Condo boards racing to clamp down on cannabis before pot becomes legal

CBC.CA News
Posted: May 24 2018, 6:00am ET

A downtown [Toronto] condo board is banning the use of marijuana on building property, even as pot becomes legal across the country this summer. A move that has some tenants sounding the alarm over a corporation being able to regulate what residents do behind closed doors.

Late last week, Goldview Property Management, the company that runs OneEleven Condos in the King West neighbourhood, informed its residents of new rules governing the use of cannabis.

Among them: no smoking or growing pot inside units and common areas, including on balconies and patios, and no deliveries of pot to the building.

Residents with valid medical grounds are exempt from the rule only if they provide evidence from an Ontario doctor that smoking cannabis is necessary to treat a condition. Even then, the board can request additional evidence or demand that a resident reconfirm their requirement at any time.

"It becomes a very slippery slope, very quickly," said unit owner Ryan Barclay. "Because it starts with weed and then who knows what the next thing is. I think that is really the crux of the issue for the majority of people I know."

A small window before legalization.

OneEleven isn't alone.

More and more condo management companies are racing to enact similar rules before the federal government legalizes cannabis in the coming months. After that, virtually anyone who smoked or grew marijuana in their units before the ban could technically apply for an exemption, making the problem of so-called "smoke transfer" that much bigger.

The province's tenancy laws make it illegal to change a lease before it ends, but since pot has yet to be legalized, so condo boards can pass the changes they want while pot is still an illegal substance.

But with proposed regulations around marijuana use prohibiting recreational cannabis consumption in public places, lighting up at home is among the few options available to pot users.

So what is a pot-smoking condo-dweller to do?

Barclay isn't a pot smoker himself and generally prefers that cannabis be banned in shared spaces, but has concerns about "the condo corporation's ability or willingness to legislate what you can do in the confines of your own homes."

Besides, he says, there was little notice given to residents that rules were in the works. And rolling back a decision like this is virtually impossible in a building where so many rent rather than own.

"It becomes really hard to walk this all back," he said. And in what he admits is a bit of a "party building," he wonders if alcohol or tobacco could be next.

'The rush is on.'

Generally, when condos pass new rules around smoking, explains condominium lawyer Denise Lash, any existing smokers typically need to come to management and sign what's known as a grandfathering agreement. Without one, they'll be in contravention of the rules once they come into effect.

With legalization looming, she says, "the rush is on to get these rules passed." Passing them before legalization means the only people to be grandfathered in are those who need pot for medical use.

Lash recommends applying the same standards to marijauna as to tobacco, saying "the effects are pretty much the same in terms of second-hand smoke."

But while OneEleven is rushing to ban marijuana smoking on its property, it isn't doing the same for tobacco. Curtis Priest, president of the board, says there would be little point in doing so because so many smokers would have to be grandfathered in. Tobacco, he points out, is already legal.

Nevertheless, he says, the problem of smoke travelling into neighbouring units or into the halls is real and can't be remedied by sealing off units because of air-flow requirements and fire code rules.

'Effectively being frozen out'

"In a multi-dwelling unit, your air isn't your own," Priest argues. In fact, about a year ago, the problem was so bad that one resident who had an allergy decided to move out, he said.

Matt Maurer, a lawyer specializing in cannabis issues for Minden Gross LPP, says marijuana users will likely have a hard time challenging the condo's new rules because they exempt medical usage.

"If they ban [marijuana] outright, that's more of a challenge," Maurer said.

Still, for those whose private space is a condo, Maurer points out that under proposed provincial law, "you are effectively being frozen out from at least smoking marijuana," especially because moving isn't a simple solution in a real estate market as expensive as Toronto's.

So how will the new rules be enforced?

First, there will be notices from management. If that doesn't solve the problem, another notice will be sent, this time from a lawyer, the costs of which would be charged to the resident.

"It's not like we're going to be kicking anyone out of their homes for doing these things," said Priest, adding that after weed is legalized, the board may consider adapting the rules.

"We're just setting a precedent, a baseline for how we feel the building should be going forward."

That's good news to resident Leena Hirani, who worries about the effect pot could have on her three children.

"I don't want to explain to them what the smell is. I'd rather they not know, at least not yet."