View cases - Stewart McKelvey

- 86 -159 The appellants submit that they sincerely believe that their religion requiresthem to construct succahs on their own balconies. The respondent contests the existenceof a sincere belief on their part. To resolve this debate, it is necessary to determinewhether the appellants’ belief is sincere and, lastly, whether it is grounded in the preceptsof their religion. As mentioned above, expert evidence will be useful in this regard, asit can serve to establish the fundamental precepts and practices of a religion upon which2004 SCC 47 (CanLII)a claimant’s desired action is based.160 In the case at bar, after reviewing the evidence presented to him, includingthe testimony of two expert witnesses, Rabbi Barry Levy and Rabbi Moïse Ohana, thetrial judge came to the following conclusion (at p. 1909):[TRANSLATION] First of all, the court notes that practising Jews are notunder a religious obligation to erect their own succahs. There is nocommandment as to where they must be erected.Rochon J. also considered the appellants’ testimony about their own practices andconcluded that all of them, with the exception of Mr. Amselem, believed that theirfundamental obligation was to eat meals in a succah, as opposed to a succah on their ownproperty, during Succot (at pp. 1908-9):[TRANSLATION] The respondents’ past conduct attests to the optionalnature of the succah’s ownership and the location where it is erected.For many years, Fonfeder went to the home of his sister, who lived notfar from his apartment on Hutchison Street, to celebrate Succot. In 1994,when he moved into the Sanctuaire, he did not erect a succah. Instead, hewent to New York state and stayed with a grandson who had his ownsuccah.