Originally from World Arbitration and Mediation Review

The Limits of Private Justice? The Problems of the State Recognition
of Arbitral Awards in Family and Personal Status Disputes in Ontario
by
Jean-François Gaudreault-DesBiens∗
Associate Professor, Faculty of Law, University of Toronto
Introduction
What are the limits of private justice? Are all topics amenable to
arbitration? This is, in essence, the questions raised by a debate that is
currently raging in Canada, and more particularly in the province of
Ontario. This debate arose as a result of the realization that the legal
framework governing contractual arbitration in that province does not
preclude arbitration of family-related or personal status-related disputes,
as some statutes in force in other jurisdictions do. While this “loophole”
has been present in the Ontario legislation since its inception in 1991, it is
only recently that public awareness was raised about it. This came about
following the announcement by the Society of Canadian Muslims, a
private association, of the creation of an Islamic Institute of Civil Justice,
under the auspices of which arbitrations based on Islamic law (Sharia)
would be conducted and expertise in Islamic law would be pooled. Faithbased
arbitrations—be they held on the basis of Islamic law, Jewish law,
Canon law, or aboriginal spirituality—could be conducted prior to 2004,
and such arbitrations were actually conducted. What prompted the public
reaction in the Sharia case is probably the emphasis that the Islamic
Institute of Civil Justice placed upon family-related and personal statusrelated
disputes. Another reason was the fear of the impact of a possible
expansion of Sharia-based arbitrations in the contemporary context of a
rise of Islamic traditionalism and, in some cases, of Islamic
fundamentalism. This fear in turn relied upon a perception that the basic
individual rights of some of the most vulnerable members of Canadian
society, such as immigrant women, could be at risk in such contexts
through the application of religious norms and the use of “perfect”
arbitration agreements that precluded almost any sort of judicial review of
arbitral processes or appeal of arbitral awards.
In fairness to the Islamic Institute of Civil Justice, it should be
stated that the Institute does not advocate for the systematic primacy of
Islamic law over Canadian norms. For example, mandatory State norms
such as the prohibition of polygamy would not yield to Islamic norms
allowing for such a practice. The interplay of Islamic norms perceived as
fundamental and Canadian norms enjoying a similar status, however, is
not entirely clear. Moreover, and this further contributes to explaining
public reactions to the idea of Sharia-based arbitrations, the Islamic