By: Samantha Posluns, Associate Lawyer, Falconeri Rumble Harrison LLP

The legalization of cannabis in Canada has reshaped the landscape of socializing. In the past, the legal repercussions and stigma attached to cannabis consumption led many individuals to limit their use and enjoyment of cannabis to private spaces. With the dissolution of these sanctions, Canadian cannabis consumers are moving out of the shadows and many who have never tried cannabis are experimenting with it for medical and recreational purposes. This article will explore the risk that cannabis intoxication carries for cannabis consumers, occupiers and social and commercial hosts.

While not true for all strains, many types of cannabis have an intoxicating effect which can include changes to perception, balance and the senses. This inherently creates a heightened risk for accidents that can result in personal injuries and subsequent litigation. As cannabis consumption and intoxication becomes more acceptable at social gatherings and in both public and private spaces, occupiers, owners, and hosts of these venues face new forms of potential liability.

Contributory Negligence

An individual who has sustained personal injuries in an accident that occurred on a premises owned/occupied by someone other than themselves or at the function of a social or commercial host may decide to commence a lawsuit to recover monetary compensation for the pain and suffering, medical expenses, income loss and other types of damages that they have incurred as a result of their injuries arising from this accident.

In these situations, the potential culpability of the owner/occupier/host flows from the positive obligation imparted on them by the duty of care prescribed by the applicable legislation. This duty of care, however, is tempered by Ontario’s Negligence Act, R.S.O. 1990, C. N.1, which seeks to limit the liability of a defendant to the extent that the plaintiff’s actions contributed to their injuries. Section 3 of the Negligence Act states that in any action for damages that is founded upon the fault or negligence of the defendant, if any fault or negligence is found on the part of the plaintiff that contributed to their damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against that plaintiff.

Ontario Courts have widely recognized intoxication as a form of contributory negligence however the existing case law generally deals with intoxication by way of alcohol consumption. As a result of legalization, there is likely to be an increase in findings of contributory negligence due to cannabis intoxication. This poses new considerations for potential plaintiffs and defendants alike.

Owners and Occupiers

Ontario’s Occupiers’ Liability Act, R.S.O. 1990, c.0.2 is the provincial legislation that governs an occupiers’ duty of care to ensure the safety of persons on their premises. The Negligence Act defines an occupier as a person who is in physical possession of a premises or a person who has responsibility for and control over the condition of the premises, the activities carried on there, or control over persons allowed to enter the premises. This Act applies to owners/occupiers of public and private premises and generally subsumes the below categories of social and commercial hosts.

Liability Considerations for Social Hosts

In a legal context, the term ‘social host’ generally refers to anyone hosting a social gathering, including private individuals, employers, and organizations. With respect to personal injuries sustained by guests, a social host may be vulnerable to a liability claim when the foreseeability of harm is present and other aspects of the relationship between the injured person and the host create a special link or proximity.

Although social hosts do not face the same heightened duty of care as commercial hosts, they may still be found liable where they knew or ought to have known of their guest’s impairment and/or encouraged it.

While the signs of cannabis intoxication may not be as overt as those of alcohol, if you plan on hosting a social gathering, be aware of the behavior of your guests and the amount of cannabis that they are consuming. If you witness one of your guests displaying significant signs of impairment, you might want to cut off their cannabis consumption, provide them with water or sit them down in a safe area until they sober up. Additionally, you can minimize the risk of accidents by ensuring that your premises is tidy and free from obstructions that may cause guests to trip or fall.

Liability Considerations for Commercial Hosts

Commercial hosts can be defined as vendors who are in the business of providing goods, such as alcohol, for profit. In Ontario, these vendors are regulated by the Liquor License Act R.S.O. 1990 c. L.19. Section 29 of this Act makes the sale or supply of liquor to any person appearing to be intoxicated illegal. As commercial hosts are statutorily regulated, there is a higher duty of care on them to ensure not only the safety of patrons, but that of the general public.

Since the federal Cannabis Act prohibits organizations (including most types of businesses and trade unions) from possessing cannabis, there are not likely to be many cases of commercial host liability related to cannabis consumption alone. Despite this, those venues subject to the Liquor License Act will need to be aware of patrons intoxicated by a combination of cannabis and alcohol. In certain instances, cannabis intoxication can magnify the effects of alcohol and if this results in a patron accident, commercial hosts face the risk of liability.

Liability Considerations for Cannabis Consumers

If you plan to consume cannabis (for either medical or recreational purposes), it is important to consider how your body may react and the environment that you are in. Cannabis produces different effects depending on the strain, THC concentration, and the way it is ingested. These effects are further modified by individual differences such as tolerance and other substances or medications you might be taking at that time.

To ensure your personal safety, do your research. This may entail speaking at length with your medical provider or cannabis retailer so they can provide you with information regarding the physical and psychological effects of the cannabis you plan to consume. Once you know how you will react, you can make informed decisions about the environments you choose to put yourself in while consuming cannabis. For example, if consuming certain cannabis products affects your balance or vision, you can make plans ahead of time to steer clear of large public gatherings or crowded places where there is a heightened risk of injury due to these impairments.