View cases - Stewart McKelvey

- 98 -erection on the communally owned balconies of a succah, which is a makeshifttemporary dwelling, open to the sky, that is used in connection with the appellants’religious observance in the Jewish tradition for nine days in each year. The appellantsrely on a right to freedom of religion under the Quebec Charter of Human Rights andFreedoms, R.S.Q., c. C-12, to insist on building a succah on each of their balconiesdespite the contract they made with their co-owners and despite their co-owners’ offerof a communal succah in the garden of the building. There is much to be said on both2004 SCC 47 (CanLII)sides of this issue but in the end I agree with the Quebec Court of Appeal that in all thecircumstances the appellants cannot reasonably insist on a personal succah. I wouldtherefore dismiss the appeal.184 My reasons differ from those of my colleague Bastarache J. because of theweight I place on the private contract voluntarily made among the parties to govern theirmutual rights and obligations, including the contractual rules contained in the declarationof co-ownership, as well as on the co-owners’ offer of accommodation. Buried at theheart of this fact-specific case is the issue of the appellants’ acceptance, embodied in thecontract with their co-owners, that they would not insist on construction of a personalsuccah on the communally owned balconies of the building.185 There is a vast difference, it seems to me, between using freedom of religionas a shield against interference with religious freedoms by the State and as a swordagainst co-contractors in a private building. It was for the appellants, not the other coowners,to determine in advance of their unit purchase what the appellants’ particularreligious beliefs required. They had a choice of buildings in which to invest. Theyundertook by contract to the owners of this building to abide by the rules of this buildingeven if (as is apparently the case) they accepted the rules without reading them. They