January 28, 2020 by Greg Meckbach
With the legalization of recreational cannabis, what happens when there is a dispute between neighbours in a condominium and how does a condo corporation or board handle it?
A lot of condominium corporations have passed rules around odours, says Armand Conant, a member of the Canadian Condominium Institute (Toronto)’s board of directors and a lawyer with Shibley Righton LLP’s condominium law group. “With cannabis, since it’s legal, it’s treated like any other form of odour — cooking smells, tobacco, it doesn’t matter. It’s just that it’s more pungent,” Conant said during a recent Ontario legislative committee hearing.
The committee’s deliberations may impinge on condo insurance policies, both in connection with liability (e.g. if condo owners sue over the odours) or in terms of the condo unit contents to be insured (e.g. ensuring proper ventilation to mitigate complaints about odour).
“The thing with cannabis is that, since in some of the buildings it tends to be the older demographics, [opposition to the odour is] more embedded: ‘This is wrong. We shouldn’t be smelling this.’ You get that a little bit,” Conant told the Standing Committee on Justice Policy Jan. 20 during a public hearing, in Brampton, on Bill 159. The Rebuilding Consumer Confidence Act, tabled in December by Government and Consumer Services Minister Lisa Thompson. The omnibus bill would make several changes to provincial condominium law.
During the hearing, Conant was asked by Natalia Kusendova, MPP for Mississauga Centre, about the legalization of recreational cannabis, the problem of odours in condominiums, and whether he has any anecdotal feedback as to how the government can better regulate or legislate that.
Some condominium boards try to prohibit cannabis cultivation in condos, said Conant. “You’re allowed the four plants by the federal government, but they have an odour stronger than others. And when you’re trying to make edible products, that can cause a lot of odours.”
So how do condominium boards deal with a cannabis odour emanating from one unit into others or into the common areas?
“We deal with that resident just like anybody else, meaning, ‘You can’t interfere with somebody next door to you or in the hallway.’ What does that mean? We can come after you to say, ‘Okay, what other ventilation can you do? Where are your fans? You can’t open up your balcony on the 48th floor because it affects the air pressure in the hallways, but what can you do?’”
Bill 159 was referred to committee Dec. 11. The legislature took the rare step of discharging an order for second reading. So instead of having an all-party debate (which usually happens during second reading) the bill went directly to committee.
Bill 159 is an omnibus piece of legislation that proposes changes to the Condominium Act, Condominium Management Services Act, Ontario New Home Warranties Plan Act, New Home Construction Licensing Act, Technical Standards and Safety Act, Consumer Protection Act, New Home Construction Licensing Act, Resource Recovery and Circular Economy Act, Safety and Consumer Statutes Administration Act and Ticket Sales Act.
With Bill 159, the province says it wants to improve condo living and provide better protection for financial investments
“The Condominium Act lacks clear, plain-language information to help first-time buyers and condo residents understand condo life when buying and living in a condo,” the province states on its website. “In early 2020, we will consult on regulatory changes under the act to help improve condo living and protect your financial investment — changes that could come into effect starting in summer 2020.”
That could include requiring the Condominium Authority of Ontario to develop a condo guide for buyers and requiring developers to provide it at the point of purchase.
During the hearing Jan. 20, Conant was asked by MPPs about amendments to provincial legislation, made in 2015 that have yet to take effect.
One of those amendments is a prohibition in condos of any a nuisance, annoyance or disruption in a common area or unit.
The Canadian Condominium Institute is looking for clarity around what an annoyance or disruption is.