View cases - Stewart McKelvey

- 112 -11. A succah in the garden had some disadvantages compared with a succahon the balcony for some of the appellants, but the disadvantages seemed tobe physical (e.g., Mr. Amselem objected to going up and down severalflights of stairs), rather than spiritual.12. Mr. Amselem’s religious beliefs did not, according to his owntestimony, preclude recourse to a communal succah where a personal succah2004 SCC 47 (CanLII)was not available.208 I conclude that in all the circumstances, and especially having regard to thepre-existing rules of the immovable accepted by the appellants as part of the purchaseof their units, and their own evidence of use of a communal succah when a personalsuccah is not available, the appellants have not demonstrated that their insistence on apersonal succah and their rejection of the accommodation of a group succah show properregard for the legal rights of others within the protection of s. 9.1.209 I note again the fact-specific nature of this case. If the rules of theimmovable had permitted the construction of a succah at the time the appellantspurchased, and a majority of the co-owners had afterwards sought to impose a ban ontheir construction at a later date, a different issue would arise. The point in this case isthat the appellants themselves were in the best position to determine their religiousrequirements and must be taken to have done so when entering into the co-ownershipagreement in the first place. They cannot afterwards reasonably insist on their preferredsolution at the expense of the countervailing rights of their co-owners.II. Disposition