Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 21 That legal haze results from how the law and society interact, observes Oliver Moore of Norton Rose Fulbright Canada LLP in Ottawa. And the struggle is man- aging between the letter of the law and social law. "We're in a period of flux, an intermediary period, where the law is cer- tain, but it's not," he says. He sees societal acceptance of marijua- na preceding legalization opposite to our approach to tobacco. The government has used the law to push cigarettes out of ordi- nary, casual use through taxation, label- ling and control of sales. And it was those initiatives that led to societal change and diminished use. With marijuana, there has been a growing acceptance and now the law is struggling to catch up. As a result, communities struggle with how to deal with a situation that remains illegal, adds Janet Bobechko, a Norton Rose partner in Toronto whose interest in the issue was sparked by the establish- ment of a pot shop in her neighbourhood. During this interim period, landlords risk walking right into a liability. The landlord's best protection, she adds, is thorough due diligence, which extends to all those who have been involved in the rental of the property, including agents and property managers. Being proactive in the lease "and doing some reasonable diligence at the outset" could go a long way to protect both the tenant and the landlord to avoid the dis- ruptive and potentially expensive route of eviction, says Kathleen Robichaud, a sole practitioner in Manotick, Ont., where she practises residential and commercial real estate law. Mitigating the risks begins with the clause prohibiting use of the property for illegal activity. She points out that leases drafted by a lawyer typically also contain a use clause that makes the tenants respon- sible for verifying zoning and ensuring they have all the required licences. Ten- ants can also require the landlord to evict another tenant whose business is not com- patible with theirs. "For the tenant to be shut down can have serious consequences and the same can be said for the landlord," she says. "If the property is seized as part of a criminal investigation, the landlord will not be able to re-rent for a potentially long period of time." There is a clear chain of illicit activities that Tony Wilson of Vancouver's Bough- ton Law Corporation sees related to the pot shops and so many ways landlords can ultimately be made liable. Currently, the …THE RETAILER IS BREAKING THE LAW BECAUSE IT'S SELLING TO CONSUMERS IN A RETAIL STORE ENVIRONMENT WHEN THE SALE SHOULD BE DIRECTLY BETWEEN THE AUTHORIZED PRODUCER AND THE PATIENT… TONY WILSON, Boughton Law Corporation *Insurance by FCT Insurance Company Ltd., with the exception of commercial policies, which are provided jointly by FCT Insurance Company Ltd. and First American Title Insurance Company. Services by First Canadian Title Company Limited. The services company does not provide insurance products.. This material is intended to provide general information only. For specific coverage and exclusions, refer to the applicable policy. Copies are available upon request. ®Registered Trademark of First American Financial Corporation. FCT protects you before, during and after * a real-estate transaction. Get protected today. Residential Solutions 1.866.804.3122 Commercial Solutions 1.866.804.3112 Untitled-1 1 2017-01-18 10:35 AM

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