Pubdate: Fri, 02 Feb 2018
Source: Globe and Mail (Canada)
Copyright: 2018 The Globe and Mail Company
Author: Shane Dingman
Page: H3


Legalization of marijuana would make it hard to evict a smoking tenant
who is bothering their neighbours

Smoking pot smells. Whether you like the odour or hate it, few think
it's not a strong smell. As legalization rapidly approaches in Canada,
landlords and tenants are grappling with whether an apartment building
can be declared marijuana-smoke-free, whether a disobedient smoker
could be evicted and whether a blanket provincial ban on cannabis
smoke at home might be the only way to stop it.

"I have neighbours above us and beside us who smoke marijuana, of
course the odours are coming through our ventilation system … It's
quite invasive, it's strong," says John Plumadore, who happens to be
the head of not just his building's tenants association but also the
president of Toronto's Federation of Metro Tenants' Associations,
which gets about 150 calls a year on its tenants hotline around
marijuana and other smoking issues.

Mr. Plumadore's landlord is Jonathan Krehm, who runs the family-owned
O'Shanter Development Co. with his brother Adam, which manages 2,500
apartments across Toronto. Mr. Krehm says O'Shanter only started
looking at the problem in November and has been informed by his
in-house counsel that legalization could make it very difficult to
evict a tenant for cannabis exhaust. "I really don't know how we're
going to address it this at this point - we're not up to speed," he

In the past such situations were clear, at least in Ontario. The
province's Rental Housing Act has sections that make room for tenancy
to be ended if an illegal act is committed. But with legalization, a
landlord seems to have only one recourse; to commence eviction
proceedings under section 64 of the Act, which prohibits a tenant from
"interfering with the reasonable enjoyment of other tenants or the

The key word in that section is "substantial" according to Tom
Halinski, a lawyer and partner with Aird & Berlis LLP who says
Landlord Tenant Boards have a high threshold for proof of substantial
interference. In 2016, there were 48,940 evictions in Ontario for
non-payment of rent; about 68 per cent the the total. Only 12 per cent
(8,876) of evictions came from the category that includes the
"interfering with others" disputes.

"It depends on which adjudicator you draw on which day; it depends on
the facts of the case. I don't think the board is in the business of
evicting people," Mr. Halinski says.

For months, John Dickie, president of the Canadian Federation of
Apartment Associations, has been arguing that the only remedy is a
complete ban on toking inside mult-iresidential buildings. "The
biggest reasons we get involved in this issue?: Other tenants don't
like it," Mr. Dickie says.

His membership - landlords who collectively have more than a million
tenants across the country - wants to maintain the status quo as much
as possible. That said, he admits he can't think of another legal
activity that renters are completely banned from doing that other
types of homeowners are allowed to do.

Mr. Plumadore would like to see his building declared smoke-free,
hoping to ban all types of smoking so as not to single out marijuana.
"I think it warrants it because of the effects on people's health and
the comfort of living in their own homes. Other than medicinal
purposes, there should be no exceptions," Mr. Plumadore says.

"We're not holding pitchforks and torches about it, but it is
second-hand smoke and it's affecting everyone around you," says Andrew
Noble, program manager, outreach and education for Smoke-Free Housing
Ontario. Even though there are perhaps fewer than 10 smoke-free
buildings in Toronto today, he says blocking cannabis smoke is not a
matter simply of smell and preference: "It contains many of the same
fine particles as tobacco, there are 33 known cancer causing chemicals
in it. The body of research - to be absolutely fair - is not as fully
developed as it is with tobacco; it's hard to research things that are

According to Mr. Halinski, smoke-free declarations don't apply
retroactively (existing tenants are grandfathered) and in any case
have little force in law. Further, disobeying clauses in a lease isn't
enough to get you evicted in Ontario. As an example, he points out
many leases in Ontario still mandate no pets, even though those
clauses haven't been enforceable through eviction for decades.

"It's an issue on which we're being consulted all the time, there's
recognition that [legalization] is coming really soon. Everybody wants
to know how to deal with it in a way that's fair to customers," Mr.
Halinski says.

But unless the province write new rules, landlords are going to have
to resolve future disputes on a case-by-case basis. "We're going to
have to feel this out and figure out what to do," Mr. Krehm says.
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