View cases - Stewart McKelvey

- 28 -concluded that the accommodation proposed by the respondent — that of a communalsuccah — was reasonable, whereas the appellants were not willing to compromise inorder to reach an acceptable solution.27 Having found that the impugned by-laws were not in violation of the QuebecCharter, Rochon J. granted the respondent’s request and issued a permanent injunctionprohibiting succahs on the appellants’ balconies and requiring their removal, if2004 SCC 47 (CanLII)necessary.B. Court of Appeal, [2002] R.J.Q. 90628 Dalphond J. (ad hoc), for the majority, agreed with the trial judge and heldthat, although the impugned provisions of the declaration of co-ownership restrict theappellants’ rights by prohibiting succahs on their balconies, those restrictions were validunder art. 1056 C.C.Q. He believed that when the appellants signed the declaration ofco-ownership they had effectively waived their rights to freedom of religion. Accordingto Dalphond J., it was nonetheless open to the appellants to show that the Sanctuaire’sby-laws were discriminatory under s. 10 and thus void under s. 13 of the QuebecCharter, which protects an individual from discrimination in a juridical act, such as acontract.29 Dalphond J. reasoned that the impugned provisions were neutral inapplication since they affected all residents equally in prohibiting all “constructions” onbalconies and as such he concluded that the restrictions in the declaration of coownershipdid not create a distinction based on religion.