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#18888
Roger ()
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Marihuana smoking in Condominiums 2018/08/21 15:56  
First of all, thank you for running the Forum and all the great posts!

My Condo is a highrise building in Scarborough. Most of my neighbors share my concern about the coming regulations that would legalize smoking of marihuana.

We spoke to our Board members and asked for implementing condo rules banning smoking everywhere on the property, including balconies.

The Directors are willing to support our request but unfortunately, they don’t know how to proceed.

Please advise.
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#18889
marijuana - smoking prohibitions in units & common element areas 2018/08/21 18:08  
Yes a debt of gratitude is owed to Adam Wroblewski and to many "content" contributors over the last many years.

Within the last decade commenters like the Toronto Star's condo law expert Gerry Hyman, have opined that mere Board enacted "RULES" to outright prohibit in-unit smoking of any substance - where enacted with procedural validity and not overthrown by statutory owner challenge - meet the reasonability test legislatively imposed for Rule enactment. IF SO . . .

With competent legal counsel the Board could consult owners, then consider enacting a "reasonable" ban or restrictions on smoking pot or whatever WITHIN A UNIT via a Rule subject to the Condominium Act 1998 provisions for doing just that.

The Big Rush to head off grand-fathering

The context of the above question, is that Condo governancers in Ontario are getting rushed before October 17/18 to finish adopting condo by-laws prohibiting all sorts of smoking WITHIN UNITS expressly including recreational pot smoking. ( Beating that date may be too late now ).

That's especially urgent for the potsmoke banners if in-unit smoking ( generally ) is NOT already banned by valid Rule or Declaration.

The HAIR ON FIRE argumentation includes - correct or not - that once the smoking of recreational pot becomes fully decriminalized or a fully legal activity, there will be opened up an avoidable platform for pot smokers to then claim a GRAND-FATHERING exemption. It's about precluding GRAND-FATHERING where no medical / Human rights exemptions can be credibly argued.

Grand-fathering claimants would have a tough time seeking an exemption for what has never been legal.But what if an activity was legal WITHIN UNITS even for a short time ?

Exemption-claiming "platforms" would further tend to substantially increase enforcement problems eg where mere tobacco smoking within units has been fully lawful so far.

Bottom line : A rushed ban - if timely - attempts to head off GRAND-FATHERING claims & resulting compliancing problems.

See e laws or link above. BUT . . .

1 - If smoking is not Rule - defiant, is the problem one of air containment / integrity of unit separation etc ? Who pays to rectify ? Famous hell-raisers have argued that "My noise disturbance after unapproved carpet removal, is a building construction defect, not my fault" http://canlii.ca/t/1z91m

Or the Pyrrhic victory/Bollywood dance studio at
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=17111&catid=2#17111

2 - Enforcing the pot smoking ban within units, could be a far bigger challenge.

Common element smoking prohibitions are clear in legality but maybe in some locations not much easier to enforce.

Is a widely ignored prohibition smart to try to enact at all ?

How does one identify a smoke source unit ? ( " Yes my clothes may have a smell of MaryJane, but they get it from sitting next to others on the subway. Or I only smoke elsewhere eg where I and other airline pilots or brain surgeons get together before work . . . . " )

If a Rule scofflaw totally denies smoking within own unit - for example - will this undermine the credibility of governance ?

Or : "My medical marijuana for glaucoma, is NO different from a Seeing Eye Service Animal . . . . entitled to trump your restrictions up to the point of the undue hardship you as governancers have to prove . . . "

Will management purport to try to impose voodoo liens for what it purports - in the voodoo absence of an express statutory basis to adjudicate like some sort of judicial body - to factually constitute Rule defiance ?

Will there then be further voodoo abuse like bills for legal threats derived from such allegations and similarly lacking an express statutory platform ?

Lots of enforcement issues are invited, even though second hand smoke is widely considered deadly . . .

Bottom Line respectfully :

1 - suggest they obtain & listen to competent legal counsel.

( And to be fair, pot smokers should become aware of the Hair on Fire rush now underway if they want to be heard.)

2 - I don't try pulling out tree roots with my John Deere from the rear of the tractor. Its way too difficult . . . dangerous . . . sometimes even fatal . . . Some stuff has to be endured, no matter one's opinion of cancer sticks or getting high . . .
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#18891
Re:Marihuana smoking in Condominiums 2018/08/23 11:25  
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#18892
detection, compliancing & reasonablness issues 2018/08/24 11:59  
1- The term "scofflaw" - to my long surprise - is not medieval or earlier in origin. It expresses frustration with those who defy laws that are difficult or impossible to enforce.

It dates only to a 1920's U.S. media contest to best label those Americans who ignore liquor prohibition ( The Volstead Act 1919-1933 & states' acts ).

"Widespreadly" defiant temperance violations were recognized as severely compromising public respect for law & order.

Most so- called Temperance Acts were ultimately repealed after futility & disproportionate enforcement burdens were recognized. Huge costs & labour needed to truly enforce - IF at all . . .

It was ALSO arguably unbalanced & discriminatory in that bigshot boozing usually went unpunished but little folks were a convenient & occasional target . . .

2 - The update article as just cited, links centrally to a 2016 B.C strata enforcement judgment which was an immediate cafcor item in January 2016 : strata gets injunction & fines upheld against B.C. tobacco smoker Paul Aradi. See

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18408&catid=11

Human Rights, medical exemptions or other aspects aside, it's perfectly legal to tune your small engine. But how could it be so within a multi-storey condo unit ?

These disputes are often "rights in conflict". BUT in 2018 except by medical prescription, how much "as of right" should anyone have to smoke anything anywhere in a condo complex ? Almost the same for "cultivation".

3 - That article above brings together some interesting recent articles including by experienced condo lawyers Rod Escayola (Gowling WLG -Ottawa) and by Toronto's Denise Lash.

The "rush to bylaw" aspect ( of pot smoke bans ) gets a little more attention & discussion.

4 - Some lead up articles - including Rod Escayola's online opinion survey - also include :


series by Rod Escayola LLB Gowling WLG July 25/18 “Survey your Owners Before you Adopt a Rule on Tobacco and Cannabis” http://condoadviser.ca/2018/07/rule-on-tobacco-and-cannabis-do-you-know-your-owners-views-on-this/ condo-law-blog-Ontario

May 22/18 “What do Condo Owners Think of Marijuana Legalization?” http://condoadviser.ca/2018/05/what-do-condo-owners-think-of-marijuana-legalization/condo-law-blog- Ontario

11 months ago : Aug 29 2017 “ “Should Marijuana be Allowed in Condos ?" http://condoadviser.ca/2017/08/survey-should-marijuana-be-allowed-in-condos/condo-law-blog-Ontario

Denise Lash LLB June 6/18 “Marijuana Rules for Condominiums” with links to governancer - friendly discussions http://www.lashcondolaw.com/marijuana-rules-for-condominiums/

June 12/18 “ First Toronto Smoke-Less Condo” http://www.lashcondolaw.com/first-toronto-smoke-free-condo/


Others

Davidson Houle Allen LLP
June 20/18 “What Does This Mean For Ontario Condominiums?” by Melinda Andrews
http://davidsoncondolaw.ca/marijuana-is-close-to-legalization-in-canada-what-does-this-mean-for- ontario-condominiums/

May 4 2017 Jim Davidson LLB in 2017 http://davidsoncondolaw.ca/marijuana-in-condominiums-my-take-on-the-issue/

July 18/18 CP/Natl Post “Condos rushing to ban pot smoking before legalization” https://nationalpost.com/pmn/news-pmn/canada-news-pmn/condos-rushing-to-ban-pot-smoking-before- legalization-leaving-some-residents-fuming
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#18903
BOARD TOTALLY BANS non-medicinal in-unit POT SMOKING despite prior owner rejection of RULE- PCC 516 2018/10/03 13:28  
In a possibly landmark move, CBC Toronto reports that the Board of P.C.C. 516 APPLEWOOD PLACE ( Mississauga ) has issued a ban of all non-medicinal POT smoking within units themselves effective Oct 1/18.

Declaring to also consider unit-by-unit exemptions for medically-prescribed POT SMOKING, the "hazardous grounds" total ban counters a recent rejection by owners of such proposal that the Board had promulgated in the form of a RULE.

The CBC report immediately garnered attention at the giant U.S. condo / HOA / POA site Community Associations Network.

With such opposition that actually overturned the prior proposed Rule, some interesting times may lie ahead at that site . . . . Many eyes will be watching this . .

Regardless of whatever genuine demand for mountains ( ? ) of recreational pot-smoking product, massive investment fortunes already made will be available to help fund challenges.

One might expect to hear arguments that smoking within one's unit is and has been a property right & for centuries.

Maybe also that second hand smoke can be contained, & that such containment costs should be incurred by the "ban-imposers".ie like : "You want smoke free ? Move out or PAY FOR YOUR OWN containment alterations !"

Without necessary application at all to Ms Lash's client nor anyone with such sensitivity, one may hear compelling arguments like :

"Extreme outliers' - whether medical or psychological hyper-sensitivities or both - should not be the trigger point for cutting off one of the few lurid pleasures left to most of the owners by the Federal government ! !".

Or that at the very least such ban is a drastic enough property rights infringement, that banning should have been fully engaged by owners. And here the owners already rejected the Rule. . . .

Will urban condo bans ( like this ) help trigger legalization of the SALE of pot edibles ? ( think : children & pets ). Will recreational pot smoking dens or pubs be likelier pressured into neigbourhood zonings ?

anyway . . . . WITH COPY OF THE BOARD'S POSTED ANNOUNCEMENT see :

Oct 3/18 CBC Toronto “Woman's allergy prompts Mississauga condo to ban pot, despite residents voting it down” by Lisa Xing

https://www.cbc.ca/news/canada/toronto/condo-mississauga-bans-marijuana-1.4847945
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