Re­ports of con­do­mini­ums out­law­ing smok­ing, par­tic­u­larly cannabis, are fil­ter­ing in, and res­i­dents aren’t amused

North Toronto Post - - Contents - by Eric Sto­ber

Con­do­mini­ums are ad­dress­ing le­gal­iza­tion, and some res­i­dents are not amused

Now that cannabis is le­gal in Canada, Toron­to­ni­ans are fac­ing a slew of new rules gov­ern­ing what can be smoked or vaped, and where ex­actly one might do that if so in­clined.

One controversial ques­tion is whether or not peo­ple are al­lowed to smoke, grow or oth­er­wise con­sume cannbis in condo units. Con­do­mini­ums are gov­erned by boards that have be­gun to cre­ate and en­force new rules around cannabis not only in the pub­lic space of the build­ing or com­plexx but also in some cases the in­di­vid­ual units as well. And that’s not sit­ting right for some, even though in­di­vid­ual condo boards do have the right to make the rules.

With le­gal­iza­tion now here, some condo res­i­dents are sur­prised to learn that they may not be able to en­joy their new­found free­dom in their own home.

But, there are steps res­i­dents can take to eke out a com­pro­mise that al­lows the en­joy­ment of cannabis in their unit — or more im­por­tantly, its use for med­i­cal pur­poses.

Real es­tate lawyer Gra­ham Al­loway said that many con­dos are ap­proach­ing cannabis in the same way they would cig­a­rettes.

“Con­do­mini­ums are mov­ing to­ward mak­ing the en­tire build­ing smoke-free,” he ex­plained.

“Whether it’s a ci­garette or whether it’s cannabis, it doesn’t mat­ter. If your be­hav­iour is caus­ing a nui­sance to other per­sons within the res­i­dence, then [con­dos] have the abil­ity to be able to deal with that.”

Some res­i­dents are see­ing first­hand that boards are mov­ing quickly to ban smok­ing en­tirely at con­do­minium com­plexes from Hogg’s Hol­low to Yonge and Eglin­ton and down­town.

David, who re­quested his full name not be used, said that in his mid­town condo’s “an­nual pack­age” they in­serted a few new rules, which in­cluded a smok­ing ban on cannabis, vap­ing and grow­ing cannabis as well.

“That pissed off a lot of peo­ple,” he said. “So what hap­pened was, one per­son re­quested a meet­ing with the board, and she was told that she needed 15 per cent of sig­na­tures from all the own­ers.”

David and his co-res­i­dents were able to get the sig­na­tures nec­es­sary to strike a deal where cannabis con­sump­tion was al­lowed in their build­ing, which also re­quired hav­ing more than 25 per cent of the own­ers at a con­do­minium meet­ing and hav­ing a ma­jor­ity in a vote.

How­ever, he said there are still griev­ances con­cern­ing the re­stric­tions. “What hap­pens if I have guests over? They’re not al­lowed to smoke any­more,” David said, also men­tion­ing that smok­ing on their pa­tios is now pro­hib­ited.

The deal also only ex­tended to cur­rent res­i­dents, which David and his co-res­i­dents say could alien­ate buy­ers in the fu­ture.

Ac­cord­ing to Denise Lash, of Lash Condo Law, there will be dis­putes when it comes to cannabis odour and smoke.

Lash is the pres­i­dent of the Cana­dian chap­ter of the Com­mu­nity As­so­ci­a­tions In­sti­tute (CAI), an ed­u­ca­tion and cre­den­tial-award­ing group for condo boards.

Lash, who spoke with Post City prior to le­gal­iza­tion, is wor­ried about the cul­ti­va­tion of cannabis in units.

“Ev­ery con­do­minium should pass rules to pre­vent the grow­ing of mar­i­juana. Even if the board doesn’t say no to smok­ing, ev­ery­one should ban the grow­ing of mar­i­juana. We know the im­pact it can have in terms of mould and dam­age,” she said.

With con­dos cre­at­ing their own rules on cannabis that can be in­flu­enced by res­i­dents’ pref­er­ences, cannabis lawyer Trina Fraser says that, over time, the condo mar­ket will even­tu­ally sep­a­rate into cannabis-friendly build­ings and cannabis-un­friendly build­ings.

“Ul­ti­mately it will work it­self out,” Fraser said.

“If you want to con­sume cannabis that badly, you will buy a unit in a build­ing that per­mits that. There will be some dis­com­fort for the mean­time.”

That “dis­com­fort” will ex­ist for res­i­dents who thought that smok­ing would be per­mit­ted, only to be told oth­er­wise, but what Fraser finds more “con­cern­ing” is the ban on cannabis for medic­i­nal users who use it as treat­ment.

How­ever, Fraser points out that med­i­cal users can find sal­va­tion through a few op­tions to skirt strict rules, such as in­vok­ing the On­tario Hu­man Rights Code.

“I think [condo] rules are some­thing that can be chal­lenged un­der the hu­man rights code,” she said. “If you’re a med­i­cal pa­tient and you feel a rule doesn’t prop­erly ac­com­mo­date you and the condo board won’t make an ex­cep­tion, then there is an op­por­tu­nity to make a com­plaint to the hu­man rights tri­bunal.”

An­other av­enue med­i­cal cannabis users can use to smoke in their res­i­dence is by be­ing “grand­fa­thered” into a deal, which es­sen­tially means that cur­rent res­i­dents are al­lowed to con­sume cannabis in the unit, al­though new own­ers will not — sim­i­lar to the deal David got from his condo.

How­ever, Fraser sees this op­tion as a “dou­ble-edged sword.”

Grand­fa­ther­ing is only based on in­di­vid­u­als, rather than es­tab­lish­ing rules for “the com­mon good,” which could be achieved by go­ing to the condo board and mak­ing sure a rule is es­tab­lished that is com­pli­ant with hu­man rights obli­ga­tions.

The dog­matic doc­trines of con­dos do seem to be overkill for condo res­i­dents like David, whose condo said he couldn’t smoke or vape cannabis, or grow the four plants al­lowed by law.

“I vape, and when they said they were ban­ning vap­ing as well, that’s when I was like, OK, you’re over­step­ping it. There’s no odour,” David said.

“We don’t re­ally know yet how far the courts or the hu­man rights tri­bunal or land­lord tenant boards are go­ing to go to ac­com­mo­date,” Fraser said. But with some mu­nic­i­pal­i­ties, such as Markham, ban­ning cannabis con­sump­tion in all pub­lic places, she points out that there is a need for a le­gal place to con­sume cannabis.

“You’ve got to give peo­ple a place to con­sume,” she said.

What hap­pens if I have guests over? They’re not al­lowed to smoke any­more.”

Lawyer Denise Lash has con­cerns re­gard­ing the cul­ti­va­tion of cannabis in condo units

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