View cases - Stewart McKelvey

- 96 -178 The appellants contend that the obligation imposed on them to exercise theirrights of co-ownership in harmony with the rights of the other co-owners is unfair.However, it must not be forgotten that the declaration of co-ownership was drafted in aneffort to preserve the rights of all the co-owners, without distinction. It must also beborne in mind that the compromise proposed by the respondent, namely the erection, atthe expense of all the co-owners, of a communal succah on land belonging to all theco-owners located next to the building, would have had the desired result of upholding2004 SCC 47 (CanLII)the parties’ rights under ss. 6, 1 and 3 of the Quebec Charter. Such a solution would alsobe consistent with the three conditions adopted by this Court in Big M Drug Mart, supra,and approved in Ross, supra, that is, that freedom of religion must be exercised(1) within reasonable limits, (2) with respect for the rights of others and (3) bearing inmind such limitations as are necessary to protect public safety, order and health and thefundamental rights and freedoms of others. The right of co-ownership, in its essence, isexercised in harmony with the rights of all the co-owners. This does not amount torepudiating freedom of religion, but rather to facilitating the exercise thereof in a waythat takes the rights of others and the general well-being into account.179 With respect to s. 1 of the Quebec Charter, it is difficult to imagine howgranting a right of way in emergency situations, which is essential to the safety of all theoccupants of the co-owned property, could fail to justify the prohibition against settingup succahs, especially in light of the compromise proposed by the respondent. I see noneed to revisit the trial judge’s findings of fact on this subject.180 This leads me to conclude that, since Mr. Amselem’s right to freedom ofreligion cannot be exercised in harmony with the rights and freedoms of others or withthe general well-being, the infringement of Mr. Amselem’s right is legitimate. Even