Condos and Cannabis—Human Rights Considerations
Condominium living comes with its own set of advantages – and disadvantages. As the old saying goes – you can choose your friends, but you can’t choose your…neighbors?
Purchasing a condo is a big step for many people and we are encouraged to do our due diligence to ensure it is a comfortable home for many years into the future. For example, you may have purchased a condo specifically in a building that does not allow smoking. At the time, the only legal option for “smoking” likely included tobacco products.
So what happens when the rules change? The legalization of cannabis brought a number of new challenges to condo living, particularly in light of the medicinal applications of cannabis and the somewhat untested requirements of using cannabis for “medicinal use”.
In 2019, the Alberta Human Rights Commission (AHRC) decided the case of Zahorouski v. Accredited Condominium Management, 2019 AHRC 41, with respect to a discrimination claim based on the use of cannabis in a condominium. Zahorouski had been smoking cannabis in his unit and on his balcony. He alleged that his cannabis use was necessary for his health and that the only effective way for him to consume it was through smoking it, rather than using edibles, oils, or vapourizing. Accredited Condominium Management (ACM) made attempts to find solutions to accommodate the use of cannabis without interfering with other unit owners and requested discussions among the owners to come up with ideas for how to handle the issue. None of these options were adopted by Zahorouski and the cannabis smoke continued to permeate common areas and neighbouring units. Eventually, ACM assessed Zahorouski with an administrative levy for breach of the bylaws of the condominium, stating that the cannabis smoke interfered with the reasonable enjoyment of the other units.
Zahorouski alleged that restricting his use of cannabis amounted to discrimination on the grounds of mental and physical disability.
The AHRC concluded that Zahorouski had not provided any evidence that he was required to consume cannabis through smoking (as opposed to other means of ingestion), and therefore he had not established that the bylaw affected a disability-related need. Furthermore, if Zahorouski had established this, the AHRC found that Zahorouski had made no meaningful attempt to participate in any accommodation effort, despite the condominium corporations attempts to work with him to find a solution that would balance the needs of all owners. As a result, the complaint was dismissed with the following comment from the Chief of the Commission and Tribunals:
“The complainant appears to have taken the position that simply because he had a medical authorization for the use of cannabis, he had an unfettered right to smoke in his unit, without regard to the effect of the smoke on others in the condominium. There is no legal support for such a position.” .
In other situations, condominium boards have faced the opposite problem where the neighbouring unit has complained that a board’s failure to limit cannabis smoking within a building gave rise to a claim of discrimination. In one such case, the complainants claimed that the condominium corporation was required to install pricy air vents and purifiers to eliminate any scent of cannabis smoke infiltrating their unit because it affected their chronic respiratory issues. The condominium board argued that it had already taken all reasonable measures to minimize smoke in the complainants’ units, including obtaining input from experts and installing equipment to redirect air flow away from the unit. While this complaint was withdrawn prior to obtaining a decision from the Human Rights Commission, the decision in the Zahorouski case suggests it was doomed to fail. A unit owner is entitled to “reasonable accommodation, not perfect accommodation” —regardless of whether the owner is the one smoking cannabis or the one complaining about it.
The emerging case law shows that efforts to accommodate must be made, however, accommodation of one owner must also balance the rights of other unit owners under the bylaws, and the participation of the parties on both sides of the complaint is crucial.