At the morning session all three standing committees joined to hear a panel discussion on the proposed revisions to Ontario’s Arbitration Act. There was a record turn-out, indicating the high degree of interest and concern about this subject, with its implications for the enshrining of Sharia dispute resolution in the Ontario justice system.

Panelists were Hon. Marion Boyd, cabinet minister (and first female Attorney General) under Bob Rae, and author of a review of the Arbitration Act, Nuzhat Jafri, of the Canadian Council of Muslim Women, and Annie Bunting, professor in the Law and Society program at York University, specializing in social justice and human rights.

Hon. Marion Boyd described her review and the concerns that led to its being undertaken. Ontario has one of the most advanced statements on equity and women’s rights, in and out of marriage; these rights are enshrined in the Family Law Act. In the late 80's mediation and arbitration were coming into their own as methods of resolving disputes in a manner more amicable, less stressful and less costly than the courts, as well as relieving pressure on the courts. (In Mediation, the parties to a dispute hash over their differences , with the help of neutral referee, and attempt to come to a conclusion agreeable to both; under Arbitration the parties agree on a neutral arbitrator and commit to abide by the arbitrator’s decision.)

By 1995 under the Arbitration Act arbitration was called for in all civil matters except family law , as it was felt that women should not be forced into arbitration because of the disadvantage caused them by their imbalance of power. This left settlement of family law disputes with the courts. The Arbitration Act accordingly did not come under the Family Law Act, and did not refer to it in any way.

This came to be seen as an issue, particularly in the matter of religious dispute resolution tribunals for domestic disputes. These had been in effect for some time, in orthodox Jewish and Ismaili Muslim communities, among others, substituting a form of arbitration by religious leaders for courts of law. While there had been no formal complaints of problems from these tribunals, there was anecdotal evidence that women were often treated inequitably. It was further recognized that language difficulties and isolation of immigrant women and cultural restraints imposed by the specific communities might prevent women from seeking redress.

Now the proposal has been made to permit tribunals operating under Sharia principles in domestic disputes in Muslim communities. Ms. Boyd recognizes that if the presently-existing religious tribunals were disallowed it would be unacceptable to the religions affected, and the courts would be flooded.

Her recommendation is that current and new tribunals be permitted, but that such tribunals must come under the Family Law Act, which would bring them under the law and make all awards granted subject to appeal. At present they are not. She feels it is crucial that women not only have the choice of methods of dispute resolution, but also the protection of the law and the right to be informed of their rights.

Nuzhat Jafri's’s organization, the Canadian Council of Muslim Women, was established in 1982 to give voice to Muslim women on legislation and issues such as abuse.

She dislikes the term ‘Sharia’ as being open to many interpretations and misunderstanding, preferring ‘Muslim Family Law’. Whatever the term, her group is not in favour of giving legal equivalence and legitimacy to decisions of religious arbitrators. Religious leaders have no training that would prepare them for this work, and in matters of family break-up their focus is on maintaining the Muslim family.

Power imbalance is built in to the culture - a man can divorce his wife by saying so three times, support payments can be limited to three months, the man automatically gets custody of children - and the wife is often coerced into waiving the provisions of family law.

She agrees with Marion Boyd that women, especially immigrant women, are not aware of their rights, and her group is preparing a primer in plain language to inform them. They are also planning a symposium on how to balance equality rights and religious freedom.

Annie Bunting endeavoured to present a balanced overview based on her experience in international women’s rights, with particular research on Muslims in Ontario and Nigeria.

She feels that the Ontario experience in mediation and arbitration has presented no problems to now, but that images of foreign practices have raised alarms at the notion of importing Sharia principles to our system.

She blames the media for misrepresenting Sharia, and expresses a degree of sympathy for the Muslim community. She says that their desire for dispute resolution within their own community is driven by the fear that Canadian courts are not sympathetic to Muslim values. This said, she is emphatic in stating that people should not be permitted to opt out of the Family Law Act, regardless of what safeguards are in place, putting her in Marion Boyd’s camp. She points out that there have been no academic studies on mediation and arbitration in a religious context.

Reported by Peggy Pinkerton, CFUW Etobicoke

About Our January Speakers

The Hon. Marion Boyd was the Member of Provincial Parliament for London Centre from 1990 to 1999. As a member of Cabinet during the New Democratic Government of Bob Rae, she served as Minister of Education, Minister of Community and Social Services and was the first woman appointed as Attorney General for the Province of Ontario. In September of 1991, Ms. Boyd accepted an additional assignment as the Minister Responsible for Women's Issues, a responsibility she retained until the election of June 8, 1995.

The Hon. Marion Boyd has served her community in many capacities. She has been a library technician, an executive assistant to a university president, an executive assistant to a university faculty association and the administrator of a non-profit childcare centre. As the Executive Director of the Battered Women Advocacy Centre from 1984 to 1990, she developed a local, national and international reputation for her expertise and action on the issue of abuse of women and children. Recently Ms. Boyd has conducted a review of the Arbitration Act for the Ontario Government during which she heard from many groups and individuals and can share with us the process and results of her work.

Annie Bunting is a professor in the Law and Society program at York University, teaching in the areas of social justice and human rights. Professor Bunting is a graduate of York, having studied law at Osgoode Hall Law School. She received her LL.M. from the London School of Economics and Political Science and her S.J.D. from the Faculty of Law, University of Toronto. The topic of her doctoral dissertation is international women's rights, culture, and the case of early marriage. In addition to her teaching responsibilities, Professor Bunting has worked with a variety of human rights organizations including the Women's Legal Education and Action Fund (LEAF), Human Rights Watch (HRW), the Canadian Human Rights Foundation (CHRF) and the International Centre for Human Rights.

Nuzhat Jafri is a member of the National Board of the Canadian Council of Muslim Women (CCMW) and has contributed to various CCMW projects, including the development of fact sheets on Muslim women in Canada. She has held leadership and management positions in the private, public and not-for-profit sectors. Currently she is the President and owner of RealDifference, a management consulting practice providing advice and counsel to clients in the areas of change management and organizational development, business improvement, strategic and business planning, education and training, diversity, human rights and employment equity. She has held several leadership positions in the diversity and employment equity area, including Director of Corporate Affairs at the Ontario Employment Equity Commission and she led the diversity and employment equity function at Scotiabank and previously at Bank of Montreal. She continues to be active in a volunteer capacity with various community organizations.

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