Marijuana in Ontario Rentals
With the legalization of marijuana in Canada there was a considerable concern about how it would affect real estate and particularly the occupancy of multiple-unit buildings. Now that a considerable time has passed it is possible to take a look at some of the cases and how the law has developed in this area in relation to rentals.
In 2008 we argued the first case in Ontario which allowed the landlord to enforce a no-smoking (tobacco) lease. Because marijuana is now legal it is hardly surprising that the rules are essentially the same.
In 2018 the Ontario government introduced a standard form lease which for the first time contained a provision allowing the landlord to restrict smoking in the rental unit. While a breach of the lease is one consideration it is not determinative: In order to terminate a tenancy a landlord must have grounds for eviction under the Residential Tenancies Act (RTA). The breach of a lease is not grounds for eviction unless the breach can be shown to interfere with the reasonable enjoyment or lawful rights of the landlord or another tenant (sec. 64) or cause undue damage to the property (sec. 62). If either of these grounds can be proven eviction is available regardless of the terms of the lease. This produces a somewhat counterintuitive result:
If for example the tenant occupies a single family home under a no-smoking lease, the landlord can only apply to evict if it can prove that smoking interferes with other peoples’ reasonable enjoyment, legal rights or causes undue damage to the premises. This can be quite difficult as there are no other tenants to be disturbed. Conversely, if the tenant occupies the premises under a lease that does not prohibit smoking but it can be shown that the smoking interferes with other people's reasonable enjoyment or causes damage the landlord has valid grounds to apply for eviction notwithstanding that there is no prohibition in the lease.
While these factors are largely the same in relation to marijuana as they are to tobacco there are some other factors which complicate the issue in relation to marijuana and specifically medical use:
Almost all of the conditions for which marijuana is prescribed medicinally constitute a disability within the meaning of the Ontario Human Rights Code (HRC). Pursuant to sec 17 of the HRC a landlord has a duty to accommodate a tenant's disability. A landlord cannot evict a tenant for conduct that flows from a disability unless it can be shown that accommodation is not possible without undue hardship. Accordingly where a tenant smokes marijuana to address a legitimate medical issue the landlord must first try to arrange for an accommodation plan. While this can complicate matters it does not make for an impossible situation:
One of the simplest ways to accommodate a disabled tenant in these circumstances is to investigate alternative ways in which the tenant can consume their medication. The most common and practical means of accommodation from the cases we have dealt with seems to be vaping the marijuana through a smokeless device. This alleviates most, if not all, of the smell and second hand smoke so as to avoid disturbing others. Pills and other forms of oral ingestion are usually not sufficient because they have therapeutic limitations such as a longer uptake time and difficulties measuring required dosage as compared to smoking.
In a recent case involving a duplex, one unit was occupied by a family with small children while the other one was occupied by an injured worker who was prescribed marijuana for pain. Both tenants claimed protection under the Human Rights Code, one claiming the the smoking created a medical risk to the children while the other claimed that to prohibit the smoking would infringe on his right to take treatment for his disability as prescribed by his medical team. By using the above principles we were able to successfully resolve the matter to the satisfaction of all and without liability to the landlord.
The law in relation to marijuana in residential premises is relatively new and is constantly changing and adapting to individual cases. If you have issues relating to smoking in a rental property or any other property dispute please feel free to contact my office at 416-628-4835 or through my website.
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