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Rosh Hashana Greetings – and a Refresher on Religious Accommodation in the Condo World

This coming Sunday evening to Tuesday evening (Sept.29-Oct.1), this CondoAdviser contributor will be logging off and spending 2 days with family and community for the observance of the Jewish High Holiday of Rosh Hashana. Rosh Hashana marks the New Year, pursuant to the Jewish lunar calendar. This year, we celebrate Year 5780!

In this holiday season, I find myself harkening back to my law school days where one of the first cases we analyzed was a 2004 condominium case out of Quebec that broached the serious question of a condominium corp’s duty to accommodate religious belief and practice, in ways which may go against the by-laws or rules.

Supreme Court test for religious accommodation:

In the case of Syndicat Northcrest v Amselem, the Supreme Court considered the rights of practicing members of the Jewish faith in a Montreal condominium. The Plaintiffs (4 unit owners) claimed that certain condominium by-laws – which prohibited them from building a temporary booth, known as a Sukkah, on their balconies for the 8 days of the Jewish holiday of Sukkot  – infringed upon their freedom of religion. [Note: “by-laws” in the Quebec context are generally comparable to the Ontario “rules”, in that they deal with the enjoyment, use and maintenance of the private and common portions and with the operation and administration of the co-ownership].

The balconies were exclusive use common elements of the condominium and the by-laws prohibited decorations, alterations and constructions on them. The Corporation proposed a “communal sukkah” in the gardens – which the owners contested, arguing that their beliefs required them to build their own personal sukkah.

In a 5-4 decision, the Supreme Court ruled in the owners’ favour.

And thus was born the Three-Step Test for analyzing an alleged infringement of religious freedom:

  • First, the claimant must have a “religious belief” (be it from organized religion, or otherwise) and that belief calls for a particular course of conduct;
  • Second, the claimant’s belief must be “sincere at the relevant time” (i.e. at the time they are claiming the accommodation);
  • Third, the claimant’s sincerely held religious belief must be sufficiently serious, and not a mere trivial breach

While this case was borne out of particular facts in the province of Quebec, it is a cogent reminder of a Corporation’s duty to accommodate religious belief and practice to the standard of “undue hardship.”

The Ontario Human Rights Code and the “Undue Hardship” Test:

Pursuant to sections 2 and 11 of the Ontario Human Rights Code, condominium corporations in Ontario have a legal obligation to accommodate residents’ religious beliefs and practices to the point of “undue hardship.”

Case law has suggested that “undue hardship” must amount to a particular accommodation being extremely costly or that it would interfere with the health and safety of other residents.

Something to keep in mind!

Wishing all those celebrating Rosh Hashana a Shana Tovah u’Metukah – a Happy and Sweet New Year.

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