Canada: Is Your Condo Ready For The Legalization Of Cannabis?

We are only days away from the Federal legalization of cannabis. In response to this legislative change, many condominium corporations have decided to implement rules to address smoking and growing of cannabis, as well as smoking of tobacco within the complex.

Unsurprisingly, opinions on the topic can vary significantly and are often strongly held. On the one hand, you have those who welcome a smoke-free environment and who wish not to be exposed to second-hand smoke or to the odour of tobacco or cannabis. On the other hand, you have occupants who consume tobacco or who look forward to legally consuming cannabis once it is legalized. In addition to this, you have individuals who may require to consume cannabis for medicinal purposes.

Potential problems associated with cannabis and tobacco smoking

Tobacco and cannabis smoke are known to cause irritation, discomfort and nuisance. Second-hand smoke is also known to be a health hazard. Unfortunately, it is impossible to completely prevent the migration of smoke, second-hand smoke and/or odour between units and/or from units to common elements. Smoking also increases the risk of fire, as well as maintenance and cleaning costs.

The legalization of cannabis may pose additional challenges to corporations since the Cannabis Act will allow Canadians adults to grow cannabis in their home. As it presently stands, dwelling occupants will be allowed to grow up to four (4) plants of cannabis, of up to 1 meter high, in their unit. Cannabis growing can result in damage to units and/or common elements, including damage by moisture/mould as a result of spores emanating from growing cannabis plants. The cultivation and drying of cannabis can also result in disproportionate use of utilities (water, electricity) if not sub-metered and may increase the risk of fire and other hazards.

For this reason, amongst others, some provinces and territories (including Québec, Manitoba and Nunavut) are set to prohibit growing of cannabis in private residences. The Ontario Landlords Association as well as the Ontario Real Estate Association are also requesting more restrictive guidelines. Finally, the Ottawa Public Health Office has recommended that cannabis smoking be prohibited on balconies and in condominium units.

So what can be done in condominiums?

Can condominium corporations adopt rules regulating tobacco and cannabis?

Most condo corporations already have some (albeit limited) tools to deal with some of the potential challenges expected to be caused by the legalization of marijuana. Indeed, most corporations already have general restrictions against the creation of nuisance (which includes odour and smoke) and against the use of a unit in any way which may increase the risk of fire or which may increase insurance premiums.

Naturally, the difficulty in using these general restrictions is that boards of directors may find themselves stuck between a rock and a hard place, having to determine and demonstrate whether a specific situation constitutes nuisance beyond what is to be reasonably expected in a condominium complex. There are countless shades of grey when balancing the rights and expectations of neighbours when dealing with something as subjective as nuisance and risk.

While I hate to be the one killing the buzz, one of the solutions may be to further restrict (or ban altogether) the use and/or the growing of cannabis in your condo complex. This can be done either with the passing of a reasonable rule or with an amendment to the declaration.

Boards can, indeed, pass rules promoting the safety, security or welfare of owners and of the assets of the corporation or rules which prevent unreasonable interference with the use and enjoyment of common elements and units.  The rules must be reasonable and consistent with the Condominium Act, the declaration and the by-laws. Courts have already recognized that a rule preventing tobacco smoking in condominiums are reasonable and enforceable. We expect that rules restricting or prohibiting cannabis will equally be found to be reasonable.

A rule may be passed by the board without any vote from the owners if none is requested by them. Even when a vote is requested on a proposed rule, passing it only requires the support of 50% of the owners present at a meeting called to vote on it.

It is important to note, however, that any rule adopted by a corporation is subject to the Ontario Human Rights Code. In Ontario, corporations must therefore always accommodate bona fide disabilities or other bona fide requests based on human rights.

As indicated above, corporations can also adopt restrictions on the use or growing of marijuana by amending their declaration, although such an amendment would require the support of 80% of the owners.

Must condos "grandfather" units when adopting rules restricting cannabis?

By its very nature, the enforcement of a condo rule opposes conflicting interests.  Indeed, a rule prohibiting smoking may result in two camps. On the one hand, you have owners who benefit from the protection of the rule and are happy to be in a smoke-free environment. On the other hand, you have owners who feel aggrieved or prejudiced in the exercise of what they perceive to be their right to smoke (be it cannabis or tobacco).

Naturally, it is difficult for someone to complain about a rule if it was in existence when they bought or moved in.  Indeed, owners should only move into a condo if they are prepared to live by the rule of its community.  However, the issue certainly feels different when a new rule proposes to restrict a right one had been able to exercise until that point. Imagine the situation where someone has been able to smoke for years prior to the adoption of a rule.  These owners may feel (rightfully) that the rules are being changed on them. Still, the balance of the owners are also entitled to evolve and adopt new rules.

It is in this context that many condos propose to include a grandfathering provision when they adopt a new rule. Such a provision would allow existing occupants to be shielded from the application of the rule for a specific period of time. Stated otherwise, these grandfathered occupants would be authorized to continue a certain conduct, for a set period of time, despite the adoption of the rule.

Is grandfathering required?

We are often asked whether condos have an obligation to grandfather owners or occupants when they adopt a new rule.

In our view, grandfathering is not a legal requirement when adopting a new condo rule. Indeed, the Condo Act, does not impose such an obligation.  Grandfathering, however, may go to the reasonableness of the rule being adopted. Indeed, condo rules must be "reasonable". A rule which does not grandfather an existing right may, in itself, be found to be unreasonable. For this reason, among others, many condos include a grandfathering provision when passing new rules.

So, while it is not a legal obligation, it is often a good idea and is sometimes a required political compromise to ensure that the rule is accepted by owners.

How long should the grandfathering period be?

The jury is still out on the length of an adequate grandfathering period. While some smokers would like to be grandfathered for ever; non-smokers would like to benefit from the rule as soon as possible. It is difficult to reconcile these conflicting interests. Surprisingly enough, we do not have a lot of guidance from the courts on this question.

In our view, the length of the grandfathering period will vary based on the right being grandfathered. Are we grandfathering someone's right to keep a pet? In such a case, many would argue that the grandfathering provision should last the life of the pet. You basically grandfather Pistache the dog and not the unit. Naturally, you would need to balance this with the impact Pistache has on the neighbours. The same may apply to grandfathering smokers.

The grandfathering period should also consider the disruption or impact it has on other owners.  One could argue that no grandfathering provision is required when prohibiting a highly disruptive activity or one likely to damage property or likely to cause an injury or illness.

There is no magic number. In our experience, most corporations grandfather occupants for a period of one to two years.  This seems to strike an acceptable balance between the competing rights, giving a reasonable transition period to both smokers and non-smokers. We have seen, however, a few corporations grandfather for up to 5 years and some for the duration of the occupancy: basically for as long as the smoker occupies the unit.

Must we grandfather cannabis user?

Finally, perhaps the most sensitive question: should we grandfather the use of cannabis?  It is important to note that this blog post does not deal with medicinal cannabis. These cases require some accommodation.  This post only deals with whether to grandfather the recreational use of cannabis.

The answer to this question depends on when the rule was adopted and implemented.

Rules adopted before October 17:

For rules adopted and implemented before the legalization of cannabis, no grandfathering is required. Indeed, there was no "acquired right" to be grandfathered since recreational smoking was not legal before then.

Rules circulated before October 17 but not yet adopted:

What if a rule is circulated to owners prior to October 17, but only gets adopted or implemented after that date? Indeed, rules must be circulated for at least 30 days before they can be enforced.  Similarly, owners can requisition a vote on the rule, which may further delay its implementation by an additional 35 days.  So, a rule circulated on October 16 may only be adopted by December 20, 2018.

In our view, as long as you circulate the rule to owners before October 17, you do not have to grandfather cannabis users.  Indeed, those wishing to be grandfathered are not prejudiced any more than if you had adopted and implemented the rule before cannabis legalization.

Rules circulated after October 17:

What if a corporation circulates a rule, for the first time, after October 17? We could easily imagine someone lighting up at midnight on October 17. Must that user be grandfathered?

In our view, to be reasonable, any grandfathering must be proportional to the exercise of the acquired right. How long must you grandfather someone who has been exercising a right for one hour, one day or one week?  In our view, for the foreseeable future, condos could adopt a rule restricting the use/growing of cannabis without any grandfathering. Naturally, the longer you wait before adopting a rule restricting cannabis, the more you will have to consider a grandfathering provision.

Things may be different however if an occupant purchases or moves into a unit after October 17 but before the rule is circulated to owners. Indeed, new occupants could argue that they have chosen this specific corporation (and not the one across the street) because it allowed cannabis consumption.  A condo may be able to strengthen its position by noting on its Status Certificate its intention to adopt a rule on cannabis. In fact, it may be wise to do so even if you are still considering the question.

What's the best rule?

At the end of the day, the best rule is the one acceptable to owners. The best way to ensure that a corporation strikes the perfect balance is to survey the owners.

We have developed an arms-length online survey allowing corporations to canvass their owners on these delicate questions prior to circulating a rule to them. The survey is easy to use and does not require any complicated login.  To ensure maximum participation, corporations can choose how long they want the survey to remain open.  The information received from owners is kept confidential and only aggregate results are shared with corporations, which provides for more accurate results. Once the results are in, we generate an easy-to-use report for the board.  This reports guides the board in drafting the best possible rule and can also be a very useful tool when presenting the rule to owners.

This article was first published in

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions