View cases - Stewart McKelvey

- 91 -. . .The preservation of these overall qualities within an upscale residentialconcept is a collective element that the co-owners will want to preserve.This led the trial judge to conclude that the restrictions imposed on the use of patios,balconies and terraces were justified, in conformity with art. 1056 C.C.Q., by theimmovable’s destination, characteristics and location.2004 SCC 47 (CanLII)169 As for the co-owners’ right to life and personal security under s. 1 of theQuebec Charter, it was protected by another purpose of the declaration of co-ownership,that is, to prevent the obstruction of routes between balconies so that they could be usedas emergency exits. To attain this objective, balconies and patios, which were commonportions reserved for exclusive use, were subject to a right of way in favour of theco-owners. The trial judge discussed the need to keep these areas free of obstructions(at p. 1914):[TRANSLATION] It is easy to see from the testimony and from a reviewof the plans and photographs of the premises that there are a number ofplaces where it is possible to move, either horizontally or vertically, fromone balcony to another. For example, people trapped on their balcony by afire raging inside their apartment could cross over to a neighbour’s balcony.It can be seen from photographs of the succahs that they hinder this type ofmovement and, depending on the materials used in their construction, couldeven block an escape route entirely.170 It is easy to see the required connection between the prohibition againstbuilding on balconies and the desire to keep emergency routes open. The purpose of theprohibition is to protect the fundamental right of all co-owners to life and personalsecurity, and this right must be taken into account when reconciling the various rightsand freedoms in issue. The argument that succahs can be erected without blocking