Cannabis and condos: A hazy topic?
If your condo neighbour is using cannabis, what can you do about it?
For some, the answer can be a bit hazy. Since its legalization in October 2018, a lot of condominium corporations have struggled with the best way to handle it.
Many have passed rules around odours, said Armand Conant, a member of the Canadian Condominium Institute (Toronto)’s board of directors and a lawyer with Shibley Righton LLP’s condominium law group. “With cannabis, since it’s legal, it’s treated like any other form of odour — cooking smells, tobacco, it doesn’t matter,” he said during a recent Ontario legislative committee hearing into Bill 159 as reported by Canadian Underwriter. “It’s just that it’s more pungent.”
Bill 159, now in second reading, is an omnibus piece of legislation that proposes changes to several pieces of legislation, including: the Condominium Act, Condominium Management Services Act, Ontario New Home Warranties Plan Act, New Home Construction Licensing Act, Technical Standards and Safety Act, Consumer Protection Act, New Home Construction Licensing Act, Resource Recovery and Circular Economy Act, Safety and Consumer Statutes Administration Act and Ticket Sales Act.
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The committee’s deliberations may impinge on condo insurance policies. Both in terms of liability (for example, if condo owners sue over the odours); or in terms of the condo unit contents to be insured (ensuring proper ventilation to mitigate complaints about odour, for example.)
With Bill 159, the province says it wants to improve condo living and provide better protection for financial investments.
“The Condominium Act lacks clear, plain-language information to help first-time buyers and condo residents understand condo life when buying and living in a condo,” the province states on its website. “In early 2020, we will consult on regulatory changes under the act to help improve condo living and protect your financial investment — changes that could come into effect starting in summer 2020.”
That could include requiring the Condominium Authority of Ontario to develop a condo guide for buyers and requiring developers to provide it at the point of purchase.
During the hearing Jan. 20, Conant was asked by MPPs about amendments to provincial legislation, made in 2015 that have yet to take effect.
Prohibition of nuisance
One of those amendments is a prohibition in condos of any a nuisance, annoyance or disruption in a common area or unit.
The Canadian Condominium Institute is looking for clarity around what an annoyance or disruption is.
In general, for both condos and apartments, cannabis smoking laws are consistent with the tobacco smoking laws, which fall under provincial jurisdiction.
The Smoke Free Ontario Act stipulates you may not smoke in elevators, stairwells, hallways, parking garages, laundry facilities, lobbies, exercise areas and party or entertainment rooms.
According to Ottawa-based law firm Merovitz Potechin, condominium boards have the power to restrict and regulate behaviour within the condominium. As long as rules and by-laws are implemented in accordance with the applicable condominium legislation, it is possible for a condominium to fully prohibit consumption and growth of cannabis anywhere inside of the building. Therefore, even though the Cannabis Act operates to legalize the consumption, possession, and growing of cannabis in general, it is open to condominium corporations to restrict these behaviours - even within owners’ units.
In fact, some condominiums in Ontario have already declared their buildings completely smoke free. Reasons for this could include fire prevention, mold prevention, odor control or simply marketing to a demographic that wants a smoke-free building.
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