Syndicat Northcrest v. Amselem, 2004 SCC 47

Moïse Amselem, Gladys Bouhadana, Antal Klein and Gabriel Fonfeder - Appellants v. Syndicat Northcrest - Respondent

The appellants A, B, K, and F, all Orthodox Jews, are divided co-owners of units in luxury buildings in Montréal. Under the terms of the by-laws in the declaration of co‑ownership, the balconies of individual units, although constituting common portions of the immovable, are nonetheless reserved for the exclusive use of the co‑owners of the units to which they are attached. The appellants set up “succahs” on their balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in such small enclosed temporary huts during the annual nine‑day Jewish religious festival of Succot. The respondent requested their removal, claiming that the succahs violated the by‑laws, which, inter alia, prohibited decorations, alterations and constructions on the balconies. None of the appellants had read the declaration of co‑ownership prior to purchasing or occupying their individual units. The respondent proposed to allow the appellants to set up a communal succah in the gardens. The appellants expressed their dissatisfaction with the proposed accommodation, explaining that a communal succah would not only cause extreme hardship with their religious observance, but would also be contrary to their personal religious beliefs, which, they claimed, called for the setting up of their own succahs on their own balconies. The respondent refused their request and filed an application for a permanent injunction prohibiting the appellants from setting up succahs and, if necessary, permitting their demolition. The application was granted by the Superior Court and this decision was affirmed by the Court of Appeal.