Is it time for condo boards and property managers to brace for reefer madness? It may depend on which condo lawyer they ask.

Many condo boards in Ontario are hurrying to ban pot in their buildings before recreational cannabis becomes legal in Canada on Oct. 17. Shawn Pulver, partner at Macdonald Sager Manis LLP, says, in the absence of opposition, passing a rule is a low-risk way to set expectations ahead of the roll-out of federal and provincial laws that will converge to make it permissible to spark up in apartment units and on balconies.

But is yet another rule needed to address the potential side effects of the legalization of recreational cannabis, such as pungent odour and smoke migration? Robert Mullin, partner at SV Law, points out that, between the Condominium Act and their governing documents, condo corporations have a number of tools at the ready to deal with nuisance complaints and safety concerns, including charge backs, dangerous activity prohibitions, non-interference clauses and suite entry rights.

These different approaches were among the range of options presented to condo boards and property managers in the recent CAI Canada seminar Waiting in the Weeds … Everything You Need to Know About Marijuana and Condos.

What the laws say

Recently passed federal legislation will allow Canadians of the minimum age — in Ontario, 19 — to buy and possess up to 30 grams of cannabis for personal use starting this fall as well as grow up to four plants per household for the same purpose.

Accompanying provincial legislation will add another layer of jurisdiction-specific rules, including provisions governing where cannabis can be consumed. Public and workplaces are among the areas that will be off-limits to activities such as pot-smoking.

“Cannabis consumption can be thought of as an expansion of the rules for alcohol in the Liquor Licence Act, so where you can’t drink, you can’t smoke,” said Det. Sgt. Tony Melaragni, Peel Regional Police.

However, Det. Sgt. Melaragni added, this handy point of reference won’t apply in all cases. Take, for example, he said, patients who are authorized to use marijuana for medical purposes, which has been legal in Canada since 2001. This is the kind of scenario where the duty to accommodate may come into play, as the condo lawyers discussed, imposing on condo corporations the obligation to work with residents who have a demonstrated need to find a solution that doesn’t negatively impact their neighbours.

Considering the community

Many communities have likely had some exposure to cannabis use, whether it’s the legal medical kind or the currently illegal recreational variety. One of the unknowns facing condo corporations is whether the coming legalization will change the status quo.

Condo lawyer Mullin encouraged condo boards to take the temperature of their community, whether that’s through an owners meeting or survey. He also said communication and education could be potentially potent tools in addressing recreational cannabis use in condos.

“Did you know that you’re in a high-density condo? Did you know that if you leave your windows open while you smoke it might go into your neighbour’s unit?” Mullin offered by way of example.

Mullin said that, if there’s no call for action on recreational cannabis, the corporation may want to postpone intervention, instead reviewing the issue every month at board meetings and in manager reports, watching out for increases in complaints. If there is a call for action on recreational cannabis, he recommended taking a measured approach, looking at passing a rule before amending the declaration. Rules can be passed within 30 days if no owners object, but they also have to be reasonable. Time will tell whether cannabis prohibitions will meet this test if subject to a court challenge.

“Let’s say you do pass that rule prohibiting cannabis in units, and you get that,” Mullin added. “Be careful what you wish for, because now the enforcement is going to be upon you.”

Rules can become unenforceable if they are not enforced consistently. The alternative to passing a rule, amending the declaration, is less prone to court challenge, because it doesn’t need to be reasonable, but it also requires more support from unit owners. The condo lawyer cautioned that efforts to prohibit pot this way could backfire if the board fails to capture the affirmative votes of at least 80 per cent of owners and ultimately reinforces the forthcoming rights of residents to consume recreational cannabis.

Production and distribution

Rather than legitimize Ontario’s many illicit dispensaries, the outgoing provincial Liberals set in motion plans at Queen’s Park to restrict the sale of recreational cannabis to government-run retail outlets similar to the LCBO. Whether premier designate Doug Ford might change course remains to be seen.

Even if procuring recreational cannabis is as easy as going to the Ontario Cannabis Store, some people, including condo residents, will want to grow their own product. The decision to go DIY could stem from a desire to avoid higher retail prices or to take it up as a craft hobby, observed Max Zavet, co-founder of Emblem Cannabis, a licenced producer of medical cannabis.

Whereas a commercial operation such as Emblem’s is run from a high-security facility equipped with expensive HVAC and irrigation systems that work to prevent mould, mildew and pests, a home-grow operation in a condo might consist of little more than a plant, small fan and tent, said Zavet. He also noted that the odour from a single plant has the potential to permeate multiple floors in apartment buildings.

“Four weeks after you see a seedling, you’re going to start smelling the plant,” said Zavet. “On top of that, if somebody has done something to the electricity to circumvent electricity costs or to get more amp-age out of their unit, that could obviously cause fire, and flooding as well if they have some kind of irrigation system that’s jerry-rigged.”

Under the current plan, the Ontario Cannabis Store will also give consumers the option of purchasing product online, which puts concierges in condos in the position of intercepting these potentially pungent packages on behalf of residents.

“That’s another thing to keep in mind if your buildings are looking to take more active steps to go beyond what’s in your current rules and declaration — having language in there about the use of the marijuana, the growing of the marijuana, but also the storing and delivery of the marijuana,” said condo lawyer Pulver.

Getting ahead of legalization

The way Pulver sees it, establishing a rule serves to clarify how the general tools condo corporations have for addressing pot-related problems such as nuisance complaints and safety concerns specifically apply to recreational cannabis, narrowing the scope of what’s open to interpretation by the courts.

Condo communities eying pot bans may want to get ahead of legalization on Oct. 17 in order to head off requests from residents to be grandfathered (i.e. exempted) from retroactive rules.

“If a building decides they don’t want it, and they pass a rule, and it’s not objected, the timing shouldn’t be critical, but it would be better to do it before if they plan on it,” said Pulver.

Michelle Ervin is the editor of CondoBusiness.