Advising The Orthodox Jewish Litigant

INTRODUCTION

The purpose of this paper is to provide litigation lawyers and other interested parties with insight into the specific needs of Orthodox Jewish clients. It is important in developing a litigation strategy for those clients to understand how some of the tenets of their faith impact on the litigation of disputes and the financial and personal risk that the clients may be placed in as a result.

What colours the process of developing a litigation strategy for Orthodox Jews is the belief that generally, litigation between two Jews in civil court is forbidden by Jewish law (“Halacha¹”). This paper articulates the parameters of those restrictions and outlines the circumstances where Halacha permits resort to civil court.² The authors also address instances where, notwithstanding the prohibition, there are many reported cases where Orthodox Jews will seek the determination of their legal problems in civil courts.³ Why they do so is relevant for several reasons. Even if your client does not feel bound to adjudicate the dispute before a religious court the other party may attempt to compel him or her to do so.⁴ Secondarily, these cases highlight under what circumstances an arbitration⁵ before a religious court may be vulnerable to appeal and or judicial review. Understanding how civil courts deal with these issues will certainly allow counsel to better serve their clients.

THE RELIGIOUS JEWISH COURT AND ARBITRATION

Bringing a dispute before a religious court is essentially agreeing to arbitrate the dispute. The litigants will have chosen a different forum over the regular court process. The choice is not just between a civil and a religious court. The parties may also seek to choose between different religious courts that may be available to them. In Toronto one may go before the Beis Din of the Vaad Harabonim of Toronto⁶ or the Bais Din of the Kollel Toronto.⁷ There are many other religious courts in Montreal, New York and Chicago. Each Beis Din may have its own unique rules of procedure including how they receive evidence, the use of advocates (“Toen”) and their respective views of Jewish law. These are factors to take into account by the litigant when choosing a Beis Din. The costs also vary from Beis Din to Beis Din. What they have in common is that there are always three Dayanim/Judges on the panel. Depending on the Beis Din the Dayanim may be pulpit rabbis who on top of their regular duties also serve as Dayanim. In other jurisdictions being a Dayan may be their full time job.

Equally important, there are different Jewish courts in different jurisdictions. These different courts may have Dayanim/Judges who may be prone to interpret Jewish law differently and one Jewish court may be more likely to do so in a way that favours one litigant over the other.

Advising clients about choosing the most advantageous forum for their specific case is not unusual. In the course of some civil litigation disputes, there may be more than one province or country that has jurisdiction to adjudicate a dispute. In these circumstances, lawyers are often called upon to address whether it is prudent to litigate in one jurisdiction over the other and often seek a venue whose laws favour their particular client. The dilemma for the Orthodox Jew is that, regardless of the tactical advantages of a particular forum, he or she is bound by his or her faith to litigate in accordance with Halacha. The authors, in this paper, will endeavour to present a primer on how to navigate the Halachic process to assist the client in having his or her dispute determined before their preferred adjudicator. The last part of the paper includes appendices which hopefully will provide useful background to those grappling with these issues. The first appendix reviews how Orthodox Judaism understands the evolution of its legal system and the second appendix provides cases where Orthodox Jews have litigated their disputes in civil court despite the aforementioned prohibition and their rationale for so doing.

In advising a client it is not enough to be able to recognize where they would receive a more favourable hearing. It is important to understand the Halachic process in order to help this type of client who wishes to avoid criticism by their coreligionists and/or sanctions by their community and still have their dispute resolved in the forum most favourable to them. This is nothing new for lawyers who are often called upon to deal with the complicated issue of forum non conveniens, comity and private international law and argue for the most favourable forum for their client.⁸ In this context however, it is fundamentally important to understand the concerns and rights of a litigant under Halacha.

Finally, the Orthodox Jewish client may wish to comply with Halacha and still have his or her matter adjudicated in civil court. To accomplish this goal one must become familiar with the rules of procedure before the Beis Din,⁹ the rights of the parties to ask the Beis Din to ask for a siruv and or a heter arkaos. There are also instances where Jewish law recognizes that the plaintiff may proceed to civil court and need not go to a Beis Din.

ARAKOS – PROHIBITION ON ORTHODOX JEWS LITIGATING IN CIVIL COURTS

Whoever submits a suit for adjudication to non-Jewish judges . . .is a wicked man. It is as though he reviled, blasphemed, andrebelled against the Torah of Moshe.¹⁰

This quote, attributed to Maimonides,¹¹ is both succinct and sharp. Rabbi Jachter, in his text, Gray Matter volume 2, quotes Rav Uri Dasberg who explains why the prohibition is so strident.

The role of a beit din¹² is not merely to rule on the disputed monies, but also to offer moral criticism. A beit din might recommend that a litigant pay more than the strict law requires, as an act of decency. Moreover, a beit din demands of the litigants that they conduct themselves in an ethical manner, above and beyond the strict letter of the law. By contrast, a civil court judge has no mandate to demand more than the letter of the law. Thus, a Jew who adjudicates in civil court, even if the court rules just as a beit din would have ruled, rejects the value system that we strive to integrate into our legal system.

It is a fundamental belief of Orthodox Judaism that G-d¹³ gave the Jewish people the Torah at Mount Sinai and that those holy laws govern every aspect of a Jew’s life including the adjudicating of disputes. To adherents of that belief, litigating in the civil court system constitutes a rejection of Torah law. Jewish law mandates that disputes between Jews are to be resolved through the Beis Din. The term, Beis Din means, “house of judgment” and refers to a rabbinical court of justice that adjudicates disputes according to the principles set out in the Torah and the Talmud. However, despite the Halachic imperative for Jews to adjudicate disputes before a religious Jewish court there are times when a litigant may litigate in a civil court within the Halachic framework.¹⁴

Under the Halachic framework parties must attend before a Beis Din and submit to their authority. The present custom is for the parties to sign an arbitration agreement so that the Beis Din’s decision is enforceable in civil court just as any other arbitration decision would be.¹⁵ The litigants will have their case heard by three rabbinical judges.

In Halacha the plaintiff is referred to as the toveah and the defendant as the nitvah. In such cases the toveah would approach a Beis Din and request their assistance in bringing the dispute before them. In turn the Beis Din would send a hazmanah to the nitvah to attend before the court to adjudicate the dispute. The literal translation of the word hazmanah is invitation. However, in this context it is a summons to appear before the Jewish court. A refusal to appear before the Beis Din may have consequences for the religious Jewish client.

SANCTIONS FOR LITIGATING IN THE CIVIL COURT SYSTEM – SHTAR SIRUV

A person who has been summoned to the Beis Dinwill usually be given 30 calendar days to respond. If a party declines to attend, the Beis Din may issue the Shtar Siruv (the “siruv”). This is akin to a finding of contempt by a civil court.¹⁶ In her article, “The Collision of Church and State: A primer to Beth Din Arbitration and the New York Civil Courts,¹⁷ Ginnine Fried explains the significance of the siruv:

In Jewish communities that are close-knit and insulated, a siruv is a formidable threat. A siruv can result in the individual being shunned in the community that recognizes that rabbinical court; in other words, it is a modern-day version of the discontinued cherem¹⁸ […] (one) can feel Jewish in a Jewish community as a result of proceedings in the beth din […]. One can be: disinvited to weddings, asked not to come to the synagogue, disinvited to all social gatherings.

A litigant who refuses to appear before a Beis Din in response to a siruv may be precluded from participating in communal services. For example, he may not serve as cantor on Jewish holidays.¹⁹ In one recent case, the parties were members of the Orthodox Jewish faith and the plaintiff received a hazmanah from the Vaad Harabonim Beis Din.²⁰ When he later appealed the decision of the Beis Din to a civil court, the plaintiff testified that he agreed to go before the Beis Din only under duress. Specifically, he feared that if he did not respond to the Beis Din it would issue a siruv resulting in severe consequences including his being ostracized or ex-communicated from the community. Similarly, in Cawthorpe v. Cawthorpe,²¹ a case involving a married couple who agreed to arbitrate various issues arising from their divorce before a Beis Din, when appealing the decision of the Beis Din, the husband claimed that he was pressured to appear before the Beis Din out of fear of being shunned from his religious community. In particular, he claimed to have been terminated from his position as a school teacher in a Jewish school because of his reluctance to appear before the rabbinical court. Undoubtedly, for people whose livelihood or social interaction centres around the Orthodox Jewish community, the prospect of being shunned has to be taken into account when developing a litigation strategy. Otherwise, any success may prove to be a Pyrrhic victory.

A LAWYER’S WISE WORDS TO THE ORTHODOX JEWISH LITIGANT

A lawyer who is advising his client on the advantages or disadvantages of adjudicating a dispute before the Beis Din must be familiar enough with Halacha to provide some assessment of the client’s prospects for success. That analysis should also include a review of the civil law and the client’s chances of winning in that arena. Litigation lawyers go through a similar exercise when dealing with a case where the subject matter of the litigation has a substantial connection to more than one jurisdiction and litigants have to deal with the issue of forum non conveniens.²² The wrinkle here is that the issue of jurisdiction flows from the religious belief of your client and not an argument over which forum is best suited to hear the litigation and what law should apply. But the choice of the forum and applicable law is no less important.

When advising an Orthodox Jewish client, his or her lawyer should ask the following questions. Will your client fare better in a Jewish court? If the issue involves an estates matter, will the forced heirship regime in Halacha supplant your client’s entitlement under the last will and testament? If your client is chasing a bankrupt debtor who has transferred his or her assets to a spouse, does the Jewish court recognize bankruptcy? If your client is suing over a matter that occurred several years ago, does the Jewish court recognize limitation periods? These are just a few examples of where it may be beneficial to litigate before the Beis Din depending on which side of the argument you are advocating. Further, this is an important issue if your client is choosing between different Beis Din’s, as opposed to between a civil or Halachic court system.

Exceptions to the general rule

Insurance claims

In cases where the defendant possesses insurance that would cover the plaintiff’s claim, if proven, the insurance company is considered an interested party to the dispute. This issue frequently arises in cases involving professional negligence, personal injury and damage to property. As the prohibition against suing in civil court is limited to actions between Jews, an observant Jew is permitted to sue a non-Jewish insurance company in civil court.²³ Practically speaking, a plaintiff will sue the individual who caused the harm rather than the insurance company directly. This occurs even where it is clear that the insurance company will pay out any amounts awarded to the plaintiff. If the effect of the dispute would result in litigation between two Jewish parties, the prohibition on litigating in civil court would seem to apply. However, authorities on Jewish law have determined that while the dispute is technically between two Jewish parties, the plaintiff’s intention is to seek compensation is from the insurance company. Therefore, since it will be possible to enforce a claim only against an insurance company in a civil court, it is not a rejection of the authority of Jewish law to pursue an action in a civil court.²⁴ But the question of what makes a company Jewish and subject to religious Jewish law is a very complex one. Beyond the cursory treatment below, it is well beyond the scope of this article. ²⁵

Does a non-Jewish Corporation have to appear before Beis Din?

This question is addressed directly by Professors Broyde and Resnicoff;²⁶

When a corporation is involved in a dispute that may lead to civil litigation, it may be essential to determine whether the corporation or its shareholders are the real parties. For example, Jewish law does not ordinarily allow one Jew to sue another in a civil court, unless the plaintiff has first obtained express permission to do so from a rabbinical court.   If, however, a corporation is considered an independent legal entity, Jewish law may allow the corporation to sue or be sued in a civil court. Similarly, although Jewish law does not allow one Jew to recover from another for certain types of injuries, it may permit such recovery from an independent corporate entity.

In cases where the defendant possesses insurance that would cover the plaintiff’s claim, if proven, the insurance company is considered to be an interested party to the dispute.

When considering whether an insurance company is Jewish, the faith of the shareholders may be relevant to making that determination. This leads to the question – may a Jewish plaintiff pursue a claim in civil court if the insurance company involved has Jewish shareholders?

Three arguments may be advanced to permit a Jewish plaintiff to pursue such a suit in civil court:

(i) The insurance company is not the defendant

Practically speaking, a plaintiff will sue the individual who caused the harm rather than the insurance company directly. This occurs even where it is clear that the insurance company will pay out any amounts awarded to the plaintiff. If the effect of the dispute would result in litigation between two Jewish parties, the prohibition on litigating in civil court would seem to apply. However, as indicated above, authorities on Jewish law have determined that while the dispute is technically between two Jewish parties, the plaintiff’s intention is to seek compensation from the insurance company.

(ii) An insurance company cannot be said to be “Jewish”

Professors Michael Broyde and Steven Resnicoff argue²⁷ that a corporation may not be the sum of its parts. Even should all of the employees be Jewish, and all of the shareholders likewise, the legal entity may be considered its own person. Not all Jewish authorities accept this proposition. They suggest that if decision makers are Jewish, or beneficiaries of the company’s business are Jewish, can one truly claim that the company is not “Jewish”?

(iii) An insurance company is “Jewish” only if Jews have significant number of shares

Rabbi Moshe Feinstein, a leading twentieth century American halachic authority, contended that a corporation would not be considered “Jewish” unless Jewish shareholders owned a controlling interest in the company. ²⁸

One difficulty in implementing Rabbi Feinstein’s standard is that he does not define “controlling interest”; to what extent must Jews influence the direction of the company, or own its assets? Another difficulty is that Rabbi Feinstein does not address the case of a company which is led by Jewish executives.

Accordingly, when the Orthodox Jewish client seeks legal advice and expresses concern that he or she may have an obligation to proceed before a Beis Din, the lawyer should discuss the ownership structure of the parties with the client. Jewish law may not apply to certain corporations and there might not be an obligation to proceed through the religious Jewish court system. This is not to suggest that the lawyer interviewing his or her client, relying on this article, should tell his client that definitively he or she need not worry about facing recriminations for not proceeding before the religious court. Rather, if the client is concerned about any perceived obligation to adjudicate the dispute before a religious court it is incumbent on the lawyer to raise this issue and suggest that the client seek Rabbinic guidance on whether the corporation involved is obligated to appear before the religious Jewish court.

Proceeding to Civil Court may be permitted as an Interim step

There are times when a defendant will use the Beis Din process to thwart the plaintiff’s efforts to recover damages or misappropriated property. For example, if a local Beis Din provides a defendant with 30 days to respond to each hazmanah (a summons to appear before the Beis Din), it is likely that three hazmanot will be issued prior to the issuance of a siruv or heter arkaos (permission to bring a matter concerning Jewish litigants before civil court). By the time the Beis Din’s usual protocol takes place, it may already be too late as the property has been rendered untraceable. To remedy this situation, it is recommended that plaintiffs contact their personal rabbi who, in the authors’ experience, may permit the Orthodox Jewish litigant to preserve their rights in civil court with the expectation that once their rights are safeguarded, the parties will have the matter arbitrated by the Beis Din. The types of scenarios that may require a plaintiff to take active steps to preserve their rights in the litigation include:

1. Limitation period issues: while limitation periods do not exist in Jewish law, many claims become statute barred after the expiry of the limitation period in the local jurisdiction where the damage occurs. A defendant wishing to avoid judgement may try to delay responding to the Beis Din to avoid liability;
2. Probate: in a will challenge there is a concern that once probate is issued the executor may distribute the assets of an estate in accordance with the challenged will. The time delay for the heter arkaos process may result in the distribution of the estate’s assets before the plaintiff can establish their interest in the estate;
3. Thwarting judgment by hiding assets: in order to thwart a judgment, a defendant will sometimes conceal or transfer assets outside of the court’s jurisdiction. Seeking an injunction to prevent the rogue from a misdeed may be permitted.

Where a plaintiff initiates proceedings in a Beis Din and a defendant refuses to appear

It is not hard to imagine a circumstance where a person summoned before a Beis Din refuses to attend either because they do not wish to adjudicate the dispute in a rabbinical court or believe that they would be at a disadvantage before the Beis Din as opposed to civil court. In such a situation, the Shulchan Aruch permits the person bringing the dispute to resort to civil court.²⁹

The process for gaining approval from the Beis Din under this exception is as follows: the plaintiff opens a file at Beis Din. The Beis Din then issues a hazmanah to the defendant. If the defendant does not respond to the initial hazmanah, the Beis Din may issue an additional hazmanah. If the defendant fails to respond to the subsequent hazmanah, the Beis Din can elect to issue a heter arkaos. The Beis Din can grant a plaintiff permission to proceed in civil court if the defendant has been properly notified and fails to respond to the hazmanah within thirty days.³⁰ However, it is important to remember that a heter arkaos is not automatically issued by the Beis Din. The plaintiff must request that the Beis Din issue it and follow up to obtain it before proceeding to civil court.

Where an observant defendant is summoned to civil court by a fellow Jew

Where an observant defendant is summoned to appear before a civil court by a fellow Jew, there are differing opinions on whether the defendant must first receive permission from a Beis Din to defend themselves in civil court.³¹ Ultimately, the defendant is entitled to defend themselves in civil court, if required.

Where the other party is a non-observant Jew or is not Jewish

Halacha prohibits observant Jews from initiating litigation in a civil court against any other Jew, regardless of the other Jew’s level of observance, without a heter arkaos. However, as it is unlikely that a non-observant Jew will agree to submit to the authority of a Beis Din, the Beis Din will typically issue the heter arkaos quickly and may not wait for the other party to ignore the three hazmanah.³² In theory, the prohibition on attending civil court applies even where the counter-party is a non-Jew. However, because it is unlikely that a non-Jew would submit to adjudication of the dispute by the Beis Din, it is not necessary to send a hazmanah or receive a heter arkaos where the other party is a non-Jew.

When the nitvah may choose the forum

According to Jewish law the defendant/nitvah must appear before a Beis Din once he or she receives a hazmanah, but the nitvah can choose to have the dispute adjudicated by an alternative Beis Din recognized by the Beis Din who sent the hazmanah.³³ That is what happened in Gerstel et al. v Kelman:

“Gerstel obtained a ruling from Rabbi Miller, the head of the Kollel Beis Din (another prominent Beis Din in Toronto) which stated that Gerstel could appear before a different Beis Din.   Gerstel obtained the ruling because he preferred that the dispute be handled by the Kollel Beis Din rather than the Vaad Harabonim Beis Din.”³⁴

Chances are that the plaintiff has chosen the specific Beis Din that originated the process because he/she believes that this particular Jewish court will favour him/her or at least treat him/her fairly. When the nitvah chooses another Beis Din the toveah may not agree to go there. In such a scenario the nitvah can invoke zabla.

Zabla

Rav Moshe Feinstein³⁵ says that all Batei Din (the plural of Beis Din) in New York are regarded as ad hoc.³⁶ If one accepts that to be true of New York it is no less so for the religious Jewish courts located in Toronto. The Rema³⁷ says that if the Beis Din who issued the siruv is ad hoc, then the nitvah has a right to demand zabla. That process involves each party nominating one judge, and the two judges together with the litigants select a third.³⁸ This process may provide some solace to a client that he will have a favourable forum to hear his /her grievances. In addition, some see the process as beneficial because the litigants will have confidence in the process given that they chose the judges and each of the judges will feel the onus of fully evaluating the arguments of the party who selected him.³⁹

However, others object to the zabla process seeing it at best as an inferior adjudication process and at worst a ruse to rig the adjudication. Imagine the defendant choosing a Rabbi/Dayanim who the plaintiff feels is biased against him. The defendant may never agree to such a person on the panel. Inevitably, when one party choses a panellist unfavourable to the other, the zabla process will fail and the disgruntled party will return to the Beis Din and seek a heter arkaos permitting the matter to go before the civil courts. The following is an excerpt from remarks made by Rabbi Yona Reiss⁴⁰ about the zabla process:

This arrangement is problematic for a couple of reasons: first, it allows for ex parte communications, prohibited both according to halacha and according to the civil arbitration law. It was already noted by the Aruch ha-Shulchan one hundred years ago that in his day parties to a ZABLA proceeding worked with the assumption that there would be ex-parte communications. The Aruch ha-Shulchan tried to justify the practice on the basis that the sides were presumed to waive any objection since each side wished to engage in ex-parte communications with their borer, but the fact is that this is clearly not the ideal. Second, the current ZABLA process engenders an expectation that the panelist chosen by one side will invariably rule in that party’s favor. However, the halacha, as emphatically noted by the Rosh in his commentary to the third chapter of Sanhedrin,10 requires that each member of the panel remain fundamentally neutral and be capable of ruling in favor of either party. This is the type of ZABLA process described in the Talmud, but we found that this ideal was simply not being met in contemporary ZABLA practice.

THE BEIS DIN AS A RELIGIOUS ARBITRATION PROCEEDING

The evolution of the arbitration process in Ontario

The process implemented by the Beis Din falls under the legal definition of an arbitration. Arbitration is the settlement of a dispute or a difference between the parties by the decision of a group of persons rather than in a court.⁴¹ In the early 1990s, Ontario adopted the International Commercial Arbitration Act and the Arbitration Act came into force for domestic arbitrations.⁴² The Arbitration Act applies to arbitrations conducted domestically under an arbitration agreement and generally deals with civil law matters including property, and inheritance.⁴³

It is beyond the scope of this article to fully address the Family Statute Law Amendment Act, 2006, the reasons for its passing and its impact on using a Beis Din to resolve family disputes. There were concerns that women were being treated by religious tribunals in a way that was inconsistent with Canadian law and commonly held principals in our society. Suffice to say, that the prospective Orthodox Jewish family law client faces additional hurdles when wanting to have his/her family law issues adjudicated by a Beis Din. Such a client would be well advised to seek out an experienced family law lawyer when dealing with custody, support issues or a religious Jewish divorce. For our purposes, we wish to be clear that family arbitration is regulated by both the Ontario Arbitration Act and the Family Law Act and the discussion in this article may not be applicable to that situation.⁴⁴

To resolve a dispute by arbitration, the parties involved in a dispute must voluntarily authorize a third party to decide the dispute after hearing both sides of the argument. The International Commercial Arbitration Act is applicable to commercial disputes with an international scope⁴⁵ and adopts the Model Law on International Commercial Arbitration initially adopted by the United Nations Commission on International Trade Law on June 21, 1985, which requires courts in contracting countries to give binding effect to private agreements to arbitrate and enforce arbitration awards made in other contracting states.⁴⁶ Following the implementation of the International Commercial Arbitration Act and the Arbitration Act¸ courts in Ontario have noted, “a clear shift in policy towards encouraging parties to submit their differences to arbitration where an arbitration agreement exists.”⁴⁷ Among other possibilities, the passage of the International Commercial Arbitration Act and the Arbitration Act has created the possibility of enforcing religious arbitrations, which are now considered prima facie enforceable in Ontario.⁴⁸

The Orthodox Jewish lawyer’s dilemma

For most litigators the client’s choice to proceed to a regular court is the end of the discussion. The Rules of Professional Conduct do not require lawyers to educate clients about their obligations as Orthodox Jews to comply with Jewish law. For Orthodox Jewish lawyers it raises a moral quandary: Is there a halachic obligation for the Orthodox Jewish lawyer to turn down this type of file? Explains Professor Steven H. Resnicoff,⁴⁹ if an attorney represents a client who sues in civil court:

The client may be deemed to be in the process of his transgression from the beginning of the trial to its end, or to the collection of the money. There would be a great risk that the lawyer would wrongfully provide verbal encouragement to his client during this time.” ⁵⁰ He further explains, “The Torah commands that, “in front of the blind (lifnei iver), do not place a stumbling block.” Among other things, the lifnei iver doctrine proscribes enabling people to violate Jewish law.

There are very few instances when a lawyer may not turn down a retainer.⁵¹ Rule 3.01 of the Rules of Professional Conduct of the Law Society of Ontario provides:

The lawyer has a general right to decline a particular representation (except when assigned as counsel by a tribunal), but it is a right to be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation.

For the lawyer who feels torn between his/her personal religious beliefs and the obligation to his client there is a conflict. The commentary of the Rules of Professional Conduct defines a conflict of interest as arising “when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest.” If the client decides to litigate in civil court and the lawyer’s fulfillment of that task is compromised by the lawyer’s religious belief then that lawyer needs to consider whether to take on the file.

No matter what the faith of the lawyer or the religion of the client any lawyer has a fiduciary duty to provide the client with proper and full advice. This includes informing clients on how to best advance their case through the litigation process. If that advice is contrary to Halacha and the lawyer feels conflicted then he or she should not take on the retainer.

CIRCUMSTANCES WHERE THE COURT WILL INTERVENE TO SET ASIDE A DECISION OF A RABBINICAL COURT

When advising a client on the legal advantages and/or disadvantages on litigating before a Beis Din it behooves the litigator to review the case law on how the courts view those decisions and their vulnerability to judicial review. Frequently, arbitration agreements signed by the parties appearing before the Beis Din will have a provision denying the parties the right to appeal the decision to a civil court. However, it is important to note that the inclusion of such a provision does not necessarily preclude a civil court from commencing a judicial review of the Beis Din decision.

(i) Appeal of an arbitration decision

In anticipation of the fact that many parties who agree to arbitration do so to avoid litigating in a civil court, section 3 of the Arbitration Act allows parties to vary or exclude most of the provisions of the Arbitration Act with limited exceptions.⁵² While the agreement to forego a right to appeal can limit a civil court’s ability to interfere in an arbitration decision, the agreement of the parties to a “final and binding decision” in the arbitration does not absolutely preclude a civil court from ruling on an arbitration decision.

For example, section 45 of the Arbitration Act allows a party to appeal the decision of an arbitrator if the arbitration agreement does not deal with appeals on questions of law. The court shall grant an appeal on a question of law if the following two criteria are satisfied: first, the importance to the parties of the matters at stake in the arbitration justifies an appeal and second, determination of the question of law at issue will significantly affect the rights of the parties. Section 45 of the Arbitration Act also allows a party to appeal an arbitration agreement on questions of fact or mixed fact and law, if the arbitration agreement provides for an appeal on this basis.⁵³ Where a court finds that a right of appeal is permitted for an arbitration decision, the court can provide a party with the following remedies: the court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.⁵⁴ It is important to consider section 45 of the Arbitration Act when reviewing the terms of an arbitration agreement before a Beis Din.

In the appeal of an arbitration decision, a court is entitled to regard the arbitrator’s decision with a certain amount of deference. The appropriate degree of deference with which a court will consider an arbitration decision is called the standard of review. When considering the circumstances in which an appeal of an arbitration decision should be permitted, the Superior Court of Justice has held that “a court should not interfere with the arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence.”⁵⁵ O.J. No. 3299 at para. 5.]

(ii) Judicial review

The strongest mechanism for challenging an arbitration decision is through judicial review of a procedural issue that arose either at the time that the arbitration agreement was executed or during the arbitration as outlined in section 46 of the Arbitration Act. Significantly, section 46 is one of the few provisions of the Act that the parties cannot contract out of in their arbitration agreement.⁵⁶ Section 46(1) provides that a court may set aside an arbitration award on any of the following grounds:

a) A party entered into the arbitration agreement while under a legal incapacity

A court will not enforce an arbitration agreement where one of the parties was legally incapable at the time of execution. A party would be considered incapable if they were a minor or impaired by a disability or cognitive disease that rendered the party incapable of making legally binding decisions.⁵⁷

b) The arbitration agreement is invalid or has ceased to exist

An arbitration agreement may be invalidated if the time frame set out in the agreement has passed or if a particular procedural guarantee provided for in the agreement was not satisfied by the Beis Din. In addition, academics have suggested that this section could be used to set aside arbitration awards that are unconscionable or void for public policy.⁵⁸

The following sections address challenges to an arbitration decision based on the procedural compliance of the Beis Din to the terms outlined in the arbitration agreement:

c) The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement

d) The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act

The arbitration agreement can establish limits for the issues before the Beis Din and specify the composition of the Beis Din determining the agreed upon issues. If a Beis Din decision includes the determination of issues outside the parameters established in the arbitration agreement, it can be challenged for exceeding the terms that the parties agreed to. However, lawyers representing parties in negotiations of the an arbitration agreement should note that a civil court will be prevented from intervening on this basis where a party has agreed to resolve a dispute or matter, waived the right to object to its inclusion or agreed that the Beis Din has the power to decide what disputes have been referred to it.⁵⁹

A decision of the Beis Din is also open to interference from a civil court if it can be shown that the procedural guarantee that ensures that the manner in which the arbitration is conducted is consistent with the intent of the parties (as expressed in the arbitration agreement).

e) The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law

An arbitration agreement can be set aside where it is outside of the jurisdiction of Ontario law. For example, an arbitration agreement for the determination of an issue before a Beis Din that purports to bind a third party would not be enforceable on this basis.⁶⁰

The following sections would allow a civil court to intervene in the decision of a Beis Din where the arbitration procedure was unfair to one of the parties or otherwise in violation of the Arbitration Act:

f) The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator

g) The procedures followed in the arbitration did not comply with this Act

h) An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias

i) The award was obtained by fraud

The case law suggests that parties challenging a decision of the Beis Din will often do so by alleging that the arbitration was unfair or that they were pressured into submitting to arbitration by the threat of receiving a siruv.⁶¹

(iii) Recent case where an arbitration decision was challenged in civil court- Popack v. Lipszyc

In a recent case from the Ontario Court of Appeal, an award granted by a Jewish court in New York to a Canadian businessman was upheld despite a proven breach of the arbitration agreement between the parties.⁶²

The parties were Moshe Lipszyc (“Lipszyc”) and his former business partner, Joseph Popack (“Popack”). In 2000, Lipszyc and Popack embarked on a partnership to acquire commercial properties. Popack is from New York and Lipszyc is from Ontario. As part of their business partnership, Lipszyc and Popack acquired two shopping centers. Over time the relationship between the parties deteriorated.

In late 2005, the parties agreed to have Rabbi Schwei and Rabbi Bagomilski of the Crown Heights Beis Din arbitrate the dispute between them and assist them in winding up their business relationship. In January 2006, Rabbis Schwei and Bagomilski made an order that to resolve the conflict between Lipszyc and Popack, one of the parties should sell his interest to the other (the “January 2006 Order”). Following the January 2006 Order, the parties entered into an agreement dated April 11, 2006, whereby Lipszyc agreed to sell his interest to Popack.

Subsequently, Popack discovered what he believed to be misrepresentations and fraud by Lipszyc. He raised his concerns with the Crown Heights Beis Din on July 25, 2006. Rabbi Schwei responded by directing the parties to transfer their matter to another rabbinical court, the Beis Din of Mechon L’Hoyroa (the “Rabbinical Court”), which held eight weeks of hearings on the matter in August 2013.

The Arbitration Agreement between the parties gave the Rabbinical Court wide decision-making and procedural flexibility. The terms of the Arbitration Agreement included the following:

(i) that the arbitrators “may make their award based on Din Torah, compromise, settlement, or any other way they wish to reach a decision”;

(ii) that “no transcript of the proceeding need be made” unless the arbitrators decided to arrange for one (which did not occur);

(iii) that the Rabbinical Court could “follow any procedure as they decide”;

(iv) that the parties waived “formal notice of the time and place of the arbitration proceeding”;

(v) that the Rabbinical Court had “the right to hear testimony and evidence without the presence of a party if the party doesn’t attend a scheduled hearing”;

(vi) that the Rabbinical Court did not need to explain to anyone the reasons for their decision;

(vii) that the decision of the Rabbinical Court was not open for appeal either in any religious court or any civil court; and,

(viii) that in certain circumstances the arbitrators had jurisdiction regarding disputes after the award including motions due to “judicial error, new evidence, etc., … to the extent permitted by law.”⁶³

During the hearings, Lipszyc’s representative suggested the panel should hear from Rabbi Schwei. Popack did not object. Neither the parties nor the Rabbinical Court discussed further the possibility of Rabbi Schwei giving evidence.

On July 8, 2013, the Rabbinical Court met with Rabbi Schwei. There was no record of the meeting. Neither Popack nor Lipszyc received notice of the meeting between the Rabbinical Court and Rabbi Schwei. Ultimately, the Rabbinical Court made an award of $400,000.00 in favour of Lipszyc. In response to the decision of the Rabbinical Court, Popack turned to Ontario Superior Court to set aside the award on the grounds that the panel had breached the agreed procedure by meeting secretly with Rabbi Schwei.

In the trial decision, Justice Matheson agreed with Popack that the Rabbinical Court had committed a “significant” breach of the arbitration agreement by failing to give proper notice of the meeting with Rabbi Schwei.⁶⁴ Nevertheless, Justice Matheson upheld the award on the basis that the parties had agreed to defer to the Rabbinical Court’s discretion to set its own process, Rabbi Schwei was a neutral party and the fact that Popack had not objected to the Rabbinical Court meeting with Rabbi Schwei when Lipszyc initially raised the possibility.

The Court of Appeal found that it owed strong deference to Justice Matheson’s conclusions absent any glaring error and ultimately upheld the trial decision. The Court of Appeal also took into consideration Popack’s conduct, as Popack had made no formal complaint at the time about the Rabbinical Court’s meeting and did not exercise his right to a hearing to raise his concerns. Instead, Popack told the panel, without telling Lipszyc, that he would only want a hearing if the panel decided Rabbi Schwei’s evidence was important. In this way, the Court held that Popack positioned himself so that he could decide to raise the issue formally and on notice to Mr. Lipszyc only if he was not satisfied with the award by the rabbinical court. For these reasons the Court of Appeal held as follows:

His [Popack’s] conduct strongly suggests a tactical decision whereby Mr. Popack was content to allow the panel to finish its adjudication and make its award despite the improper ex parte meeting with Rabbi Schwei.⁶⁵

In these circumstances, the Court held that setting aside the panel’s decision would “eviscerate” the idea that arbitral decisions are generally final. The Court also awarded Lipszyc $25,000.00 in costs.

One important lesson from this case is the risk of giving a Beis Din unfettered discretion with respect to the procedure that the rabbinical court will follow. To mitigate this risk, it is critical for the participants to craft a written agreement that sets out how the procedure that the Beis Din will follow. This case also highlights the need for proper record keeping. In this case, the parties had agreed that no record of the proceedings would be kept. This choice complicated matters for Popack after he decided to appeal the rabbinical court’s decision, as he lacked any record of evidence for many of the problems with the procedure that he hoped to substantiate on appeal.

CONCLUSION

An Orthodox Jewish client who by virtue of his/her fidelity to Halacha feels bound to deal with the Beis Din poses a difficulty for the litigator. On the one hand it is necessary to deal with the real economic and social threat to the client for failure to adjudicate their dispute before a Jewish court. On the other hand your client’s adversary may not feel bound by the same rules and your client’s economic interest may be at risk. Even if the other party wants to appear before the Beis Din your client may fare better before a civil court than he/she may fare before the Beis Din. The answer is to know your client, familiarize yourself with his/her needs and understand the halachic process. The lawyer must therefore ask:

1. Does Jewish law require this type of litigation to be before a Jewish Court?
2. Does Jewish law permit an interim step before the civil court in order to protect your client’s interest?
3. Is there a way, within the Halachic framework, to secure the most advantageous forum for the client?

Understanding how your clients can conduct themselves within the Halachic framework will avoid the sanctions of their community and can still allow them to have their case adjudicated in a forum that best protects their interests.

APPENDIX I – THE ROOTS OF THE HALACHIC TRADITION

(a) The basis for religious Jewish Law

The development of Orthodox Jewish law is explained by Maimonides (also known as Rambam)⁶⁶ in the introduction to his seminal text, the Mishneh Torah.⁶⁷ The Mishneh Torah is a code of Jewish religious law (Halacha) that contains a compilation of the entire Oral Law from the time of Moses until the completion of the Talmud.⁶⁸ In the Mishneh Torah, Maimonides explains that the written Jewish religious law (the five books of Moses) was given to Moses at Mount Sinai along with an oral tradition explaining the laws contained therein. According to Maimonidies:

“The Torah” refers to the written law and “the mitzvah,” to its explanation. [G-d] commanded us to fulfill “the Torah” according to [the instructions of] “the mitzvah.” “The mitzvah” is called the Oral Law.⁶⁹

While each of the Israelite tribes was given a Torah scroll (also referred to as “the mitzvah”), the explanation of the Torah was passed from the elders to Joshua who taught the Oral Law to the Jewish people.⁷⁰ Maimonides bases this tradition on the tractate of Pirkei Avot⁷¹ which provides that Moses received the Torah from Sinai and gave it over to Joshua. Joshua gave it over to the Elders, the Elders to the Prophets, and the Prophets gave it over to the Men of the Great Assembly. The oral tradition was passed down through generations of rabbis and Jewish courts until it reached Rabbi Yehuda⁷² who Maimonides describes as Rabbenu Hakadosh (“our saintly teacher”). Rabbenu Hakadosh composed the Mishnah and put it down in writing. He collected all of the intergenerational teachings, laws, and commentaries so that the Oral Law would not be forgotten by the Jewish people. Maimonides explained that this was a necessary break from tradition to curb the influence of the Roman Empire. With the Jewish Temple destroyed and its institutions decimated Rabbi Yehudah’s efforts standout as a singular monumental landmark in preserving the Jewish faith, its history and Jewish law. The rabbis during the time of the Mishnah are referred to as Tannaim. Those that followed and created the Talmud are referred to as Amorim. Explains Maimonides:

From the entire [body of knowledge stemming from] the …Talmud can be derived the forbidden and the permitted, the impure and the pure, the liable and those who are free of liability, the invalid and the valid as was received [in tradition], one person from another, [in a chain extending back] to Moses at Mount Sinai. …It also includes marvelous judgments and laws which were not received from Moses, but rather were derived by the courts of the [later] generations based on the principles of Biblical exegesis. The elders of those generations made these decisions and concluded that this was the law. Maimonides goes on to explain that after the time the Talmud was completed Jewish communities set up courts in every country inhabited by Jews. “… These courts issued decrees, enacted ordinances, and established customs for the people of that country – or those of several countries. These practices, however, were not accepted throughout the Jewish people, because of the distance between [their different] settlements and the disruption of communication [between them]. ….The [Talmudic] Sages who established ordinances and decrees, put customs into practice, arrived at legal decisions, and taught [the people] concerning certain judgments represented the totality of the Sages of Israel or, at least, the majority of them. They received the tradition regarding the fundamental aspects of the Torah in its entirety, generation after generation, [in a chain beginning with] Moses, our teacher. All the Sages who arose after the conclusion of the Talmud …taught the approach of the Talmud, revealing its hidden secrets and explaining its points, since [the Talmud’s] manner of expression is very deep. …The inhabitants of each city would ask many questions of each Gaon who lived in their age, to explain the difficult matters that existed in the Talmud. They would reply to them according to their wisdom.

In A Handbook of Jewish Thought, Rabbi Aryeh Kaplan provides an understanding of the evolution of Jewish religious law.⁷³ Rabbi Kaplan explains that in 1038 CE the rabbis of those times (referred to as Genoim) established great centres of learning called academies. These were located in the cities of Sura and Pumbetitha in Babylonia. They were founded in the times of the Talmud and were accepted as preeminent authorities of Jewish law.

With the closing of these academies there was a gap. There no longer existed a universally recognized Jewish legal authority to determine issues of legal importance for the religious Jewish communities. In response, certain Jewish rabbis broke with tradition much the same way as did Rabbi Yehudah ha Nasi when he wrote the Mishnah by preparing codes of Jewish law based on the Talmud and the decisions of the Geonim. The halachic codes of Jewish law by Rabbi Yitzcak Lafasim, Rabbi Asher ben Yechiel and Maimonides were the result.⁷⁴ These rabbis lived from 103- 1328 CE and are known as the Rishomim or first codifiers. In 1525 CE, based on these previous works, Rabbi Yosef Caro wrote the Shulchan Arukh which was the most widely accepted code of Jewish law. The question arises: why did these rabbis break with tradition?

 

(b) The Decision of Rabbi Yitzcak Lafasim, Rabbi Asher ben Yechiel and Maimonides to break with tradition

The rationale for Rabbi Yitzcak Lafasim, Rabbi Asher ben Yeshiel and Maimonides’ decision to break with tradition is explained by Maimonides as follows:

At this time, we have been beset by additional difficulties, everyone feels [financial] pressure, the wisdom of our Sages has become lost, and the comprehension of our men of understanding has become hidden. Therefore, those explanations, laws, and replies which the Geonim composed and considered to be fully explained material have become difficult to grasp in our age, and only a select few comprehend these matters in the proper way. Needless to say, [there is confusion] with regard to the Talmud …for they require a breadth of knowledge, a spirit of wisdom, and much time, for appreciating the proper path regarding what is permitted and forbidden, and the other laws of the Torah.” It is for that reason that Maimonides composed the Mishneh Torah which he saw as a summary” …in clear and concise terms, so that the entire Oral Law could be organized in each person’s mouth without questions or objections.⁷⁵

The rabbis that followed the Rishonim are called Achrnoim. These rabbis were later codifiers who for the most part did not part from the decision of the Rishonim.

So how are religious decisions made today?

There are many great religious Jewish legal authorities in the 20^th and 21^st centuries who are asked questions and issue a ruling referred to as a “psak.” For example, The Responsa by Rabbi Moshe Feinstein, Rabbi Solevechic, Rav Kanievsky, Rav Shlomo Zalman Auerback, Rav Ovadia Yoseph are often published. Local rabbis often rely on these publications to respond to their congregants’ questions. So with that background, let’s discuss what religious Jewish law says about litigating in civil court.

APPENDIX II – EXAMPLES OF CASES WHERE ORTHODOX JEWS HAVE DECIDED TO LITIGATE IN CIVIL COURTS

(a) Perceived Bias

In Berg v. Schochet,⁷⁶ Rabbi Berg initiated a lawsuit in civil court claiming that Rabbi Schochet defamed him. Rabbi Schochet commenced a motion seeking to stay the claim on the grounds that the dispute should be adjudicated through a religious court as they were both orthodox Jews. For the purposes of this paper, the authors are only addressing the reasons given by Rabbi Berg for not going through the Beis Din process. The court explained Rabbi Berg’s reasoning as follows:

To this Rabbi Berg replies that the faith he and Rabbi Schochet share, does not require this dispute to be heard by an ecclesiastical tribunal, and, further, that it would be impossible for him to have a fair hearing before any such tribunal, because of the wide-spread bias against him among Orthodox Rabbis. In fact, the association to which I have referred, and which is properly called the “Vaad Harabonim of Toronto” has issued a summons to the plaintiff to which he has refused to respond.⁷⁷

For the purposes of this article and trying to understand why Orthodox Jews sometimes litigate in civil court it’s impossible to read Rabbi Berg’s mind and determine if the reasons he provided to the court were bona fide. Clearly, as set out in this article Orthodox Jewish doctrine generally requires Jews not to resort to the civil court system to adjudicate their disputes. If he perceived bias in the local Beis Din why then did he not exercise the right of a toveah to go to an alternate Beis Din or offer the option of zabla? It may be that Rabbi Berg felt that any Beis Din would be unfair because the Orthodox community as a whole shared Rabbi Schochet’s view of Rabbi Berg’s conduct. For example, the Canadian Jewish News of March 18, 1993 wrote an expose about Rabbi Berg and the Kabbalah Centre. He was accused of defrauding victims of money and promising cures for cancer if they paid him money and scanned Aramaic texts. It may be true that most of the community would have been predisposed against Rabbi Berg. For the litigator who represents a client like Rabbi Schochet it is important to understand the adverse party’s motivation. If these parties had gone before a Beis Din and Rabbi Berg could have proved bias this would have been automatic grounds for judicial review of the decision pursuant to section 46 of the Arbitration Act.

(b) Perception of Coercion

In Cawthorpe v. Cawthorpe⁷⁸ the wife commenced civil divorce proceedings. The couple were two Orthodox Jews and agreed to appear before Toronto’s Beis Din. The wife obtained her “ghet”⁷⁹ which is a Jewish divorce. As part of their appearance before the Jewish court the parties entered into an arbitration agreement. Between 2006 and 2009, the Beis Din decided issues relating to property, custody and access.

Notwithstanding the agreement not to appeal the Beis Din awards the husband went to civil court and applied for divorce and custody, etc. This case deals with a number of interesting questions relating to the enforceability of arbitration decisions, family law and retrospective application of statutes.⁸⁰ But, for our purposes let’s focus on two questions. First – why would the Orthodox Jewish husband resort to the civil court process as opposed to the Beis Din in accordance with his Halachic obligation? As well, why did he seek to set aside the Beis Din decision?

We might presume that the reasons he chose to proceed to civil court are rooted in the following complaints listed by Justice Gilmore and outlined in the husband’s allegations about why he felt the Beis Din treated him unfairly:

(a) the husband was not permitted to have legal representation;

(b) the husband was not permitted to call witnesses;

(c) the husband was not permitted to appeal the decisions made by the rabbinical court; and

(d) the rabbinical court lacked basic and necessary elements of the judicial process and the basic concepts of fairness.

Before presuming that these were the real reasons for the husband’s attempts to set aside the Beis Din decision and proceed to civil court it is important to note that Justice Gilmore did not find his evidence credible. We must make room for the possibility that there were others reasons motivating the appeal.

If we presume that as an Orthodox Jew the husband was familiar with the Beis Din and its operations why did he agree to submit to its jurisdiction in the first place?   Justice Gilmore explained that the husband alleged that he was coerced into signing the arbitration agreement by the threat of a communal excommunication with financial and social consequences. According to the husband, his resistance to deal with the Beis Din resulted in the termination of his job as a teacher in The Toronto Chider, a Jewish school central to his religious community. As a convert to Judaism, the husband also claimed that his “Jewishness” was attacked by the wife within the Beis Din process. If taken at face value, the coercive nature of the Beis Din explains why the husband submitted to its jurisdiction. Leaving aside that the wife’s narrative was quite different and that the judge seemed not to accept the husband’s evidence, the husband’s allegations do not make sense. The difficulty with taking the husband’s position at face value is that the threat of community sanction was no less prevalent when he sought to set the Beis Din decision aside.

It is not inconceivable that the allegations made by the husband were tailored to fall within the four corners of section 6 of the Arbitration Act, which permits the court to intervene to assist with the conduct of arbitrations, to ensure that arbitrations are conducted in accordance with arbitration agreements, to prevent unequal or unfair treatment of parties to arbitration agreements and to enforce awards. Even if the allegations made by the husband were untrue, reviewing them is a useful exercise because, arguably, they were culled from complaints made by others with the process.

(c) To determine whether an informal decision of a governing religious body is binding and can be relied upon by the parties

In 2004357 Ontario Ltd. v. Kashruth Council of Canada,⁸¹ an individual applicant brought an application to enforce what he believed was an arbitration award made by the Rabbinical Vaad HaKashruth concerning the kosher certification granted to his company, 2004357 Ontario Inc. This case demonstrates the confusion that can arise from informal determinations by a religious governing body. It is also illustrative of a scenario in which a party may be required to use civil court to determine whether a decision from a religious governing body constitutes an enforceable arbitration award that can be relied upon by the party.

In 1999, the parties executed a kosher certification agreement which certified 2004357 Ontario Inc. as a kosher restaurant subject to a listed set of conditions. On November 17, 2005, two representatives of the Kashruth Council of Canada (the “Kashruth Council”) inspected the premises and determined that there may have been a serious breach of the laws of kashrut. Consequentially, the representatives instructed the owner of 2004357 Ontario Inc. to close the restaurant and reported their concerns to the Kashruth Council.⁸² On November 22, 2005, the Kashruth Council determined that the 2004357 Ontario Inc.’s kosher certification was cancelled and that 2004357 Ontario Inc. would be required to reapply for certification. A week later, the Kashruth Council sent 2004357 Ontario Inc. a document outlining the requirements that would need to be met for the recertification of the restaurant (the “Decision”). At the hearing of the application, the applicant argued that the Decision constituted an arbitration award that entitled 2004357 Ontario Inc. to a kosher certification as long as certain conditions were satisfied.⁸³ The Court disagreed with the applicant and held that the Decision did not constitute an enforceable arbitration award as the Rabbinical Vaad HaKashruth had yet to convene the tribunal for the purposes of determining the dispute.  Justice Perell, in his endorsement, does not indicate that the applicant wished to act outside the parameters of halacha by choosing the civil court system over the religious court system. He did, however, say the following about the applicant’s efforts to characterize an all-party meeting as an arbitration,

Despite the impressive intellectual gymnastics of Mr. Gafny’s counsel during argument, it cannot be said that the meeting on November 18, 2005 was an arbitration. Neither in its formalities before, at, or after the meeting nor in its substance was the meeting an arbitration. Based on the objective criteria established by the case law, the meeting was not an arbitration.

From what the endorsement indicates, one might conclude that the applicant just made a mistake in believing that there was already an arbitration that took place and that he was acting appropriately by trying to enforce that decision in civil court. Any alternative conclusion would be speculative seeing as there is no stated reason as to why the applicant would attempt to avoid the Beis Din process.

(d) To secure the right to documentary and oral discovery from an opposing party

In Gerstel v. Kelman,⁸⁴ the individual defendant to an action brought an application seeking to dismiss or stay an action in favour of arbitration before a Beis Din. This case demonstrates that a party may elect to pursue an action in civil court to receive certain procedural benefits available to litigants like examinations for discovery or documentary discovery from an opposing party. Conversely, it also highlights that a party who does not want to litigate in civil court may be required to attend civil court to enforce an arbitration agreement requiring the resolution of the dispute at a Beis Din.

The parties to the application were Harold Gerstel (“Gerstel”) and Joel Kelman (“Kelman”). In December 2010, the parties entered into an agreement whereby Grestel would refer prospective mortgage customers to Kelman in exchange for a commission on any mortgages that Kelman was able to secure from the customers. In February 2014, Grestel commenced an action against Kelman for failing to pay the commission as previously agreed. Subsequently, Gerstel received a hazmana from the Vaad Harabonim Beis Din. The hazmana contained a covering letter from Rabbi Vale dated February 26, 2014, which stated:

Enclosed please find a hazmanah with respect to an action being initiated against you by Mr. Joel Kelman, in the Beis Din of the Vaad Harabonim of Toronto. The plaintiff is seeking an order from the Beis Din directing you to withdraw the action you filed against him in the Superior Court of Justice of Ontario (Claim No. CV-14-498869) since it is being brought contrary to Halacha (Torah Law) and to have your claim against him heard in a Beis Din.

Following the hazmana, Grestel obtained a ruling from another prominent Beis Din allowing him to appear before a different Beis Din for the purposes of resolving the dispute and agreed to appear before the Kollel Beis Din as opposed to the Vaad Harabonim Beis Din. This decision followed assurances from Grestel’s Rabbi, Rabbi Miller, that the Kollel Beis Din would be able to adequately handle the dispute. Grestel was also concerned that if he did not submit to a Beis Dein arbitration, the Vaad Harabonim Beis Din would issue a siruv against him which would have serious implications on his standing within the Jewish Orthodox community.⁸⁵ While Grestel agreed to arbitration before the Kollel Beis Din in principle, he still wanted assurances that Kelman would be required to release all of the documents related to the mortgages in question. In late March 2014, Grestel and Kelman agreed to the terms of an arbitration agreement before the Kollel Beis Din. Pursuant to the arbitration agreement, the parties agreed:

• to accept the decisions of the Beis Din as conclusive;
• to abide by the decisions and instructions of the Beis Din;
• the ruling will be made according to the Beis Din’s interpretation of Halacha (Torah Law); and
• to be bound by the decision of the two ⁸⁶

At Grestel’s request, the following provision was handwritten into the arbitration agreement: “in the event that one side does not follow a ruling of the Beis Din the other side can go to court, including the opening of the books, according to Beis Din’s wish[es].”⁸⁷

On March 28, 2014, the Kollel Beis Din issued a procedural order requiring Grestel to stay his action in favour of the Beis Din arbitration. Once the action was stayed, Kelman was required to make his books available to an independent bookkeeper.⁸⁸ Grestel refused to stay his action until he received Kelman’s documents. In response, Kelman started an application for determination of whether the action should be stayed in light of the ongoing arbitration. During the application, Grestel argued that the arbitration agreement should not be enforced as it was signed under duress and frustrated by Kelman’s refusal to produce the requisite documents required to adjudicate the case. Ultimately, the Court did not find that Grestel had signed under duress and was not persuaded that the arbitration agreement was frustrated by Kelman’s actions. Instead, the Court held that pursuant to section 7 of the Arbitration Act it was required to stay the action in favour of the arbitration agreed to by the parties.⁸⁹

(e) To determine the enforceability of a religious contract (Heter Iska)

In 625882 Ontario Ltd. v. Hacohen,⁹⁰ the plaintiffs brought a motion for summary judgment on a debt owed by the defendants in relation to three consolidated loans that were in default. The defendants raised various defences, including the argument that the parties had entered a Heter Iska which purported to vary the terms of the loan to support the position that there was no interest payable.

Between 2001 and 2005, the plaintiffs made nine loans to the defendants. By 2005, all but one of the loans were consolidated into three loans each bearing 13% interest.⁹¹ The defendants started but did not finish repaying the loans. In October 2009, the plaintiffs commenced an action to recover the remaining amounts. The defendants claimed that the parties had entered into a Heter Iska which had the effect of characterizing the loans as investments without yield or interest payable to the plaintiffs. The Court rejected this position on the basis that the defendants had previously admitted that the amounts received were a loan, the terms of the Heter Iska did not support a finding that no interest was payable and the defendants had not acted in compliance with the Heter Iska in failing to establish that the loan did not have a “yield” or interest.⁹² Although the role of the court in determining the significance of a religious document was not outlined in the case, it is clear that the plaintiffs benefited from a civil interpretation of the Heter Iska in pursuing a remedy against the defendants for defaulting on the outstanding amounts owed.

(f) To determine whether an arbitration agreement is enforceable

In Finkelstein v. Bisk,⁹³ the plaintiff agreed to invest his life savings of $60,000 with the defendants. Pursuant to the agreement, the defendants would receive 40% of any increase of the investment. If there was no increase, the defendants would receive nothing for their services. The agreement referred broadly to the applicability of “Jewish law” but it did not contain an arbitration clause conferring jurisdiction to the Beis Din. After the agreement was executed, the plaintiff’s investment was subsequently lost. This case demonstrates to the litigator that just because your prospective client professes to be an Orthodox Jew it does not mean that he or she will feel obliged to proceed to have their dispute adjudicated before a Beis Din.

After the defendants failed to honour the agreement, the plaintiff sought out a member of his local Beis Din to request his assistance in obtaining the return of his investment. Consequentially, a hazmanot was issued against one of the defendants. The plaintiff subsequently commenced proceedings in the Superior Court of Justice for fraudulent misrepresentation and asked that the Beis Din not proceed with determining the dispute. The Court was asked to determine whether there was an agreement to arbitrate the dispute before a Beis Din and, consequentially, if the action should be stayed as there was another proceeding between the same parties in respect of the same subject matter that was the appropriate forum for determining the dispute.

The Court found that the plaintiff never intended to bind himself to arbitration before the Beis Din. Although the Arbitration Act grants arbitral tribunals the power to rule on the jurisdiction of religious tribunals, including the power to rule on objections with respect to the existence or validity of the arbitration agreement, the court noted that this provision is only permissive.⁹⁴ The Court also held that the case at bar was not one “where the scope or applicability of an arbitration clause [was] an issue or where the special expertise of the tribunal will assist in determining its jurisdiction.”⁹⁵ It added that the strong policy reasons that are usually cited to ensure that parties who agree to arbitrate disputes cannot ignore that process and access the court do not apply where there was no intention to arbitration.”⁹⁶

The defendant argued that the agreement did not require the parties to arbitrate before a Beis Din because “it is so obvious to observant Jews that it does not need to be said expressly and because there is a custom that one tries to avoid putting negative possibilities into writing.”⁹⁷ In effect, the defendant argued that arbitration before a Beis Din is an implied term to contracts between Orthodox Jews.⁹⁸ To support this position, the defendant marshalled the following facts: the agreement broadly referred to the applicability of Jewish law, the parties had discussed the Beis Din at the time that the contract was signed, the plaintiff had prior experience with the Beis Din and had consulted with a rabbi from the Beis Din before starting his action in Superior Court. On the other hand, a rabbi working with the Beis Din testified that he was not aware of any alleged custom to avoid including “negative possibilities” in written contracts. Nonetheless, the court found that there was no intention to arbitrate by the plaintiff. The Court’s rejection of the defendant’s argument that arbitration before a Beis Din is an implied term in contracts between observant Jews has far reaching implications for observant communities. In particular, Finkelstein v. Bisk suggests that care should be taken to draft contracts that explicitly grant jurisdiction to religious tribunals where the parties intend for the Beis Din to govern any future disputes.