Quebec’s highest court has rejected a Hasidic organization’s demand to continue operating a synagogue at its present location in Mont Tremblant, a popular resort town in the Laurentians.
The Court of Appeal found that Chabad of Mont Tremblant must abide by municipal zoning regulations and rejected its charter challenge on religious freedom and equality grounds.
Since 2011, the Chabad centre has been located a few minutes’ walk from the ski hills, known as Station Mont Tremblant.
The court’s three judges observed that allowing places of worship in the immediate skiing area could pose a “nuisance” detrimental to tourism, which the Chabad centre has been, pointing to complaints from neighbours about noise and traffic.
The zone in question is designated for family residences and certain types of commercial lodgings only.
Chabad was appealing two lower court decisions in its case against the town of Mont Tremblant. Three years ago, Superior Court upheld a 2017 municipal court judgment that Mont Tremblant is within its rights to enforce the bylaw and rejecting Chabad’s claim that its religious freedom was being infringed upon.
Chabad was granted leave to appeal when it introduced a new legal argument that the zoning bylaw in question was discriminatory, citing the protection of equality in Section 15 of the Canadian Charter of Rights and Freedoms and Section 10 of the Quebec Charter of Human Rights and Freedoms.
Chabad has had a presence since 2006 in Mont Tremblant, about 90 minutes north of Montreal, under the direction of Rabbi Yisroel and Liba Mochkin. When its original site in the town centre proved too small, Chabad acquired a large former condo building at 110 Chemin Desmarais.
According to testimony, about 80 percent of those coming to its services are visitors, many from outside the province.
Chabad, represented by the law firm Stikeman Elliott, stressed that the proximity to skiing is not only a convenience, but that it is essential for observant Jews to be within walking distance to a shul on Shabbat and holidays.
Chabad argued that the judges in the two lower courts erred in concluding that enforcing the bylaw did not interfere with the organization’s religious freedom or those who pray at the synagogue.
The bylaw discriminates, it newly argued, because a Catholic church is allowed to operate within the zone.
Justice Stéphane Sansfaçon, who wrote the decision, agreed that Chabad was correct to state that, because Orthodox Jewish belief prohibits its adherents from driving on Shabbat, the bylaw does restrict their choice of where to worship.
He also recognized that the distance from the Station to even the closest zones where religious institutions are permitted to operate is not easily walked.
“(It) means that they must choose between renouncing the practice of these beliefs and not staying at the ski resort. This is an interference that threatens a religious belief that may be described as ‘non-negligible’.
“Yet, the impugned bylaw’s objective of regulating the uses is an important, pressing and substantial objective. In addition, by regulating uses and the places where they may be exercised based on their degree of compatibility, the respondent (Mont Tremblant) has fulfilled the role conferred on it by the legislature in the Act respecting land use planning and development (CQLR c. A-19.1).”
The municipality has established, the judgment continues, that “the importance and salutary effects of not authorizing the presence of places of worship within the urban perimeter of the ski resort, including that of dedicating its destination to tourism and avoiding the creation of nuisances caused by the presence of places of worship in the vicinity.
“The violation of the appellant’s right to freedom of religion was therefore justified in a free and democratic society,” Sansfaçon concludes, adding elsewhere that “the choice to participate in recreo-touristic activities at the Station is a personal choice and is not protected by freedom of religion.”
The bylaw is not discriminatory, court decided, because the prohibition against places of worship applies to all members of all faiths, with the exception of the Catholic church, built in 1942, that is in the zone.
“In the latter case, the evidence reveals that it is for historical reasons that the presence of Saint Bertrand chapel is authorized under the bylaw,” the judgment reads.
In a slightly dissenting opinion, Justice Geneviève Cotnam disagreed that Chabad is subject to an infringement of its rights that is more than negligible, citing the 1986 Oakes case in which the Supreme Court of Canada set the precedent of justifiable limits on charter rights. Not benefiting from all available housing options or having to travel to the ski resort does not constitute a violation of religious freedom, she wrote.
In addition, Cotnam contended the bylaw in no way prevents Chabad from operating a synagogue in another location because 25 other zones within Mont Tremblant’s territory are authorized for places of worship.
Soon after Chabad moved to its present location it sought to have the zoning bylaw modified, but that request was rejected twice by the municipal council, which did offer to help it find a new place in Mont Tremblant.
Lawyer Éric Azran, a member of Chabad’s Stikeman Elliott team, declined to comment to The CJN.
