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B.C. man barred from smoking weed on his condo balcony

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The man alleged discrimination on the grounds that his disability was not accommodated

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A man in British Columbia that uses medical cannabis has been ordered to stop smoking on the balcony of his condo by B.C.’s Civil Resolution Tribunal.

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The nearly 4,000-word decision notes that the man, who purchased the condo with his wife in 2019, alleged discrimination on the grounds that his disability was not accommodated. The man has been fined $200 five separate times for smoking-related bylaw breaches and argued that those fines were wrongly issued and that the condo corporation, or strata, ” harassed him, and permitted his neighbours to harass him about his cannabis use.”

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The man was seeking the removal of all bylaw fines and warning letters, an order that the strata not “pursue or enforce” his neighbours’ complaints about his cannabis use, reimbursement of $1,000 for a cedar privacy hedge installed along his backyard fence line, $5,000 in damages and an additional reimbursement of $1,120 in legal fees.

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The strata argued that the man has not provided medical evidence that his disability requires him to smoke marijuana, rather than ingesting it in another form, and had refused to participate in the accommodation process. The strata also said it has a duty to enforce its bylaws, including bylaws against nuisance.

In a counterclaim, the strata requested an order that the man ceases smoking cannabis in areas where the smoke may enter neighbouring properties.

The Civil Resolution Tribunal ruled in favour of the strata, and noted it has no jurisdiction or authority to resolve the man’s allegations of harassment by neighbours and dismissed the complaint.

In explaining the decision, the tribunal noted that while the strata has no bylaws specifically restricting smoking or cannabis use, the man’s use of cannabis is a nuisance to his neighbours, which is contrary to two of the strata’s other bylaws.

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The man smokes medical cannabis three to four times a day to manage the symptoms of multiple disabilities. The tribunal found that this “evidence about frequency and proximity of use supports the conclusion that the cannabis smoke is a nuisance to his neighbours.”

The decision notes multiple times that “there is no persuasive medical evidence in this case” that establishes the man must smoke cannabis, rather than ingest it in another form. The man argued that edibles and oils have a long onset time and smoking cannabis is the fastest way to manage his symptoms.

The tribunal was not convinced, arguing that the man “is not a medical or psychological expert,” and there was no expert evidence to confirm the man’s reasoning.

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The tribunal also dismissed the man’s arguments for smoking on his back patio, rather than elsewhere on the property.

In June, the strata received medical documentation from the owners occupying the condo opposite the man’s backyard, indicating that they had physical disabilities requiring that they not be exposed to second-hand smoke. The man argued his back patio is covered, while the common area of the property is busy with people walking and driving by, “which would expose him to discrimination and increase his disability-related stress and anxiety.”

The man’s complaint of discrimination was dismissed, with the tribunal arguing that the strata met its duty to accommodate to the point of undue hardship. 

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The rules about where it is legal to smoke or vape cannabis differ across provinces, territories and municipalities. In Ontario, residents are legally allowed to smoke recreational cannabis wherever it is legal to smoke tobacco, per the Smoke Free Ontario Act. However, condo corporations can ban smoking in governing documents, such as bylaws and declarations, reports Legal Line.

Medical consumers, however, “sometimes have the right to smoke even when smoking is otherwise prohibited, depending upon their situation,” Legal Line notes, adding that the Ontario Human Rights Code takes precedence over rules made by condo corps but those who smoke medical cannabis are still responsible to ensure that their actions do not create harm to other residents.

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In the lead-up to legalization, The Canadian Press reported that condominium corporations and apartment buildings across the country rushed to “enact rules that would ban pot smoking inside units, on balconies and in common areas used by residents.”

At the time, the executive director of the Condominium Home Owners Association of BC said that while some condo corps will make special accommodations for medical consumers, it can still lead to complaints from neighbours and possible human rights complaints by either party.

“It becomes a human rights Catch-22,” the director said. “Who has the greater rights of the two parties? Sometimes both rights are met. Some circumstances require modifications to the ventilation system in the building to accommodate both parties.”

In August, a condo owner in Surrey, B.C. was fined $800 for smoking cigarettes and cannabis in his unit and ordered to pay $13,000 for strata legal fees by the B.C. civil resolution tribunal.

A neighbour complained that “there were days the smell was so bad that she could not work from her home office, take baths in the upstairs bathroom, or make breakfast in the kitchen,” reports the Vancouver Sun

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