View cases - Stewart McKelvey

- 58 -“did not read these provisions on purchasing their co-owned property, although theywere duly given a copy of the declaration of co-ownership”. If, as the respondent itselfalleges, the appellants did not take note of these restrictions upon purchasing their units,despite the fact that a copy of the declaration of co-ownership was given to them, andwere thus not aware of the general clauses therein prohibiting the setting up of suchstructures as succahs on their balconies, I believe it is safe to conclude that there was noclear understanding of the consequences of the alleged waiver.2004 SCC 47 (CanLII)100 Third, at a minimum, waiver of a fundamental right such as freedom ofreligion, if possible at all, presumably need not only be voluntary; it must also beexplicit, stated in express, specific and clear terms. Not only would a general prohibitionon constructions, such as the one in the declaration of co-ownership, be insufficient toground a finding of waiver, but arguably so would any document lacking an explicitreference to the affected Charter right.101 In the end, it is my view that the appellants did not voluntarily, clearly andexpressly waive their rights to freedom of religion. Further, it cannot be said that theclaimants had full knowledge that signing the co-ownership agreement would result inthe waiver of their rights. I have no doubt that in signing the declaration, the furthestthing from the claimants’ minds was that by doing so they were waiving their rights tofreedom of religion, especially since s. 9.3 of the by-laws specifically allowed forenclosing portions of balconies with consent of the co-owners, which the appellantscould have assumed would not be unreasonably withheld for the setting up of temporarysuccahs to celebrate the annual festival of Succot. In fact, the record shows that theintention of at least some of the appellants when purchasing their units was to acquire