How medical marijuana use could make one Nova Scotia man homeless

Philip Bennett could soon be homeless.

The 57-year-old is getting kicked out of his apartment building because he smoked and vaped medical marijuana on his balcony. 

He uses the marijuana to treat the pain caused by a genetic disorder that's slowly destroying his body. It has already robbed him of his ability to walk long distances.

Outside of his apartment, Bennett requires a motorized wheelchair to get around. 

Bennett's landlord wants him out of the apartment building in Dartmouth by May 1, saying that Bennett broke the building's ban on marijuana use and that his smoking caused another tenant to move out.

That's led to a legal fight that questions what right a landlord has to decide the kind of medication a tenant can use.

"If they kick me out of here I got no place to go," said Bennett. "You won't have to worry about me vaping, you won't have to worry about me paying rent, you won't have to worry about nothing, everybody should be nice and happy. They put a wheelchair guy on the side of the road. Congratulations."      

David Burke/CBC

Bennett has been trying to find a place to live that is both accessible and affordable, a tall order given the fact he lives on income assistance. 

He's also reached out to local politicians and Housing Nova Scotia for help, but so far he hasn't found a new place to live.

Bennett suffers from spinocerebellar ataxia, a genetic disorder that robs him of much of his mobility, throws off his co-ordination, makes it difficult to swallow and causes him pain throughout his body.

His symptoms moved into high gear 17 years ago, forcing Bennett out of the forestry industry and onto income assistance.

He's tried numerous medications over the years to treat his pain, but didn't like their side effects. His doctor eventually gave him a prescription for medical marijuana.

Bennett said smoking or vaping the marijuana works best for him, giving him pain relief in seconds. Other forms take longer to work.

"It helps steady my hands, it helps reduce the pain, it helps me walk a little bit easier, it helps me maintain my life a little bit better," he said. 

But his building on Nadia Drive has had a strict marijuana ban in place since he moved in, a ban that he broke repeatedly when he went to his balcony on the second floor to smoke or vape marijuana. 

David Burke/CBC

Tammy Wohler, Bennett's lawyer through Nova Scotia Legal Aid, said Bennett assumed that ban didn't apply to him because he had a prescription for medical marijuana. 

For almost three years he used his medical marijuana with no trouble. But his neighbours in the building began to complain last year.

In August 2018, landlord Phillip Haddad of Eternity Developments gave Bennett a notice saying he wanted him out of the building, according to testimony in small claims court.

Bennett didn't want to leave and got help from Nova Scotia Legal Aid to fight the notice to move.

"In my view it's the duty of the landlord to accommodate Mr. Bennett's disability, in this case the way to accommodate him would be to simply allow him to smoke or vape it on his balcony," said Wohler.

"This is not an undue hardship on the landlord in my view. I think it amounts to basically a form of discrimination."

David Burke/CBC

Wohler said it's difficult for Bennett to leave the building just to be able to use marijuana to ease his pain.

In winter, with snow-covered roads and sidewalks, it becomes treacherous for Bennett to venture out. He's scared of being hit by a car or hitting a pedestrian with his motorized chair.   

"What it boils down to, in my view, is that a landlord cannot dictate to a tenant how he or she can treat a medical disability," said Wohler.

"My view is he should be allowed to take the medical cannabis to treat his condition in the way he feels fit."

She said the landlord was willing to make some concessions, including allowing Bennett to use marijuana oil, but that is not good enough.

"They're saying he can use medical cannabis as long as he uses the oil," she said, "But isn't that kind of like telling me, 'Yes, I can have my service dog, but only if it's, say, a poodle because people have allergies?'"   

Wohler's legal arguments have gone nowhere so far.

A residential tenancy officer sided with the landlord at a hearing. Wohler appealed that decision to small claims court and lost again.

Now she has appealed that decision to the Supreme Court of Nova Scotia. 

Robert Guertin/CBC

Wohler admits that she was unable to gather the medical evidence necessary to drive her case home.

She said part of the problem is that it's extremely difficult to find an expert who can testify about the medical benefits of smoking or vaping marijuana as opposed to ingesting it, because research is scarce on the topic. 

Along with the lack of medical evidence there were other reasons Wohler's case fell apart, according to Craig Arsenault, Haddad's lawyer.

Haddad refused to do an interview and asked Arsenault to speak on his behalf. 

Arsenault said Bennett broke the apartment building's rules prohibiting the use of marijuana and refused to compromise with the landlord. 

The smoke and smell from the marijuana also disturbed other tenants, the lawyer said.

Despite the fact that Bennett provided no evidence that his consumption of cannabis was medically necessary,  Arsenault said the landlord still tried to help him.  

"The owners agreed to accommodate him, offered him to use it by any other means other than smoking, or to smoke off the premises," said Arsenault.

"He just continued to smoke in his apartment and on his balcony, causing a pregnant woman below to move, other tenants to voice complaints. And other tenants are ready to move out if he's not evicted."

David Burke/CBC

Sharon Anderson, the building's superintendent, testified in small claims court that four sets of tenants had lived in the unit above Bennett and the couple living there now are considering moving.

There have also been complaints from tenants living above and below Bennett, according to Anderson. 

She said she tried to accommodate Bennett by offering to move him to a different unit on the ground floor. But he refused her offer.

There were also complaints that Bennett could be rude when confronted about his cannabis use and once swore at a neighbour.

Bennett admits he sometimes has trouble controlling his temper, partially due to his medical condition. He said it is aggravated when his adrenaline kicks in. 

"Put it this way, if you approached me in a negative manner, in any kind of an aspect at all, OK, I'm going to become negative with you," he said.

At times even talking about his situation can cause Bennett to become agitated and raise his voice. 

Robert Guertin/CBC

Regardless of any of that, Bennett still needs a place to live. 

"I think Mr. Bennett's situation is heartbreaking, quite frankly," said Wohler. "Someone who needs to use or inhale medical cannabis to treat their disability should not be made homeless as a result of it.

"There needs to be some legislation or decision that recognizes that perhaps that landlords aren't the best people positioned to tell tenants the best way to treat their own medical conditions," she said. 

Wohler is examining Bennett's legal options and is in the process of gathering "fresh evidence." She doesn't know if anything will come together before Bennett has to leave his apartment at the end of the month.    

"The funny thing about this story that I don't understand is the government comes out and says, 'You're approved, you have a licence, you can smoke it, you can vape it, you're OK with us, no problem.' Now the tenancy board turns around and says, 'Nope, you can't do that here,'" said Bennett.

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