The Administration of Justice, Arbitration and the Shari'a Law Tribunals of Ontario: A Constitutional Perspective

• Author: Abigail Semple
• Position: Senior Freshman Law, Trinity College, Dublin
• Pages: 32-47

THE

ADMINISTRATION

OF

JUSTICE,

ARBITRATION

AND

THE

SHAR1IA

LAW

TRIBUNALS

OF

ONTARIO:

A

CONSTITUTIONAL

PERSPECTIVE

ABIGAIL

SEMPLE*

The

administration

of

justice

outside

of

the formal

court

system

is

a

phenomenon

to

which

we

are

growing

increasingly

accustomed.

Following

several

challenges

to

their

constitutionality,'

tribunals

of

inquiry

have

taken

their

place

within

the Irish

judicial

landscape.

The recent development

of

new

administrative

and

adjudicative

bodies

such

as

the Personal

Injuries

Assessment Board

2

and

Private Residential Tenancies

Board

3

means

that

the

volume

of

judicial

and

quasi-judicial

decisions

made outside

of

the

courtroom

is

set

to increase.

The

current

Working

Group

on

the

Jurisdiction

of

the Courts chaired

by

Mr.

Justice

Nial

Fennelly,

in

its

forthcoming

civil

law

report,

is

also

likely to

make recommendations

as

to

the

potential

use

of

alternatives

to

litigation

in

Ireland

based

upon

the

experience

of

other jurisdictions.

4

It

was

with

similar

intention that

Lord

Woolf

began his review

of

the

court

system

in

the

UK

nearly

ten

years

ago,

one

of

the outcomes

of

which

was

an

enhanced

role

for

Alternative Dispute Resolution

in

that

jurisdiction.'

Alternative

Dispute

Resolution

(ADR)

is

a

term

which

encompasses

a

range

of

procedures

from

negotiation

and

mediation,

which

are

non-binding,

to

tribunals,

ombudsman

rulings

and

arbitration,

which

are

generally

binding

6

but subject

to

appeal

on

limited

grounds.

The

use

of

arbitration

as

provided

for

in

Ireland

by

the

1954

and

1980

Arbitration

Acts

is

well established

in

a

commercial

context

but significantly

less

developed

in

other

civil

law

areas.

Senior

Freshman

Law,

Trinity College,

Dublin.

See

Goodman

International

v.

Hamilton

(No.

1)

[1992]

2

IR

542;

Murphy

v.

Flood

[1999]

3

IR

97;

Haughey

v.

Moriarty

[1999]

3

IR

1.

2

Instituted

under

Personal

Injuries

Assessment Board

Act,

2003,

s.

53.

3

Instituted

under

Residential Tenancies

Act,

2004,

s.

150.

4

See

Terms

of

Reference,

The

Working

Group on

the

Jurisdiction

of

the

Courts,

Article

11(b).

5

Section

III,

Access

to

Justice,

Final

Report,

July

1996

available

at

uk/civil/final/contents.htm>

(last

visited

5

February

2005).

6 The

definition

of

arbitration

as

binding upon

the

parties

which

agree

to

it

was

set

out

in

Arenson

v.

Arenson

[1977]

AC

405at 428.

©

2005

Abigail

Semple

and

Dublin University

Law

Society

2005]

Arbitration

in

Ireland:

A

Constitutional

Perspective

33

The advantages

of

the

broad availability

of

an

arbitration

process

in

civil

proceedings

include

the

potential

for

a

more

efficient

resolution

of

disputes

than

through

litigation,

the

ability

of

the parties

to

maintain

their

privacy

and to

decide upon

both

the

arbitrator

and

rules

of

arbitration. The

dangers

associated with

arbitration

include

the

creation

of

a

parallel system

of

justice,

insufficient

procedural

safeguards

to

ensure

that the

interests

of

parties

and

natural

justice

are

protected

and

de

facto

restrictions

on

the

right

of

appeal.

These

are

the

same

issues

which

have

arisen

in

an

Irish

context

in

considering

the nature

and

extent

of

judicial

review

of

administrative

decisions,

but

the

perspective

from

which

they

must

be

considered

in

the

arbitration process

differs

due

to

the

private

law

origins

of

the

original

jurisdiction

of

an

arbitrator.7

The

current

debate

in

Ontario,

Canada

regarding

the

proposed

establishment

by

the

Islamic

Institute

of

Civil

Justice

(IICJ)

of

a

tribunal

applying

the

rules

of

Shari'a

law

under

Ontario's

1991

Arbitration

Act

is

illustrative

of

the range

of

issues

awakened

where the

judicial

function

is

extended

beyond

the cultural,

as

well

as

the

physical

and

procedural milieu

of

the

court

system.

While

such

an

extension

of

cultural

pluralism

to

the

Irish

justice

system may

not

be

an

immediate

prospect, considering

the

constitutional

implications

of

such

a

devolution

is

a

useful means

of

arriving

at

working

definitions

of

two

concepts

which

are

of

immense

importance

in

the

current

environment:

'administration

of

justice'

and

the

Article

37

concept

of

'limited

functions

and

powers

of

a

judicial

nature'.

This

article

is

confined

to

examining

the

role

of

arbitration

in

civil

matters.

While

arbitration has

been

developed

in

the

criminal

law

of

many

jurisdictions,

notably

the

UK

and

New

Zealand,'

within

an

Irish context

this raises

a

host

of

separate

constitutional

issues.

In

particular,

the use

of

private arbitration

in

family

law

disputes will be

considered

here, as

this is

both

the

fastest growing area

of

litigation

in

Irish courts

9

and

the area

in

which the

importance

of

having

procedural

safeguards

within

the

arbitration

process

has

become

most

evident

in

Ontario.

A

review

of

the

constitutional position regarding

the

administration

of

justice

is

an

appropriate

introduction

to

this

analysis.

Quinn,

"The

Superior Courts'

Role

in

Commercial

Arbitration compared

with

their

Role

in

Administrative

Law"

(1991)

9

ILT218.

8

See McMahon, "Alternative Dispute Resolution

and

Restorative

Justice

with

Reference

to

Ireland"

(2003)

21

ILT

25.

9 Courts

Service

Annual

Report

2003,

statistics

for 1997-2003, at

100.