In the first set of class action decisions handed down by the
Supreme Court of Canada, the Court stated that the advantages of
class actions are "access to justice", "judicial
economy" and "behaviour
modification".1 These advantages, often
described as the goals of class actions, have been used in
innumerable class action decisions since 2001. It remains
difficult to say what role these advantages or goals really play in
A case in point is the phenomenon of cy-pres awards.
Cy-pres ("as near as") awards are used when it is too
costly, or impossible, to identify all members of a class or to
distribute a settlement fund directly to class members. In
such a situation, settlement funds are instead paid to a third
party, usually a charity or foundation, with some connection to a
class. There has been controversy in the selection of
charities and how closely connected (or not) they are to the
If the goal of class actions, through the goal of access to
justice, is to compensate plaintiffs for wrongs they have suffered,
cy-pres awards make little sense. If, on the other hand, the
goal of class actions is to modify defendants' behaviour,
cy-pres awards are more rational. The tension between these
goals can be significant.
Cy-pres awards are receiving increased attention, not only from
the Ontario Law Commission in the context of an upcoming review of
the class actions legislation in that province, but elsewhere in
Canada and the US and in the media. See one such article HERE.
As noted in the article, there was a debate regarding a recent
cy-pres award ordered by Ontario Superior Court Judge Perell in
respect of the distribution of the residual Bre-X settlement
fund. After distribution of the settlement fund to wronged
investors pursuant to the terms of the settlement, $3.5 million
remained. Class counsel had suggested that the access to
justice fund of the Ontario Law Foundation receive the full amount
of the residual. The Law Foundation had confirmed that it
would in turn distribute the residual to other deserving
recipients. The Court didn't care for a process in which
a worthy candidate for funds would decide who else should receive
funds and so decided the Law Foundation would receive the bulk of
the funds with a class member's recommended recipient receiving
The simplicity of cy-pres awards can make them appealing for
both plaintiff's counsel and defendants. Whether they are
appropriate depends on how important the compensation of class
members is seen to be. The principle deserves, and is
receiving, further scrutiny.
1 Western Canadian Shopping Centres Inc. v.
Dutton, 2001 SCC 46 at paras. 27-29
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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