Delving into the Weeds: What the Legalization of Recreational Cannabis Means for Condominium and Rental Apartment Living

This article will explore the implications of the legalization of recreational cannabis fromt the perspective of those who manage, own, or rent out condominium buildings and rental apartment buildings in Ontario.

Question #1: Can condominium corporations pass a rule that would prohibit cannabis use within a condominium unit?

Pursuant to subsection 58(1) of the Condominium Act, 1998, SO 1998, c 19 (“Act”) in order to be valid, a rule must:

1. Promote the safety, security or welfare of the owners; or
2. Prevent unreasonable interference with the use and enjoyment of the units, the common elements and the assets of the condominium corporation.

Moreover, subsection 58(2) of the Act states that rules must be reasonable and consistent with the Act, the declaration and the by-laws.

In the context of a condominium rule, a prohibition on cannabis use could either mean a prohibition on smoking cannabis, consuming cannabis by way of edibles or vaping, or both.

With respect to a prohibition on smoking cannabis within a private unit, although it would likely be easily justified under either ss. 58(1)(a) or (b), it could be open to challenge based on the “reasonableness” requirement in ss. 58(2). For example, it is not difficult to imagine an existing resident who would claim that as long as he or she is not bothering his or her neighbours, it would be unreasonable to require the resident to refrain from smoking in his or her own home. As well, the existing resident may argue that he or she purchased the condominium unit with the intention of being permitted to smoke in private.

One potential response to the former argument would be that the ban is not unreasonable because it does not prevent cannabis use altogether – even if smoking cannabis is banned, it is open to being consumed in other ways, such as through vaping or edibles.

One potential solution to the latter argument would be to incorporate a “grandfathered unit” exception that would permit pre-existing smokers to continue smoking cannabis to the extent that it does not constitute a nuisance to their neighbours. Once the smoker no longer lives in the unit, the unit ceases to have the “grandfathered unit” exemption and ultimately, over time, the building would become completely smoke-free. Although, if condominium corporations move to ban cannabis use prior to legalization in October, the issue of having to grandfather in any existing smokers would not exist.  

With respect to the prohibition on consuming cannabis by way of edibles or vaping, or a prohibition on cannabis use altogether, it would very likely not withstand legal challenge on the basis of the “reasonableness” requirement, because there would be a strong argument that consuming cannabis through a non-smoking method within one’s private unit would not interfere with any other resident’s use and enjoyment.  

As well, condominium corporations should keep in mind that they will likely still have to accommodate smokers who have a prescription for medical cannabis because attempting to regulate this would likely run counter to the Ontario Human Rights Code.

Ultimately at this point, there is no case law on the matter, but it seems clear that a ban on consuming cannabis through edibles or vaping or cannabis use altogether would not be likely to hold up in court, whereas the authorities are mixed on whether a condominium rule banning smoking cannabis only within a private unit would be successful, but many believe that based on the strong odour of cannabis, and the ability for the odour to travel between units through ventilation systems, there may be an argument for characterizing the smoking of cannabis as a nuisance. Moreover, it appears there are already condominiums in Ontario who have moved to ban cigarette smoking within units, and based on the implications from recent case law, since secondhand cigarette smoke can be properly considered to be a nuisance when migrating between units, such bans are legally enforceable.

Question #2: Can condominium corporations pass a rule that would prohibit the growing of cannabis within a condominium unit?

Again, there is no case law yet on this point, but it seems much more likely that a prohibition on growing cannabis within a condominium unit would withstand legal challenge and be considered a “reasonable” rule.

First, unlike the prohibition on smoking cannabis, a restriction on growing cannabis does not prevent or limit the ability to use and consume cannabis, and it remains open for users to purchase marijuana through dispensaries.

Second, there is a stronger argument that growing cannabis would constitute a much bigger and more unreasonable interference with the use and enjoyment of neighbouring units since it is widely understood that plants can create a significant odour when they are budding, there may be increased fire hazards due to people drying cannabis on household stoves or by using unauthorized electrical modifications, and cultivating cannabis often requires a hot and humid environment to encourage fast growth, which raises concerns with mould development and increased utility bills.

Question #3: Can condominium corporations pass a rule that would prohibit cannabis use or cannabis growth in or around both common elements and exclusive-use common elements?

First, with respect to shared common elements such as lobbies and party rooms, condominium corporations can very likely pass a rule prohibiting the use and growth of cannabis based on the direction the legislation appears to be heading. Currently, the Smoke Free Ontario Act, SO 1994, c 10 (“SFO Act”) provides that smoking tobacco in any common areas of a condominium is illegal, including but not limited to elevators, hallways, parking garages, party rooms, laundry facilities, lobbies and exercise areas. The new Smoke Free Ontario Act, 2017, SO 2017, c 26, Sched 3 (“SFO Act 2017”) which would extend the prohibition to the smoking and vaping of cannabis, use of electronic cigarettes, and the consumption of any other prescribed products or substances in common areas, was scheduled to repeal and replace the SFO Act on July 1, 2018, but the current provincial government has put the coming into force of the new SFO Act 2017 on hold while it reviews the changes to make sure the rules around vaping “reflect the best available evidence.” Given the proclamation date of the new SFO Act 2017 remains uncertain, it may be best for condominium corporations to pass a rule in the interim that would prohibit the use and growth of cannabis in and around common elements.  

Second, it is also very likely that a condominium rule prohibiting the growth and use of cannabis in or around exclusive-use common elements such as balconies and front yards would withstand legal challenge because there is a stronger argument that such activities located outside of the confines of private units would cause a bigger and more unreasonable interference with the use and enjoyment of neighbouring units. For example, the smell of cannabis smoke is more likely to carry through the air and cause a nuisance to a neighbouring unit when it is being smoked outside than if it were to be confined within a private unit. As well, because no single unit owner holds legal title to exclusive-use common elements, it is arguably easier to regulate such areas.

Question #4: What are some best practices for condominium corporations in light of the legalization of cannabis?

Most experts have been recommending enacting the prohibition on smoking cannabis and/or growing cannabis as soon as possible and prior to legalization occurs on October 17. That way, there are no possible issues with grandfathering in any legally existing smokers.

Condominium corporations should also be closely considering the type of prohibition they want to enact and tailoring the approach to the particular condominium building. Some may impose a complete ban on growing cannabis with a complete or partial ban on its use and consumption. Some corporations may restrict its consumption to inside the units while others may prefer to restrict its consumption to exclusive-use spaces such as balconies and terraces. For example, if units’ balconies are built very close to each other, it may be clear that consuming cannabis in such areas should be prohibited, but where units are very large and outdoor areas are spread apart, it may be preferable to prohibit smoking inside units and confine it solely to outdoor exclusive-use areas.  

Question #5: How would a prohibition in Question #1, #2, or #3 above best be accomplished – passing a rule, a new by-law, or amending the declaration? What is the process for doing so?

A prohibition on cannabis use or the growing of cannabis can be enacted through one of two ways: (a) amending the declaration or (b) passing a new rule.

Amending the condominium declaration would require the consent of the owners of at least 80 per cent of the units in the corporation. On the other hand, rules can be created by board resolution and with notice to the owners, which is far easier than amending the declaration. Below is an outline of the process for both:

Process for amending the declaration

1. The board of directors for the condominium corporation must approve the proposed amendment by resolution at one of its board meetings;
2. The board of directors must call a meeting of owners for the purpose of considering the proposed amendment and notice of such meeting shall include a copy of the proposed amendment;
3. The owners of at least 80 per cent of the units at the time the board approved the proposed amendment have consented to it in writing; and
4. The corporation has sent a notice of the proposed amendment to all mortgagees whose names, at the time the board approved the proposed amendment, appeared in the record of the corporation required by s. 46.1 of the Act or were required by that section to have appeared in the record.

Process for passing a new rule

1. The board of directors for the condominium corporation must approve the new rule by resolution at one of its board meetings;
2. Proper notification of the rule must be sent to all owners. The content and service of the notice must adhere to the requirements in the Act;
3. The rule must be circulated for at least 30 days;
4. The rule will go into effect after 30 days (or on a date set in the notice) unless:
   1. At least 15 per cent of the owners requisition a meeting of owners; and
   2. A majority of the owners present at such meeting vote against the rule.

If either 4(a) or 4(b) does not occur, then the rule is passed and becomes effective.

Question #6: Can residential landlords restrict cannabis activity in non-condominium rental units? If so, how, and to what extent?

Yes, to a certain extent.

Unlike cannabis activity in condominium units, the use and cultivation of cannabis in non-condominium rental units will be governed by the Residential Tenancies Act, 2006, SO 2006, c 17 (“RTA”) and any disputes will be heard by the Landlord and Tenant Tribunal.

Landlords will be able to include clauses in new leases prohibiting the smoking of cannabis similar to current no-smoking policies found in many residential leases. However, because leases are contracts, landlords will not be able to add in a new prohibition on smoking cannabis mid-lease without the tenant’s consent because doing so would constitute a unilateral alteration of lease terms. Moreover, the following caveats will need to be kept in mind.

First, it is likely that landlords will have to make exceptions for the use and growing of cannabis for tenants with medical marijuana licences because of the requirements for accommodation of persons with disabilities pursuant to the Ontario Human Rights Code. In at least one case, a tenant’s application against the landlord for interfering with the tenant’s right to possess and smoke marijuana as medicine within the tenant’s unit was successful, and the landlord was ordered to provide a rent abatement.[1] Moreover, the Landlord and Tenant Board stated that the landlord’s request for the tenant to smoke marijuana outside was not an appropriate accommodation of the tenant’s disability related needs.[2]

Second, it is not clear how enforceable prohibitions on smoking and growing cannabis in leases will be. Although the RTA does not address smoking tobacco or marijuana directly, landlords have typically relied on section 61 of the RTA to address cannabis issues, which provides that tenancies may be terminated if the occupant of a rental unit commits an illegal act, and sections 62 and 64 of the RTA to address tobacco smoke issues, which provide that tenancies may be terminated if the occupant of a rental unit willfully or negligently causes undue damage to the unit or residential complex (section 62) or substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant (section 64).

Once cannabis is legalized, however, landlords will no longer be able to rely on section 61. They will likely be left to rely solely on sections 62 and 64 of the RTA, which result in similar enforcement problems as bans on tobacco smoke.

Even when landlords include a prohibition on smoking or growing cannabis in a lease, and a tenant smokes or grows cannabis anyway, the landlord will still have to show that either section 62 or section 64 of the RTA is met in order to justify evicting the tenant. Both of these two grounds for eviction are more difficult to establish than an allegation that a tenant has committed an illegal act, since whether any damage is sufficient to constitute “undue damage” or any given interference is sufficiently “substantial” enough for termination of a tenancy will be highly dependent on the facts of any given case. Although, for the reasons outlined in our previous memo regarding the growing of cannabis within a residential unit, it is likely that it will be very straightforward for a landlord to establish undue damage or substantial interference as a result of cultivating cannabis. A prohibition on smoking cannabis is more difficult to enforce.

Examples of eviction cases

In one case, the LTB held that a tenancy should not be terminated despite the fact that other tenants had made multiple complaints about a tenant who had a medical marijuana licence for smoking.[3] The LTB found that the landlord failed to establish that the tenant had ever smoked marijuana inside the rental unit.[4] It is likely in this case that the tenant’s legal medical marijuana licence played a large role in the outcome of this decision, despite no mention of the Ontario Human Rights Code or the requirement for landlords to accommodate disabilities.

In another case, the landlord applied to the LTB to evict a tenant who had lived in his unit for close to 14 years, was a heavy tobacco smoker, and generated numerous complaints from neighbours.[5] Despite the fact that the landlord had made the entire building a non-smoking building in 2015, the tenant had been “grandfathered” in.[6] The LTB ultimately provided relief from eviction for the tenant, ordered the tenant to stop smoking, and directed that if the tenant failed to comply with the order within six months, the landlord could then apply for an order to evict the tenant without notice.[7]

In yet another case, the landlord of a building had a clear non-smoking policy, but one tenant adamantly refused to comply with the policy.[8] Although there were no complaints from any neighbours, the landlord alleged the tenant’s smoking was interfering with the landlord’s reasonable enjoyment of the residential complex and the landlord’s “lawful right to create and maintain a smoke free environment,” to which the LTB agreed and ordered the termination of the tenancy.[9]

As is clear from the above, each case is highly fact-specific and no case before the LTB is legally binding on others. However, the following are some general principles that have arisen from the case law: if there is sufficient evidence that a tenant has been smoking enough to warrant complaints from other neighbours or the landlord him/herself, the LTB will either direct the tenant to cease smoking or if appears the problem has persisted for a long period of time, evict the tenant. Where there is a non-smoking policy in the building in effect and where the lease contains a non-smoking requirement, the case becomes stronger. Where the user has a valid medical marijuana licence, the case becomes much weaker.   

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