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Cannabis in Condominiums - Cannabis Act Soon in Effect

By Stephanie Sutherland | Jun 29, 2018

The proposed federal Bill C-45 ​was passed into law on June 18th, 2018, and is to be in effect within 8-12 weeks in order to give the provinces time to get their related Acts in place. Th​e Cannabis Act, which legalizes the use, growing, and sale of cannabis, has been a topic on everyone’s mind for months. That concern is certainly felt by condominium Boards and Property Managers, as they wonder how this legislation will impact condominium living.

Legislation

The Cannabis Act was created for the purpose of legalizing access to recreational cannabis, and to control and regulate its production, distribution, and sale. Once the Bill comes into force, adults will be legally permitted to: buy cannabis from regulated/licensed retailers and producers; possess in public and/or share up to 30 grams of dried legal cannabis or equivalent; grow up to 4 plants per household; and prepare edibles in their home for personal use.

Ontario has also enacted its own cannabis legislation, to govern the aspects of cannabis use and sale within provincial jurisdiction. The Cannabis Act, 2017 makes the minimum age of use of cannabis 19 years, just as with alcohol and cigarettes in Ontario. It also prevents people from using cannabis in public, in workplaces, or while driving, and regulates the sale of cannabis through Ontario Cannabis Stores overseen by the LCBO.

Impact on Condominiums

Once the federal legislation ​comes into effect, it will be legal for adults to smoke or otherwise ingest cannabis in their condominium units or on common elements. It will also be legal for adults to grow up to 4 cannabis plants, per unit, in their units or on their exclusive common elements. If the condominium wishes to restrict that activity, it will need to have provisions in place as it can no longer rely on cannabis being illegal.

Restricting Cannabis Use in Condominiums

How your Corporation goes about dealing with cannabis on the property will depend on what exactly you want to restrict, and what the Board and owners are concerned about. Do you want to prevent smoke transfer? A non-smoking provision, just like for cigarettes, should work. Concerned about any and all odours? You may want to consider a provision that also prevents preparing edibles in the units. Don’t want cannabis plants being grown on the property? You will need to address that specifically in any provision that is implemented.

Aside from what is going to be restricted, the Board will also need to think about how it wants to get those restrictions into place: i.e. in a rule, by-law, or an amendment to the Declaration?

While there is some dispute between lawyers on this issue, it is generally our firm’s position that cannabis use (just as with cigarettes) is not an appropriate topic for a by-law. Pursuant to section 56 of the Condominium Act, 1998 (and certain other sections dealing with by-laws), there are only certain types of issues that can be addressed in by-laws, and the use of cannabis or cigarettes does not seem to fall within any of those issues. This is not to say that a by-law could not be effective, but there is the risk that if a unit owner chose to challenge the validity of a by-law restricting cannabis use a court would find the by-law to be invalid due to not being within one of the permitted topics as set out in section 56.

Rule vs. Declaration

For that reason, we believe that any restrictions on cannabis use in condominium corporations should be implemented through either a rule, or an amendment to the Declaration. There are advantages and disadvantages to each option, and the choice will depend largely on the particular circumstances of your Corporation.

Rules are generally easier and quicker to pass, but under the Condominium Act, 1998 they must be reasonable. If a unit owner were to challenge the rule for not being reasonable, on the grounds that the behavior is otherwise legal and does not cause damage or interfere with other owners’ enjoyment, the rule likely would be struck.

An amendment to the Declaration can be more difficult to pass, and the process is lengthier, thanks to the requirements of section 107 of the Act. However, if the Corporation is successful in having the amendment passed, it should be enforceable. Provisions of the Declaration are not required to be reasonable, as long as they do not breach rights set out in other pieces of legislation that supersede the Condominium Act, 1998 such as Ontario’s Human Rights Code.

Grandfathering

If a Corporation restricts conduct that would otherwise be legal, the courts have generally held that grandfathering provisions are required for any unit owners who own a unit at the time of the implementation of the provision. In the case of cannabis, until the federal legislation comes into force, the use and sale of cannabis, and the growing of cannabis plants, is still illegal (with exceptions relating to medical marijuana). This means that if a rule or Declaration amendment were passed, no grandfathering would be required; if a Corporation were to wait until after the legislation comes into effect, it would likely have to grandfather in any unit owners who were legally using cannabis in the time between the legislation taking effect and the rule/Declaration amendment taking effect. If your Corporation is interested in restricting the use of cannabis, we strongly suggest doing so before the federal legislation comes into effect.

Human Rights/Medical Use

The possession and use of cannabis is currently legal for individuals who have a prescription from a medical professional and have purchased their medical marijuana through a legal distributor. If your Corporation chooses to implement restrictions on cannabis use, the usual standard of accommodation will apply to anyone who has a prescription for medical marijuana: reasonable accommodations will have to be made. If you have questions about what would constitute a reasonable accommodation, consult with your Corporation’s lawyer to ensure compliance with the Human Rights Code.

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