'That's going to be an issue': Lawyers weigh in on apartment smoking and vaping ban

A ban by landlords on tenants smoking or vaping marijuana in their apartments is an issue that's bound to be decided in the courts, say two lawyers.

Last week a major Western Canadian property manager, Mainstreet Equity Corp., confirmed it will ban the indoor smoking of cigarettes and cannabis, plus vaping, starting this fall — even for medical marijuana users.

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"I believe that there is going to be litigation over these issues and we're going to get some court and certainly some human rights tribunals," said Trina Fraser, an Ontario-based lawyer whose area of expertise is cannabis law.

"That is inevitable," echoed Robert Noce, a condominium, municipal and real estate lawyer in Alberta.

Sask. laws changed 

Late last year, the Saskatchewan government amended its residential tenancy laws so that landlords can specifically ban the use, possession or growth of cannabis inside apartments, as long as the ban is "reasonable."

But exactly how accommodating landlords have to be, particularly with medical marijuana users, is left unsaid and therefore open to interpretation, said Fraser.

"I don't believe that an absolute ban on cultivating a plant or possessing plants or consuming cannabis in a rental unit for medical purposes would withstand scrutiny under the human rights code in your province," said Fraser.

"That's going to be an issue.… I think that's where the concept of reasonableness is going to come in," she said.

"If it's a medical user, the landlord may have to make certain accommodations for that possession or cultivation or use."

'Less intrusive' alternatives

Noce believes prohibitors will be on "solid ground" as long as they are doing it "in the best interest of the overall population of that particular building."

But, he added, "Ultimately, one day a judge or a tribunal will say otherwise and we'll deal with it. We're in uncharted waters here."

Noce also pointed out that medical marijuana users do have options other than smoking the plant, and that some doctors even prefer to prescribe oils because the patients' use of the drug can be more easily regulated.

"There are less intrusive uses of marijuana without impacting the other tenants in that building," he said.

But those alternatives don't work best for everyone, Fraser countered.

"Certainly there are many medical patients who feel that smoking cannabis is the most immediate and the most effective form of relief for the symptoms they're treating," she said.

Needs of the many vs. the few

Balancing the needs of the few with the needs of the many will prove thorny in the beginning of the post-legalization age, Fraser added.

"It becomes a very tricky issue of a landlord trying to minimize any disruption or annoyance to neighbouring tenants, maybe smoke damage to the building, but at the same time that has to be balanced against the medical patients' rights," she said.

"How far does that duty to accommodate exist is something that we don't know the answer to at this point. We're going to have to see how it plays out in human rights tribunals [or] in court."