View cases - Stewart McKelvey

- 11 -The declaration of co-ownership does not hinder this practice, as it does not bar theappellants from celebrating in a succah, in that they can celebrate Succot at the homesof friends or family or even in a communal succah, as proposed by the respondent.Assuming that the belief of the appellant A that he must erect a succah onhis own balcony is sincere and that it is based on a precept of his religion, theinfringement of his right to freedom of religion is legitimate, since the right to erect2004 SCC 47 (CanLII)succahs on balconies cannot be exercised in harmony with the rights and freedoms ofothers and the general well-being of citizens. The rights of each of the other co-ownersto the peaceful enjoyment and free disposition of their property and to life and personalsecurity under ss. 6 and 1, respectively, of the Quebec Charter are in conflict with theappellant’s freedom of religion. In the case at bar, the right to the peaceful enjoymentand free disposition of one’s property is included in the purpose of the restrictionsprovided for in the declaration of co-ownership. The restrictions are aimed first andforemost at preserving the market value of the dwelling units held in co-ownership.They also protect the co-owners’ right to enjoy the common portions reserved forexclusive use while preserving the building’s style and its aesthetic appearance of aluxury building and permitting the balconies to be used to evacuate the building in adangerous situation. The restrictions are justified, in conformity with art. 1056 C.C.Q.,by the immovable’s destination, characteristics and location. Also, preventing theobstruction of routes between balconies so that they can be used as emergency exitsprotects the co-owners’ right to life and personal security. The argument that succahscan be erected without blocking access routes too much if certain conditions arecomplied with cannot be accepted at this point in the analysis, as it is based on theconcept of reasonable accommodation, which is inapplicable in the context of s. 9.1.