View cases - Stewart McKelvey

- 95 -177 In the end, the appellants rejected the Syndicat’s offer, citing a multitude ofproblems and details, but they never proposed anything other than the erection ofsuccahs on their balconies. It is clear that the communal succah would be a source ofinconvenience for Mr. Amselem, but the individual succah, too, was a source of genuineinconvenience for the other co-owners: in particular, it obstructed an emergency route,and the elevators were blocked during the construction while being used to transport the2004 SCC 47 (CanLII)materials. On this issue, the trial judge criticized the appellants for being inflexible inrejecting the compromise. In his view, their attitude showed that they were not willingto contribute to a solution that would be acceptable to all. It is especially important tonote in this respect that such a contribution is required of all rights holders by s. 9.1 ofthe Quebec Charter, by the Charter’s preamble, which recognizes that “the rights andfreedoms of the human person are inseparable from the rights and freedoms of others andfrom the common well-being”, and by the preliminary provision of the Civil Code ofQuébec, which states that the Code, “in harmony with the Charter of human rights andfreedoms and the general principles of law, governs persons, relations between persons,and property”. As I noted above, the application of s. 9.1 does not simply presupposean accommodation approaching extreme tolerance by all rights holders other thanMr. Amselem. He, too, is part of the multicultural society that demands reconciliationof the rights of all. It is not irrelevant that the trial judge, following a thorough analysis,concluded that there was a reasonable accommodation in the case at bar and that in theCourt of Appeal, Morin J.A. relied on this Court’s decision in British Columbia (PublicService Employee Relations Commission) v. BCGSEU, supra, to hold that there was noreason to interfere with this assessment of the evidence. In other words, the trier of factwas satisfied that even the most demanding test did not support the appellants’ case.