Recreational cannabis – one year later Bill C-45, also known as the Cannabis Act, has been in effect for about a year. Legalization of cannabis has created some legal grey areas when it comes to medical versus recreational use. It’s important for landlords to understand the differences, especially on how they are regulated.
Recreational versus medicinal cannabis – what’s the difference? Recreational cannabis is federally and provincially regulated, and must be purchased either from licensed retailers or the Ontario Cannabis Store. It can be consumed in private residences, unless the lease agreement or bylaws provide otherwise. Individuals can grow up to four plants per dwelling unit, unless otherwise stated in building regulations. Medicinal cannabis is federally regulated, and requires a medical prescription or a license for use. Consumers must purchase medicinal cannabis from a licensed producer, be designated a grower, or personally cultivate the produce, which requires a Registration Certificate from Health Canada. Consumption of medicinal cannabis in a rental unit does not require the property owner’s consent, but its allowed use does not displace or supersede lease provisions.
Enforcing legislation, policies, and rules Under the Residential Tenancies Act (RTA), a landlord has a legal obligation to repair and maintain rental units in accordance with health, safety, housing, and maintenance standards. They must also not interfere with the reasonable enjoyment of tenants’ use and enjoyment of their rental units. This includes an obligation to address complaints made by tenants against other residents. The consumption and cultivation of cannabis in a residential complex can have an impact on both obligations, as smoke and odour tend to migrate and there are issues associated with cultivating cannabis. “Landlords should consider having clear rules as part of their leasing documents with respect to consumption and cultivation,” said Kristin Ley, Partner, Cohen Highley LLP. “Any rules regarding the consumption of cannabis should align with rules around smoking or burning of any substance.”
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The Human Rights Code does not apply to recreational cannabis. For a tenant to claim protection or exemption from a nosmoking policy under the Human Rights Code, they would have to produce medical documentation that evidences a need to consume marijuana. Absent medical documentation, consumption of cannabis is no different than consumption of tobacco. “A landlord’s smoke-free policy should anticipate a tenant’s need to consume medicinal cannabis,” said Ley. “A request by a tenant to be exempt from the no-smoking rules would then be addressed through the landlord’s usual accommodation process under the Code, likely beginning with a discussion with the tenant about whether there are alternative ways for the tenant to consume cannabis besides smoking.”
In-suite cultivation Tenants are allowed to grow up to four cannabis plants for recreational purposes. They must be produced from legally purchased seeds, and consumed for personal use. Growing medicinal cannabis requires a Registration Certificate from Health Canada. The number of plants allowed depends on the prescription. For example, if a patient is prescribed 8 grams of medicinal cannabis per day, they can grow up to 39 plants. Medicinal cannabis must be consumed for personal use, or the individual must be a designated grower for a medicinal cannabis user. Landlords may put in building regulations that prohibit recreational and medicinal cultivation of plants in rental suites. Growing cannabis plants may be inconsistent with residential use of the rental unit. A Registration Certificate from Health Canada does not supersede lease provisions. “Growing cannabis in units poses significant risks to the rental unit and the residential complex, including mould and water damage,” said Ley. “It might also impair the health and safety of the landlord and other residents.”
Creating a smoke-free building Landlords can pre-empt cannabis-related issues in the rental property by making it a
smoke-free building. Landlords who use the industry lease have a clause that allows them to amend or add to the rules that are part of the tenancy agreement, if they provide reasonable notice of any such change. For new tenancies, the rental application should require the tenant’s confirmation that they are aware that it is a smoke-free unit and complex. Additional terms and conditions to the province’s standard form lease should include a heading for smoking and cannabis and clearly indicate what is and is not permitted. Include language that states that, if cannabis must be consumed for a medical need, the tenant and landlord will establish an accommodation plan upon the tenant advising the landlord of the need. A no-smoking rule is easier to enforce against tenants who rented a smoke-free unit, especially when the building is smoke free. “In cases where the smoking prohibition was introduced after the commencement of the lease, the landlord should get legal advice
about what evidence will be necessary to pursue a termination of the tenancy for breach of the no-smoking rule,” said Ley. “Ultimately, the Board has to be satisfied that the tenant’s smoking is substantially interfering with other tenants’ reasonable enjoyment and with the landlord’s lawful rights and interest, including the ability to provide healthy housing to residents.”
Conclusion It has been a year since recreational cannabis legislation came into force, which has made it challenging for landlords to provide safe and healthy environments for tenants. Understanding the applicable legislation with respect to recreational and medicinal legislation, and knowing your rights and obligations as a landlord, can help you to address potential tenant issues and create the best environment for your rental property. By David Gargaro, in collaboration with Kristin Ley
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