A recent article in the Toronto Star discussed whether landlords could evict tenants who were growing and/or smoking marijuana for medical purposes in their rental apartments. There are concerns by landlords that growing marijuana increases the risk of mould and mildew as a result of the high moisture level needed to grow marijuana and that smoke would be permeating into other apartments and posing health risks for other tenants.
The same concerns will also arise in condominiums. The Marihuana Medical Access Regulations allow access to marijuana by individuals suffering from grave and/or debilitating illnesses where conventional treatments are inappropriate or are not providing adequate relief. Can a condominium corporation prevent a resident who has authorization from the federal government to grow and/or smoke marijuana, from doing so in a unit? There may be provisions in the Corporation’s declaration or rules that will be of assistance, such as:
- a prohibition on any activity that may cause a nuisance or interfere with the quiet enjoyment of other residents and owners;
- a prohibition on any activity that could potentially damage the property or increase the insurance rates for the property.
An argument can also be made that if the declaration specifies that the units are to be used only for residential purposes, the growing of marijuana in the unit is in contravention of the declaration. The condominium documentation may also contain provisions that would enable the Corporation to require that the unit owner pay for the costs of any work needed to the unit and/or to the ventilation system in order to prevent the smoke and smell of marijuana from permeating into the common elements or to other units of the building.
The rights of the condominium corporation will need to be weighed against the rights of the resident who has the authorization to grow and/or smoke marijuana for medical purposes. If the Corporation attempts to prevent this, the Corporation could face a human rights complaint by the resident, who may claim that the Corporation has a duty to accommodate persons with a medical disability. If such a challenge is made, the Corporation would need to show that accommodating the marijuana grower/smoker will cause undue hardship to the Corporation.
Each case will need to be looked at on an individual basis since the facts of each situation will vary, as will the wording of the condominium’s documents. As is often the case with condominiums, the rights of the individual owners and residents need to be weighed against what is desirable for the condominium community as a whole.
For more information on the duty to accommodate, please refer to our earlier blog on Implementing an Accommodation Policy.