Cannabis consumption and its cultivation become legal as of October 17, 2018, under the terms set out in the An Act to constitute the Société québecoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions, L.Q. 2018 Chapter 19  (“Québec Law”). As for the Cannabis Act Chapter 16  (Federal Law”), it creates a legal framework for the control, production, distribution, sale and possession of cannabis throughout Canada.
What the entry into force of both the Federal and Québec laws means to the residential lease:
The use of cannabis
Smoking bans on cannabis are similar to those on tobacco.
According to the Federal Law, the legal age of consumption of cannabis is 18 years and older, however provinces will be able to raise the legal age of cannabis consumption.
The current medical cannabis program is maintained.
The restrictions to smoking cannabis, which include smoking pipes, bongs, e-cigarettes or any other devices of the same nature in enclosed places (Article 12 of the Québec Law) apply to the residential lease.
These are the main restrictions:
- The common areas of apartment buildings comprising of two or more dwellings: the landlord can make a smoking room available to the building’s tenants.
- The common areas of private residences for the elderly (within the meaning of the second paragraph of section 360 of the Act Respecting Health Services and Social Services): a smoking room may also be made available to the tenants.
- Only persons who live or are staying in the building may use the smoking room (Article 13 of the Québec Law).
- Possession of dried cannabis is limited to 150 grams per residence, where one or more adult persons live (Article 7(2) of the Québec Law).
- The lease may contain a clause that prohibits the tenant from smoking tobacco or cannabis in its dwelling.
- In the absence of such a clause in a residential lease, the landlord may exceptionally include this clause in the current lease, under the following conditions:
- a written notice must be sent to the tenant introducing the ban on smoking cannabis in the dwelling no earlier than October 17, 2018, and during a period of 90 days from this date;
- the tenant must receive the Notice of change of lease must be received no later than January 15, 2019 (see the “Notice of modification to the lease concerning the right to smoke cannabis”, available online from the Régie du logement  );
- The tenant may refuse the amendment to the lease within 30 days of the date of receipt of the Landlord’s notice only for medical reasons; the landlord may, within 30 days after the tenant’s notice of refusal, address the Régie du logement to render a decision on the tenant’s refusal to accept the amendment to the lease for his or her medical reasons; if the landlord fails to challenge the tenant’s refusal to the housing authority, then the lease will carry on without the amendment;
- If the tenant does not respond to the landlord’s Notice, the tenant is deemed to have accepted the modification of the lease.
For new residential leases
The landlord may include in a new lease, a prohibition against smoking tobacco and cannabis in rented premises. The courts have recognized the validity of such clauses in residential leases.
According to Quebec Law (section 10), no cultivation of cannabis for personal use is permitted, irrespective of the place, residence or dwelling. It is zero tolerance. On the other hand, Federal Law allows the cultivation of 1 to 4 cannabis plants for personal use
This divergence, on the cultivation of cannabis in the home, between Federal Law and Québec Law, will be the subject of court challenges for the next few years.
SUMMARY OF DEADLINES REGARDING CHANGES TO THE LEASE
|Before January 15, 2019
|Notice to Tenant
|Within 30 days of receipt of Notice
|Notice of Refusal
|Within 30 days of receipt of Notice of Refusal
|Landord files for a ruling on the modification of the lease with the Régie du logement
By Danièle Lalande