Condo boards have two options if they want to prohibit smoking, growing or processing cannabis within their buildings — they can either amend their declaration or pass a rule, Toronto condominium lawyer Warren Kleiner tells Law Times.

“A rule is easier to pass, but a rule has to be reasonable,” says Kleiner, partner with Shibley Righton LLP in Toronto. “What we do think is problematic [is] when corporations take steps to ban cannabis but not tobacco. Rules have to be reasonable, and if you’re smoking in your unit and it gets into the hallway, what’s the difference if it’s tobacco smoke or cannabis smoke? Smoke is smoke; otherwise, a rule risks being overturned.”

The online legal news outlet reports that condo corporations that opt to ban cannabis could still grandfather rules to existing residents or owners if those guidelines to prohibit smoking were not in place before the Oct. 17, 2018 legalization date.

Even without a rule that bans smoking cannabis, it’s important for condo residents to understand they will still have to act reasonably, Kleiner says.

“You’re still subject to the other rules that say that you can’t unreasonably disturb others, you can’t create a nuisance,” he says. “[Many] buildings thought that they couldn’t do anything about tobacco smoke because it’s legal, and [the] corporations didn’t take steps to put a stop to smoking when it was causing problems, but that was not right.”

In the months leading up to cannabis legalization, Kleiner says many condo corporations were enlightened to the fact they didn’t have to put up with tobacco smoke and that they could put a stop to cannabis and tobacco smokers who were creating issues. He likens it to a resident who plays the drums, saying even though it’s legal, it doesn’t mean they can play as loud as they like whenever they like.

“The [condo board’s] rule-making authority is to promote the safety, security or welfare of the owners and of the property and assets of the corporation — right there, we have safety and welfare of the owners because of second-hand smoke,” Kleiner says. “It falls squarely there.”

He says rules can take different forms, such as banning smoking within units, on balconies and terraces or both depending on the building.