View cases - Stewart McKelvey

- 13 -fact-specific case is the issue of the appellants’ acceptance, embodied in the contractwith their co-owners, that they would not insist on construction of a personal succah onthe communally owned balconies of the building. A person’s right to the peacefulenjoyment of his property is one of the rights guaranteed by s. 6 of the Quebec Charterand the primary right asserted by the co-owners. Although s. 9.1 does not specificallyimpose a duty on third parties to accommodate a claimant, as a practical matter, thereasonableness of the claimant’s conduct will be measured, at least to some extent, in2004 SCC 47 (CanLII)light of the reasonableness of the conduct of the co-owners. The text of s. 9.1 puts thefocus on the claimant, who must have regard to the facts of communal living, whichincludes the rights of third parties. Lastly, the reasonableness of a claimant’s objectionmust be viewed from the perspective of a reasonable person in the position of theclaimant with full knowledge of the relevant facts. When all the relevant facts of thiscase are considered, especially the pre-existing rules of the immovable accepted by theappellants as part of the purchase of their units, the appellants have not demonstrated thattheir insistence on a personal succah and their rejection of the co-owner’saccommodation of a group succah show proper regard for the rights of others within theprotection of s. 9.1. The appellants themselves were in the best position to determinetheir religious requirements and must be taken to have done so when entering into theco-ownership agreement in the first place. They cannot afterwards reasonably insist ontheir preferred solution at the expense of the countervailing legal rights of theirco-owners. As found by the trial judge, the accommodation offered by the co-ownerswas not inconsistent with the appellants’ sense of religious obligation in circumstanceswhere a personal succah is simply not available.Cases Cited