Emily Ng J.D., H.B.A., Associate Miller Thomson LLP
Jason Rivait B.A. (Hons), M.A., LL.B. Partner Miller Thomson LLP
Ontario’s Cannabis Act, 2017
The Right to Smoke Cannabis The Recent Legalization of Cannabis Has Prompted Condominium Corporations to Consider How Cannabis May be Used
The recent legalization of cannabis has prompted condominium corporations to consider how cannabis may be used by residents and anyone who works at the property. In some instances, condominium corporations have passed rules or workplace policies, which strictly prohibit the smoking or vaping of cannabis in or on the condominium property. During the process of passing cannabis rules, many residents have questioned whether persons have the right to smoke cannabis, irrespective of the enactment of any rule or declaration provision that
prohibits such conduct. The answer to this question is a resounding no (condominium corporations are permitted to prohibit the smoking of cannabis in or on the condominium property). Federal and provincial human rights legislation prohibits discrimination on the basis of certain “protected” grounds, including disability. Where a resident or an employee possesses a condition which may be considered a disability under human rights legislation, the condominium corporation has a mandatory legal duty to accommodate this person’s disability, unless doing so would be an undue hardship. If the condominium corporation does not accommodate, the person seeking accommodation may file a human rights complaint. These complaints can be costly. Determining whether a duty to accommodate exists requires cooperation from both the condominium corporation and
the person seeking accommodation. So, what factors should directors turn their minds to when considering whether the condominium corporation has a duty to accommodate a person who is requesting to smoke, vape, or otherwise use cannabis where the conduct is prohibited by a rule or declaration provision? The Ontario Human Rights Commission issued a policy statement on cannabis and the Human Rights Code in July 2018. This statement sets out three key considerations in determining whether there is a duty to accommodate cannabis use. 1. Is the cannabis use for a medical purpose? People who use cannabis for medical purposes related to a disability, which includes people who are addicted to cannabis, have the right to disability-related accommodation to the point of undue hardship – that is, significant health and safety risks or excessive costs. CONDOVOICE SPRING 2019
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ILLUSTRATION BY FIONA SMYTH
Cannabis can now be used wherever tobacco use is permitted. In this regard, residents may smoke, vape, or otherwise consume cannabis in their own units, or on the exclusive use common elements appurtenant to their units (i.e. balconies, patios or terraces), subject to any rule or declaration provision that prohibits such conduct.