WE RE GOING TO POT: LEGAL IMPACTS OF MARIJUANA & MEDICAL MARIJUANA ON MANITOBA LANDLORDS

Transcription

1 WE RE GOING TO POT: LEGAL IMPACTS OF MARIJUANA & MEDICAL MARIJUANA ON MANITOBA LANDLORDS Maria C. Reimer Marc Unger Nvember 22, 2017

2 MARIJUANA IN THE NEWS 11/23/2017 2

3 MARIJUANA VS. CANNABIS Cannabis refers t the plant named Cannabis sativa Frmal legal designatin is cannabis Marijuana and cannabis will be used interchangeably

4 OVERVIEW 1. Applicable Legislatin 2. Legal Status f Marijuana 5. Case Law & Tribunal Decisins 6. Practical Cnsideratins 3. Impact n Landlrds 4. Discriminatin & Reasnable Accmmdatin

5 1. APPLICABLE LEGISLATION Legislatin Cntrlled Drug and Substances Act (Canada) Cannabis Act (Canada) (Nt in frce) Access t Cannabis fr Medical Purpses Regulatins (Canada) The Residential Tenancies Act (Manitba) The Human Rights Cde (Manitba) The Safer Cmmunities and Neighburhds Act (Manitba) Descriptin Marijuana is illegal, save fr medical purpses Will legalize marijuana, subject t certain restrictins Hw individuals can grw / purchase medical marijuana Rights and bligatins f tenants and landlrds Prtects individuals / grups frm discriminatin Ensures that prperties nt be used fr unlawful activities that ccur n a frequent / regular basis

6 2. CURRENT LEGAL STATUS OF MARIJUANA Schedule II Drug - Cntrlled Drug and Substances Act (Canada) Remains illegal, but fr medical marijuana

7 2. FUTURE LEGAL STATUS OF MARIJUANA Cannabis Act (Bill C-45) Ntable Objectives Restrict yuth access Reduce burden n criminal justice system Regulated, quality-cntrlled cannabis Cming Int Frce (Anticipated): July 2018

8 2. FUTURE LEGAL STATUS OF MARIJUANA Subsequent legislative actin: Rules and Standards (FG) Types f prducts fr sale Standardized ptency /serving Prductin practices Restrictins n prmtin Subsequent legislative actin: Distributin and Sale (MB) Prvide rules as t where / hw marijuana t be sld Restrict where cnsumptin can ccur

9 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Access t Cannabis fr Medical Purpses Regulatins ( ACMPR ) Came int frce: August 24, 2016 Cntext Culminatin f legal / cnstitutinal challenges Individuals have a right t use marijuana as medicatin, chse frmat f delivery f the marijuana, and chse supply f the marijuana

10 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Authrizatin - Health care prfessinals Practitiner's infrmatin Name & DOB Perid f use (1 year max.) Hw much per day Dated & signed

11 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Supply Optins 1. Federally-licensed prducer [Prvide the Authrizatin t the prducer] 2. Grw yur wn [Persnal Prductin = Reg. with Health Canada] 3. Designate anther persn [Designated Prductin = Reg. with Health Canada]

12 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Persnal & Designated Prductin Applicatin fr Registratin with HC Prvide cpy f authrizatin frm health care prfessinal and must: 1. Ordinarily live in Canada 2. Be f adult age 3. Have n cannabis / marijuana ffence (last 10 years) Owner s cnsent if patient s rdinary place f residence = Municipal plice frces can request that patient prduce Registratin Certificate, therwise prductin is vluntary

13 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Persnal Prductin Health Canada Registratin Certificate Number f plants Amunt f dried marijuana Lcatin f prductin site Lcatin f strage site Nte: 5,000+ Registratin Certificates issued t date Designated Prductin Health Canada Dcument

14 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Persnal & Designated Prductin Key Limits & Restrictins Keep prductin / strage separate Tw registratins per individual Fur registratins per address Maximum pssessin (lesser f 30-day supply /150 grams r equiv.) Prductin can be inside r utside (but nt bth) Secure prductin / strage

15 2. CURRENT LEGAL STATUS OF MARIJUANA: EXCEPTION - USE FOR MEDICAL PURPOSES Persnal & Designated Prductin Examples 1 gram dried marijuana / day results in: 5 plants indrs; 2 plants utdrs; r, 4 plants indrs and 1 plant utdrs (but nt grwn at the same time) 3 grams dried marijuana / day results in: 15 plants indrs; 6 plants utdrs; r, 11 plants indrs and 3 plants utdrs (but nt grwn at the same time)

16 3. IMPACT OF MARIJUANA ON LANDLORDS Ntable issues arising frm the use f marijuana in rental prperties: Prperty damage Incnvenience t ther tenants Increased fire hazard Supply cnsideratins

17 3. IMPACT OF MARIJUANA ON LANDLORDS Ntable issues arising frm the grwing f marijuana: Electrical, ventilatin, water, fire hazards Insurance cverage vided / increased cst Health cnsideratins Security cnsideratins

18 3. IMPACT OF MARIJUANA ON LANDLORDS 11(2) 11(3) The Residential Tenancies Act (Manitba) Ntable Landlrd s Obligatins / Duties Landlrd may establish and impse written rules ( Huse Rules ) 11(4) Landlrd may enfrce cndminium s declaratin, by-laws, r rules ( Cnd Rules ) 54 Landlrd s right t enter a rental unit 62 Landlrd s duty nt t interfere with enjyment f rental unit 66 Landlrd must nt unreasnably restrict access t a rental unit / cmmn areas 67 Landlrd s bligatin t investigate withut delay and make reasnable effrt t remedy cmplaints re: disturbances / safety issues Nte: Landlrd s rights t terminate the lease is dealt with in Avrm Charach s presentatin.

19 3. IMPACT OF MARIJUANA ON LANDLORDS The Residential Tenancies Act (Manitba) Ntable Tenant s Obligatins / Duties 70 Tenant s bligatin t keep unit clean 71 Tenant must nt alter r redecrate the unit 72 Tenant s bligatin t take reasnable care f the unit 73 Tenant s bligatin t nt unreasnably disturb thers 74 Tenant s duty t nt impair the safety / interfere with rights f thers 74.1 Tenant must nt engage in an unlawful activity in the unit 75 Tenant s bligatin t cmply with Huse Rules 75.1 Tenant s bligatin t cmply with Cnd Rules

20 3. IMPACT OF MARIJUANA ON LANDLORDS Is the fllwing statement true r false? The lease, Huse Rules, and/r Cnd Rules d nt permit smking in a rental unit. Therefre, any tenant wh smkes marijuana vilates the lease / the Rules and they can be the subject f an evictin ntice.

21 3. IMPACT OF MARIJUANA ON LANDLORDS Partially Right The Law f Cntract: Even when marijuana becmes legalized If the lease, Huse Rules, and/r Cnd Rules prhibit smking (i.e. cigarette, marijuana, vaping) + the tenant smkes in the unit = Vilatin = Landlrd Recurse Highly fact dependent Burden f prf lies with the landlrd

22 3. IMPACT OF MARIJUANA ON LANDLORDS Partially Right The Law f Cntract: Cautin: Edible / Nn-smke marijuana prducts Nt clear if ban f thse prducts pssible in lease r Rules Repeated, disruptive tenant behavir

23 3. IMPACT OF MARIJUANA ON LANDLORDS Partially Right Human Rights Cnsideratins: Irrespective f the legal status f marijuana Tenants with a dcumented, medical need t use marijuana = Cncepts f discriminatin & reasnable accmmdatin

24 4. DISCRIMINATION & REASONABLE ACCOMMODATION The Human Rights Cde (Manitba) (the Cde ) Prtects individuals / grups against discriminatin Prhibits discriminatin in the rental f residential premises: All applicants have the right t have their applicatin fr tenancy cnsidered withut unreasnable discriminatin Landlrds, their agents and emplyees are all respnsible Actual intent is nt required (i.e. systemic discriminatin)

25 4. DISCRIMINATION & REASONABLE ACCOMMODATION The Human Rights Cde (Manitba) (the Cde ) Prtected characteristic = Disability Physical r mental disability r related characteristics r circumstances, including reliance n a service animal, a wheelchair, r any ther remedial appliance r device Failure t reasnably accmmdate special needs assciated with a disability may amunt t a prhibited frm f discriminatin

26 4. DISCRIMINATION & REASONABLE ACCOMMODATION What is Reasnable Accmmdatin Practively respnd t a request fr accmmdatin frm a disabled tenant Determine if any reasnable accmmdatin(s) re: disability can be made Be prepared t shw / prve steps taken t attempt t accmmdate Threshld = Actual undue hardship, nt a mere belief

27 4. DISCRIMINATION & REASONABLE ACCOMMODATION Nt a One Way Street: Attempt t balance cmpeting interests Use f Medical Marijuana Other frms Abslute right t use dried marijuana Other venues Landlrds / ther tenants rights impacted Grwing f Medical Marijuana Health Canada Certificate Abslute right t grw in residence Other alternatives t grwing (i.e. licensed prd / designated ind.)

28 4. DISCRIMINATION & REASONABLE ACCOMMODATION Examples f Reasnable Accmmdatin in Actin Weatherstrip units Inspect, clean, and maintain HVAC systems (minimize SHS flw) Facilitate tenant-t-tenant meetings (with cnsent f the disabled tenant) Request use f an air purifier If smking permitted, ensure written agreement that smking will nly ccur in the tenant s unit, as ppsed t cmmn areas Negtiate smke free hurs r an agreement t smke nly n balcnies Marijuana plants grwn n a balcny, ut f sight Map ut / grup medical smkers tgether, create buffer znes, and attempt t relcate thers wh cmplain f SHS Avid claims f discriminatin by applying / enfrcing the lease and Rules t all, equally

29 5. CASE LAW & TRIBUNAL DECISIONS Manitba: Residential Tenancies Branch Only a few reprted decisins re: use / grwing f marijuana Majrity deal with recreatinal use f marijuana Nne dealing with medical marijuana Manitba: Human Rights Cmmissin N reprted decisins re: discriminatin frm use f medical marijuana in rental unit Other jurisdictins: Curts and tribunals f British Clumbia and Ontari

30 5. CASE LAW & TRIBUNAL DECISIONS Yung v. Saanich Plice Department, et al, 2003 BCSC 926, appeal dismissed 2004 BCCA 224, leave t appeal t the SCC refused: The landlrd alleges that the tenants have unreasnably disturbed ther ccupants cntrary t sectin 36(1) f the Residential Tenancy Act.... The real questin is whether the smell f marihuana smehw entered the suites f the cmplaining ccupants as they have testified because it is that type f disturbance that wuld almst certainly crss the line and be prperly described as an unreasnable disturbance. [...] Did the tenants disturb ther tenants? The answer is yes. Other ccupants cmplained abut being disturbed and abut feeling they had lst enjyment f their hme. They cmplained abut an dur that made them feel ill r gave them headaches. Other tenants were adamant that they had t mve. One did mve. In my view, the tenants did disturb ther ccupants.... It is incnceivable that the tenant's right, indeed his need t smke marihuana in rder t treat his disease, culd be used t defeat the rights f ther ccupants t peaceful enjyment f their hmes. As the tenants disturbed ther ccupants, they breached article 13 f the Tenancy Agreement and sectin 36(1)(h) f the Residential Tenancy Act. [...]

31 5. CASE LAW & TRIBUNAL DECISIONS Takeaways Dcumented evidence / testimnials are crucial Having tenants appear / testify always plays in Landlrd s favur Capture full scpe f the impact f marijuana smke Medicate with marijuana abslute right t smke it

32 5. CASE LAW & TRIBUNAL DECISIONS SWL (Re), 2016 CanLII (ON LTB) The Tenant has cmmitted an illegal act invlving the prductin f an illegal drug in the rental unit since his therwise lawful permit t prduce marijuana in his residence des nt allw him t prduce r stre marijuana in his present rental unit. Hwever, I have cnsidered all f the disclsed circumstances in accrdance with subsectin 83(2) f the Residential Tenancies Act, 2006 (the Act ) and find that it wuld nt be unfair t grant relief frm evictin, pursuant t subsectin 83(1) f the Act. [ ] Test applied by the Bard: Unless the ffence has the ptential t affect the character f the premises r t disturb the reasnable enjyment f the landlrd r ther tenants, the landlrd in my view des nt have the right t evict.

33 5. CASE LAW & TRIBUNAL DECISIONS [24] [ ] Althugh [the Landlrd] tk several phtgraphs f the Tenant s prductin site, [the Landlrd] did nt submit any evidence that the Tenant s marijuana prductin had caused any damage t the rental unit, structurally r therwise. Similarly, althugh they had reasnable cncerns that the Tenant s use f an extensin crd and a pwer bar culd represent an electrical hazard, the Landlrd submitted n evidence suggest that the Tenant s use f these items psed any actual danger t the residential cmplex. [25] Mre imprtantly, there was n indicatin n the evidence that the Tenant was trafficking any f the marijuana grwn in the unit r that he was stealing electricity t pwer the equipment used in his garden. As well, there was n evidence that the Tenant s activities in any way interfered with the ther tenants reasnable enjyment f the residential cmplex. [ ]

34 5. CASE LAW & TRIBUNAL DECISIONS Takeaways N evidence = N evictin Phtgraphs, testimnials, dcuments = Cllected in accrdance with The Residential Tenancies Act * Be ready t prve scpe f disturbance & risk psed by a tenant wh is using medical marijuana

35 6. PRACTICAL CONSIDERATIONS: HOW TO MOVE FORWARD Ask the Right Questins Up Frnt Smking / Nn-Smking Status (Okay) Smke marijuana fr medical purpses (Mre Risk) Emplyees / Agents Trained re: Discriminatry Practices Written Guidelines re: Hw t Apply Reasnable Accmmdatin

36 6. PRACTICAL CONSIDERATIONS: HOW TO MOVE FORWARD Get the Basics Right Recrd and keep mve in / ut cnditin reprts re: the rental unit As applicable, specify n smking in unit and include marijuana alngside cigarette smke Specify that the Landlrd is nt guaranteeing a smke free envirnment Dcument / recrd bth the delivery and acceptance f the Huse Rules / Cnd Rules by getting the tenant t sign an Acknwledgement f Receipt Use f Marijuana is Suspected Always ensure t cmply with The Residential Tenancies Act Invlve municipal plice frces t investigate / dcument suspected use Municipal plice can cmpel the tenant t prduce their Health Canada Registratin Certificate (therwise vluntary t prduce the Registratin Certificate fr ther parties) Be wary f utright prhibiting edible / nn-smke marijuana

37 6. PRACTICAL CONSIDERATIONS: HOW TO MOVE FORWARD Make Sure t Fully / Prperly Dcument Incidents Actins taken s as t address the prblem / accmmdate Interactins with the prblematic tenant(s) Other tenants cmplaints Warning Letters Early actin is always better Detail, reference, and describe the full scpe f the vilatin(s) Term(s) f the lease, Huse Rules, Cnd Rules, r sectin f The Residential Tenancies Act vilated Ensure cmpliance with The Residential Tenancies Act Keep all cpies and require an Acknwledgement f Receipt signed by the tenant

38 6. PRACTICAL CONSIDERATIONS: HOW TO MOVE FORWARD Dn t Lse Track f Frmer Tenants When yu have their new / mre current cntact infrmatin, easier t get written statements frm them and have them cme testify, as required Keep Abreast f Legislative Develpments & Decisins The underlying legislatin is ever-changing With time, hpefully prir t July 1 st 2018, decisins and plicies issued by the federal, prvincial, and municipal gvernmental authrities will cntinue t prvide additinal clarificatin

39 Q & A 39

40 THANK YOU Maria C. Reimer T: (204) F: (204) Marc Unger T: (204) F: (204)

41 Nte: This presentatin is f a general nature nly and is nt exhaustive f all pssible legal rights r remedies. In additin, laws may change ver time and shuld be interpreted nly in the cntext f particular circumstances such that these materials are nt intended t be relied upn r taken as legal advice r pinin. Readers/viewers shuld cnsult a legal prfessinal fr specific advice in any particular situatin. MLT Aikins, the MLT Aikins Designs, and Western Canada s Law Firm are trademarks f MLT Aikins LLP. Cpyright 2017 MLT Aikins LLP. All rights reserved. 41