Only days before the legalization of cannabis, the Human Rights Commission of Ontario has issued a Policy Statement on Cannabis and the Human Rights Code. This Policy Statement helps us understand how the Commission is likely to deal with cannabis-related competing rights in a condominium setting.
There is No “Right” to Consume Recreational Cannabis in a Condo
According to the Policy Statement, the Human Rights Code protect against discrimination people who use cannabis for a medicinal purpose related to a disability. Stated otherwise, regardless of the legalization of cannabis at the federal level or in Ontario, smoking recreational cannabis in your condo is not a right protected by the Human Rights Code.
The protection of the Code only kicks in when and if the use is required for a medicinale purpose related to a disability. Such a disability, could include people who are or are perceived to be addicted to cannabis. Interestingly enough, in the context of tobacco, courts have already opined that the addiction is not related to the smoking of tobacco but rather to nicotine or other substances in the cigarette. This is relevant as similar conclusions may be found with respect to a cannabis addiction. Cannabis does not always have to be consumed by burning it.
Is Accommodation Required?
People who requires cannabis for a medical purpose related to a disability, have a right, under the Code, to be accommodated to the point of “undue hardship”. The obligation to accommodate may require housing providers (including condominium corporations) to look for solutions to accommodate people with a disability-related need for cannabis – but always to the point of undue hardship. In its Policy statement, the Commission reiterates that the point of undue hardship (at which point the corporation does not have to accommodate) includes considerations such as significant health and safety risks to other owners and excessive costs.
The policy also reiterates that people seeking accommodation related to cannabis use because of a disability may need to provide medical or other information to support such medicinal need.
What information can the corporation demand in support of a disability-related request for accommodation?
We are often asked to provide some guidance to condo corporations who are faced with disability-related requests for accommodation. These kinds of requests often raise competing interests. On the one hand, the person seeking to be accommodated has a right to a certain level of privacy. On the other hand, corporations must have enough information to allow them to meet their duty to accommodate.
In its 2016 Policy on ableism and discrimination based on disability, the Human Rights Commission provided some guidance on the kind of information a corporation could seek from occupants wishing to be accommodated. This information should be limited to that reasonably related to the nature of the limitations associated with the disability in order to assess the needs and required accommodation. Keep in mind that all such requests for accommodations should be treated with good faith and respect and that a request for information should be limited to what is absolutely required for the corporation to be able to treat the request for accommodation.
The type of information that accommodation seekers may generally be expected to provide to support their request for accommodation generally includes:
- that the person has a disability (but not necessarily what the disability is);
- the limitations or needs associated with the disability;
- whether the person can perform the essential requirements related to occupancy of a condo unit;
- the type of accommodation(s) that may be needed; and,
- if applicable, regular updates about when the person may be expected to no longer require such accommodation.
Addressing and properly responding to a request for accommodation is a tough balancing act. Corporations should consult with their legal counsel early in the process to avoid litigation or being it with an Application to the Human Rights Tribunal.
Our rule on cannabis and tobacco specifically address Human Rights considerations.
Click here to read the Commission’s Policy Statement on Cannabis and the Human Rights Code.
Are you considering adopting a rule regulating smoking or cannabis? You may want to survey your owners before you start drafting a rule. Ask us about our arms-length, confidential online survey. This may be the best tool out there to ensure you strike the right balance between collective needs and individual desires.