As of October 17th, 2018, the use of non-medical, or recreational cannabis has officially been legalized in Canada. While the Federal Government has established certain laws across the Country, much of the planning has been left to the Provinces and Territories.
For the purposes of this article, when we refer to Provincial law, we are referencing specifically those laws in Ontario.
Similar to alcohol, the laws surrounding cannabis consumption vary from Province to Province. At the Municipal level, certain cities have prohibited the retail sale of recreational cannabis. Even at the time this article was written many questions remain regarding what the roll out of recreational cannabis will look like across the Country.
Recently, the Provincial Government announced that the Alcohol and Gaming Commission of Ontario (AGCO) will oversee a lottery system to limit the number of retail licenses approved to 25 locations during in the first phase. The rationale being that there has been an underestimation of the demand for recreational cannabis. Without the ability (at this time) to adequately measure and supply the public demand, it is irresponsible to allow private enterprise to continue to invest in physical retail locations.
It is clear that the landscape for recreational cannabis sales and consumption will change considerably over the next 12-24 months. The information provided in this article is meant to be informative, and some of it likely to change as Government and the general public find their new balance.
Here are some quick facts about the legal consumption of cannabis in Ontario:
- Must be 19 years of age to legally consume;
- Individuals are permitted to possess up to 30 grams in public;
- Cannabis products can be purchased online through Government’s Ontario Cannabis Store;
- Privately-run retail stores set to open in April 2019;
- Residences are permitted up to 4 cannabis plants for personal consumption;
- Smoking cannabis in any indoor common area in a condominium, or apartment is prohibited;
- Consumption of cannabis is permitted anywhere that tobacco is permitted;
- Less than 2 nanograms is permitted in the system while operating a vehicle.
Recreational Cannabis Consumption in Private Dwellings
This new legislation is seen by some as long overdue. For others, it brings with it a level of uncertainty and risk to public health, safety and personal property. Residential landlords are being put into an increasingly precarious position as it relates to the roll out of legal cannabis.
Does a landlord have the ability to enforce rules to prohibit legal cultivation and consumption? What recourse does a landlord have if their property is damaged by a resident?
There are obvious concerns regarding mold, structural damage, electrical issues, fire, etc. Some landlords have in fact put into place policies that would prohibit these activities. However, some legal experts believe this may be a challenge to oversee and enforce. As legalization is very new, specific precedent will take some time to be set.
Generally speaking, landlords can police activities that; i) raise the risk of fire (such as overloading electrical circuits, and the use of grow lamps), ii) damage the building (ie. Increase levels of humidity), or iii) interferes with the other tenants’ reasonable enjoyment of the property (ie. excessive odors).
The nature and structure of condominium corporations may offer a slightly different perspective than that of apartment dwellings. Condo corporations have the ability to amend, or introduce language in their declaration, by-laws, or rules and regulations that may be more enforceable than that of an apartment complex. The challenge for condominium boards may be in getting the requisite number of votes from unit owners, one way or the other.
Recreational Cannabis Consumption in the Workplace
As discussed previously, the decision on where cannabis products can be consumed, is determined at the Provincial level. However, individual employers have the right to set rules for non-medical use of marijuana in the workplace.
Employers should evaluate their company’s policies as it relates to the consumption of drugs and alcohol, and review these policies on an annual basis. Employees should be made aware of what the policy expectations are and possible disciplinary actions. Policies should clearly address what types of conduct are prohibited.
Duty to Accommodate
Under the Canadian Human Rights Act, employers have the obligation to accommodate to the point of undue hardship an employee who has identified as having a disease, injury or disability, including substance dependence and medical authorizations to use cannabis for medical purposes (source: Government of Canada). However, a prescription for medical marijuana does not mean an employee can be impaired at work, compromise their safety, or the safety of others.
The employer is required to attempt to find suitable workplace accommodation for disabled employees who have a prescription for medical marijuana use, just as would be required for any other disabled employee with a medical drug prescription.
An employer may wish to request medical information from the employee’s doctor, or seek the assistance of an independent medical examiner where there are questions about the employee’s fitness for duty, and what will be appropriate accommodation.
Employer’s Responsibilities
1) Ensuring the health and safety of all employees at work
address physical and/or psychological hazards in their workplace, including when impaired;
work with employee representatives to develop, implement and evaluate a hazard prevention program to monitor and prevent hazards;
include policies on substance use and impairment in hazard prevention programs when the use of cannabis and other causes of impairment represents a hazard.
Employee’s Responsibilities
Work safely;
understand the impact that using substances (medical/therapeutic or non-medical) can have on their safety and that of others;
report to their employer anything, or circumstance that is likely to be hazardous to the employees or any other person in the workplace;
inform their employer if a medical condition or treatment may cause impairment and impact their ability to perform their job safely;
follow all instructions provided by the employer concerning the health and safety of employees.
The challenge for employers is striking a balance between accommodating an employee’s rights and ensuring a safe working environment for all employees. Detection will become even more difficult as edible products begin to enter the market. Having a clear drug policy and open dialogue with employees will be important steps to protect their employees, as well as the public.