Marijuana in Condominiums- My Take On the Issue

Marijuana will soon be legal (for persons over a certain age).  Growing marijuana at home, for one’s own consumption and limited to a certain number of plants, will also be legal.  What does this mean for condominiums?

In terms of smoking marijuana on a condominium property, it seems to me that marijuana will be essentially the same as tobacco, subject to special rights surrounding “medical marijuana”.  To me, here’s what this means:

(I)   In general, condominium occupants will be permitted to smoke marijuana only where people are permitted to “smoke” on the property. Pursuant to the Smoke-Free Ontario Act, smoking is not permitted in interior areas of the common elements, nor is smoking permitted in workplaces (for instance, workplaces of condominium superintendents).  Smoking is also not permitted on outdoor patios of bars and restaurants (including bars and restaurants on condominium properties).

A condominium’s Declaration or Rules can also regulate or prohibit smoking in other areas of the property – including outside areas of the common elements (including exclusive-use common elements) and also inside the units.  [Note that grandfathering of “prior smokers” might apply in many cases.]

However, medical marijuana users will normally have the right to smoke where smoking is otherwise prohibited, depending upon their specific needs (for marijuana) and their specific medical prescription.

(II)   In any case, second-hand smoke (whether from tobacco or marijuana) must be controlled. In most cases, the condominium corporation will need to investigate any problem involving unwanted migration of second-hand smoke (often with the assistance of an expert), in order to track down the cause of the migration, and to determine who is responsible to stop it.  There are many possibilities (including sealing between units and/or the common elements; adjustments to air handling and/or exhaust systems; air purification or filtration; air pressure adjustments; etc.).  In some cases, the corporation may have some obligations (to solve the problem).  In some cases, the owner or smoker may have some obligations.  And in some cases, they may both have obligations.  And I stress:  These issues also apply to medical marijuana.

(III)  I also recommend a Rule or a provision in the Declaration to deal with these issues (not only smoking and medical marijuana issues, but also control of second-hand smoke).

In terms of growing marijuana on a condominium property, I again recommend a Rule or a provision in the Declaration.

Even though growing marijuana may be legal (from a criminal law perspective), this doesn’t necessarily mean that condominium occupants have the right to grow marijuana on the property.  Again, it’s my view that growing marijuana could still be regulated in the Declaration or in a Rule.  Here’s my take:

(I)   I think that growing marijuana on the common elements (including exclusive-use yard areas) could generally be prohibited (in the Declaration or Rules) except where the Board consents.

(II)  It might also be possible to prohibit growing of marijuana in the units (again in the Declaration or Rules) – particularly if this could cause harm to the building (for instance, as a result of excessive humidity or heat) or if this could mean excessive consumption of water or electricity. On the other hand, since the number of marijuana plants will be limited by federal law, it may be difficult to distinguish between growing marijuana and growing some other type of plant (in terms of potential harm or excessive consumption of utilities).

(III)  In order to minimize arguments about the reasonableness of a restriction, a provision in the Declaration may be preferable.

(IV)  In summary, in my view the best approach is to deal with these issues fully and carefully, either in the Declaration (an original provision in the Declaration or an amendment to the Declaration) or in the Rules.

(V) Depending upon the specific circumstances, a medical marijuana user might still have the right to grow marijuana (pursuant to the Human Rights Code), notwithstanding any contrary Rule or provision in the Declaration.  But I think that the grower could still be held responsible for any resulting harm or expense to the condominium corporation and/or other owners.

Stay tuned to Condo Law News for more blogs about updates related to condominiums and marijuana.

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The Rights Of Smokers And Non-Smokers Continue To Evolve

The rights of smokers and non-smokers in condominiums continue to evolve across Canada.

The Smoke-Free Ontario Act prohibits smoking in the interior areas of the common elements of all condominiums, and also prohibits smoking on outdoor patios of bars and restaurants (including such outdoor patios on condominium property).

Condominium corporations can also pass Rules to prohibit smoking in other areas of the common elements.

But what about prohibiting smoking in the units?

As revealed by the debate at the most recent ACMO/CCI Toronto Condominium Conference, lawyers in Ontario disagree about the required procedures. Some lawyers feel that prohibiting smoking in the units requires a provision in the condominium’s Declaration. Others feel that this can be achieved by way of a Rule. In my view, a Rule is sufficient. From my perspective, this is precisely the sort of issue that can properly be regulated, in Ontario, by way of a Rule.

I hasten to add, however, that we don’t yet have any Ontario court or tribunal decisions on point – so this is still a grey area.

The other issue is: if a condominium passes a Rule or amends the Declaration to prohibit smoking in the units, are existing smokers grandfathered? Again, there is debate on the point; but we’ve previously felt that there should be reasonable grandfathering of existing smokers. What is “reasonable” may depend upon all of the history and the specific circumstances of the particular condominium, including the configuration of the units and common elements, the availability of “permitted smoking areas” on the common elements, difficulties preventing smoke transfer within the building(s), and other issues.

But it now appears, based on a recent case from B.C., that there may be an argument that grandfathering is unnecessary, at least in some cases.

In the case of The Owners, Strata Plan NW 1815 v. Aradi, the strata corporation passed a “no smoking” by-law; and the Court enforced the by-law against an existing smoker (who had acquired his unit when smoking in the units was permitted). So, the Court confirmed that there was no grandfathering of existing smokers. The smoker in that case has an outstanding claim to the B.C. Human Rights Tribunal, in which the smoker is claiming a right to smoke as an accommodation (for his addiction to smoking). The human rights claim is scheduled to be heard early in 2017 – so there will likely be more to this story.

It is important to note that B.C. law (in relation to the passing of by-laws) is not identical to Ontario law (in relation to the passing of rules); so it’s possible that there may be a distinction between the laws in Ontario and B.C. with respect to this issue.

But the bottom line is as follows: In the future, if a condominium goes “smoke free”, depending upon all of the circumstances, it might not be necessary to grandfather existing smokers, and it may also be possible to consider different durations of grandfathering.

But until we have some more decisions on point, we just don’t know.

For more information about making your condominium “smoke free”,  please contact us.

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Smoke Migration and the Obligations of the Condominium Corporation

A recent court decision, MTCC No. 985 v. Cheney, provides a nice summary of the obligations of a condominium corporation dealing with smoke migration.

In this case, the owners were forced to move out of their unit because of cigar smoke entering from a neighboring unit. The court confirmed that the condominium corporation had a duty to investigate and to take steps to resolve any common element problems that were allowing the smoke migration.

The court said that the condominium corporation had initially failed to act with sufficient dispatch, but had ultimately taken the necessary steps to investigate and deal with the smoke migration problems.

There were, however, ongoing disagreements between the complaining owners and the condominium corporation (and their experts) about the required work. The owners also asked that the corporation’s expert certify that smoke migration would not reoccur. The corporation didn’t feel that it should be obligated to supply such a report.

The court was asked to decide these disagreements. It essentially said that a condominium corporation’s obligation is to provide a reasonable result – not necessarily a perfect result.

Here are the key passages from the court decision:

The Owners now seek what amounts to a guarantee that there will be no reoccurrence [of the smoke migration]. The solution offered [by the owner’s expert] is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.

To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act, and I therefore decline to make the declarations sought by the Owners in that regard. In particular, I do not accept that I should order MTCC to deliver an engineer’s report as described in paragraph 1(e) of the Owners’ amended notice of application.

So the bottom line is as follows: a condominium corporation has a duty to take reasonable steps to investigate and resolve common element problems that may be contributing to smoke transfer. But the standard is reasonableness. The corporation is not necessarily obligated to guarantee that there will be no further smoke migration.

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No Smoking Bylaw Enforced by BC Court

The heated debate continues between the ‘rights’ of people to smoke in their own units versus the ‘rights’ of non-smokers to be free from experiencing second-hand smoke in a condominium. Condominium living and the law continues to swing the pendulum away from smoking being a personal choice in condominium homes, towards a community-driven desire to limit the effects of smoking on its residents and property.

In The Owners, Strata Plan NW 1815 v. Aradi, the Strata corporation passed a no smoking bylaw in 2009 and revised it in 2014. This bylaw prohibited smoking in many locations on the property, including inside suites and on patios and balconies.

The owner in question, a senior veteran who claimed to be a lifelong smoker, purchased his unit in 2002 before there was a smoking ban. In December 2013, the Strata corporation began to enforce the no smoking bylaw against the owner, by sending letters and levying fines, following complaints that his smoking was negatively affecting other residents. The owner did not challenge the validity of the bylaw in this case; rather, only its application to him.

The owner disputed the matter in writing to the Strata corporation on a few occasions, including taking the position that the bylaw was discriminatory, that the Board was trying to get him to move out, and that it did not apply to him because there was no prohibition against smoking when he moved to the complex. He didn’t deny smoking in the unit, although he disputed some of the complaints attributed to him. The owner also commenced a human rights complaint against the Strata corporation for discrimination on the basis of his addiction and mobility limitations. He asked the Court to defer a decision on this matter until after his human rights complaint was decided.

In the Court proceeding, the Strata corporation took various positions, including that second-hand smoke was a health risk to residents, that there was a fire risk associated with smoking in units, and that the smell of cigarettes would negatively affect use and enjoyment of the strata lots. The owner took the position that he smoked from time to time in his unit, with the windows closed to prevent the smell of smoke from bothering his neighbors, and that he was unable to go outside to smoke due to mobility issues. The Court reviewed the evidence of both sides to determine whether the owner had breached the no smoking bylaw and, if so, whether the Court should exercise its discretion and grant a cease and desist order against the owner.

The Court determined that the owner had repeatedly breached the no smoking bylaw. Then, in deciding whether to exercise the discretion afforded to it under s. 173 of the Strata Property Act and grant a cease and desist order, the Court commented that the exercise of its authority to do such should be guided by considering the objectives and scheme of the legislation, and the circumstances giving rise to the application. Specifically, that “the interests of the Strata corporation must be balanced against the interests of the owner or other person against who the order is sought”.

The Court did grant the cease and desist order and declared that the owner was in breach of the no smoking bylaw. In doing so it found that the Strata corporation:

  • Acted in good faith in seeking to enforce the bylaw; and
  • Had an interest in enforcing its bylaw and had only limited discretion to not require strict enforcement

The Court was also unwilling to wait for the owner’s human rights complaint to be decided. It did not have any report in respect of the owner’s addiction to cigarettes, and declining to make the order would have the effect of allowing the owner to continue to smoke in contravention of the bylaw, for an extended period of time.

To read about another case of smoking in a condominium unit, check out our previous blog post.

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Yet Another Case of a Limited Recovery of Enforcement Costs

In a Toronto condominium this past September, complaints were received about the smell of tobacco smoke permeating into units surrounding Unit 115. This unit was occupied by two new tenants pursuant to a lease that prohibited smoking. The smells and complaints occurred shortly after the tenants moved in.

The evidence before the court in Toronto Standard Condominium Corporation No. 2032 v Boudair, et al. was that the Condominium Corporation notified the unit owner of the complaints received approximately three weeks into the lease, and the unit owner then advised the tenants and instructed them not to smoke in the unit. However, further complaints were received by the Condominium Corporation, and the owner continued to communicate with the tenants about their ongoing breach of the smoking prohibitions.

The Condominium Corporation then sent a demand letter to the unit owner on November 4, 2015, requesting compliance with the rules and regulations. The unit owner forwarded the Corporation’s letter to the tenants with a note that if the tenants did not act properly and stop smoking, or vacant the unit, they would be responsible for all expenses incurred.

Despite this, further complaints were received by the Condominium Corporation, and an application was commenced on November 27, 2015. Once the application record was served on the owner, he also served a notice to terminate the lease, and secured the earliest available date (February 2016) with the Landlord and Tenant Board to terminate the tenancy.

The parties agreed before the Court in January 2016 to a compliance order under s. 134 of the Condominium Act, 1998, enforcing compliance with the rules, an order prohibiting the tenants from smoking in the unit, and an order terminating the lease pursuant to s. 134(4) of the Act. They then returned to Court to argue the issue of costs.

The Condominium Corporation was seeking costs against the owner and the occupants on a substantial indemnity basis of $32,976.94, or on a partial indemnity basis of $25,125.00.

The Court exercised its discretion and made a partial indemnity costs award of $10,000 in favour of the Condominium, payable only by the tenants, not the unit owner. The Court also awarded costs against the tenants to the unit owner.

In making the decision that the owner did not have to pay any costs, the Court determined that the unit owner did take all reasonable steps in that he “did not sit by and do nothing”. He made considerable efforts to obtain compliance, he threatened the tenants with termination, he was very active once he learned of the existence of the complaints, and pursuing an early termination of the lease was a prudent course of action.

In exercising its discretion and awarding only $10,000 in costs to the Condominium Corporation, the Court stated:

I do not believe that all of the costs sought by the applicant and Dong should lay at the feet of the tenants. I have already found that the applicant jumped the “smoking gun” by moving straight for a compliance order under section 131 of the Act without working with and assisting Dong with his efforts. Prior to the issuance of this application, the tenants were already in negotiations with Dong to move out of the unit and were moving towards that goal.”

“… Overall, the Court is required to consider what is “fair and reasonable” in fixing costs, and it is to do so with a view to balance and compensation of the successful party with the goal of fostering access to justice

This case is another example of the Court’s exercise of its discretion in awarding costs, shifting further away from the Condominium Corporation’s statutory and contractual indemnification protections in compliance proceedings.

While the initial position may be full indemnity in accordance with these protections, these decisions rely on case-specific facts that, in the Court’s view, justify a reduction of the scale and quantum of awards. The reasons cited often point a finger at the Condominium Corporation for having not done enough to find a resolution, or because a Board made what was likely one or more innocuous choices at the time, which, despite obtaining the compliance order, then backfire on the issue of costs.

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