants for medicinal use on the basis of a human rights violation. One example is a resident’s assertion of their right to grow cannabis plants based on physician approved medicinal needs. They could cite a conflict between the condominium’s decision on how to regulate and prohibit cannabis usage through its by-laws and rules with federal and provincial legislation that permits growth of up to four cannabis plants. An argument could be made that the condominium corporation is required to make reasonable accommodations for residents who suffer from disabilities that their use of THC based medicinal marijuana is designed to assist with. It could be asserted that any prohibition of cannabis use or growing cannabis plants would be an infringement on their rights under their provincial Human Rights Code.
With looming disputes set to arise between residents and condominium corporations and their property management agents, all parties involved will have to identify what is the most effective way to deal with their cannabis dispute.Some condominium corporations may be comfortable turning to their provincial Condominium Act, which could initially require negotiation, followed by mediation, and then arbitration if the dispute cannot be resolved. While this may be the default process that property managers, condominium boards and residents have traditionally turned to when resolving other types of condominium disputes, all parties involved will now need to review whether this structure for dispute resolution is the most cost-effective and practical method when handling a cannabis dispute within the condominium.
The Law Times recently published a featured article on how alternative dispute resolution can be a practical solution to cannabis disputes
Employers of all types will be faced with difficult decisions on how to revamp their fit to work policies and procedures in light of the forthcoming legalization of recreational cannabis.