Can residential landlords restrict cannabis activity in rental units?

The legal rules which apply to the growing of cannabis for personal use have changed significantly in recent years, driven in part by politics but also by decisions of the courts (R. v. Parker [2000] O.J. No. 2787; Allard v. Canada 2014 FC 280).

The rules are expected to evolve further with the legalization of cannabis, including a proposal that people should have the right to grow up to four cannabis plants for personal use. Currently, the Access to Cannabis for
Medical Purposes Regulations apply to permit limited cannabis growing by an authorized person (one with a prescription); however, the right to grow is not absolute, nor is it likely to be so in future.

Under current regulations, an eligible grower must comply with applicable provincial and municipal laws relative to health and safety, including applicable building, fire and electrical codes. Upon legalization of cannabis, it is expected similar rules will apply, but it is unlikely that those rules will operate without regard to the legal interests of rental property owners and other occupants of rented residential premises. An assumption that cannabis regulations will “trump” residential lease provisions should be tempered by practical considerations and the law of contract, subject always to issues of compliance with human rights legislation.

In Ontario a landlord may prohibit cannabis growing in apartment units through terms of a lease, subject to the requirements of the Ontario Human Rights Code (the code). The fact that an individual holds a prescription for medical cannabis does not mean that they are entitled to grow plants in their rental unit, particularly if they have agreed in their lease not to do so. If the person cultivates cannabis and relies on the code and existing regulations as grounds to break the lease, a landlord can challenge the position by invoking regulatory policies applicable to accommodation of individuals with disabilities.

A person with a disability is obliged to disclose their needs to the landlord and to work co-operatively to ensure the need is met, while also respecting the rights of other people who may be adversely affected by the accommodation (Ontario Human Rights Commission policy on human rights and housing). Ultimately such issues are determined based on specific facts of each case. There is no legal rule or statute that says a person with a cannabis reliant disability must grow it in a multi-residential rental building, particularly when the lease prohibits it. People who hold prescriptions can purchase the product, grow plants off site, have someone else grow plants on their
behalf, or grow them in a designated area.

A person’s interest in growing cannabis must be balanced with the interest of the landlord to ensure that the health and safety of other residents and the physical integrity of the property are not put at risk by the activity of cannabis growth in a rental unit. Excess humidity (mold), excessive electricity consumption (if hydro is “included in the rent”), and alterations to the electrical system increasing a fire risk are legitimate concerns for landlords and other tenants. There are security issues if cannabis production in a unit is known to third parties and finally, insurers may refuse to provide coverage for “grow-ops,” regardless of their size.

If there are no human rights code issues, landlords and tenants have a right to contract to prohibit cannabis production in a rental unit and to enforce that right at the Landlord and Tenant Board by way of an order for compliance with the lease, failing which the tenancy will be terminated. Successful enforcement will depend on the quality of evidence led at a hearing as the advocate must persuade the board member that the breach of the lease is sufficiently “serious” to warrant enforcement.

At least one Landlord and Tenant Board member has ruled that, even if the tenant’s growing of cannabis in the rental unit was “illegal” due to the failure to comply with applicable regulations, the “illegal act” was found by the member to not be “serious”; consequently, eviction was refused. The board member noted, however, that no evidence was led to suggest that there would be damage to property or risk to other residents if the illegal activity continued.

As for the smoking of cannabis in the rental unit, many landlords prohibit the smoking or burning of any substance in the rental unit, including cannabis or cigarettes, subject to the code. Where a tenant relies on the code to justify a breach of the smoking prohibition in the lease, the specific facts of a case will dictate enforceability: for example, cannabis need not be consumed by smoking. Even if the person demanding the right to smoke the product establishes that consumption by smoking is most appropriate to accommodate the disability, there is still usually no reason why the person can’t be required to smoke outdoors in the same manner that smoking of cigarettes is
prohibited in buildings.

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