Marijuana Smoking and Human Rights

by Chris on January 16, 2012

by Grant Haddock, Haddock & Company

The number of marijuana smoking complaints that our offices have had to deal with over the last few years has increased. A number of factors play into this including acceptable social practices and law enforcement issues.

Marijuana smoking, just like smoking, can be dealt with by Landlords by way of policy, provided the policy is given to the tenant when the tenant takes occupancy of their new premises.

Like any other breach of a tenancy agreement, marijuana smoking could be the subject of eviction if the tenant breaches the policy and/or causes a nuisance for other tenants.

How does a Landlord deal with a tenant who has authorization from the Federal Government to grow and smoke marijuana for medical purposes? This very issue is being dealt with before the Human Rights Tribunal in the case of Goluch v. Greater Victoria Housing Society.

In this case, a tenant held an Authorization to Possess Dried Marijuana for Medical Purposes under the Federal Marijuana Medical Access Regulations. The Landlord claimed that the tenant did not disclose that the tenant held an Authorization when she applied for rental premises. The Landlord also asserted that the tenant would have been made aware of the Landlord’s Marijuana Policy when the tenant took possession of the premises, but the Landlord failed to produce any evidence that they had advised the tenant of this policy.

The tenant was later evicted before the Residential Tenancy Branch because of her marijuana smoking. She then launched a complaint under the Human Rights Code against the Landlord.

The Landlord recently sought to dismiss the Human Rights complaint but the dismissal application was rejected, for a number of reasons. Among the reasons cited for rejecting the application were:

that the Tenant was able to prove that she had a disability;

that smoking the medical marijuana helped with that disability;

it was also not illegal for her to use medical marijuana because of her Authorization, and therefore she had not been undertaking any illegal activity; and,

it was not apparent that the Landlord had brought to the former tenant’s attention the Landlord’s policy on marijuana.

With the Application to Dismiss by the Landlord being rejected, the matter is now moving forward to a hearing where it will be decided whether the Landlord discriminated against the tenant by evicting her for marijuana smoking.

If there is a lesson to be learned from this matter for landlords, it is that marijuana issues should be something that is considered when interviewing and offering premises to tenants.

If the Landlord does not have a policy on marijuana or smoking, they should consider getting one in place and they should consider implementing procedures and practices to ensure new tenants are given the policies, acknowledge receipt of the same and that the housing provider retains adequate evidence that this has been done.

This article is for general information purposes only and does not constitute legal advice. Every situation is unique and readers are encouraged to seek out the advice of a lawyer when implementing the strategies suggested in this article.

Haddock & Company, located in British Columbia, is a recognized industry leader in the delivery of legal services to residential landlords. Clients within the residential landlord practice group include non-profit housing providers. Properties represented range from single family homes to townhouse complexes to high rises. Services provided to clients in this practice area include residential tenancy disputes and hearings; drafting and providing opinions on residential and commercial leases; employment issues; privacy; human rights; property management; construction related issues and asset protection.

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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

{ 1 comment… read it below or add one }

Shelley Anderson March 26, 2013 at 3:28 pm

This policy should also include vapourization of marijuana, and cooking with marijuana. These can both smell very strong, much like the smoke, and can irritate and confuse other tenants into thinking that smoking pot is condoned in the building.

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