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    How Multi-Unit Buildings are Preparing for the Legalization of Pot

    Bill C-45 has passed the Senate. Once enacted, the Cannabis Act will make it legal to smoke pot in Canada, and to grow a limited quantity of personal marijuana (up to 4 plants) on your property.

    man smoking a joint

    And while pot growers, distributors and smokers are very happy about the legalization of marijuana, condo boards and landlords across the country are scrambling to deal with issues which will impact all residents in every multi-unit dwelling in Canada.

    Potential risks and grounds for complaints

    In most provinces and territories, condo boards and landlords have the legal authority to impose restrictions on smoking of any kind in common areas and exclusive use areas such as balconies or decks. They can also ban growing marijuana in individual units for health and safety reasons.

    Regardless of whether a certain behaviour is legal, there are common interest factors at play, i.e. the risks that such behaviour may pose to the building and to other residents of the building. In the case of smoking and/or growing pot, these include:

    • increased risk of fire and a resulting increase in insurance costs which affects all occupants;
    • dangers of second-hand smoke;
    • noxious smells;
    • damage to the unit from moisture, which could result in mould and water damage to floors, walls and windows;
    • increased costs for electricity and water in buildings where these are not separately metered.

    Any one of these factors can create friction between residents, particularly in a condo or strata development where the residents are typically the property owners who are simply interested in protecting their own properties from hazard and damage. Regardless of whether you have the right to smoke within your unit or not, the smoke and the smell will travel through air vents and around doors and will inevitably end up invading other people's air space.

    The steps condo boards can take

    Condominiums that do not already have smoking restrictions in place can enact rules that ban smoking pot in areas that are commonly owned and from growing pot in their units. Many condominiums are opting to go completely smoke-free, although existing owners would be grandfathered.

    Tenants in a condo unit are required to abide by the condo bylaws and the building rules, and the unit owners are obligated to make sure their tenants do so. 

    However, the legal obligations of landlord and tenant are not so easy to interpret when it comes to rental buildings.

    Are landlords left in the lurch?

    There is a patchwork of provincial regulations across Canada when it comes to giving landlords the legal authority they need to establish smoke-free and grow-free rules for rental units. The table below outlines the current (as of June 2018) laws and proposed amendments to specifically address smoking and/or cultivation of recreational marijuana.

    British Columbia B.C.'s proposed rules allow "landlords and strata councils ... to restrict or prohibit non-medical cannabis smoking and vaping at tenanted and strata properties." They will also be able to prohibit or restrict home cultivation of pot.
    Alberta The Residential Tenancies Act of Alberta clearly states that landlords have the right to set the rules for a rental property. That includes smoking and growing cannabis.
    Saskatchewan The Residential Tenancies Amendment Act 2017 will give Saskatchewan landlords the right to create rules against possessing, selling, and using marijuana inside the rental property, including the growing of cannabis.
    Manitoba Manitoba has proposed legislation to completely ban home cultivation of pot. In addition, the Non-Smokers Protection Act will be expanded to include marijuana, so non-smoking rental units and buildings will prohibit the smoking of pot.
    Ontario Under the current Ontario landlord-tenant laws, landlords can ban smoking marijuana in rental units for new leases but they are not able to change an existing lease before the end of the lease. So if the existing lease allows smoking in the rental premises, smoking marijuana would be allowed. New leases can include a provision to ban smoking pot. Smoking in common areas of apartment buildings is already prohibited under provincial law, and this would include pot.
    Quebec Quebec has stated it will completely ban home cultivation of cannabis. The province has also stated that apartment leases that prohibit tobacco smoking may also apply to marijuana. It is unclear at present if landlords will be able to amend their leases to prohibit pot smoking and whether such prohibitions would hold up in court.
    New Brunswick The province's Final Report of the Select Committee on Cannabis "recommended affirming that landlords be free to prohibit the cultivation of recreational cannabis." No legislation or amendments have been passed at this time (June 2018).
    Nova Scotia

    The Cannabis Control Act allows landlords in Nova Scotia to amend existing leases to enact new rules restricting smoking and cultivation of recreational pot in rental properties.

    Prince Edward Island Cultivation and use can be prohibited by property owners and in condominiums. Tenants must have prior approval from the landlord before cultivating pot.
    Newfoundland-Labrador No legislation or amendments with respect to landlord-tenant issues at this time (June 2018).
    Yukon Under the Cannabis Control and Regulation Act, landlords will have the right to ban smoking or vaping pot and growing cannabis plants within rental properties.
    Northwest Territories The proposed legislation allows property owners to designate properties as smoke-free and restrict cultivation of pot.
    Nunavut Under consideration.

    Accommodating the needs of medical marijuana users

    The main stumbling block to enforcing compliance of the rules and bylaws put in place by landlords, property managers and condo boards will be whether or not they will apply to medical marijuana use and whether such restrictions might be a violation of a user's Charter rights.

    In R. v. Smith (2015), the Supreme Court of Canada found while smoking medical marijuana exposes its users to carcinogenic chemicals and higher risks of bronchial disorders, it also provides quicker access to the medical benefits of cannabis. In light of that finding, any restriction against smoking must take into account the smoking of marijuana indoors by disabled individuals who are using cannabis for medical purposes and who find it difficult or impossible to go outside to smoke it. A medical marijuana user who cannot go outdoors to smoke without significant difficulty may need to be accommodated by the condominium corporation or the landlord, as the case may be.

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