Since the Cannabis Act came into force on October 17, 2018, Canadians are able to grow, possess and use non-medical marijuana in regulated amounts. It is now legal for individuals over the age of 18 to possess up to 30 grams of dried marijuana or its equivalent in other forms and for each household to grow up to four marijuana plants.
In response to the federal legislation, many provinces and territories have chosen to further restrict recreational marijuana use and cultivation. B.C. has done so through the Cannabis Control and Licensing Act (CCLA) which raises the minimum age to 19 for the purchase and consumption of marijuana products in this province. It also prohibits smoking and vaping in certain public or semi-public places, for example: parks, playgrounds, sports fields, school properties, and bus stops. Smoking and vaping are similarly disallowed in and around workplaces, as well as the common areas within apartment buildings and strata corporations. The CCLA also prohibits cultivation in residences used as day-cares and mandates that any home-grown marijuana plants are kept out of public sight.
Medical marijuana use and cultivation will be relatively unaffected by the Cannabis Act and the CCLA, as the new Cannabis Act Regulations incorporate the old Access to Cannabis for Medcial Purposes Regulations with very few changes. Licenses granted under the ACMPR remain valid under the new regulations and individuals with a certificate (which requires authorization from a health care practitioner to obtain) are still able to grow, possess, store and use marijuana in regulated amounts exceeding those set for recreational use. Under the CCLA a person can only grow medical marijuana if they have such a certificate.
Many strata corporations wish to craft bylaws to curb the unwanted effects of medical and recreational marijuana use and production.
Strata corporations are permitted by s.119 of the Strata Property Act (SPA) to make bylaws pertaining to the use of strata lots and the common property. It is under these provisions that bylaws restricting or prohibiting the growing or use of marijuana can be passed. However, the bylaws of a strata corporation are subject to the provisions of the Human Rights Code. This means that the outright prohibition of marijuana is not possible where it is needed on medical grounds. S.8 of the Code provides that a person must not, without a bona fide and reasonable justification, discriminate against or deny to a person or class of persons any accommodation, service or facility customarily available to the public because of a physical or mental disability. Although the Code does not define what constitutes a physical or mental disability, for human rights purposes the concept generally contemplates a physiological state that is involuntary, has some degree of permanence, and impairs the person's ability to carry out the normal functions of life - see Andruski v Strata Plan LMS3199, 2017 BCHRT 62. Medical marijuana users generally fall under this category. A person who has a certificate under the federal regulations would clearly qualify for an exemption on medical grounds.
However, the need to use marijuana for medical purposes is not a “blank cheque” to do so in whatever manner one wishes. In The Owners, Strata Plan LMS 2900 v. Hardy 2016 BCCRT 1 the Civil Resolution Tribunal (CRT) upheld a strata corporation’s no smoking bylaw against an owner who required the use of marijuana for medical purposes. In doing so it stated:
“While the owner clearly prefers to smoke marijuana, I find there is no persuasive evidence before me that smoking marijuana, rather than ingesting it in another form, is necessary to accommodate his disability”.
As a result, a bylaw which restricts or prohibits smoking marijuana may well be enforceable in a situation involving the use of marijuana for medical reasons. Such situations are best dealt with on a case by case basis to determine the extent of any accommodation required.
In the past, recourse for dealing with marijuana cultivation exists in the form of Standard Bylaw 3(1)(d) which prohibits a strata lot from being used for illegal activity (i.e. growing marijuana without an exemption). Following enactment of the Cannabis Act that bylaw will be of little use (except to enforce restrictions imposed by provincial and municipal laws). Standard Bylaws 3(1)(a)and(c) would still apply to a use that constitutes a nuisance, poses a hazard or unreasonably interferes with others; but these require proof of harm prior to a remedy being granted. The creation of marijuana-specific provisions is something a strata corporation wishing to control the cultivation and use of marijuana should consider.
Bylaws related to marijuana can take many forms and the appropriate restrictions will vary depending upon the needs and wants of each strata corporation. Where one strata corporation may opt for more flexible restrictions focused on keeping common areas and balconies free from marijuana smoke, others may desire a complete prohibition of all things marijuana. Regardless of the individualized restrictions for which a strata corporation may opt, bylaws controlling or regulating marijuana should address such matters as:
• medical versus recreational marijuana use;
• use in strata lots versus on common property;
• smoking of marijuana;
• cultivation of marijuana – where and what systems will be allowed;
• alteration of marijuana from one form to another;
• changes that may be required to the strata lot to allow for cultivation;
• inspection for compliance
Strata corporations that do not regulate non-medical marijuana use may face many issues, including complaints regarding exposure to second-hand smoke. There is an ever increasing trend toward holding strata corporations accountable in the accommodation of owners with disabilities, such as asthma, that are aggravated by second hand smoke - see Perron v Strata Plan NW 164, 2009 BCHRT 59 and Leary v Strata Plan VR1001, 2016 BCHRT 139. Without controls in place, those obligations cannot necessarily be met. A failure to later pass a bylaw prohibiting smoking may not exempt the strata corporation from its obligations in that regard.
The smoking of marijuana is not the only worry for strata corporations. Other concerns pertinent to strata corporations include:
(a) damage to the buildings by moisture from growing marijuana plants (which can create mould spores in walls, ceilings, and floors and which can damage window seals);
(b) disproportionate use of utilities such as electricity and water (if not sub-metered) which are required in great quantities to grow marijuana plants;
(c) increased fire hazards due to growing and processing methods;
(d) whether the strata corporation’s insurer will cover claims arising from marijuana related accidents;
A final issue to consider is commercial dispensaries. Under the new regime they will be regulated by the provincial and municipal governments. Where the zoning bylaws do not allow for such a business the strata corporation can rely on Standard Bylaw 3(1)(d). However, if the zoning allows for such businesses then strata corporations will need to consider whether or not they should allow such a business. (Given the requirement for ¾ of the commercial strata lots to vote in favour of any bylaw amendments, such a restriction may be difficult to enact).
It is arguably within the power of a strata corporation to regulate the use of strata lots given the language of s.119(2) of the SPA. In Kok v. Strata Plan LMS 463 (1999), 23 RPR (3d) 296 the court upheld the ability of the strata corporation to regulate the uses of strata lots within a retail shopping centre. In AW-NM Ventures v. Owners Strata Plan LMS2586 2004 BCSC 666 the court held that municipal bylaws regarding commercial signage did not override the more narrow strata bylaws. However, in Winchester Resorts Inc. v. Strata Plan KAS 2188 (2002), 4 BCLR (4th) 390 the court ruled that the strata corporation’s bylaws could not restrict uses which were permitted in a registered building scheme; to do so would be significantly unfair under s.164 of the SPA. Which line of reasoning will ultimately prevail is not clear, but it will quite possibly come to a head with regard to this issue.
Strata corporations will need to give careful thought as to how they want to approach this issue and consider what activities related to marijuana use they are prepared to allow. Bylaws can then be drafted to reflect those desired limits.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or firstname.lastname@example.org. He can be followed on Twitter @stratashawn.