Talk with Canadian law enforcement professionals and they will tell you that, according to their experience, where there is lots of smoke (of the grow-op variety), there is increased crime, independent of actual marijuana production, or at least the increased possibility of crime.
And it does not even matter if there is a relationship between a grow-op and other violent or non-violent crime. When it comes to building security in a condominium setting, resident perception is king.
Firefighting professionals also see direct security issues. In December 2012, Health Canada quoted Stephen Gamble, president of the Canadian Association of Fire Chiefs, as saying, “An average of one in 22 grow operations (legal and illegal) catch fire, which is 24 times higher than the average.”
When taken together with the very real risks of theft of the supply, marijuana smoke and chemicals (such as pesticides) wafting through into other units and common elements, and mould and structural damage, grow-ops are (from the corporation’s perspective) not good for business.
Does a condominium corporation have the right (given the general risk to building security, and the safety and enjoyment of its residents and unit owners) to prohibit pot smoking and grow-ops? And are there any accommodation obligations?
Illegal marijuana smoking and grow-ops
There is little redress against a marijuana user who neither creates a nuisance nor damages the common elements.
For those smokers and growers who do damage property or create a nuisance, Sec. 117 of the Condominium Act prohibits a condition or activity in a unit or in the common elements if it is likely to damage property or cause injury to an individual. In addition, most condominium corporations have provisions in their declarations prohibiting activities that damage the property or create a nuisance to others. To the extent that a grow-op is used to supply other users, this would be considered a business and, resultantly, is contrary to the express provisions in many declarations.
After exhausting other available remedies such as increased ventilation, a corporation can usually bring an injunction and compliance application. This purpose of this is to seek an order prohibiting a resident from smoking marijuana in their unit if it causes a nuisance, creates a danger or damages property. A similar order can be obtained in respect to producing marijuana in a unit.
Legal marijuana smoking and grow-ops
As many condominium corporations and managers know, Sec. 24 of the Marihuana Medical Access Regulations made under the Controlled Drugs and Substances Act permits licensed individuals to use and produce marijuana in their residences for personal use or limited distribution. According to Health Canada, this law will be replaced by the new Marihuana for Medical Purposes Regulations next year.
The Ontario Human Rights Code prohibits discrimination in accommodation on a number of grounds, one of which is disability.
Disability includes many physical and psychological conditions, including substance abuse, which can encompass alcoholism and severe drug abuse. Quite apart from the federal government’s authorization for a resident to use or grow marijuana, there is a statutory obligation upon the condominium corporation to accommodate marijuana use or production if it is disability-related, even if it creates a nuisance or damages property.
However, just because a resident is disabled or has authorization from the federal government to use and/or grow marijuana does not mean that the corporation is without remedies if this activity creates a nuisance or is a danger to the building or other unit owners. Subject to the Ontario Human Rights Code, a condominium corporation can impose limits on activities that may be construed as a nuisance, a danger, interfering with the life of other residents or that could cause damage to, or increase insurance rates for, the property.
In the human rights context, a disabled resident’s disability condition need only be accommodated up to the point of undue hardship. The Ontario Human Rights Code prescribes only three considerations in assessing whether or not an accommodation causes undue hardship – cost, outside sources of funding, and health and safety requirements. All other considerations are irrelevant, including disruption of the enjoyment of other tenants. However, if a corporation can demonstrate there is no available accommodation to the disabled resident short of undue hardship, a successful compliance order will likely be issued.
The upshot is the rights of the condominium corporation must be counter-balanced against the rights of the individual resident. A successful human rights complaint against a corporation for failing to accommodate a disabled marijuana user is never out of the question. If a person has a legitimate medical disability and then grows and smokes marijuana in a condominium development, he/she may well be entitled to do so.
Deborah A. Howden is a partner with Shibley Righton LLP in Toronto. She is part of the condominium law group, and is a labour and employment specialist. Deborah can be reached at deborah.howden@shibleyrighton.com.
