View cases - Stewart McKelvey

- 66 -reserved for exclusive use to be consistent with art. 1056 C.C.Q. In his view, theevidence showed that, since taking control of the immovable in 1991, the respondent hadapplied the restrictions provided for in the declaration of co-ownership in a consistentand uniform manner.118 Rochon J. went on to review the effect of the restrictions on the appellants.After reviewing the case law, he noted that freedom of religion can be relied on only if2004 SCC 47 (CanLII)there is a connection or nexus between the asserted right and what is consideredmandatory pursuant to the religious teachings upon which the right is based. In his view,the evidence showed that Judaism does not require practising Jews to have their ownsuccahs and that there is no commandment as to where they must be erected. Heconcluded that the restrictions did not prevent the appellants from fulfilling theirreligious obligations and consequently did not infringe their freedom of religion.119 In case this conclusion was overturned, Rochon J. then considered thequestion of whether the accommodation proposed by the respondent was reasonable inthe circumstances. He pointed out that the Syndicat had adopted a respectful anddeferential attitude with respect to the appellants’ rights, had given the appellants anopportunity to express their point of view and had proposed a reasonable solutionaccommodating their needs by offering to erect a communal succah on land close to oneof the buildings, at the expense of all the co-owners, in a place that would have allowedthe appellants to comply with the precepts of their religion. Rochon J. criticized theappellants for their failure to show flexibility or a spirit of compromise in categoricallyrefusing this compromise. In his view, the appellants’ inflexibility showed that theywere not interested in reaching a solution that would be acceptable to all concerned.