By Christopher Seepe
Cannabis, also known as marijuana, will be legalized in Canada on Oct. 17. This means that it is no longer a crime to possess small amounts of cannabis. However, that doesn’t mean you can use it anywhere you wish. For example, some provinces won’t permit cannabis to be consumed in public places.
I wrote a two-page letter to my tenants explaining this, and that they can’t smoke it anywhere in or on the property.
When this law is passed, it will further grant the right to not be arrested for growing up to four plants. Again, it doesn’t mean you have the right to grow it wherever you wish. My letter specifically states you can’t grow it anywhere in or on the property without the landlord’s written permission, which we universally don’t provide because of the significant health risk from the potential growth of mould, risk of fire and the significant damage caused by the high humidity requirements for growing such plants, including hydroponics.
The right to smoke in a rental property is not enshrined in any Canadian legislation, including the Canadian Charter of Rights and Freedoms and the Human Rights Code. In the 1998 case, McNeil vs. Ontario, a smoker claimed their rights under the Canadian Charter of Rights and Freedoms (s.12) were infringed, that nicotine is addictive and deprivation of cigarettes resulted in physical, mental and psychological suffering. The court determined that a cigarette ban was not intended to be punishment but to improve the health of all citizens and, while withdrawal from an addiction to nicotine may be an unpleasant and difficult experience, it is nevertheless temporary, limited and does not require medical attention. Many people voluntarily overcome the addiction. The above case further cited an earlier case – Edwards v. Canada (1991): “The smoking habit is far from a legal or constitutional right to which the State must pander.”
Unlike alcohol consumption, for example, cannabis smoke doesn’t respect physical boundaries and it’s much stronger smelling than cigarette smoke.
Smokers will likely run into the fundamental tenet of the Residential Tenancies Act (RTA) – the right of quiet enjoyment. This phrase is a misnomer. It should state, “right of peaceful enjoyment”. A breach of this right can arise from any acts of or neglect by a tenant that results in the interference, interruption or disturbance of another tenant’s reasonable peace, comfort or privacy of their respective premises or the common areas of the property being interfered with, whether by liquids, gases, vapours, solids, odours, vibration, noise, abusive language, threats of any kind, unusual or dangerous hobbies and fires created, caused or implied by a tenant.
Two-thirds of all Canadians don’t smoke, while 14 per cent smoke daily. Children can be adversely affected by smoke and parents are likely to take very strong objection to cannabis smokers.
Ontario’s new Standard Lease Agreement (SLA) includes a section about smoking. This section empowers a landlord to use a breach of a no-smoking clause in a rental agreement as grounds for eviction.
It remains for the courts to determine if a tenant’s right to smoke marijuana for medicinal purposes is greater than a neighbour’s right to not smell it, especially since there are alternative forms of medicinal marijuana including pills, capsules and oil.
My letter states that if mould develops in their rental unit, we will not remediate it and we will require a tenant to pay for any such remediation. An N8 notice for eviction could be issued for damage to property caused by an act or inaction by a tenant that is not completely and properly repaired by that tenant.
We estimated that growing four plants a year will consume an average $600-$800/year, and electrical circuits in older buildings (87 per cent of Ontario purpose-built rental buildings were constructed before 1979) that are already under heavy loads may increase the risk of fire. My letter states that a tenant may be held accountable for any fire started due to an overloaded circuit, and that we regularly record all electricity meter readings for all units. If a landlord includes electricity in the rent, then this could become a major financial issue. Your letter might say the landlord is not be responsible for any increase in electricity cost, although you may find that this will be hard to defend in court for existing tenants.
Our smoking policy then is: “Smoking, which includes tobacco and marijuana, any electronic versions and anything smoked for medicinal, recreational or remedial purposes, and growing plants of any type or quantity that require a room temperature above 22 C or which requires any form of moisture, excluding room-temperature liquid water directly applied to the plant’s soil, which includes marijuana, cannabis and hydroponics, are not permitted to be grown or cultivated anywhere in or on the premises, including common areas and the tenant’s rented unit.”