Unless lease states otherwise, tenants will be allowed to smoke weed ‘in a reasonable way’

Q: It would be helpful to get some clarification as to how the legalization of marijuana will affect landlords and tenants. As I understand it, if a current lease says No Smoking, then the tenant cannot smoke marijuana or cigarettes in the apartment. But if a smoking ban is not included in a current lease, can the tenant smoke marijuana in the apartment? What about the risk/ harm of second-hand smoke, not to mention smell, on others in the building ? What about children? Advice would be appreciated.

A: Subject to any restrictions the Province of Ontario enacts, after legalization tenants will be allowed to smoke marijuana in a reasonable way, other than where smoking is banned either in specific areas through legislation or bylaws (like common areas of an apartment building) or where the lease specifies no smoking of marijuana.

However, under Ontario’s Residential Tenancies Act, a tenancy can be terminated if a tenant substantially interferes with the reasonable enjoyment of another tenant (or the landlord). Generally, in most buildings, a tenant is expected to put up with occasional exposure to second-hand smoke, but is not expected to put up with a lot of second-hand smoke. That is the situation now with cigarette smoke, and will likely be the situation with marijuana smoke after legalization.

Avoiding too much secondhand smoke may mean the tenant who is smoking may need to smoke on the side of their apartment away from yours, opening a window to draw out the smoke or even using a fan to push the smoke out of a window away from your unit. The landlord should fill any obvious holes in the walls between your apartment and the smoker’s apartment to minimize the entry of smoke.

Once any holes are sealed, if the smoker’s efforts to avoid emitting significant smoke fail more than a few times a year (and the smoke continues to bother you), then the landlord can give them a notice of termination for interfering with your reasonable enjoyment. This is similar to the situation regarding tobacco smoke.

If the smoker continues to spew out smoke within seven days of receiving the notice of termination, then your landlord can take them to the Landlord and Tenant Board to seek to evict them.

It is easier for a landlord to get smoking stopped or reduced if the tenant who is complaining has children who are affected by second-hand smoke, or has a medical problem, such as asthma, a heart condition or a smoke allergy.

It is harder for a landlord to get marijuana smoking stopped or reduced if the smoker has a medical certificate to use marijuana. However, even with the certificate, the smoker needs to make some effort to minimize interference with their neighbours. Among other arguments, the landlord can propose the tenant switch to using edibles to take in their marijuana dose.

Once the smoker is alerted to the fact that the smoking bothers another tenant that much, and realizes that the landlord can take action, many smokers reduce and manage their smoking so that it really is only an occasional, minor annoyance. Other smokers may find a new place where they can smoke without all the limits.