View cases - Stewart McKelvey

- 59 -units specifically with unobstructed balconies, open to the heavens, so that they couldtechnically put up a proper succah in accordance with the specifications of Jewish law.102 In light of the above, I do not believe the appellants in this case can be saidto have waived their rights to freedom of religion in signing the declaration of coownership.2004 SCC 47 (CanLII)VII. Conclusions and Disposition103 Based on the foregoing analysis, I find that the impugned provisions in thedeclaration of co-ownership prohibiting constructions on the appellants’ balconiesinfringe the appellants’ freedom of religion under the Quebec Charter. I also do notbelieve it can be maintained that the appellants waived their rights to freedom of religionor implicitly agreed not to set up succahs on their balconies for the religiously mandatedperiod by signing the declaration of co-ownership. Under the circumstances, I find thatthe respondent’s justificatory claims for this infringement are unfounded; the co-owners’personal security concerns are largely obviated and their property interests are, at most,minimally intruded upon. The appellants are thus legally entitled to set up succahs ontheir balconies for a period lasting no longer than the holiday of Succot, so long as thesuccahs allow room for a passageway in case of emergency as well as conform, as muchas possible, with the general aesthetics of the property.104 For the foregoing reasons, I would allow the appeal with costs throughout,set aside the decision of the Court of Appeal, and, in lieu thereof, declare that theappellants have a right to set up succahs on their balconies for the annual festival of