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Cannabis

Welcome to the CAO’s guided steps to common issues. The CAO provides the information, tools, and templates on these pages to help condominium communities better understand issues and work together to resolve them collaboratively before they escalate into disputes. For situations where condo communities are unable to resolve their issues collaboratively, the CAO also provides information on the next steps they can take.

If you have any questions about any of the information on the CAO’s guided steps to common issues, please contact us directly.

Cannabis

Note: On these pages, the words “consume” and “consumption” are used to refer to both smoking and vaping cannabis.

The new federal Cannabis Act allows homeowners to grow and consume cannabis in their homes. In condominium corporations, where owners often live close to their neighbours, the growth and consumption of marijuana may cause smoke, vapour, or unwanted smells that can travel from one unit into another, or into the common elements.

It is important to note, however, that the Cannabis Act does not give condominium owners the absolute right to consume and/or grow cannabis in their units. That is because condominium corporations have the ability to prohibit the growth and/or consumption of marijuana in the condominium complex and in the units.

Because the Cannabis Act is new, and because owners in condominium corporations have different opinions and feelings about the consumption and/or growth of cannabis, there may be issues or misunderstandings about what is allowed.

To prevent these issues and misunderstandings, the CAO recommends that condominium corporations be proactive in gathering input from owners on how they want to approach consumption and growth in the condo complex, and in communicating the rules to owners. To that end, it may also be helpful for your condominium corporation to host an information meeting to hear owner perspectives and ensure that your condominium corporation’s approach to cannabis meets the needs and interests of the owners.

Examples of common cannabis-related issues include:

  • My condominium corporation prohibits the consumption and/or growth of cannabis in the condo complex, and I disagree with the prohibition.
  • My condominium corporation does not prohibit the consumption and/or growth of cannabis in the condo complex, and I want them to do something to stop others from consuming and/or growing cannabis.
  • My condominium corporation has asked me to stop consuming, growing, or otherwise using cannabis in my unit, but I don’t know why.
  • My condominium corporation prohibits the consumption and/or growth of cannabis in my unit, but I need to use cannabis for a medical or cultural reason.
  • Our condominium corporation prohibits the consumption and/or growth of cannabis in the condominium complex, but another owner or occupant is consuming and/or growing cannabis anyways.

For more information, please move to Step #2 – Legal Considerations.

On October 17, 2018, new federal and provincial legislation came into effect that governs the lawful production, possession, and use of cannabis for recreational purposes in private residences. It is important to understand how this legislation will affect owners and others in condominium communities.

Legislative Overview

As of October 17, 2018, under the federal Cannabis Act, adults who are at least 19 years old can:

  • use recreational cannabis in their unit or on common element space;
  • grow up to four plants for recreational use per residence/unit (not per occupant).

It is important to note that the Smoke-Free Ontario Act, 2017 explicitly prohibits the smoking of cannabis in any indoor common area of a condominium, including parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas (under section 12 (1)).

Please note: Medical cannabis is not covered or affected by the Cannabis Act, 2017.

 

How does this legislation affect condos?

While the Act permits the growth and consumption of lawful cannabis in private residences, that does not mean that condominium owners or occupants have an absolute right to grow and/or consume cannabis on condominium property or in their units. That is because condominium corporations have the legal authority to prohibit certain activities in the condominium complex, and even in the units themselves, if they have:

  • A condition or restriction in the condominium corporation’s declaration that prohibits the activity; or,
  • A rule prohibiting the activity.

Declaration

Under section 7 (4) (b) of the Condominium Act, 1998 (“the Act”), a condominium corporation’s declaration can contain conditions or restrictions with respect to the occupation and use of the units or common elements. This means that a declaration could include a restriction that prohibits smoking of any substance in the condominium complex, for example.

Rules

Under section 58 of the Act, the board of a condominium corporation can make, amend, or repeal rules governing the use of the units and common elements of the condominium corporation to:

a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or

b) prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation.

This means that a condominium corporation can prohibit the growth and/or consumption of cannabis by implementing a rule. For example, a condominium corporation may have a provision in their declaration or rules which states that smoking is not permitted in the complex or units, or a provision that prohibits the growth of cannabis plants.

In anticipation of the Act coming into force, many condominium corporations have recently adopted rules prohibiting the growth and/or consumption of cannabis within the condominium complex and units.

If you are considering implementing a new rule or modifying your condominium corporation’s declaration, you may want to consider:

  • Whether you want to prohibit smoking, or smoking, vaping, and/or the production of edible cannabis products, which may cause unwanted odour;
  • Whether you want to permit owners and occupants to smoke/vape on the condominium corporation’s exterior common elements, or on exclusive use common elements (like a balcony); and,
  • Whether obtaining feedback from the owners early in the process will help you understand and define the change you want to make. If so, it may be useful for the condominium corporation to hold an information meeting to get owner input.

Being specific when drafting your amendment or rule will help ensure that the rule or amendment solves the particular problems you are trying to address and will decrease the likelihood of adverse unintended consequences.

For more information on declarations, by-laws, and rules, please visit our Declaration, By-laws, Rules and Policies page.

Grandparenting

Many condominium corporations have a provision in their declaration, by-laws, or rules that states that existing owners and/or occupants are “grand-parented” when the declaration or a rule changes. That means that the revised version of the declaration or rule applies to all new owners and occupants, but that the existing grand-parented owners or occupants are exempt from the new requirement.

Before you consider changing the declaration of your condominium corporation or implementing a rule to address the growth and consumption of cannabis, you should carefully review your condominium corporation’s declaration, by-laws, and rules to see if they contain a grandparenting provision. If so, you should carefully consider the impact that the change you want to make might have on existing and new owners and occupants.

Medical Use and Human Rights

Many individuals use cannabis as prescribed by their doctor to treat a range of conditions. This use may be protected under the Ontario Human Rights Code (“the Code”), which is provincial legislation that protects all people from discrimination on different grounds, including race, colour, sex, sexual orientation, and disability.

If a condominium corporation takes action against an individual who uses cannabis for medical purposes, that action may amount to discrimination under the Code.

Importantly, condominium corporations also have a duty to accommodate owners to the point of undue hardship. This means that if a person needs to use cannabis for medical or cultural purposes, they can seek an accommodation from their condominium corporation, even if the condominium corporation’s declaration or rules contain a provision prohibiting cannabis growth and/or consumption.

The accommodation process is an important way that condominium corporations can work together with owners to ensure that they are treated fairly and that the declaration, by-laws, and rules are not implemented in a way that is discriminatory.

For more information on the duty to accommodate and for helpful tips on how you can handle the accommodation process, please visit the Ontario Human Rights Commission’s webpage.

Understand your rights and obligations

As of October 17, 2018, the federal Cannabis Act allows adults aged 19 years or older to consume and grow cannabis in private residences. A condominium corporation’s declaration, by-laws, or rules may prohibit the growth and consumption of cannabis in the condominium complex, or in the units themselves. Refer to the Legislation, by-laws and rules page to learn more.

This information is helpful for anyone with questions about cannabis in condominiums. However, depending on the nature of your issue, you may need to take different steps. Please read the scenarios below to determine which sounds most like yours.

What if the self-help tools below don’t resolve my issues?

  • There are further steps you can take if you’ve tried the steps below and still have an issue. These steps include private mediation, arbitration, and/or other legal actions.

Solutions for Owners >

Solutions for Condominium Boards & Managers >

Need more help?

Mediation and arbitration are effective ways to resolve disputes where the parties are unable to reach a resolution themselves. Mediation and arbitration are commonly used to help resolve difficult condo disputes and are sometimes called alternative dispute resolution (ADR).

Under section 132 (4) of the Condominium Act, 1998, all condo corporations in the province are deemed to have a provision in their declaration which says that disputes regarding the declaration, by-laws or rules must be filed for mediation or arbitration. Your condo corporation may also have a by-law that establishes the procedure that must be followed in the event of a dispute.

If you have been asked to participate in a mediation or arbitration, you are likely legally required to participate.

If you want to try mediation or arbitration for an unresolved issue, you will need to find a mediator or arbitrator who can assist you. You can search for a mediator or arbitrator online and through organizations that provide ADR services, such as the ADR Institute of Ontario.

Mediation

Mediation is a process where a neutral facilitator tries to bring the parties to a mutually agreeable solution. Mediation is the preferred approach because it’s often less costly and it gives the parties an opportunity to collaborate on finding a solution that everyone is comfortable with.

Arbitration

If mediation fails, binding arbitration is the next step. Arbitration is a process where an arbitrator (or panel of arbitrators) conducts a hearing and makes a ruling on the issues in the dispute. The parties involved in the dispute bring evidence to this hearing and then the arbitrator makes a binding decision. There are some cases where an arbitration decision can successfully be appealed to court.

Further legal actions

If you are considering legal action against a neighbour or your condo corporation, you may wish to talk to a lawyer or paralegal. It is recommended that you try mediation and/or arbitration before taking a dispute to court.

Seeking legal advice

If you have a cannabis-related dispute and need advice on what to do, you may wish to seek legal advice from a paralegal or lawyer licensed by the Law Society of Ontario.

If you do not already have a lawyer or paralegal, you may be interested in the Law Society Referral service, which is an online service provided by the LSO to connect people in need with licensed lawyers and paralegals. The service is free, and you may receive up to a half-hour free consultation.

Please note: The CAO and its staff are not permitted to provide legal interpretations or advice.

External resources:

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