On October 17, 2018, Canada will legalize the possession and the consumption of small amounts of cannabis for personal use. What does this mean for landlords? Eighty-five percent of landlords who were surveyed in the summer expressed a concern about the legalization of cannabis. Although the criminal law is federal, the laws with respect to the landlord-tenant relationship are based in provincial law. Each province has a different response to the challenges created by the legalization of cannabis. This article focuses on the law in Ontario.
In Ontario, the Smoke-Free Ontario Act, 2006 and the Electronic Cigarettes Act make it illegal for anyone to smoke in any enclosed public space, any enclosed workplace and designated public spaces. These laws do not cover cannabis in other forms, such as oils or edibles.
Commercial leases typically contain strict "no-smoking" clauses. By-law officers can ticket violators. Nonetheless, landlords should revise their standard-form lease to clarify the rules around smoking, growing marijuana or even the use of the premises for the processing or sale of cannabis and cannabis by-products.
The situation for residential tenancies is less clear.
The government of Ontario has not changed rentals laws to specifically address smoking cannabis in rental residences. Unless there is a clause in the residential lease prohibiting smoking, tenants will be allowed to smoke cannabis in their rental unit starting on October 17, 2018. In addition, tenants will be allowed to grow up to four (4) plants for personal consumption.
For new tenancies, landlords who are concerned about smoking or vaping cannabis should be reviewing their standard-form lease and including a well-drafted no smoking and no cannabis clause. The mandatory standard-form residential lease in Ontario allows for no smoking rules in its template. It does not, however, provide sample language that could be used. Specify that any "no smoking" rule includes cannabis.
What about existing tenancies? Landlords cannot unilaterally modify or amend existing leases to include a new non-smoking clause. However, tenants should be wary of cannabis use in their residential unit in order to not substantially interfere with the reasonable enjoyment of the landlord or other tenants, cause undue damage to the premises or impair the safety of others in the building.
Condominium corporations will remain subject to the standard rules and by-laws adopted by its board and they may prohibit smoking cannabis through such rules and by-laws. Hence, it is not surprising that condominiums have been distributing notices to existing tenants, advising of the new rules surrounding the use of cannabis. Some condominiums are also using this opportunity to ban the smoking of tobacco as well.
Whether in the lease or incorporated in a "rule", we recommend that clear and written notice be given to existing tenants regarding what will and will not be permitted. Be specific. Will smoking be permitted in the unit? On the balcony? In the parking areas? Completely forbidden? Will the tenant be allowed to grow cannabis plants?
Remember, for any rule, by-law or clause to be useful, it must be enforceable. The landlord should be able to demonstrate the underlying rationale for the prohibition against smoking. As any residential landlord knows, enforcing rules can be a tedious and time-consuming process, so patience will be required. The onus is on the landlord to establish that the tenant is disturbing others, affecting the safety of others or causing damage to the unit.
A word of caution. Cannabis can be prescribed for a whole host of medical reasons. Tenants who need cannabis in a smoked form have a right to be protected against discrimination on the basis of illness or disability. For instance, a rule that allows residents to smoke tobacco in their residential units but prohibits cannabis use for a medical purpose related to a disability might violate the Human Rights Code. Therefore, stringent anti-smoking rules may have to be modified to accommodate a tenant. Conversely, a tenant who has a verifiable allergy to cigarette or marijuana smoke may be able to insist that the landlord enact appropriate rules to protect the tenant's health. We expect landlords to be involved in some very difficult situations, balancing competing and conflicting rights.
It will be less than a week before Canadians can all legally consume cannabis. While others may be waiting with anticipation to consume cannabis legally in their favourite form, we will be watching carefully for legal developments.