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Boards Would be Wise to Survey Owners Before Issuing Rules Restricting Cannabis and Tobacco Use
By Alex Young | Other articles by Alex Young
On October 17, 2018, Ontario's Cannabis Act, 2017 came into force. Barring condo rules to the contrary, the new legislation means condo owners and occupants aged 19 years and older may use recreational cannabis in their units and on outdoor common elements (e.g. balconies and patios) and may grow up to four plants per unit (not per occupant). Smoking of cannabis in indoor common element spaces (e.g. garages and party rooms) is strictly prohibited.
At a recent requisition meeting chaired by this author, owners of a small mid-rise condo contested proposed rules which were set to ban the smoking and cultivating of cannabis in units and on the common elements and "sunset" tobacco smoking in units by allowing current owners and occupants to request grandfathering status within 30 days after the rules coming into force, but otherwise ban tobacco smoking in units and on the common elements. The requisitioners argued that the condo should not be dictating what an owner can or cannot do in their unit and that the rules were unduly restrictive. While the rules narrowly failed to pass on a vote of the owners present at the meeting, the exercise was instructive.
Pursuant to s. 58 of the Condominium Act, 1998, the board has the authority to pass rules to promote the safety, security and welfare of the owners and the condo property and to prevent unreasonable interference with the use and enjoyment of the units and common elements. It is well within the board's purview to pass rules addressing smoking, as secondhand smoke is known to cause health problems, and smoke odour is a common nuisance. Despite opinion to the contrary, in communal condo living, a unit owner is never truly "king of his castle". Nonetheless, boards should carefully craft rules to reflect the balancing act between individual rights and the greater good of the condo community. To that end, boards would be wise to survey owners before issuing rules restricting cannabis and tobacco use.
While the recreational cannabis legalization date has come and gone, it is not too late for condos to pass cannabis (and tobacco) rules. In this author's opinion, it is not yet necessary to grandfather recreational cannabis smokers, as we are still in the early days of recreational cannabis use. Boards concerned about their rules being requisitioned should know that the example described above is an exception rather than the norm, with hundreds of condos throughout the GTA passing similar rules. Furthermore, there are many ways to customize rules to conform with the desires of owners. Boards should consult with their condo's lawyer as necessary. Overall, the trend seems to be towards smoke-free condos
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