View cases - Stewart McKelvey

- 109 -205 There was thus ample evidence before the trial judge that Mr. Amselem andthe other appellants could have had recourse to a communal succah, whether at thesynagogue, in the communal garden with friends, or elsewhere. If a succah isunavailable, or if use of it involves “serious discomfort” (“inconfort sérieux”), thefaithful are to that extent “released” of their religious obligation (“libéré del’obligation”). These conclusions are not the subject of controversy but flow directlyfrom the evidence of Mr. Amselem and his own expert and they are borne out by the2004 SCC 47 (CanLII)historical practice of the other appellants.206 With all due respect for the contrary view, I do not believe it is necessary forthe respondent to show that the appellants “waived” their freedom of religion byaccepting the rules of the immovable. The issue is much narrower. There is no“general” waiver involved. The dispute is limited to the erection of a personal succah,a practice accepted as obligatory by some but not all members of the Jewish faith, andeven in the case of Mr. Amselem is not obligatory where a personal succah is notavailable. The co-owners were entitled to conclude that when the appellants acceptedthe declaration of co-ownership they were indicating that the practice of their religionpermitted them to live within the existing rules. Accordingly, rather than elevate theissue to one of waiver of “freedom of religion”, which would overdramatize thesituation, it seems to me the issue is more modestly and accurately framed as whetherthe appellants in this case can reasonably insist on a personal succah in all thecircumstances, including their contract not to construct a personal dwelling, even atemporary dwelling, on the commonly owned balconies of the immovable.207 The issue here is not a simple balance of advantages and disadvantages,i.e., whether in the Court’s view the appellants would be more disadvantaged by the