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COMMENTARY: “Boyd’s recommendations balance needs of religious communities with rights of vulnerable”
By Faisal Kutty
Toronto
January 21 2005 issue


Faisal Kutty of Baksh & Kutty reflects on the recently released Boyd report on Ontario arbitration, “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion”.
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Should Muslims be able to use their religious principles to resolve family and inheritance matters under the Arbitration Act

That was the crux of the question Marion Boyd tackled in her 191-page report released in December 2004. The former attorney general’s considered verdict after meeting with more than 200 people and receiving almost 40 submissions, was: “The Arbitration Act should continue to allow disputes to be arbitrated using religious law…”  She does not stop there.  She makes 46 well thought out recommendations, including:

• amendments to the Family Law Act and the Arbitration Act to ensure that the mediation and arbitration agreements are legally treated in the same manner as marriage contracts and separation agreements;

• calling for regulations to ensure proper record keeping, mandating written decisions, and training of arbitrators;

• imposing a duty on arbitrators to ensure that parties understand their rights and are participating voluntarily;

• providing for greater oversight and accountability, including empowering courts to set aside arbitral awards for various reasons including unconscionability, inadequate financial disclosure or if a party did not understand the nature or consequences of the arbitration agreement;

• public education and community development;

• expanded appeal possibilities; and further policy analysis to determine whether additional safeguards are required. 

Many critics have come out against the report, both from within, and outside of, the Muslim Canadian community. However, in my view, Boyd has balanced the rights of Muslims who wish to voluntarily resolve their private disputes using religious principles with the basic rights of vulnerable segments within the community. 

Those who would use such a system would come from the growing number who fall through the cracks of our legal system or avoid the legal system for personal reasons. They either settle their disputes themselves, through paralegals, or submit their matters to informal arbitration or mediation in mosques across Ontario where there is none of the protections of the Arbitration Act.

Many Muslims wish to use arbitration, or tahkim, which has also been a part of Muslim tradition.  Indeed, the Qur’an specifically refers to arbitration in the context of matrimonial disputes:
If you fear a breach between them (man and wife), then appoint an arbitrator from his people and an arbitrator from her people. If they desire reconciliation, God will make them of one mind. God is all knowing, all aware. (Qur’an, C4, V35).

Boyd’s report merely affirms our Constitutional right to religious freedom, equal treatment under the law, multiculturalism and ensures that we are in compliance with our international obligations.  Indeed, Article 27 of the International Covenant on Civil and Political Rights, to which Canada acceded on May 19, 1976, imposes a positive duty on a state to assist its minorities to preserve its values by allowing them to enjoy their own culture and to profess and practise their own religion.

The 46 recommendations addressed the legitimate concerns of those opposed to the proposal. The Arbitration Act allows parties to settle their disputes using various principles and methods. Other communities have successfully implemented Alternative Dispute Resolution (ADR) initiatives. For instance, rabbinical courts (Beth Din) dealing with business and matrimonial issues of Jewish parties have been functioning for some time in Ontario. 

Some have criticized Boyd’s position that a party will be able to waive independent legal advice (ILA) if they wish.  As it stands now, nobody can be forced to obtain an ILA for any legal matter — though this may be moot as this leaves it open for courts to set aside any agreements or arbitral decisions.  Forcing ILA would be great for our profession but would seriously restrict the ability of people to bargain freely or settle issues without a lawyer and would clearly represent unnecessary intrusion by governments into the private domain. 

I can appreciate that many are concerned about the exploitation of Muslim women.  However, the discourse is now bordering on the racist.  For instance, critics contend that there is no way to ascertain true consent, as Muslim women will be forced to cave in to social pressure and accept unfair decisions.

The concern is valid but is not restricted to Muslims and can be partly addressed by imposing duties on arbitrators.  Moreover, the pressures may be worse in the legal setting where the vast majority of cases are settled out of court and where parties compromise for less than their legal entitlements in many cases without legal advice. Indeed, many may resolve their issues, including family matters, themselves or through paralegals, who in many cases act for both parties without any thought as to whether the parties appreciate what rights they are giving up. 

Our system of justice is based on the premise that individuals with legal capacity can make their own decisions even if these may not be the “correct” choice according to the majority.  Should we not allow Muslim women to sign marriage contracts, separation agreements or settle any disputes without ILA while everyone else can exercise this choice?

A paternalistic attitude toward Muslims and toward Muslim women from other Muslim Ontarians will not solve the issue of social pressure and in fact will alienate many.  As Boyd points out, denying Muslims the option of using religious-based ADR would not only limit their options, but it may also “push the practice of religious arbitration outside the legal system altogether, thus limiting the court’s ability to intervene to correct problems.”

Alternative dispute resolution already exists within the community and people are abiding by decisions as if they were the word of God and therefore binding. Formalizing the process will allow for greater transparency and accountability.

As long as there are proper procedures and rules of conduct in place there is nothing preventing the community from instituting a dynamic and less disruptive alternative to the adversarial court system. 

Boyd has kept intact the integrity of the ADR system while protecting the vulnerable and ensuring that “back alley arbitrations and mediations” are minimized as much as possible.

Faisal Kutty is a lawyer with the firm of Baksh & Kutty and general counsel for the Canadian-Muslim Civil Liberties Association. 

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