View cases - Stewart McKelvey

- 103 -of their home as an expression of how they wish to be seen by the world. This is relatedto maintaining the value of their investment.194 The strictness of the rules agreed to by the co-owners, including theappellants, would have been evident had the appellants made even the most casualexamination. Section 2.6, titled [TRANSLATION] “Limited Common Portions”, includess. 2.6.3b) dealing with [TRANSLATION] “Balconies, porches and patios” which provides2004 SCC 47 (CanLII)in part:[TRANSLATION]b) No owner may enclose or block off any balcony, porch or patio in anymanner whatsoever or erect thereon constructions of any kind whatsoever.[Emphasis added.]The prohibition in s. 2.6.3b) does not include a consent provision but seems absolute, ascompared with (for example) s. 9.3 dealing with decoration:[TRANSLATION] No balcony or porch may be decorated, covered,enclosed or painted in any way whatsoever without the prior writtenpermission of the co-owners or the Board of Directors, as the case may be.Irrespective of whether a structure which is “open to the skies” can be said to be“covered” or “enclosed” under s. 9.3, I agree with the trial judge and the judges of theCourt of Appeal that the construction of a succah was prohibited under a combinationof the other rules. Indeed counsel for the appellants frames one of the issues in disputeas follows: