Law Times

Page 12 October 28, 2013 Law Times • FOCUS Government to ban pot production in people's homes next year Continued from page 8 the grow-op is causing damage to other components or other units," he says. But he adds: "The boards don't seem to be clear that they have a duty to make sure that other residents aren't being inconvenienced and other components aren't being compromised." There are 5,044 people in Ontario with a licence to produce medical marijuana for their own personal use, according to the latest Health Canada figures reflecting the situation in December 2012. A further 640 people are "designated persons" authorized to produce the drug on someone else's behalf. Health Canada is restricting its marijuana medical access program to address fears that it's open to abuse and poses fire and safety risks. Across Canada, the number of licensed cannabis growers and users has increased to 37,000 in 2013 from 500 in 2001. Under the updated marijuana for medical purposes regulations, licensed producers will have to meet tougher requirements. For example, they must demonstrate that the production site is indoors and not in a private dwelling. Federal government documents state: "This would reduce the risk of diversion posted by outdoor production and would reduce health and safety risks associated with producing marijuana in a private dwelling." Sites must also include restricted-access areas, burglar alarms, and security cameras. Jaglowitz says the requirements should reassure owners of industrial properties used as licensed grow-ops. "It seems like they're going to be a little bit more picky about which locations get that licensing," he says. "Hopefully they will clarify that just because you have this licence, you're still required to follow bylaws," he adds. The question of whether condo dwellers can smoke on their balconies is 'becoming a significant issue,' says Audrey Loeb. The rules should also make it more difficult for illegal growops to operate under the guise of a licence. "We've found there certainly has been an increase in [illegal] grow-ops in condos," says Armand Conant, a partner at Shibley Righton LLP. "It tends to be in the townhouse condos rather than the highrises," he adds. That's because neighbours are less likely to notice the effects of mass cannabis production, such as humidity and mould. Conant recently dealt with a case in which neighbours found out about an illegal grow-op after noticing what appeared to be Styrofoam covering the windows. Although condo corporations can justify entering a unit for most reasons as long as they give reasonable notice, Conant recommends they alert police immediately in the case of suspected grow-ops. Doing so avoids having to alert the suspected criminals that they've detected their activity but it also prevents boards from breaching trespass and privacy rules in the event that their suspicions are incorrect. While the new regulations should make it easier to enforce certain rules around medical marijuana, they don't address the inDispensAble, AuthoRitAtive bullen & leAke & JAcob nEw EdITIOn BuLLen & Leake & JaCOB's Canadian PreCedents Of PLeadings, seCOnd editiOn ExTEnsIvEly updaTEd and ExpandEd wITh sEvEn nEw praCTICE arEas Now in a two-volume set, this new edition of Bullen & Leake & Jacob's Canadian Precedents of Pleadings brings you extensive updates in the law and precedents and features the addition of seven new practice areas and eleven new topical chapters. Learn from Canada's top litigators on how to draft accurate, clear and compelling pleadings. Compiled by an extraordinary team of Canadian lawyers in 16 practice areas, this indispensable resource provides expert commentary and a set of well-structured precedents that give you a valuable head start on drafting your pleadings. Order # 985539-65203 $450 2 volume hardcover + CD ROM approx. 1500 pages October 2013 978-0-7798-5539-1 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. The accompanying CD-ROM provides electronic versions of the precedents and access to the full-text case law referenced in the book. To learn more about the contributing authors, please visit www.carswell.com/bl AvAilAble Risk-FRee FoR 30 DAys Order online: www.carswell.com/bl Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 www.lawtimesnews.com pressing issue of how to deal with licensed users whose neighbours object to the smell of the smoke. There are 8,617 people in Ontario with a licence to possess marijuana used for a variety of medical problems including cancer, multiple sclerosis, and severe arthritis. Without amending condo declarations, boards can't ban people from smoking in their own units, although they can require owners to put in place measures that prevent the smoke from affecting their neighbours, says Conant. For example, they could ask them to install an extractor fan. But it's less clear what would happen if medical marijuana users claim they have a registered disability that requires them to smoke the drug and argue they want to do so on their balcony and not indoors. If they launched a case under the Human Rights Code, a ruling could override any rules set by the condo board and force it to accommodate the disability at its own expense, says Conant. "But that duty is open-ended," he warns. It's also unclear what kinds of measures could prevent smoke from wafting up from a balcony. The question of whether condo dwellers can smoke on their balconies is "becoming a significant issue" that goes beyond the medical marijuana debate, says Audrey Loeb, associate counsel at Miller Thomson LLP. Residents could potentially argue their addiction to cigarettes amounts to a disability, although their neighbours may counter in response that they have an allergy to smoke. "We don't have all the answers," says Loeb. "It's an ongoing issue we're continuing to deal with." Loeb and Conant are unaware of any human rights cases in which this particular issue has come up but they believe a legal challenge isn't far off. A resident with a disability and a licence to use marijuana is likely to have a stronger case than a cigar smoker or a cigarette addict, says Loeb, although the legal situation is ambiguous. Condo boards can choose to ban smoking in any area of the building if they can muster the 80-per-cent consent needed to amend the declarations. Loeb has recently come across a building in Mississauga, Ont., that has gone totally smoke-free. However, "it's really hard to get that consensus," she says. An outright provincial ban on smoking in condo buildings is unlikely despite an increasing intolerance of second-hand smoke, says Conant. The answer may lie in the building code that sets the standards for air filtration systems and odour control. "I think what we may see is building standards will increase to try to find even better ways to reduce migration of smoke between units," says Conant. LT

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