Tenant Evicted for Smoking Marijuana Claims Discrimination

by Chris on August 19, 2019

A landlord who brought an eviction action against a tenant whose marijuana smoking was disturbing other tenants now must face a human rights action for discrimination.

According to Human Rights Tribunal of Ontario records, the landlord initially filed for dispute resolution with the Landlord and Tenant Board to evict a tenant who smokes medical marijuana to treat a disability because other tenants complained that the secondhand smoke was disturbing their quiet enjoyment. At this LTB hearing, the landlord alleged that no reasonable accommodation could be found and that the only resolution was for the tenant who smoked marijuana to leave.

The tenant opposed the eviction action but decided to¬† move out. Still, the Landlord and Tenant Board detailed its findings in the case. The tenant argued that smoking medical marijuana is legal. The LTB drew an analogy between smoking medical marijuana and cigarettes — both legal — but both grounds for an eviction if the smoke substantially interferes with other residents’ reasonable enjoyment.

According to that decision, had the tenant not moved out, the arbitrator would have ordered the termination of the tenancy on the grounds that the tenant did not correct the problem within the time allowed in the Notice of Termination.

Nearly one year later, the tenant filed an action with the Human Rights Tribunal of Ontario, alleging that the landlord did not provide reasonable accommodation for the woman’s disability, which she treated by smoking medical marijuana. In an interim decision this month, the HRTO granted leave for the application against the landlord to continue, despite the findings of the Landlord and Tenant Board.

Generally, a landlord must accommodate a disability unless or until the accommodation creates an undue burden. The level of accommodation necessary is measured on a case-by-case basis, and the path forward is not always obvious, especially when tenants have competing rights or needs.

For instance, in a case before the British Columbia Human Rights Tribunal, a woman with a respiratory disability brought a claim against her strata for failing to protect her from secondhand cigarette smoke from an adjacent unit. At one point in the dispute, the residents who smoked claimed they also suffered a disability based on nicotine dependence.

Despite upgrades that included sealing pipes, a vapour barrier, ozone treatment, air purifiers, new insulation, and two attempts to pass a no-smoking bylaw, the B.C. Human Rights Tribunal awarded the resident $7,500. The arbitrator determined that the strata was too slow to act, should have pushed harder for the no-smoking bylaw, and should have done more to engage the parties to settle the dispute.

Hopefully, the Ontario case will shed light on specific strategies landlords should employ when resolving disputes that involve tenants with competing interests so landlords don’t run the risk of income loss.

While each case likely will be reviewed on its own merits, it is possible that a no-smoking policy in the tenancy agreement, especially one that addresses marijuana smoking, might bolster a landlord’s position should a dispute arise.

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Disclaimer: The information provided in this post is 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.

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