The ‘right’ to cannabis in housing
Claudia Pedrero Pro Bono
25 October 2018
With the arrival of legal cannabis last week, Canadians are now free to
consume and—in some provinces—cultivate cannabis at home. This new
freedom has come with many questions around the extent to which
governments and property owners can restrict consumption. Does cannabis
legalization mean that people have a protected right to smoke and grow
cannabis? What about rules that seek to limit this freedom?
These questions cropped up in human rights cases across the country
once medical cannabis became legal. With the legalization of cannabis,
it is worth looking at how restrictions on recreational cannabis
interact with the obligations of service providers such as landlords to
accommodate medical cannabis users.
At Iler Campbell we represent many housing providers, and lately there
has been an uptick in demand to implement cannabis use and growing
rules. At the same time, landlords are receiving requests from tenants
wanting to use and grow medical cannabis at home. It is important for
landlords to be aware of the ways they can restrict cannabis use and
consumption on their properties while also understanding their
obligations under provincial human rights laws. In this context, the
distinction between recreational and medical cannabis is key because
provincial human rights legislation protects medical cannabis
consumption, while not protecting recreational cannabis.
The freedom to use and grow recreational cannabis is restricted by
provincial laws that set out the age of legal consumption, the amount
people can legally possess, whether people can grow at home, and where
cannabis can be smoked.
In Ontario, the Cannabis Act allows people over 19 to possess up to 30
grams of cannabis and grow up to four plants per residence. The
Smoke‑Free Ontario Act restricts cannabis smoking to wherever tobacco
smoking is allowed, and this can be further limited by municipalities
or property owners. Landlords can also add terms to new lease
agreements prohibiting cannabis use in rental units. However, landlords
generally cannot change the terms of existing leases.
Medical vs. recreational cannabis laws
Medical cannabis in Canada is regulated separately from recreational
cannabis. The federal government continues to control medical cannabis
through the Access to Cannabis for Medical Purposes Regulation (ACMPR),
which came into effect in mid‑2016, replacing the Marihuana for Medical
Purposes Regulations (MMPR).
Under the ACMPR, people who are prescribed cannabis by their doctor can
purchase from licensed producers, register to produce their own limited
supply, or designate a third party to grow for them. Production
licenses from Health Canada allow patients to cultivate more than the
recreational limit of four plants. For example, according to Health
Canada's calculator for medical cannabis production, a patient who is
prescribed five grams of cannabis per day can grow up to 25 indoor
plants. However, the ACMPR doesn't set out different rules for where
medical cannabis can be consumed -- permission to smoke is determined
by provincial, territorial, municipal governments, and property owners.
This raises some interesting questions for housing providers: do
landlords have a duty to accommodate tenants who want to smoke medical
cannabis despite a lease agreement that prohibits smoking? If a renter
has a license from Health Canada to grow medical cannabis, do landlords
have to allow them to grow cannabis in their units?
Human rights protections
We have to look to human rights law to answer these questions. Each
province's human rights legislation addresses the responsibility of
landlords (as service providers) to accommodate tenants with
disabilities. A prescription to use cannabis to treat a medical
condition can trigger a landlord's duty to accommodate and obligate a
landlord to exempt a tenant from a lease clause that bans cannabis
The exact changes a landlord must make to their rules will depend on
each tenant's disability‑related needs and the medical documentation
they provide. A prescription for medical cannabis does not
automatically mean a person can smoke anywhere, nor does it mean they
have a right to smoke in their rental unit if they signed a lease with
a no‑smoking clause.
The Ontario Human Rights tribunal (HRTO) has found that a person can
have a disability‑related need to smoke cannabis depending on their
medical needs. In one case, the HRTO determined an applicant had a need to smoke cannabis
where the person experienced severe pain from his scoliosis and he
provided medical evidence that smoking caused a more rapid onset of
symptom relief while giving a more precise means of controlling
symptoms than other forms of ingestion. We can draw parallels with that
case and accommodations in the housing context. If a tenant can provide
medical documentation that shows they need to smoke cannabis, a
landlord may be required to accommodate the tenant by allowing them to
smoke on a unit balcony or terrace. However, if a tenant wants to smoke
inside their unit despite a smoke‑free policy, they would likely need
to demonstrate that their disability (for example, limited mobility)
prohibits them from being able to consume their medicine outside.
Right to grow medical cannabis
Whether a tenant can have a disability‑related right to grow medical
cannabis in a rental unit is still an unanswered question. Home
cultivation is a concern for many landlords as the optimal conditions
for cannabis growth include warm temperatures, extensive lighting and
high humidity, thus creating the potential for property damage or fire
Growing cannabis at home is generally less expensive than purchasing it
from Health Canada's licensed producers. As a result, some patients who
are prescribed medical cannabis are turning to home cultivation as an
If a tenant prescribed medical cannabis requests an accommodation to
grow medical cannabis at home, they would need to demonstrate that they
have a right to affordable access to medication. It may be difficult to
make this argument in some provinces, because financial circumstances
are not protected by most provincial human rights legislation. For
example, the HRTO recognized in one case that protection under the Ontario Human Rights Code doesn't extend to economic circumstances. This means that treating a person differently for financial reasons isn't considered discriminatory in Ontario.
However, it is possible that the argument for a right to grow medical
cannabis because of financial constraints may have some traction in
provinces and territories where human rights law extends to social and
We haven't yet seen Canadian courts or tribunals consider whether there
is a right to grow medical cannabis, but it is likely to come up in the
The right to consume medical cannabis is protected by provincial human
rights legislation, but this may not be the case for cannabis growth.
Despite rules limiting cannabis use, landlords may have to make
exceptions to accommodate tenants who can demonstrate that they have a
disability‑related need for medical cannabis. The same protections that
exist for medical cannabis users don't extend to recreational cannabis,
and it's likely the law will stay that way.
Iler Campbell LLP is a law firm
serving co-ops, not-for-profits, charities and socially-minded small
business and individuals in Ontario.
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