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The End of Prohibition: Cannabis and What You Need to Know

By Kormans LLP

As many of you know, on October 17, 2018 cannabis was legalized Canada wide by the Federal Government by the Cannabis Act.

The Federal Cannabis Act and the Ontario Cannabis Act have created a system of regulations to allow for the legalization of Cannabis and how it is to be dealt with in the Province of Ontario.

It is crucial to understand the intricacies of these acts and regulations so that you do not find yourself in legal trouble.

The Federal Act states that the legal age for purchasing cannabis is 18 years old but allows for the provinces to create their own rules for a minimum age to purchase. In Ontario, the legal age for a person to purchase cannabis from a legal supplier is 19 years old. Therefore, anyone under the age of 19 years old cannot purchase cannabis.

A person can grow up to four cannabis plants per residence (not per person). If you or a real estate client are legally growing cannabis, it is important to understand what must be disclosed when buying or selling real property. Firstly, you must know the difference between stigmas and defects.

A stigma is a non-physical attribute of a property which can cause a negative emotional response in a potential buyer. An example of this can be a serious crime or death occurring at the property. In Ontario, there is no requirement for a seller to disclose the existence of facts that may be viewed as a stigma to a buyer.

Secondly, you must know the rules regarding defects. A defect may be grouped as either a patent or a latent defect. A patent defect is a defect that can be seen or identified during a home inspection. An example of this is mould growth that can be visibly seen. There is no requirement for the seller to disclose patent defects. A latent defect is not easily seen or discoverable such as a crack in the foundation or hidden water damage. Examples of latent defects that must be disclosed include structural problems that cause the property to have wear, cause the property to be dangerous to occupy or damage to utility systems that can put the occupants at risk.  Such latent defects must be disclosed to a potential buyer otherwise a seller may face legal consequences once discovered by a buyer.

The Ontario Government has authorized the smoking or vaporizing of cannabis wherever cigarettes may be smoked.

According to Subsections 12 (1) and (2) of the Smoke-Free Ontario Act, 2017, subject to any exceptions that may be provided for in the regulations, no person shall smoke tobacco and therefore cannabis in the following places:

  1. An enclosed public place.
  2. An enclosed workplace.
  3. A school within the meaning of the Education Act.
  4. A building or the grounds surrounding the building of a private school within the meaning of the Education Act, where the private school is the only occupant of the premises, or the grounds annexed to a private school, where the private school is not the only occupant of the premises.
  5. Any indoor common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
  6. A child care centre within the meaning of theChild Care and Early Years Act, 2014.
  7. A place where home child care is provided within the meaning of the Child Care and Early Years Act, 2014, whether or not children are present.
  8. A place where an early years program or service is provided within the meaning of the Child Care and Early Years Act, 2014.
  9. The reserved seating area of a sports arena or entertainment venue.
  10. A prescribed place or area, or a place or area that belongs to a prescribed class.

 

 

Cannabis and Residential Tenancies

Residents over the age of 19 can grow up to a total of four cannabis plants in their home.

In rental units, tenants must act in a way that does not impair the safety of themselves or other residents.

A tenant/resident cannot smoke or vape cannabis in indoor common areas in condominiums, apartment buildings and university/college residences, enclosed public places and non-designated gust rooms in hotels, motels and inns.

According to the Ontario Standard Lease Agreement landlords may provide smoking rules for the leased premises.  However, the landlord must follow the Ontario Human Rights Code. If the landlord (or anyone acting for the landlord) discriminates against the tenant based on prohibited grounds of discrimination under the Ontario Human Rights Code (the Code), they may be violating the tenant’s rights under the Code.

The Ontario Residential Tenancies Act does not discuss smoking in a rental unit. The landlord and tenant can rely on Section 10 of the Ontario Standard Lease Agreement to agree to either allow or prohibit smoking in the unit, and/or on the landlord’s property.

Even if the lease doesn’t prohibit smoking, the landlord may apply to the Landlord and Tenant Board to end the tenancy if the smoking:

  • substantially interferes with reasonable enjoyment of the landlord or other tenants,
  • causes undue damage,
  • impairs safety, or
  • substantially interferes with another lawful right, privilege or interest of the landlord.

 

 

Cannabis and Commercial Tenancies

The Ontario Cannabis Act prohibits a landlord from leasing a premises to a tenant whose intended use of the leased premises is to be used for the unlawful sale or distribution of cannabis unless it is a legal Ontario cannabis retailer.

If a landlord took reasonable measures to prevent the activity of unlawful sale or distribution of cannabis then this can be a defence to a charge against a landlord. To be safe always obtain in writing that the tenant will not be using the leased premises for the unlawful sale or distribution of cannabis unless they are a legal Ontario cannabis retailer.

Canada is only the second country in the world to fully legalize recreational sales of cannabis. For this reason it is crucial to stay up to date on the adapting laws regarding Cannabis in Canada and Ontario to avoid possible legal issues.

 

 

What Else Should You Know?

 

Medical Cannabis Users and Driving

If a police officer is satisfied that you are legally authorized to use cannabis for medical purposes (i.e. you have a prescription from a medical practitioner), you will not be subject to Ontario’s zero tolerance drug requirements. Note that you can still face penalties and criminal charges if a police officer determines that your ability to drive has been impaired.

 

Legal Amount to purchase and Possess

A person is permitted to purchase up to 30 grams of dried recreational cannabis at one time for personal use. A person can have a maximum of 30 grams in public at any time.

 

Authorized Purchases

As of legalization on October 17, 2018 the only place to legally purchase cannabis in Ontario is on the Ontario Cannabis Store website at OCS.ca.

The Ontario government is moving towards regulating a private retail model for cannabis that will be launched by April 1, 2019. The Alcohol and Gaming Commission of Ontario is the provincial regulator authorized to grant store licences. Private stores will have strict controls to assist in ensuring children and youth are not served.

 

Travel within Canada

Travellers within Canada can travel to other provinces while carrying up to the maximum legal limit of cannabis.

 

Travelling outside of Canada

You cannot take cannabis across the border as possession of cannabis outside of Canada remains a serious criminal offence subject to arrest and prosecution.

 

 

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Seth D. Freedman is an Associate with Kormans LLP. His practice areas include residential and commercial real estate, corporate and commercial law, and wills and estates. You can reach Seth at sfreedman@kormans.ca

All blog entries are for your reading pleasure only and are not posted to provide legal advice. For your matter, we encourage you to consult with a lawyer to review and discuss your specific facts and circumstances.