Real Estate

Duty exists to accommodate medicinal pot in condos: De Vellis

By AdvocateDaily.com Staff

While the legalization of recreational cannabis should not have much of an impact for condos that have banned smoking, accommodations must be made for those using medical cannabis, says Toronto condo lawyer John De Vellis.

Recreational cannabis became legal in Canada on Oct. 17, but many condominium corporations had already passed rules governing smoking, says De Vellis, a partner with Shibley Righton LLP.

He tells AdovcateDaily.com that tobacco smoking rules that were already in place in individual condos apply to residents and their guests regarding recreational cannabis smoking.

"Generally, the no-smoking rules apply to tobacco and marijuana, and are treated the same," he says. "If the rule is you can't smoke tobacco, that will be the rule for cannabis."

Even though both substances are legal, condo corporations can pass rules prohibiting use on their premises, De Vellis says.

"But if there’s a medical issue, it’s treated on a case-by-case basis," he says. "They’ll look at the medical evidence, whether the person has a medical reason that requires them to smoke in the unit and then what accommodations are possible.

"It's a little different than a workplace situation because this person is at home, they have a disability and they want to smoke in their residence.”

He says those who work in a condo and require medical marijuana may face different considerations if their position is safety-sensitive. Employers must consider accommodations a disability to the point of “undue hardship” and bona fide occupational requirements, such as safety rules, must also be taken into account. Each accommodation request must be dealt with based on the context of the case, but a recent ruling emphasized safety over accommodation.

"The [workplace] policy itself does not close the door to accommodating employees who use medical marijuana but may restrict such accommodation to a non-safety sensitive job," adjudicator Colin Johnston wrote in the decision.

De Vellis says accommodation for medical purposes often allows residents to smoke in their homes, but they may have to be retrofitted by installing air filters to prevent smoke from entering neighbouring units.

"A condo corporation has a general procedural duty to work with the person on what, if any, accommodation may be required, but one person's accommodation can't detrimentally affect everyone else,” he says.

"Medicinal marijuana has been around for some time, but with recreational use, there may be more complaints," says De Vellis.

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