As of today, it is lawful for adults in Canada to consume cannabis recreationally. Legalization is subject to different provincial standards as the provinces and territories are responsible for oversight in the distribution and sale of cannabis. In addition, the provinces and territories are able to restrict where cannabis may be consumed.

With the Cannabis Statute Law Amendment Act, 2018, passing into law earlier today, the legal landscape regarding the regulation of recreational cannabis in Ontario has changed. One of the changes that comes from the Cannabis Statute Law Amendment Act, 2018, is how it modifies where cannabis consumption is allowed and where it is prohibited.

The new legislation has now tasked the Smoke-Free Ontario Act, 2017, with the job of regulating where cannabis (both medicinal and recreational) can lawfully be consumed. Effective today, subject to any additional restrictions contained in municipal bylaws, the smoking or holding of lighted cannabis will be prohibited in the same places where the smoking or holding of lighted tobacco, the use of an electronic cigarette (which is defined to include a vaporizer or inhalant-type device), and/or the consumption of a prescribed product or substance are prohibited.[1] Conversely, the smoking and vaping of cannabis will be allowed wherever the smoking of tobacco is allowed.

The Ontario government has provided a list of places where people cannot smoke or vape cannabis in Ontario. The list of places are:

  • An enclosed public place
  • An enclosed workplace which is defined as the inside of any place, building or structure or vehicle or conveyance, or a part of any of them, that is covered by a roof, that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and that is not primarily a private dwelling, or a prescribed place[2]
  • Schools and places where children gather
  • Publicly owned sports fields (with the exception of golf courses), nearby spectator areas and public areas within 20m of these areas
  • Within 9m from the entrance or exit of hospitals, psychiatric facilities, long-term care homes, and independent health facilities; the outdoor grounds of hospitals and psychiatric facilities; and in non-controlled areas in long-term care homes, provincially-funded supportive housing, designated psychiatric or veterans’ facilities, and residential hospices
  • The indoor common areas of condominiums, apartment buildings or university or college residences
  • Non-designated guest rooms in hotels, motels and inns
  • Vehicles or boats under a person’s care or control, whereby no form (smoking, vaping, eating) of cannabis consumption is allowed
  • Other outdoor areas, such as,
    • in restaurants and on bar patios and public areas within 9m of a patio
    • on outdoor grounds of specified Ontario government office buildings
    • in reserved seating areas at outdoor sports and entertainment locations
    • grounds of community recreational facilities, and public areas within 20m of those grounds
    • in sheltered outdoor areas with a roof and more than two walls which the public or employees frequent, or are invited to (e.g. a bus shelter).[3]

The Ontario government has also provided a list of places where people can smoke or vape cannabis in Ontario. The list of places are:

  • Private residences that are not also workplaces (e.g. long-term care and/or retirement homes)
  • Many outdoor public places (e.g. sidewalks, parks)
  • Designated guest rooms in hotels, motels and inns
  • Residential vehicles and boats that meet certain criteria
  • Research and testing facilities if the cannabis use is for scientific research and testing purposes
  • Controlled areas in long-term care homes, certain retirement homes, residential hospices, provincially-funded supportive housing, designated psychiatric facilities or veterans’ facilities[4]

What does this mean for Ontario employers?

For employers in Ontario, the Cannabis Statute Law Amendment Act, 2018, now restricts cannabis in a manner similar in some respects to how tobacco consumption is regulated. However, importantly, the new legislation does not alter an employer’s otherwise legitimate authority to adopt its own additional restrictions on cannabis through appropriate workplace policies. It also does not alter an employer’s legitimate authority to prohibit and address impairment at work.

In light of the new legislation, Ontario employers should be reviewing their existing policies to ensure that the policies reflect the most recent changes in the legislation. Employers should also ensure their policies clearly communicate to employees what is and is not permitted.

When determining appropriate policies regarding cannabis at work, employers should take into consideration their duties to protect worker health and safety under the Occupational Health and Safety Act, as well as the duty to accommodate on a case-by-case basis when dealing with medicinal cannabis or substance dependency that may constitute a disability under the Human Rights Code.