Landlords and tenants to fight out right to grow medical marijuana under new regulations

The new Access to Cannabis for Medical Purposes Regulation (ACMPR), which came into force on August 24, 2016, has changed how patients with prescriptions for medical marijuana can get their medicine. The ACMPR came to be, in part, as a response to a Federal Court ruling that the former Marihuana for Medical Purposes Regulations (MMPR) violated the Charter because it prohibited personal production of medical cannabis. For many medicinal cannabis users, the cost of accessing through the channels allowed under the MMPR were simply unaffordable.

Under the new regulations, in addition to being able to purchase through licensed producers, patients may apply to and register with Health Canada to grow their own cannabis plants (or designate someone else to grow it for them). The amounts a patient is allowed to grow is based on their prescription, but Health Canada estimates that every gram of dried marijuana prescribed (per day) will translate to an allowance for the production of five indoor plants or two outdoor plants. The average prescription under the ACMPR is 1‑3 grams/day.

While the move to allow personal production seems like a simple solution to the access problem, not everyone is happy. Housing providers, of all shapes and sizes, for‑profit and not, are concerned about the impact this shift may have on their housing stock. A widely circulated story about a Coquitlam landlord that incurred property damage to the tune of $135,000 related to the production of marijuana by a tenant that had a personal production licence has captured the sector's attention. 

In the Coquitlam case, the tenant was abusing his authorization for personal production to grow some 400 plants for illicit sale. It is safe to say that most tenants will not be using the authorization for personal production under the ACMPR to grow vast quantities of marijuana to sell illegally. It is also probably safe to say that the concern regarding damage to units on account of personal production under the ACMPR is exaggerated considering the average prescription of only 1‑3 grams per day.

Optimal conditions for growing marijuana include warm temperatures, extensive lighting and high humidity. While it's not at all clear that these conditions will actually be present in the units that are tenanted by people authorized to produce, or that these conditions will necessarily cause damage to the units, there is at least a widely held perception that growing marijuana indoors can cause significant damage. In either case, landlords are likely to see their insurance premiums increase or find themselves subject to exclusions from coverage where damage is related to cannabis production. For those reasons, among others, housing providers may look for ways to offload the risk onto tenants, for example, by requiring them to carry insurance, restricting their ability to grow through contract, or requiring more frequent inspections.

Arguably, these types of landlord‑imposed restrictions defeat the purpose of personal production under the ACMPR: accessibility. Inevitably, tenants will raise landlord obligations under human rights legislation to set aside such restrictions. The interesting question is whether a housing provider's duty to accommodate under human rights legislation could extend to cover a tenant's right to affordable access to their medication.      

How the courts and tribunals will handle such an argument is unclear. It is generally accepted that a housing provider's duty to accommodate includes the use of medical cannabis (though not necessarily smoking medical cannabis inside a unit); however, the courts and human rights tribunals have been reluctant to extend the protections under human rights legislation to cover the financial condition of an applicant, whether or not the financial condition is related to a protected ground (for example, disability).

In a case decided by the Ontario Human Rights Tribunal, despite finding that the financial circumstances of the applicant were informed by his disability, it was determined that the denial of a service on the basis of the applicant's economic circumstances was not discriminatory because there was no evidence that the service provider considered the applicant's disability in making its decision. In other words, adverse treatment isn't discriminatory if it based on finances only -- whether or not one's financial position is directly related to their physical characteristics.

Parallels may be drawn between this case and the type of economic argument that tenants authorized to grow medical cannabis for their own consumption might make.

All this is to say that while the ability for patients to grow under the ACMPR provides a quick and dirty solution for the government to comply with the Federal Court's ruling on reasonable access, it leaves the tough questions to be hashed out between tenants and housing providers. Not unlike its predecessors, the ACMPR will likely result in the most economically disadvantaged medical cannabis patients being stuck between a rock and hard place.

The ACMPR is an improvement, but it's far from perfect. Fortunately, the regulations are meant to be an interim measure only. Hopefully, the Trudeau government will understand how patients and landlords are affected by the unintended consequences of the regulations, consider the ACMPR as a work in progress, and correct the flaws.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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