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Personal use and cultivation

Possession and consumption

What rules and restrictions govern the personal possession and consumption of cannabis in your jurisdiction?

The federal Cannabis Act (the Federal Act) legalised recreational cannabis in Canada on 17 October 2018. Although the Federal Act prescribes rules for the personal possession of cannabis, each province has the power to impose more restrictive possession rules if it sees fit to do so. The provinces also have the right to regulate places of consumption of recreational cannabis, among other rules.

The Ontario government has chosen not to further restrict possession rights; therefore, Ontarians have the right to possess the Federal Act maximum of 30 grams of dried cannabis in public at any time. Similarly to alcohol, pursuant to Ontario’s Cannabis Control Act 2017, recreational cannabis may be transported in a vehicle or boat only if the cannabis is not readily available to any person in the vehicle or boat – and cannot be consumed in a vehicle or boat. Ontario allows a passenger in a vehicle to possess medical cannabis provided that it is not readily available to the driver.

Recreational cannabis users will be permitted to smoke or vaporise cannabis anywhere that tobacco use is allowed pursuant to the provisions of the Smoke-Free Ontario Act 2017. Currently this would prohibit the smoking or vaporising of cannabis products:

  • in any enclosed public space or workplace (although there are certain exemptions, including for long-term care homes and designated hotel rooms);
  • on outdoor patios;
  • in areas where home healthcare workers work;
  • outside of hospitals, schools or other public institutions;
  • near children’s playgrounds or publicly owned sports fields or entertainment venues; or
  • in a vehicle or boat.

Cultivation

What rules and restrictions govern cultivation of cannabis for personal use?

The Federal Act prescribes rules for the personal cultivation of cannabis for both personal recreational and medical use. Although the Federal Act has exclusive jurisdiction to regulate the cultivation of medical cannabis, the provinces have the right to impose rules on the personal cultivation of recreational possession if such rules are more restrictive than those of the Federal Act.

The Federal Act permit adults in Canada to cultivate up to four legal cannabis plants per residence (not per person). The Ontario government has not chosen to further restrict this limit.

Use in and outside the workplace

What statutory and case law (if any) governs employers’ ability to restrict cannabis use both in and outside the workplace? Can cannabis use (even medical use) serve as legal grounds for termination?

Other than potentially for medical reasons, cannabis legislation does not give employees the right to use cannabis in the workplace and this remains a largely unprotected area under the Ontario Human Rights Code.

Consuming recreational cannabis in an enclosed workplace is prohibited by the Smoke-Free Ontario Act 2017, subject to certain exclusions. Otherwise, it falls to employers to set their own policies regarding recreational cannabis use subject to existing applicable legislation, such as the Ontario Occupational Health and Safety Act.

Regardless of the anticipated effect of cannabis legalisation, employers should update their policies and consider treating cannabis in the workplace in the same way that alcohol is dealt with.

With respect to medical cannabis, employers have a duty to accommodate employees until reaching a point of undue hardship. These employees must be accommodated in the same way as an employer accommodates any other disabled employee who has been prescribed medication. However, the duty to accommodate is not without limits and workers do not have a right to be impaired while at work.

Under the common law, it can be a challenge to justify the termination of employees even for blatant violations of workplace drug and alcohol policies. The case law often centres around whether there are potential threats to workplace safety and employee safety that would be directly influenced by an employee’s decision to consume alcohol or other drugs while working.