Is your condo board prepared for pot?

Is your condo board prepared for pot?

Posted by: Joel Berkovitz , October 29, 2018

Now that Oct. 17 has come and gone, there may be a whiff of something else in the autumn air, Toronto business lawyer Joel Berkovitz writes in Shibley Righton’s Condo Law Newsletter.

The smell of now-legalized marijuana should be a reminder to condominium boards to reflect on whether they’re ready for the changes, says Berkovitz, a lawyer with Shibley Righton LLP.

“While much will be written about the effects of legalization on the country as a whole, condominium directors and managers will need to consider the effects of legalization on their individual communities,” he writes.

“Many condominiums have chosen to take this as an opportunity to address both tobacco and cannabis smoking in their buildings, with many choosing to pass rules which will eventually make their buildings entirely smoke-free,” Berkovitz says. “Others have taken a less restrictive approach and have only passed rules governing the growing of cannabis, and smoking of cannabis on the common elements.”

He advises condominium boards to consider whether they have appropriate rules in place to deal with marijuana.

“While nearly all corporations have some sort of anti-nuisance provision (either in the declaration or rules) which can be applied if there are smoke migration issues that arise (whether from tobacco or cannabis), many have decided to pass additional rules governing where cannabis can be smoked, whether it can be grown, how cannabis packages are treated by the corporation's staff, and other matters,” Berkovitz writes.

He says condo corporations should act promptly to avoid “arguments from owners that they are entitled to grandfathering.”

Berkovitz says policies should also be in place for employees.

“Unlike alcohol, cannabis impairment can be hard to detect, and reliable tests for detecting impairment (rather than trace amounts of cannabis metabolites which remain in the body for days or weeks after use) are still being developed. If there are any concerns about drug use in your workplace, having the appropriate policies in place can help to avoid difficult employment law situations,” he advises.

Berkovitz says it’s important to remember that laws which dictate where cannabis can be used have now been ""synced"" with tobacco laws.

“While originally the [former Liberal] government had passed legislation which would restrict cannabis use to private homes, the new Conservative government has introduced legislation which will allow cannabis smoking wherever tobacco smoking is permitted. This means that if you have outdoor common elements on which tobacco smoking is permitted ... cannabis smoking will also be permitted in those areas unless you take steps to restrict its use,” he says.