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Is Litigating In The Civil Court System A Rejection Of Torah Law?

By Charles B. WagnerGregory M. Sidlofsky and Rachael Kwan

For lawyers who represent Orthodox Jews in litigious proceedings it is important to understand their worldview. It is a fundamental belief of Orthodox Judaism that G-d 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. Accordingly, Jewish law mandates that disputes between Jews are to be resolved through an Orthodox Jewish Court called a “Beis Din”. 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. Why is this relevant to the average litigator? It’s because familiarity with the Halachic worldview is invaluable in providing advice to this cohort of clients of substantial means involved in commercial and estate litigation.

There are under 400,000 Jews in Canada 1 with just under 200,000 Jews living in the greater Toronto area.2 Of those Jews there is a significant minority who view themselves as being Orthodox. How many Orthodox Jews are there in Ontario? There are 50 Orthodox synagogues servicing that constituency3 and Orthodox Jews are growing in number.   Since the 1970s there has been a renaissance of sorts in Orthodox Judaism where the population is doubling every 20 years.4 Charles Shahar, a Montreal demographer estimates that 4.2 per cent of Toronto’s Jewry are Orthodox.5 Granted, these numbers may be somewhat out of date. But there is clearly a significant number of people in Ontario who are Orthodox Jews. For those Orthodox Jews who are people of means and are involved with business, they, like other business people, have disputes which require adjudication. Just like in the rest of Canada, there will be an unprecedented transfer of wealth from the baby boomers to the millennials within the Orthodox Jewish community. What is different from the average Canadian family is that Orthodox Jews tend to have more children increasing the prospects of estate disputes. Given that there is an estimated $1 trillion transfer of wealth from aging baby boomers to millennials6 over the next three decades one can expect an increase in estate disputes from this cohort as well.

Our firm has had the privilege to represent a number of Orthodox Jews in both commercial and estate litigation matters. Our experience motivated us to author a paper to provide lawyers and other interested parties with insights into the specific needs of Orthodox Jewish clients. It is important in developing a litigation strategy for Orthodox Jewish 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 referred to above that generally, litigation between two Jews in civil court is forbidden by Jewish law. Having dealt with this issue a number of times for our clients we address this issue in detail in our paper, which articulates the parameters of those restrictions and outlines the circumstances where Jewish law permits resort to civil court. We also addressed instances where, notwithstanding the prohibition, there are many reported cases where Orthodox Jews will seek the determination of their legal problems in civil courts. Why they do so is relevant for a number of reasons as set out in the paper.

The paper referred to is entitled, Advising the Orthodox Jewish Client. When we presented the original version for publication it was decided to publish an abridged version. For those interested in this topic the article can be found on line at http://bit.ly/advising-orthodox-jewish-litigant-abridged and in the Advocates’ Quarterly Volume 46, Number 2, November 2016. The unabridged version can be found on our website at https://www.wagnersidlofsky.com/advising-orthodox-jewish-litigant. It contains two additional addendums. The first addendum deals with the evolution of Jewish law and the second is a review of those reported cases in Ontario where Orthodox Jews proceeded to civil court notwithstanding the Halachic prohibition and their rational for doing so.

Footnotes
  1.   Jewish Virtual Library http://www.jewishvirtuallibrary.org/jsource/vjw/canada.html
     
  2.   This number is obtained from CIJA’s website and can be found at http://www.cija.ca/resource/canadian-jewry/basic-demographics-of-the-canadian-jewish-community/
     
  3.   See Kosher Delight a Jewish Online Magazine at http://www.kosherdelight.com/CanadaOntarioSynagoguesOrthodox.shtml
     
  4.   See the Globe and Mail article entitled, “the appeal of Orthodoxy to young, secular-born Jews” published December 29, 2010 and updated August 23, 2012 found at http://www.theglobeandmail.com/news/toronto/the-appeal-of-orthodoxy-to-young-secular-born-jews/article4192647/
     
  5.   See the Globe and Mail article entitled, “the appeal of Orthodoxy to young, secular-born Jews” published December 29, 2010 and updated August 23, 2012 found at http://www.theglobeandmail.com/news/toronto/the-appeal-of-orthodoxy-to-young-secular-born-jews/article4192647/
     
  6.   See Madhavi Acharya and Tom Yew’s article of February 20, 2012 in The Toronto Star entitled, “Baby boomers set to inherit $1 trillion” found on line at https://www.thestar.com/business/personal_finance/retirement/2012/02/20/baby_boomers_set_to_inherit_1_trillion.html
     
This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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