Legal

April 12, 2019 Published by Toronto and Area Chapter - By Jason Rivait, Emily Ng

The Right to Smoke Cannabis

From the Spring 2019 issue of the CCI Toronto Condovoice Magazine.

Cannabis can now be used wherever tobacco use is permitted. In this regard, residents may smoke, vape, or otherwise consume cannabis in their own units, or on the exclusive use common elements appurtenant to their units (i.e. balconies, patios or terraces), subject to any rule or declaration provision that prohibits such conduct.

The recent legalization of cannabis has prompted condominium corporations to consider how cannabis may be used by residents and anyone who works at the property. In some instances, condominium corporations have passed rules or workplace policies, which strictly prohibit the smoking or vaping of cannabis in or on the condominium property.

During the process of passing cannabis rules, many residents have questioned whether persons have the right to smoke cannabis, irrespective of the enactment of any rule or declaration provision that prohibits such conduct. The answer to this question is a resounding no (condominium corporations are permitted to prohibit the smoking of cannabis in or on the condominium property).

Federal and provincial human rights legislation prohibits discrimination on the basis of certain "protected" grounds, including disability. Where a resident or an employee possesses a condition which may be considered a disability under human rights legislation, the condominium corporation has a mandatory legal duty to accommodate this person's disability, unless doing so would be an undue hardship. If the condominium corporation does not accommodate, the person seeking accommodation may file a human rights complaint. These complaints can be costly.

Determining whether a duty to accommodate exists requires cooperation from both the condominium corporation and the person seeking accommodation. So, what factors should directors turn their minds to when considering whether the condominium corporation has a duty to accommodate a person who is requesting to smoke, vape, or otherwise use cannabis where the conduct is prohibited by a rule or declaration provision?

The Ontario Human Rights Commission issued a policy statement on cannabis and the Human Rights Code in July 2018. This statement sets out three key considerations in determining whether there is a duty to accommodate cannabis use.

1. Is the cannabis use for a medical purpose?

People who use cannabis for medical purposes related to a disability, which includes people who are addicted to cannabis, have the right to disability-related accommodation to the point of undue hardship – that is, significant health and safety risks or excessive costs.

There is no duty to accommodate recreational cannabis use. Ontario courts and tribunals have dismissed claims of discrimination relating to cannabis use where there was insufficient evidence of disability-related needs.

Based on the foregoing, the duty to accommodate only applies in circumstances where there are verified disability-related needs. This creates an obligation on persons seeking accommodation to provide medical or other information in support of their request. It may not be necessary for the condominium corporation to know the exact nature of the person's disability or treatment, provided that there is credible medical evidence verifying that the cannabis use is related to a disability.

It goes without saying that this information is highly personal and is subject to privacy rules regarding its collection, use, and disclosure. Accordingly, it is imperative that the condominium corporation only collect necessary medical information to determine whether the duty to accommodate is triggered.

2. Is the cannabis use for a medical purpose smoked?

In determining the condominium corporation's duty to accommodate, directors should consider whether the smoking of cannabis is necessary for the person's disability-related needs. In this regard, it would be reasonable to question whether the consumption of edibles or oils or the use of a vaporizer is an appropriate alternative for the resident seeking accommodation, especially if there are other residents that are negatively impacted by the smoke transmission.

3. What if cannabis use causes impairment at work?

This question is obviously geared towards the employees of condominium corporations. Smoking and vaping considerations are different for employees of condominium corporations, as they are not permitted to smoke or vape in any enclosed workspaces or in or on the common elements. Finding a suitable place for employees with a disability- related need to smoke or vape cannabis could be challenging. In appropriate cases, an employee could instead consume edibles or oils for his or her disability-related needs, provided that this use does not interfere with workplace health and safety or work performance.

As an employer, the condominium corporation can generally restrict employees from using cannabis at work, unless an employee uses cannabis for medical purposes. The duty to accommodate requires the condominium corporation to:

 

(a) inquire where an employee is known to have, or perceived to have disability needs related to cannabis use for a medical purpose; and

(b) try to reduce risks for employees who use cannabis for disability-related needs.

The duty to accommodate does not necessarily require the condominium corporation to permit cannabis impairment at work. The condominium corporation could accommodate employees by changing some job duties, making alterative work arrangements, or allowing time off to attend a rehabilitation program. This duty ends if the employee cannot perform the essential duties of the job after accommodation has been tried and exhausted, or if undue hardship would result.

Other Considerations

In addition to the above factors, condominium corporations should keep in mind that they have a right to ask for information. The conversation between the condominium corporation and the person requesting accommodation should be an open and respectful dialogue that is ongoing and not merely limited to a point in time reference. Questions about the nature of the disability and whether it is temporary or permanent should be posed to ascertain the length of the accommodation. It would also be reasonable to ask for periodic updates on the person's medical condition and whether the accommodation is still appropriate.

Additionally, there may not be a duty to accommodate where the person does not participate in the accommodation process. Condominium corporations are required to accommodate both residents and employees who use cannabis for disabilityrelated needs. How such accommodations are made will differ, as residents have the right to use the condominium property as their homes whereas employees are subject to workplace considerations. In all accommodation processes, the condominium corporation should ask for information while respecting the person's privacy and consider how to best balance the person's rights with the rights of the overall community. This is not an easy task, and each accommodation request should be considered separately. What works for one person may not be suitable for someone else.