Condominiums, Cannabis and Human Rights

As we all know, cannabis is legal across the country. Ontario’s Bill 36, the Cannabis Statute Law Amendment Act, 2018, also received royal assent on November 17th, 2018, the same day cannabis became legal nation-wide.

In terms of where cannabis can be smoked, the Ontario government has opted to treat cannabis similarly to how it treats tobacco.

For condominiums, this generally means that occupants are free to smoke cannabis everywhere except enclosed common areas, unless their governing documents provide otherwise. Many condominiums have in fact decided to restrict cannabis use through their governing documents, some with complete bans.

For condominiums that have implemented smoking bans, an old issue remains current: is cannabis allowed to be smoked for medical reasons?

It is well known that condominiums have a duty to accommodate persons with disabilities. In keeping with that duty, condominiums are obligated to permit cannabis smoking for medicinal purposes.

This obligation might sound clear, but once a request for accommodation is made, navigating the accommodation process often becomes murky.

A common source of confusion is how to verify an occupant’s medical disability and need for accommodation.

Fortunately, guidance can be found in the Ontario Human Rights Commission’s Policy on Ableism and Discrimination based on Disability. The policy notes that the accommodation process is a shared responsibility that requires cooperation from both accommodation providers and persons with disabilities. The policy even lists the type of information persons with disabilities may generally be expected to provide. For example, it is acceptable under the policy to request documentation stating that the person has a disability, and that smoking cannabis is required to accommodate that disability.  

The Ontario Human Rights Commission recently released another helpful policy that specifically addresses cannabis and the Human Rights Code.  

The policy highlights a further problem that many condominiums face: competing rights of occupants.

What happens when a condominium learns that an occupant who smokes cannabis for medical purposes has triggered health problems in another occupant?

The policy makes it clear that in such a situation, housing providers have duties to look for solutions, and to accommodate both individuals. For condominiums, solutions might include taking steps to reduce smoke migration between units, or requesting that smoking be limited to within units, as opposed to on balconies or in backyards. It is important to note that accommodation is only required to the point of undue hardship, which may come in the form of significant health and safety risks or excessive costs.

Finally, the policy reminds us that the Code only applies to people with disabilities who use cannabis for medicinal purposes, and to people who are addicted to cannabis. Thus, there is no “right” to smoke recreational cannabis; it remains open to condominiums to restrict cannabis use anywhere on the property.

Condominiums that are unsure of the extent of their duty to accommodate, or whether an occupant has established the need for accommodation at all, should consider seeking legal advice. A decision to deny accommodation should not be made lightly. Condominiums that fail to fulfill their obligations under the Code may wind up on the receiving end of an application to the Human Rights Tribunal.

For more information, please don't hesitate to contact SV Law.