Lawyer says renters have right to grow medical cannabis

Lawyer says renters have right to grow medical cannabis

Some landlords have enacted policies that ban smoking, vaping and, in some cases, cultivation of cannabis

Ahead of recreational marijuana legalization, some Saskatchewan property management companies and smaller landlords enacted pot policies banning smoking, vaping and, in some cases, cultivation of cannabis — medicinal or not.

Saskatchewan’s Office of Residential Tenancies says it hasn’t received any complaints about those policies yet, and no one has been evicted under these policies in Saskatchewan, to the office’s knowledge.

But cases are popping up in both Saskatoon and Regina that suggest challenges to the policies are imminent.

“Because of legalization, landlords and condo boards are turning their minds to this issue and they are passing policies that in some cases do not provide for accommodation for medical patients,” said Trina Fraser, an Ottawa-based cannabis lawyer and partner with Brazeau Seller Law.

She expects challenges to come up, based on “reasonable access” to medicine.

“That reasonable access has to include the right to grow your own cannabis,” she said.

Some landlords have said the reason for the blanket policies is to ensure the safety and comfort of all tenants.

They also cite concerns over the possibility of property damage and issues like mould, which can arise if growers aren’t careful.

They also say they don’t have time or resources to make distinctions for those who have a “green card” — a licence to use or grow medically from Health Canada.

“To get permission to grow cannabis for medical purposes from the federal government, if you are intending to grow in your dwelling, does not require you to get the permission of the property owner,” said Fraser.

“That’s intentional and for a reason. The courts of this country have told the federal government time and time again that you have a duty under the charter to provide reasonable access to cannabis for medical purposes for people.”

What is ‘reasonable?’

The Office of Residential Tenancies is one option for tenants and landlords facing such a dispute.

The Residential Tenancies Act was recently amended in conjunction with changes to cannabis laws, and landlords can now legally enact rules that prohibit marijuana consumption and growing on their premises.

But it’s up to residential tenancies office to decide if those rules can be used as cause for eviction.

“A hearing officer would render that decision as to whether the rule is a reasonable rule,” said Nadine Johnson, manager of programs and operations at the ORT.

And “reasonable” is open to interpretation.

Shane Moore, who is facing possible eviction from his landlord, Avenue Living, for a medicinal grow op in his apartment in Saskatoon, a specific argument can be made based on reasonableness.

He says he’s been open with his landlords since he signed his first lease a few years ago about his medicinal cannabis use, and says he’s showed them his licence at their request.

When the landlord’s new pot policy was enacted in October, he says he started receiving written and verbal warnings from his landlord — but no official eviction notice so far.

“[Tenants] can challenge that by filing a claim against the landlord to the ORT to have a decision specifically on whether or not that rule is reasonable,” said Johnson.

There is also another option — file a human rights complaint.

Moore said he has already done so.

“That’s a separate stream within the justice system so that would be completely up to a human rights investigation, and it would be in their realm of authority,” said Johnson.

“What our hearing officer would do is rely on our legislation and the mandate in our legislation and they would leave the investigation under the human rights complaint to the human rights commission.”

Precedents can be applied

There are decisions on issues surrounding pot and landlords the predate recreational cannabis legalization. Tenants and landlords could use those decisions to build their arguments.

“The parties submitting their case would need to present their arguments and reference that precedent,” said Johnson.

According to Trina Fraser, there is little jurisprudence on this issue, either in her home province of Ontario or nationally.

“We are going to see these issues popping up across the country,” she said.

If a tenant or landlord is looking for an immediate decision, though, it may not be possible.

The tenancies office just implemented a new online system, and is “overcoming a backlog created as a result of that transition,” said Johnson.

It takes about a month for the hearing to be scheduled, from the time a claim is submitted.

After the hearing, a decision can be appealed by either party within 30 days. Most landlords don’t use lawyers in this process and neither do tenants, though it is an option available to them.