Orthodox Jews in Civil Legal Disputes in Canada

Orthodox Jews are no strangers to court in Canada. We have them to thank for the seminal s. 2(a) case in Syndicat Northcrest v. Amselem and the infamous “ghet” case in Bruker v. Marcovitz (where arguably only one party was observant).

Civil disputes between Orthodox Jews are less prevalent though, in part given a perceived belief by some that it is prohibited. Consider Maimonides’ (Rambam) statement in Hilchos Sanhedrin 26:7 in the 12th c. CE,

Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same [as the Torah]… It is as if he blasphemed and raised his hand against the Torah of [Moses].

The Mishnah even prohibits adjudicating disputes before a non-Jewish court even where both parties agree to do so. How then do Orthodox Jews navigate civil disputes in the Canadian legal system?

Charles B. Wagner, Gregory M. Sidlofsky, Rachael Kwan of Wagner Sidlofsky LLP have released a free online handbook, “Advising The Orthodox Jewish Litigant.” They state the reason for this important resource as follows,

Having dealt with this issue a number of times for our clients we address this issue in detail in our paper, which articulates the parameters of those restrictions and outlines the circumstances where Jewish law permits resort to civil court. We also addressed instances where, notwithstanding the prohibition, there are many reported cases where Orthodox Jews will seek the determination of their legal problems in civil courts. Why they do so is relevant for a number of reasons as set out in the paper.

The article addresses to role of alternative dispute resolution mechanisms, as well as how Orthodox Jewish lawyers could reconcile their beliefs in this area.

They highlight a recent Ontario Court of Appeal decision, in Popack v. Lipszyc, where a partnership between two Jewish businessmen, one from Ontario and one from New York, to acquire commercial properties was subject to a dispute. The parties had agreed to submit their dispute over the Ontario properties to a religious arbitration panel in New York.

When the arbitration ruled against the partner based in New York an application pursuant to Article 34(2) of the International Commercial Arbitration Act to set aside the award based on alleged procedural breaches. Although the application judge agreed that the breach provided a basis for setting aside the award, this power was discretionary, and she denied the application.

The Court of Appeal dismissed the appeal and exercised deference to the discretion of the arbitrator,

…absent a clearly identifiable error in the application of the law, a material misapprehension of the relevant evidence, or a result that is clearly wrong in the sense that it is not defensible on an application of the relevant law to the facts.
[para 25]

The nature of the specific order also encouraged deference, given the parties’ consensual choice of forum and preference for that outcome. Although 34(2) provides several grounds upon which awards may be set aside, there is no bright line rule to address the nature of discretion. The Canadian approach, mirrored in some other jurisdictions, to to look at the extent to which a procedural breach undermines the fairness or the appearance of fairness, or the effect on the award itself.

Wagner et al state,

One important lesson from this case is the risk of giving a [religious court] unfettered discretion with respect to the procedure that the rabbinical court will follow. To mitigate this risk, it is critical for the participants to craft a written agreement that sets out how the procedure that the [religious court] will follow. This case also highlights the need for proper record keeping. In this case, the parties had agreed that no record of the proceedings would be kept. This choice complicated matters for Popack after he decided to appeal the rabbinical court’s decision, as he lacked any record of evidence for many of the problems with the procedure that he hoped to substantiate on appeal.

The effect of Popak should be to provide some assurance of certainty and predictability for private arbitrations, religious or otherwise, while still ensuring that the court plays a role in ensuring that fairness is done.