By Laura Track

This article was originally published in the Summer 2018 issue of Landlord BC’s magazine called The Key.

With marijuana legalization on the near horizon, landlords need to be aware of their obligations under BC’s Human Rights Code. There are situations where human rights laws may make it unlawful to end a tenancy because the tenant is growing or using marijuana in their unit.

As of July 2017, over 200,000 Canadians had prescriptions for medical marijuana. Tens of thousands more use marijuana without a prescription to treat a range of serious medical conditions. Marijuana is an extremely important medication for millions of people. For many, there is no other treatment that provides them the relief that marijuana does.

Here are some of the take-aways from my last article on the duty to accommodate that are relevant to the issue of marijuana use in rental units:

  • Landlords play an important role in protecting human rights by providing inclusive, discrimination-free housing.
  • The duty to accommodate requires landlords to meet the special needs of their tenants when those needs relate to characteristics protected by the Human Rights Code.
  • Disabilities are protected from discrimination by the Code.
  • Landlords must accommodate tenants with disabilities to the point of undue hardship.
  • Things like the cost of a requested accommodation and its impact on other tenants are relevant to determining undue hardship.

Landlords have a duty to accommodate people with disabilities who use medical marijuana as treatment. Importantly, it doesn’t necessarily matter whether they have a medical prescription or a legal authorization to grow or consume marijuana. The BC Human Rights Tribunal has held that evicting someone who uses or grows marijuana for a medical purpose in their home could be a violation of the Code.

For example, in Goluch v Victoria Housing Society,[1] Ms. Goluch had a license to grow and smoke marijuana for medical purposes. The landlord told her that the building’s policies prohibited marijuana consumption, and that her legal authorization did not matter. She was evicted. In a preliminary decision, the Tribunal held that Ms. Goluch’s complaint had a reasonable prospect of success. It was plausible that she would be able to prove that her eviction was connected to the disabilities for which she was using marijuana.

In Smith v Tung,[2]Mr. Smith alleged that the landlord refused to rent a home to him because he intended to grow marijuana on the property. Mr. Smith held a valid license to grow and consume marijuana for medical purposes. In a preliminary decision denying the landlord’s attempt to have the complaint dismissed, the Tribunal said that the acts alleged in Mr. Smith’s complaint, if proved, could contravene the Code. This was so even though it wasn’t clear that the landlord was aware of Mr. Smith’s disabilities. The fact that the landlord was aware that Mr. Smith intended to grow marijuana for medical purposes was enough to connect the landlord’s refusal to Mr. Smith’s disability.

These cases show that refusing to rent to or evicting someone for growing or consuming medical marijuana could violate the Human Rights Code. In these cases, the landlords made no attempt to accommodate the tenants’ disabilities. They failed to consider how the tenant’s need for medical marijuana could be reconciled with the landlord’s concerns. This is the essence of the duty to accommodate

A landlord’s duty to accommodate is not without limit. The threshold is “undue hardship” – the point at which you’ve done everything it’s reasonable to expect you to do, and beyond which it is unreasonable to expect you to go. So with respect to medical marijuana use, where is the undue hardship line?

It is probably an undue hardship to allow cultivation of marijuana that causes damage to the unit. In Buchanan v Spelchan,[3] the tenant had a legal authorization to grow marijuana plants, but was growing them in a way that caused mould and excessive moisture to develop throughout the unit. The tenant appeared unwilling to discuss these concerns with the landlord. In these circumstances, the Tribunal dismissed the tenant’s complaint about his eviction on the basis that the landlord would be able to prove he had accommodated the tenant to the point of undue hardship.

Finding an appropriate accommodation for a tenant’s medical needs is a joint-endeavour (forgive the pun!). The landlord and tenant must work together to figure out a reasonable accommodation and how any legitimate concerns can be addressed. In the tenancy context, the rights of other tenants to the quiet enjoyment of their homes free from issues like second-hand smoke, excessive odour, and safety concerns related to unsafe growing, must all be factored into the plan.

The case of Borutski v Crescent Housing Society[4] provides helpful guidance on the steps landlords can take to balance the rights of their tenants. The case was mainly about second-hand cigarette smoke, and the complainants were people whose health was impacted by other tenants’ smoking. The respondents had taken steps to try to accommodate the affected tenants, including implementing no-smoking zones, moving an outdoor smoking pit, weather-stripping units, relocating affected tenants away from suites occupied by smokers, and obtaining quotes to install a new ventilation system (though given the cost of the new system, the Tribunal held it was reasonable that it was not ultimately installed). Moreover, the complainants had been unreasonable themselves in rejecting some of the offered accommodations. The Tribunal held that the respondents had accommodated the tenants to the point of undue hardship and dismissed their complaint.

The upshot of all of this is that a blanket policy or lease term prohibiting all consumption or growing of marijuana is on shaky ground from a human rights perspective.

The Code supersedes a rental contract. A landlord cannot rely on a breach of a rental agreement’s no-smoking clause if the reason for the breach is connected to a tenant’s disability.

The Code also has what’s called “quasi-constitutional” status, meaning that it sits above other laws. If there is a conflict between the Code and another law, like the Residential Tenancy Act, the Code prevails. All laws, rules, policies and contracts must align with the Human Rights Code or they risk being unenforceable.

People with disabilities have a right to use medication that supports their health and well-being. Denying them accommodation or evicting them for doing so could run afoul of BC’s Human Rights Code.

These situations must be assessed on a case-by-case basis with an eye to ensuring that people can live together safely, securely, and with their medical needs reasonably accommodated.

[1] 2011 BCHRT 68.You can read these cases online using a legal database called Canlii.

[2] 2005 BCHRT 473.

[3] 2008 BCHRT 148.

[4] 2014 BCHRT 124. This is a long one – I recommend reading just from paragraph 324 to the end.