Smoke Gets In Your Eyes

By Deborah Howden, Partner, Shibley Righton LLP's Condominium Law Group

Vaping Pot In The Common Elements May Be Out, But Legal Grow Ops Could Be On The Rise In Your Condominium Building

While the Ontario government continues to push legislation banning the vaping of medical marijuana in public places, including a condominium corporation’s common elements, there has been a large victory for medicinal pot users who wish to grow their own marijuana supply in their residential condominium units.

Allard v. Her Majesty the Queen

In late February of this year, in a case called Allard v. Her Majesty the Queen, the Federal Court struck down regulations restricting the rights of medical marijuana patients to grow their own cannabis. The federal government recently announced that it would not appeal the court’s decision.

To give some context to the court's ruling, prior to March 31, 2014, Health Canada had issued licences to individuals for private home production of marijuana. After that date, no such licences were issued. In fact, Health Canada required that residential growers confirm they had destroyed their marijuana plants. The new rules meant that medicinal pot users had to obtain their drugs from commercial growers. It also meant that property managers and condominium boards did not have to worry about tackling the thorny issue of new legal grow-ops popping up in the condo.

Predictably, pot users who previously had been issued licences to grow their own supply were unhappy with the new rules. They sought an injunction allowing them to continue growing marijuana at home – and got it. This was the state of affairs until the court's recent February ruling.

In the Allard decision, the Court held that the law prohibiting homegrown marijuana was an infringement on the Charter rights of medicinal marijuana users. The law was therefore struck down (though the practical effect of the decision was suspended for 6 months).

It is important for the condominium community to note that the Court’s decision categorically does not allow recreational pot users the right to grow marijuana in their units. In fact, mere pot use, at least at the time of the printing of this article, remains illegal (though Police Services across Ontario tend not to strictly enforce small quantity pot possession and use). Under the Allard ruling, only medically- prescribed users of marijuana are entitled to homegrown production and use. Still, as a result of the decision – and with the federal Liberal government considering how to legalize marijuana for recreational use - it would not be surprising to see more condominiums facing increased issues relating to legal pot grow-ops. Those issues include strong and offensive marijuana odours throughout the condo, together with increased threats of damage to the units and common elements, and increased health risks to residents.

Human Rights and Legislative Changes

I am often asked about human rights accommodation in the context of legal marijuana grow-ops and medicinal pot use. Specifically, I am asked whether medicinal marijuana growers and users have the right to maintain an in-suite grow-op in the absence of any actual nuisance or property damage issues. Assuming the resident has a disability under the Human Rights Code (it should be noted that most conditions for which marijuana is prescribed under the Code would constitute a disability, such as PTSD, cancer, multiple sclerosis, glaucoma and epilepsy), the answer is very often: “yes, the corporation must accommodate, but only up to the point of undue hardship.” However, accommodation does not mean that the corporation has to tolerate behavior which is unnecessary, extremely disruptive or puts the common elements, or other units, at unreasonable risk.

For example, boards and property management should not be too quick to concede that marijuana odours or smoke in the common elements must be tolerated by the corporation. Marijuana does not have to be smoked in order for a person to receive the medical benefits. Specifically, it can be vaped, which offers a cleaner, more discreet and less smelly way to consume marijuana in the unit. Alternatively, the cannabis can be made into, and ingested in, edible forms— such as cookies, brownies, cake or lollipops, though admittedly at present these forms can be difficult to access legally.

In addition, as many will now be aware, the provincial government has recently proposed changes to the Smoke Free Ontario Act in which it seeks to ban the smoking and vaping of medicinal marijuana in (among other spaces) all enclosed public places and workplaces, including a condominium’s common elements. We expect this new legislation ultimately will be challenged on Charter grounds. Despite this potential challenge, the current thinking, at least at the provincial government level, is that residents should not be able to smoke or vape medical marijuana in spaces where smoking itself is otherwise prohibited. In a condominium context, until further legal developments, this is the position we would recommend property managers adopt.

Condominium Constraints on a Resident’s Right to Grow Pot

When dealing with a legal grow-op in a unit, property management should always look to the Condominium Act, 1998 (the “Act”) and the condominium documents to determine if the activity constitutes a breach. In many cases, it will, and the breach may well constitute undue hardship which will allow a Corporation to avoid accommodation obligations.

For example, section 117 of the Act prohibits a condition or activity in a unit if the activity is likely to damage the property or cause injury to an individual. Grow-ops will often require rewiring and result in overloaded electrical circuits, both of which can be hazardous. As well, grow-ops pose risks to the safety of the larger condo community, as they tend to either attract the criminal element, or are the targets of violent crime. Typically,declarationsalsocontainrestrictionsagainstresident activity that will increase the corporation’s insurance policy premiums, or which increase the risk of fire. The existence of a grow-op in the condominium building is most certainly a material risk which would increase the Corporation’s insurance premiums and poses a fire hazard. In particular, the exposed live wires and high intensity overheated fluorescent lamps associated with grow-ops are known to cause fires.

The condominium rules themselves will also normally prohibit any activity which constitutes a nuisance. These rules are in addition to the rights unit owners have to bring a personal lawsuit against the offending pot grower for nuisance.

If there is marijuana odour or smoke transmission emanating from the unit, there can be health and safety risks to other residents in breach of the Act and the condominium documents. Grow-ops have been linked to high counts of toxic mould spores. These spores are invisible, but can travel from unit to unit. Short term exposure to high toxic mould levels has been attributed to headaches; long term exposure can cause scar tissue to form in the lungs. Again, these health risks may well constitute undue hardship, such that no accommodation of the grow- op is required.

In addition, there is no obligation under the Human Rights Code to accommodate medicinal pot users who are supplying third parties. Many declarations prohibit residential units from being used to run a business. For example, some condominiums describe the unit as being for “single family dwelling” only. To the extent the corporation can show that the grow-op is supplying drugs to not only the grower but also to a third party (or third parties), a court application can be successfully brought against the owner for compliance.

As the condominium community awaits new legislation from both the provincial and federal governments respecting the rights of marijuana users, property managers and directors will have to continue to grapple with grow-ops and medicinal pot users in the building or complex – all of which has become a practical medical marijuana mess.

Deborah Howden is a lawyer and partner in Shibley Righton LLP’s Condominium Law Group. She is a labour and employment law specialist who regularly advises condominium corporations and property management companies.

First Published in CondoNEWS - Spring 2016