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
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,
“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
When neighbours would complain, the corporation would
use provisions about causing a nuisance to other owners to confront the
“In any given week, I have two files dealing with a tobacco dispute,” Escayola says.
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.
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.
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
“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
Lash 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.
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.”