View cases - Stewart McKelvey

- 67 -120 Continuing with the assumption that the appellants’ freedom of religion hadbeen infringed, Rochon J. found that the infringement could be justified under s. 9.1 ofthe Quebec Charter. He noted that the declaration of co-ownership created a right ofway on balconies for emergency situations and determined that the erection of succahson balconies and terraces posed a risk to the residents’ safety. He also felt that theerection of succahs affected the co-owners’ right to free enjoyment of their property —a Charter right that in his opinion is on an equal footing with any fundamental freedom2004 SCC 47 (CanLII)guaranteed by the Charter — under the agreement they had signed. He thereforeconcluded that the objectives of the declaration were legitimate and that the measureswere implemented in a reasonable and rational manner with respect to those objectives.121 Rochon J. accordingly issued a permanent injunction ordering the appellantsto refrain from setting up any shelter, structure, construction or succah on the commonportions reserved for the exclusive use of the co-owners.B. Court of Appeal, [2002] R.J.Q. 9061. Dalphond J. (ad hoc)122 Dalphond J. began by confirming that the impugned provisions of thedeclaration of co-ownership prohibited the erection of succahs on balconies, porches,and patios. Since these provisions limited the residents’ enjoyment of their balconies,porches or patios, they restricted the co-owners’ rights. Dalphond J. also agreed with thetrial judge’s conclusion that the impugned provisions imposed restrictions that werevalid under art. 1056 C.C.Q. He found that the provisions were adopted first to preserve