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)
542;
Murphy
v.
Flood
97;
Haughey
v.
Moriarty
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
©
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.
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