On October 17, 2018, the Cannabis Act came into force, which sets out the parameters for the legalization of recreational cannabis use. [1]
In a case between a co-owner, the Syndicat des Copropriétaires des Condominiums Club Marin II had to initiate proceedings to enforce the building by-law concerning the prohibition of the consumption of cannabis in both the private and common portions of the co-ownership.[2]
Following numerous complaints from neighbouring co-owners, the Syndicate had to act to enforce the building’s by-laws and in this sense, it initiated proceedings for damages and injunctions to force the defendant to stop all consumption and to emit the smell of cannabis, both in his private portion and in the common portions of the co-ownership.
On March 11, 2021, a safeguard order was issued by the Honourable Danielle Mayrand, J.S.C., ordering the defendant to ” cease smoking cannabis and to emit any smell and smoke of cannabis and to emit any smell and smoke of cannabis in the building, whether in his apartment, private portion, or on his balcony, common portion for restricted use, or in each and every common area of the building. [3]
Despite the Court’s order, the defendant ignored the very clear terms of the judgment rendered and continued repeatedly and without regard for, among other things, the harm caused to his neighbours, to consume cannabis and to emit the smell of cannabis from his unit.
Faced with the respondent’s repeated and intentional failure to comply with the Tribunal’s order, the Union had no choice but to institute an Application for a declaration of contempt of the Tribunal.
After 2 days of hearings and no less than 5 witnesses for the Syndicate, ” the Tribunal finds that the defendant intentionally contravened the safeguard order of March 11, 2021, on more than thirty occasions. The order is clear and the defendant is aware of its existence. [4]
The author of this article acted in her capacity as President of the Syndicate and testified in order to explain the steps taken by the co-owners concerned as well as the Syndicate to establish, beyond any reasonable doubt, the defendant’s failure and refusal to comply with the order of which he was aware from the day it was issued.
While none of the witnesses for the Union and the respondent’s neighbours saw the respondent using cannabis, the evidence clearly established that the smell and smoke of cannabis emanated from his unit.
The respondent argued that in order to discharge its burden of proof, direct evidence was required as opposed to circumstantial evidence.
The Tribunal considered the issue and concluded that “… It is not valid to say that direct evidence is required to prove beyond a reasonable doubt that the defendant has contravened a court order and has thereby been in contempt.” [5]
On December 21, 2021, the Superior Court under the pen of the Honourable Tiziana Di Donato. J.C.S., rendered a judgment finding the defendant guilty of contempt of court and sentencing him to a fine of $7000. [6]
This decision is a first in terms of cannabis consumption in co-ownership in the context of a contempt of court application and it has certainly not finished spilling a lot of ink. The defendant has appealed the judgment and a motion to dismiss will be heard by the Court of Appeal on April 4.
[1] (S.C. 2018, c. 16)
[2]Syndicat des Copropriétaires des Condominiums Club Marin II v. Mohammed Mehdi Mokaddem, 500-17-111289-206
[3] Paragraph 9, judgment of 21 December 2021 – 500-17-111289-206
[4] Paragraph 54, judgment of 21 December 2021 – 500-17-111289-206
[5] Paragraph 52 of the judgment of 21 December 2021 – 500-17-111289-206
[6] Judgment of 21 December 2021