A recent court decision may have opened the door to medical marijuana patients to grow a limited number of a marijuana plants in their condominium units for personal use, and condominium corporations may not be able to stop them.

In Allard v. Canada, four individuals argued that federal regulations passed to control the use of medical marijuana were unconstitutional. In a ruling issued February 24, 2016, the Federal Court of Canada agreed and confirmed the rights of authorized marijuana users to grow marijuana for their own purposes.

From 2001 until 2013, the federal government’s Marijuana Medical Access Regulations allowed patients with authorization from a medical practitioner to gain lawful access to marijuana in one of three ways. Authorized patients could either designate someone to produce marijuana for them, purchase marijuana directly from Health Canada, or cultivate their own marijuana plants.

In 2013, the federal government replaced those regulations with the Marijuana for Medical Purposes Regulations. One of the key changes was to remove the rights of authorized marijuana users to grow their own marijuana. The new regulations forced them to purchase marijuana from a licensed producer.

In response to the Allard decision, the federal government replaced the Marijuana for Medical Purposes Regulations. The new Access to Cannabis for Medical Purposes Regulations allow authorized individuals to grow a limited amount of marijuana for their personal use (or to have someone do this growing on their behalf).

Registered patients who intend to grow their own medical marijuana must comply with the requirements under these latest regulations. The regulations include provisions to help maintain safety and security of patients, growers and surrounding communities. Moreover, registered patients are required to comply with all relevant provincial/territorial and municipal laws, including bylaws respecting zoning, electrical safety, and fire safety, along with all related inspection and remediation requirements. If patients do not comply with the regulations, they are in violation of the Controlled Drugs and Substances Act and the Criminal Code.

Even though, prior to 2013, a patient with a doctor’s prescription had the right to grow marijuana, there was relatively limited public awareness of medical marijuana at the time. More recently — particularly as a result of the Allard decision and the subsequent changes in the regulations — there is a drastically increased awareness of the right to grow medical marijuana. These latest regulations raise several issues for condominiums.

Most importantly, it appears that authorized individuals (patients who need marijuana for medical reasons) may now have the right to grow a limited number of marijuana plants, for their own use, in their units. Condominium corporations may not be able to prevent this. In many cases, registered patients will be entitled to accommodation by their condominium corporation under human rights law. Therefore, condominium corporations would be obligated to accommodate these individuals to the point of undue hardship, meaning that the corporation might have to allow marijuana cultivation, in such cases.

While condominium corporations may not be able to prevent such marijuana cultivation, they can certainly regulate the marijuana cultivation by way of a rule.

It is recommended that condominium corporations consider passing a rule stating, among other things, as follows:

• Only registered patients (persons with an established medical need) may grow marijuana.
• The cultivation must comply with all applicable federal regulations.
• The cultivation also must not cause any harm to the property or any disturbance to other persons.
• The grower must advise the corporation of the cultivation, and the corporation may access the unit at any reasonable time, on reasonable notice, to observe the cultivation.

In some cases — for instance, where humidity levels are a particular concern in the building — it may be possible to consider a rule prohibiting all plant growing (including marijuana growing) in the units. This is something to be considered on a case-by-case basis.

There are also some other issues for condominium corporations to bear in mind.

Increased energy/water consumption

Someone who is growing marijuana for personal use may use significantly more hydro or water than other occupants. In a condominium corporation where water and/or hydro consumption are included in the common expenses for the units this may result in inequities.

The Ontario Small Claims Court reviewed this issue in Metropolitan Toronto Condominium Corporation No. 659 v. Truman. In that case, Mr. Truman had a permit to grow marijuana for personal use (presumably under the Marijuana Medical Access Regulations) and he did so in his unit. Mr. Truman’s growing of marijuana resulted in a significant increase in overall water consumption. The declaration for the condominium stated that the common expenses for the corporation included “water, except such that is used for commercial and industrial purposes, and except hot water.”

The Court found that Mr. Truman’s use of water was not “for commercial or industrial purposes.” However, the Court found that Mr. Truman’s use of water was disproportionate to his allotted share of common expenses and this was inequitable and unfair. As a result, the Court said that the condominium corporation could recover excess water charges from Mr. Truman.

This case demonstrates the need for condominium corporations to be aware of the potential financial impacts of marijuana cultivation, and to take steps to mitigate the effects.

Smoking in units

Smoking of marijuana in a unit is another matter entirely and is subject to a separate set of considerations. Smoke migration and the impacts of second-hand smoke can apply to all types of smoke, including marijuana smoke. A smoking ban would also normally apply to all types of smoke. Condominium corporations that are smoke-free should ensure that the language is broad enough to cover marijuana smoke. Even so, an owner with a medical need for marijuana might have the right to smoke, depending on numerous considerations in each case. The point is that growing marijuana in the unit and then smoking that marijuana in the unit are two entirely separate considerations.

And these issues will only increase if marijuana use is legalized.

In summary, the growing and use of marijuana are important issues for condominiums in the future. Condominium corporations should review their governing documents and make changes as necessary to protect the health and safety of all residents. Furthermore, corporations should consider the potential increase in expenses due to marijuana cultivation.

James Davidson is a partner at Davidson Houle Allen LLP, and has been practicing condominium law for more than 34 years. He represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.

Cheryll Wood is an associate at Davidson Houle Allen LLP, and has been practicing condominium law for four years. She represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.