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.”

29 COMMENTS

  1. Prior to cannabis being legalized the issue of what landlords could do in the province of Ontario and the smokers right to smoke were discussed on the news. One issue brought up was that going forward cannabis can be smoked anywhere tobacco can be smoked. Therefore, if you have an existing lease and do not sign a new one, the landlord is bound by the original lease. So if the lease did not specify that tobacco was prohibited then they cannot now say cannabis is prohibited. The news cast did make a statement that going forward landlords can now prohibit the use of tobacco products and cannabis products that cause smoke in all new leases. They also stated that condominiums have different guidelines regarding the issue and they can make the entire building smoke free, even in your privately owned units. Also, the current bylaw for smoking near entrances of a building is 9 metres which is roughly 30 feet. Not 30 metres as some landlords are trying to state. Therefore, any open areas on the property where tobacco smoking is allowed cannabis smoking will also be allowed. Remember folks, this is federal legislation which usually trumps provincial and municipal legislation. Also I do believe that landlords would have to call in by-law officers to write any tickets before a landlord could start any legal proceedings. The by-law officers would pretty much have to catch the tenant in the act of smoking where it is prohibited. Also, if federal legislation states you can grow up to four plants of cannabis for personal use, that makes the growing of those plants legal and I believe the landlord would be hard pressed to evict a tenant if there is no damage particularly if you pay your own hydro. And again as Federal legislation has made they use of cannabis legal I believe it should be an individuals choice on how they ingest it.
    I feel and believe a lot of landlords are getting ahead of themselves and may try to use this legislation to evict long term tenants from their premises so they can in turn increase the rents. As long as the tenant does not sign a new lease agreement the landlords cannot change the boundaries of the agreement in any shape or form.
    Next of course comes the Human Rights Issues for those using cannabis for medical reasons. As this form of using cannabis has been in use for the last few years there has probably been numerous prescedents established through previous legal challenges. This is one of the most screwed up pieces of legislation to come down “the pipes” in quite awhile.

    P.S. I am disabled but due to my disability I do not use cannabis. I however have no problems with other people smoking it for relief of their pain symptoms. Believe me, in my rental building there are a lot of odours that are ten times worse than cannabis. Certain cooking oils and spices foe one or my all time favourite, cat urine. So until all the kinks are worked out of the new legislation let’s maintain the status quo and for all you landlords out there, BACK OFF and stop threatening your tenants with things you may find you have no power to do.

    • Cindy:

      You come across as anti-landlord with your “BACK OFF” remark. I suspect that you have never been a landlord. If that is the case you speak from a position of ignorance.

      I have been a landlord, and thus I speak from a position of first-hand experience.

      Tenants do not—as a general rule—respect their rented domiciles as they would were said domiciles their own properties, bought, paid for and maintained by themselves. I suspect that most former tenants-turned-owners would not rent their properties out. This is human nature at work, simply put. There is no pride of ownership at play with rentals as there is with ownership.

      A renter’s self-talk might sound something like this: “Bust something up? Leave it busted up if it does not cause any livability concerns, or call maintenance to fix it. Only four plants allowed to be grown? HA! Ten would be better, maybe even twenty! Maybe I can make some cash on the side eh, and sell to them dumb rule followers eh! Who is going to be the hall monitor and report me? Not my buyers eh! Who cares if the paint peels due to moisture getting behind the paint film? Mold in the corners? Big deal. It’s not my place. They can re paint and wash that back stuff off after I move out. Who cares what land-lords think?”

      Then they buy their own residences.

      “Hey, asshole! Take your shoes off! Put that fag out and don’t throw it just anywhere! Don’t lean against my wall with your dirty, greasy hands; it leaves finger prints from your nicotine and pot stained fingers! Get that stinking jacket outa here; don’t hang it my closet next to my clean clothes! Don’t’cha know it costs money to keep this place looking nice? Were you brought up in a barn?”

      Funny how changing circumstance changes one’s attitude about things.

  2. This is a poorly informed article. First of all, unlike cigarettes, there is no proof that second hand cannabis smoke is harmful which is the major issue with cigarretes and the basis for the legal case. In addition, with electronic and vapour delivery systems, there is no real odour. Are you also banning incense and vaporizers with essential oils or for people with colds and asthma? Do you even know what ‘dabbing’ extracts smell like?

    Also, for those using medicinally, there is a huge difference between edible (extremely slow acting) and inhalation (fast acting). For someone dealing with extreme pain, it is like saying we ban the injection of morphine because you can take it in pill form. Seriously! The research on edible ‘pill forms of cannabis produced by big pharma is that they are not effective for chemo side effects because you need the full spectrum. Are you really going to expect cancer patients to stand out in the cold to try and find a place where they will not be caught smoking?

    There WILL be human rights complaints, in fact compassion clubs are waiting to pounce. It will get very expensive for any strata or landlord caught in the middle of it. Here in Victoria, the compassion clubs have won twice in the Supreme Court of Canada and know the drill.

    I am all for banning growing because of the fire risks and smoking all substances with the exception of prescribed medical use of a substance and cultural exceptions. And also allowing electronic and vaping devices as they do not have the same poor or output as smoking. If you allow a reasonable alternative that does not infringe on the rights of others to enjoy their suite/home, there is really no case to ban it.

    I hope people look at their own issues with legalization. Parents need to know how to talk to their kids about cannabis as it is, and will remain available and yes, kids will smell it. Alcohol is much more harmful, but because it is part of our culture, we do not have the same issues around its use. In one generation, cannabis will be accepted and part of life. Those opposing its use are like the prohibitionists of the 20’s.

    • Go away from the dwelling to smoke it then. As stated in the article smoking does not recognize personal boundaries. A poorly informed article is no better than an uniformed personal opinion!

    • Did you actually say that second hand cannibis smoke has not been proven harmful? Seems like your view point is more emotional than logical. Thanks, but I don’t want to stand beside someone smoking anything. It’s just common sense.

      • Your ‘common sense’ seems to be more advanced than the analysis of the medical community as it hasn’t been proven that FIRST HAND cannabis smoke is harmful. Also, smelling smoke is not the same as smoking. I can smell a campfire from a long distance away, doesn’t mean I am ‘smoking’ the campfire.

  3. Thank you Chris – i appreciate the time you took to share your opinion with us and give some insights. My issue with this topic as well as smoking, damages, etc is this idea that we landlords can collect payment for damages AFTER the damage has occurred without any real deposit upfront. Recently i had a half million dollar condo damaged (aprox 10k) by a tenant who smoked (everything) in the unit, had a pet who ripped up flooring and baseboards, holes in walls etc and has since disappeared in the night! I can try and take them to LTB; however, it feels like “blood from a stone” scenario. With the legalization of marijiuana – I am extremely nervous about further, unrecoverable, damages due to people growing plants in rental units.

    PS: I am baffled by people claiming you’re a bully by trying to protect your investment. It’s not the tenant plunking down hundreds of thousands of dollars on homes/condos!

  4. Chris,

    Are real estate offices going to have any office rules regarding pot use among their agents and management (when dealing with the public; the offices offering up the bouquet/fragrance, whatever it’s called? Some will endorse and enjoy. What about the ones who don’t?

    We are supposed to stand up against discrimination; where does this topic fit in the order if things.

    When a non-endorsing or using staff has to hang their winter coats, for example, in the same closet and go home embedded with the scent. Smoke of all kinds, it is known, permeates hair and some kinds of fabrics more than others

    Within the industry, and without but involved with their public contact, where does this issue fit? A related example might be where hospitals forbid doctors, nurses and staff from wearing perfumes, and related scented products. So do some dental offices, using signage as reminders.

    Will some members of the public reject the idea of being chauffeured to view homes in vehicles permeated by the pot-residuals?

    Will a potential seller be permitted to request a non-pot participant as their real estate representative? Or would that be considered a form of discrimination?

    CBC News is reporting on pot rules for the Canadian Forces military’s 100,000 members.

    Can it be possible that there are more REALTORS(r) in Canada than there are military members?

    As currently broadcast, the military rules seem quite open, so long as weapon’s use is not in play.

    Perhaps no one guessed the implications involved when making the substance legal.

    There are so many adults and children with all sorts of allergies, noting in particular the course of “rules” regarding peanuts and schools, and even children visiting other people’s homes, and lunch boxes and cafeteria utensils. Will there be a new kind of epi-pen market for those whose throats close when in contact with (pot) smoke?

    You don’t allow your teen to participate, but his friends are allowed free rein. How will that be addressed? Whose rights dominate?

    Where will churches, synagogues, and other places of worship find themselves in the rule debate?

    So many things to consider? There’s no doubt: the world she is a-changin’.

    Not criticizing. Just sayin’ and wondering about industry-relative impact. Or is the conversation too deep or out of place.

    How will we survive the noise? As always we can be counted on to find a way. First and foremost we are in the people business.

    Carolyne L 🍁

  5. Wholeheartedly agree with @IanAmos (further above). Your opinions and bullying tactics – this is all they appear to be – are in no way aligned with legislation or common sensical practises. It amazes me how one believes to have the arbitrary right to govern a condo and its Board, and this is but one example of the fundamental challenges within our tenancy laws. As a course intructor on this matter, I worry that you’re sending the wrong message to landlords (a community that I myself belong to as well…). We really need to sit back and figure this out over time. Way too many cooks in the kitchen right now..

    • I would replay and address your points if you stated something that I could respond to. I provided a bunch of facts, which of course are open to comment and criticism but your comments don’t point to “fundamental challenges in tenancy law.” I could spend a whole day just discussing fundamental tenancy issues. In fact I wrote a 19-page bulleted point document that I presented to two deaf MPPs last summer at Queen’s Park.

  6. Fact – this is new legislation and clearly you’re not a lawyer. I have reservations about considering anything you’ve said in the above. Other than the fact you appear to be a bully.
    You and your organization profit from the tenants but seemingly want to incure as less risk as possible risk ,furthermore marijuana and medical marijuana is a Canadian right now (as of next month) I suggest you check your literature and stymie your opinions :

    Ian B Amos
    Broker of Record
    Caledon Hills real Estate Inc. brokerage.

    • I agree with you. Rights and freedoms need to be respected. This sounds like imposing morals is a motivator.

      • I don’t understand what this means. I’m guessing you’re suggesting that I’m imposing my value system on my tenants. It’s not correct. I’m implementing a policy that protects an investment that took me a lifetime to create and doing the best I can in making an informed decision.

        The issues are real for landlords, especially electricity consumption (and who pays for it), potentially overloaded electric circuits (through no fault of the landlord) and the risk of fire, and all the associated issues that arise with any substance that impacts human cognitive functions and behaviour (similar to excessive alcohol consumption). That doesn’t include the overarching issue of the right of quiet enjoyment of neighbours. The right of the one does not outweigh the right of the many. The issue becomes even more serious if a notable number of growers reside in a relatively confined space such as an apartment building, whether a 4-plex or a 100-plex.

        Humidity notwithstanding, the other fundamental issue is smoking the product. The only two reasons a tenant might grow marijuana is to smoke it and/or to sell it. The latter remains illegal. The former is part of the ‘right of quiet enjoyment’ issue. The only reason to smoke marijuana is for its mind-influencing effects. Marijuana’s medical benefits can be acquired through capsules, pills and oils, without the mind-influencing effects.

        The issue therefore isn’t whether to consume marijuana for any reason, which I don’t have a problem with at all, but whether it can smoked in a rental unit; and that, without question, is the serious issue of which I wrote about in the article.

        • You first state the only reason to grow marijuana is to smoke it or sell it, then go on to say that it’s benefits can be acquired through capsules, pills, and oils…? There seems to be a contradiction there.
          Your statement that “The only reason to smoke marijuana is for its mind-influencing effects” is also not relevant as it is often the case that the ‘mind-influencing effect’ IS the medical benefit (e.g. for those suffering from anxiety).

          The electrical issue of overloaded circuits is first of all ridiculous, as if marijuana growing equipment is the only reason a tenant would require the use of an outlet and the understanding of load capacity for a specific breaker.
          Furthermore, your estimating of power consumption seems to be derived from the use of older metal-halide light technology rather than many newer LED systems.

          Beyond that, the humidity issue would be a non factor in most cases as these plants would be confined to a small tent in most cases to allow the grower to better regulate the growing conditions. You are making a comparison to the conditions of an illegal grow operation where a grower would look to maximize the use of their available square footage and maintain a higher humidity level throughout the unit.

          Although you reference the tenants right to a quiet (or peaceful) enjoyment of their unit I would highly doubt that you serve your tenants a similar notice when they infringe on the rights of tenants to not be inconvenienced by other odours such as cooked fish or curry.

          It is pretty clear that you are neither a lawyer, or a person particularly knowledgeable on the subject of marijuana.

          If you feel that you are unable to bear the risks associated with presenting your asset to be rented then perhaps the risk of being a landlord is a greater risk than you should be taking on.
          While you speak of “implementing a policy that protects an investment that took me a lifetime to create”, you are ignoring the fact that you are receiving a substantial income by offering this investment for rent. Don’t pretend that you are doing the tenant a favor by letting them live there.

    • I agree with you, Ian. We screened our tenants and respect their rights. I’m not expecting anything to change overnight on October 17th; however, I want to see all the legislation for consumption both in rental properties and condos before I amend the lease agreement or compromise the landlord-tenancy relationship.
      Val Laferriere, Realtor
      Royal Lepage Solutions, Calgary AB.

      • And that’s a cautious and appropriate course of action. Just remember that a rental/lease agreement can’t be amended without both parties agreeing. If the tenant, or worse several of your tenants, all decide they want to smoke and you later discover the damage smoking of any kind causes to property, you won’t be able to stop it and you’ll have to fall back on expensive court proceedings to prove that the smoking caused the damage, then prove what the costs are related to remediating the unit, and try to collect any award you may win. Smoking marijuana is no different than smoking tobacco except for the buzz. If this truly was an issue of medical benefit then there are oils, pills and capsules that provide those benefits without the buzz.

    • I don’t think anyone has to be a lawyer to make research an issue and make an informed opinion. Otherwise, how could you justify writing a reply here? It is ironic that you would exercise you right to express your opinion in a free, open and democratic society to tell me to stymie that same right. Your comment doesn’t contain any constructive points that you have researched to challenge and dispute my points but only makes personal attacks on my character. To your point about risk, you make risk management sound like an evil quality but it is the human condition to be risk averse. If you invested you life savings and owe perhaps millions of dollars to others as part of that investment, I suspect you’d want to know all you could about how to mitigate the risk of hurting or even losing your investment. If you have specific points you wish to make I’m more than happy to debate them and even concede if you’ve convinced me that something I’ve written is wrong.

      • If you were to directly garnish your tenants pay that would help ensure that you protect your investment income as your tenants payment could be better ensured, doesn’t mean you should be allowed to do it.
        Part of generating a return is assuming risk.

  7. Think everyone is jumping here, wait and see what protection and provisions are put in place to go with the legalization. Landlords can not make up rules that go against the landlord tenancy act. How about wait and see.

  8. Thank you, this is informative and useful information. My question: lets’ reverse the situation and say the landlord occupies the top part of the home and has renters below. In this situation the landlord is the person smoking and growing marijuana and the tenant complains of the smells seeping through the walls. What are the legal repercussions here and how is the tenant protected? An obvious answer would be: don’t rent from this person but if you only find out much later in the tenancy this is of no help. Thank you for your answer ! D.L.

    • Hi Diane, My understanding is that the tenant is protected under the section in the Act where it says the Tenant has the “right of quiet enjoyment” so the landlord cannot infringe on that right, just like a tenant should not affect another tenant or landlord. That tenet works both ways. Same as if someone has a loud barking dog, doesn’t matter who that dog belongs to, those other tenants around shouldn’t have to put up with that.

      • By the way, most tenants can have their disputes resolved within 24 to 48 hours if they call the Rental Housing Enforcement Unit (RHEU) instead of the LTB. It’s my experience that most landlords don’t even know that the RHEU exists. Over 85% of all calls to the RHEU are from tenants.

    • The right of quiet enjoyment is granted by the RTA for every tenant. Every tenant has the right to file a claim with the LTB and, given the profoundly pro-tenant bias of the LTB, I believe the landlord would be ordered to cease and desist. Of course, that would likely wreck the landlord-tenant relationship. I would think that a landlord would make it known beforehand about the smoking, whether marijuana or tobacco, simply to avoid the conflict. I’d be surprised if a landlord, who wants to earn revenue as passively as possible, would deliberately bring in a tenant knowing that most Canadians don’t smoke anything. Of course it might happen but the tenant also has an obligation to ask these questions too.

  9. Chris:

    Good for you. If potential tenants don’t want to sign off on/agree to/with (respectively) your tenancy restrictions, then they can choose to go somewhere else to live. It is your property that they want to rent, not theirs. You might want to add a final clause that states: “Any tenant who violates the above noted restrictions will be summarily evicted at the end of my very sharp steel-toed boot after it has been vigorously, but strategically, planted where the sun don’t shine. Appeals will be dealt with post colostomy hospitalization.”

    Contact me if you need references; I know an ex CFL place kicker for whom kicking butt is a real joy.

  10. For whatever reason (on my end) a small bit of the original policy statement is missing which makes the whole statement somewhat incomplete. I bolded below that portion.

    “Smoking, which includes tobacco and marijuana, any electronic versions and anything smoked for recreational or remedial purposes IS NOT PERMITTED ANYWHERE IN OR ON THE PREMISES, 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.”

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