Will Human Rights Legislation Ensure That Tenants Have a Right to Cultivate and Consume Cannabis in Rental Properties?

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The recently proposed Cannabis Act will allow personal cultivation of up to four plants per residence.  The Provinces are expected to create additional rules for growing cannabis at home, which are currently unknown.  The Canadian Federation of Apartment Associations (CFAA) is worried about residential landlords and building owners under this legislation and is asking the Federal government to amend the bill to prohibit all cannabis growing in rental units and homes.  Unfortunately for the CFAA, Human Rights legislation may mean that tenants have a right to cultivate and consume cannabis.

John Dickie, the president of the CFAA cites several concerns about allowing residential tenants to grow their own plants. The cultivation of cannabis requires multiple things that are not concerning to a residential landlord.

  • Cannabis plant growth at home requires artificial light, which may lead to above-average electricity use, especially in winter.
  • Cannabis plants flourish in humid environments, which may lead to mould problems that could cause significant property damage (beyond wear-and-tear) like erosion of drywall and window seals.
  • There is also a risk of powerful odours from flowering plants getting into other people’s homes and units.

 

Ultimately, the CFAA feels that each of these concerns may interfere with other tenant and building owners’ health and rights to quiet enjoyment of their property under the Residential Tenancies Act.

In addition to the abovementioned concerns set out by the CFAA, residential landlords have also expressed concern about the limits of tenant insurance policies as well as their own insurance policies, which may be void under certain circumstances if damages is caused as a result of cannabis being grown or consumed on the premises.

In terms of the recreational market, landlords, condominium corporations and property managers alike may address concerns proactively, in advance of the Cannabis Act coming in to force, by utilizing a variety of tools.  These tools include but are not necessarily limited to, implementing by-laws or cannabis-free policies akin to smoke-free policies for tobacco, and restrictions on cultivation and consumption of cannabis within lease documents.  Whether an eviction could be supported on a breach of a lease restriction on smoking or cultivating alone and in the absence of damage or interference with the quiet enjoyment of other tenants or unit owners in the building is another question altogether.

However, when it comes to medical cannabis under the Access to Cannabis for Medical Purposes Regulations the legal landscape shifts considerably.

To the extent that cannabis is being used and grown for medical purposes in a residential tenancy there are human rights concerns at play. Lease clauses that contain prohibitions on cultivation and use would, arguably, not be applicable to medical cannabis at all.  A patient under the ACMPR derives their right to grow from a medical prescription.  Restricting their ability to cultivate or consume, or refusing to lease to an individual as a result of their desire to cultivate under the ACMPR, may be considered a denial of access and grounds for a Human Rights Act complaint against the landlord / owner.

In this case residential landlords may be left with little option but to allow patients or designated growers licensed under the ACMPR to cultivate and use.  Perhaps a practical solution can be implemented to provide for some form of accommodation; for example in the form of a designated consumption room and grow area.

Photo courtesy of Ontario Landlords Association

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