A lot of attention has been directed at the effect of marijuana legalization and what it will mean for Ontario landlord and tenants. Contrary to all the hype however it should have little if any effect:
In 2008 I argued the first case in Ontario to uphold a no smoking lease and evict the tenant for smoking. When the case was first called the Board Member conducting the hearing noted that smoking (tobacco) was a legal activity and questioned how a tenant could be evicted for engaging in conduct that was otherwise lawful. The answer with respect to legal marijuana now is the same as it was then with respect to tobacco:
When considering whether any conduct justifies terminating a lease the legality of the conduct is largely irrelevant. To evict the conduct must trigger one of the grounds for termination set out in the legislation: The conduct must substantially interfere with the enjoyment of other tenants, interfere with the landlord’s rights or legal interests (Sec. 64) or cause damage to the property (Sec. 62). If the Board finds that the conduct falls within any of these grounds for termination it then has authority to terminate. Otherwise it does not. Even in proceedings to evict for carrying on illegal activity in the rental unit the effect on others is the paramount consideration: For example you cannot evict a tenant for committing tax fraud in the unit because the conduct while illegal does not affect the landlord or other tenants.
So regardless of whether smoking marijuana is legal or illegal, if it disturbs other tenants, interferes with the landlord’s legal interests or causes damage to the property the landlord will have grounds to terminate. Otherwise making a case for termination will be difficult. This is true regardless of any provision in the lease as the legislation governs the termination of tenancies and violating a lease is not in itself a reason to terminate under the legislation.
While the legalization of marijuana is of little consequence from a legal standpoint it may well have a practical effect as many tenant will believe that legalization authorizes them to smoke marijuana at home. We have already had one case where the tenant took that position however at the end of the day it was decided along the same lines set out above: The smell disturbed other tenants and the offending tenant was evicted.