View cases - Stewart McKelvey

- 19 -days —, allow for an emergency access route, and conform, as much as possible, withthe general aesthetics of the property. I also find the argument that the appellants waivedtheir religious rights cannot be maintained under the circumstances, nor did theyimplicitly agree not to set up succahs on their balconies by signing the declaration of coownership.II. Background2004 SCC 47 (CanLII)4 The appellants, all Orthodox Jews, are divided co-owners of residential unitsin “Place Northcrest”, two luxury buildings forming part of “Le Sanctuaire du Mont-Royal” (the “Sanctuaire”), a larger complex in Montréal. Moïse Amselem has lived atthe Sanctuaire, together with his wife Gladys Bouhadana, since 1996; Gabriel Fonfederhas lived at the complex since 1994; and, at the time of the proceedings below, ThomasKlein, the son of the appellant Antal Klein, had been living there since 1989. Under theterms of the Sanctuaire’s by-laws in the declaration of co-ownership, the balconies ofindividual units, although constituting [TRANSLATION] “common portions” of theimmovable, are nonetheless reserved to the [TRANSLATION] “exclusive use” of the coownersof the units to which they are attached.5 In late September 1996, Mr. Amselem, at the time a new resident of theSanctuaire, set up a “succah” on his balcony for the purposes of fulfilling a biblicallymandated obligation during the Jewish religious festival of Succot. A succah is a smallenclosed temporary hut or booth, traditionally made of wood or other materials such asfastened canvas, and open to the heavens, in which, it has been acknowledged, Jews arecommanded to “dwell” temporarily during the festival of Succot, which commencesannually with nightfall on the fifteenth day of the Jewish month of Tishrei. This nine-day