Since recreational cannabis became legal, many condominium corporations have enacted rules to prohibit smoking tobacco and cannabis and cultivating cannabis plants in units. Once a corporation enacts these new smoking rules, they have a statutory obligation under the Condominium Act (the “Act”) to take reasonable steps to enforce owners’ and tenants’ compliance with the new rules. Failure to act when there has been a breach of the corporation’s rules, or other governing documents, may expose the corporation to liability and possible litigation.
So what can a corporation do when it suspects an owner or tenant is smoking or cultivating cannabis in their unit in breach of the corporation’s rules?
While condominium corporations have a right to enter units, this right is limited to specific circumstances. Section 19 of the Act authorizes a condominium corporation to enter a unit, or part of the common elements of which an owner has exclusive use, on reasonable notice and at reasonable times for the purposes of performing the objects and duties of the corporation or exercising the powers of the corporation.
The Act defines the objects of the corporation as “to manage the property and assets, if any, of the corporation on behalf of owners”. The Act also defines the corporation’s duties as “the duty to control, manage and administer the common elements and the assets of the corporation.” As such, the Act does not permit the corporation to enter a unit where it suspects an owner or tenant is breaching the corporation’s rules.
So how can a corporation fulfill its statutory obligation to enforce compliance when it can’t access a person’s unit to verify the defiant conduct?
Like other rule breaches, gathering evidence to substantiate the breach is vital. The corporation needs to collect as much evidence as they can to document the smoking complaint. For example, the corporation should document all complaints in writing, gather incident reports and collect information from neighbours so that the source of the smoke can be identified. The corporation may also consider engaging a smoke migration engineer who can locate the source of the smoke in the building. This evidence will be important in the event that the owner denies they were acting in breach the rules.
Once enough evidence has been collected, the corporation may consider sending a letter to the unit owner outlining their breach and the evidence. If the unit owner is still acting in non-compliance, the corporation may escalate the matter to their legal counsel who will determine, on the strength of the evidence, what legal alternatives are available.
If the corporation requires access to the unit, and the owner refuses such requests, the corporation may consider legal proceeding by commencing an application to obtain the owner’s compliance to permit entry. The evidence collected, including documented complaints, incident reports, and possible expert reports will assist the corporation in its’ legal argument to access the unit.
However, many declarations contain provisions permitting a right of entry in the case of an emergency. For those that don’t have this provision in their declaration, it appears section 19 of the Condominium Act may be amended in the future to allow corporations to enter a unit without notice in the event of an emergency or other circumstances that will be prescribed by the regulations. However, the right to enter upon emergencies is not yet in effect.
Given the limitations of the Act, another option corporations may consider is amending their general operating by-laws to provide their corporation with a right to enter a unit for the purposes of abating breaches of the condominium’s rules, by-laws, the declaration or the Act. This by-law may permit entry to a unit on notice, or without notice, in the event of an emergency.
This blog post written by Danielle Swartz who has been very busy these past months draft smoking and cannabis rules for condominium corporations. To get a copy of our helpful guide on Smoking and Cannabis in your condo, click here.
