Introduction of the Cannabis Act
The recent legalization of cannabis in Canada has ignited a debate across British Columbia strata corporations with respect to allowing or disallowing cannabis cultivation and/or smoking from their communities. Many strata corporations are debating whether to completely smoke out cannabis production and consumption, or give residents a break. Since cannabis can be produced and consumed in many forms, the burning question remains: what options do Strata Councils have to regulate or even prohibit these now-legal activities?
The Strata Property Act allows strata corporations to roll out bylaws that provide for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation. This means that strata corporations have the ability to create and enforce bylaws regulating or prohibiting cannabis cultivation and use. Each strata corporation should consider whether a cannabis bylaw is appropriate for their community. Although all strata corporations will start with default bylaws governing activities that create a nuisance or disruption, strata corporations wishing to specifically address these activities should consider creating bylaws to regulate or prohibit production or use of cannabis, vaping and other substances. The clearer the bylaw, the less cloudy the approach to bylaw enforcement.
Are there limits to what a strata corporation can do to regulate cannabis use? Although strata corporations are free to regulate activities that cause a nuisance, disruption, or other interference, the regulation of activities that do not impact property or residents is not likely to be enforceable. For example, a bylaw that purports to ban private consumption of cannabis in the form of edibles (e.g. gummies, brownies, cookies, etc.) or oils will likely not pass the smell test for an enforceable bylaw under the Strata Property Act. Strata corporations should also be careful not to contravene the BC Human Rights Code when enforcing cannabis bylaws against those who cultivate or consume cannabis to treat a medical condition. In those circumstances, the Strata’s duty to enforce its bylaws is extinguished by its duty to accommodate a person’s physical and/or mental disability to the point of “undue hardship”. Accommodation is also required for residents who can demonstrate an addiction. At the end of the line, what accommodation will be deemed appropriate in the circumstances is fact dependant, as seen in the very first decision from the Civil Resolution Tribunal: The Owners, Strata Plan LMS 2900 v Mathew Hardy, 2016 BCCRT 1.
In The Owners, Strata Plan LMS 2900 v Mathew Hardy, 2016 BCCRT 1, a strata corporation with a broad no-smoking bylaw asked the Civil Resolution Tribunal to order the owner to stop smoking tobacco and cannabis in his unit. The strata corporation provided a large number of emails from strata residents sent to the property manager, detailing smoke complaints. In response, the owner claimed to have a disability, but did not respond to an inquiry as to why he could not ingest cannabis in other forms. Ultimately, the CRT found that the owner had contravened the bylaws. While the CRT was satisfied that the owner had a disability, it found there was no persuasive medical evidence or expert opinion demonstrating that the owner couldn’t ingest cannabis without smoking it.
Let’s Be Blunt
The recent legalization of cannabis is not a topic that will blow over soon for strata corporations. The decision to regulate or prohibit cannabis cultivation or consumption is one that every strata corporation in British Columbia will need to address for its community.
For assistance with drafting and enforcing cannabis bylaws, please contact any member of the Alexander Holburn Strata Property Group.