Access to a Just Result: Revisiting Settlement Standards and Cy Près Distributions
| Author | Jasminka Kalajdzic |
| Pages | 215-251 |
215
ACCESS TO A JUST RESULT:
REVISITING SETTLEMENT
STANDARDS AND
CY PRÈS
DISTRIBUTIONS
Jasminka Kalajdzic*
It is by now axiomatic that increased access to justice is a key objective of
class proceedings.1 Certification decisions invariably refer to the three-part
justification for class actions first articulated by McLachlin C.J. in Dutton.2
According to Chief Justice Winkler, improving access to justice, including
by way of class proceedings, has become “a mantra” with judges, govern-
ment officials, and the bar, a phrase so commonplace that its meaning has
become “blunted.”3 Although ubiquitous, there is little consensus between
judges, lawyers, and commentators as to what the term means. Is the access
to justice imperative met when class members are able to litigate claims that
would otherwise be too costly to prosecute individually?4 Or is a procedur-
ally and substantively just result a necessary component of the access to
justice equation?5
* Assistant Professor, Faculty of Law, University of Windsor. I thank Tatha Swann
for her most helpful research assistance, as well as Prof. Jeff Berryman and Kirk
M. Baert for reviewing a draft of the paper. Prior to joining the faculty I practised
law at Sutts, Strosberg LLP, solicitors for the plaintiffs in several cases referred to
in this paper. Unless otherwise noted, I did not act as counsel in these cases, and
in any event, I do not discuss facts about the class actions that are not otherwise
in the public domain.
deterrence of wrongful behaviour are, of course, the other two objectives [Hollick].
[Dutton].
3 Hon. Warren Winkler, “Professionalism and Proportionality” (2009) 27
Advocates’ Soc. J. 6.
4 Hollick, above note 1 at para. 28 (“class actions improve access to justice by mak-
ing economical the prosecution of claims that any one class member would find
too costly to prosecute on his or her own”).
5 Among others, Mauro Cappelletti and Bryant Garth have so argued: “Access to
Justice: The Worldwide Movement to Make Rights Effective. A General Report”
216 THE CANADIAN CLASS ACTION REVIEW
This paper engages the access to justice paradigm by exploring one of
the key stages of a class action: the settlement approval process. In Part A,
I first briefly survey the various meanings ascribed to the term “access to
justice,” and offer a more complete conceptualization in order to reinvigo-
rate that well-worn phrase.6 In Part B, I evaluate the prevailing approach
to assessing the fairness of proposed settlements. I will argue that access
to justice requires that the policy favouring settlement of litigation must be
tempered in the class action context, and that two factors in the standard
test for settlement approval — the presumption of fairness and a lack of
objectors — are not valid determinants of a just result. In Part C, I focus
on a particular form of settlement that brings into sharp relief the consider-
ations canvassed in Part B. Cy près distributions of settlement proceeds are
increasingly common, and illustrate why both the policy favouring settle-
ment and the criteria contained in the usual test for settlement approval
should be revisited in order to better promote meaningful access to justice.
A. ACCESS TO JUSTICE — DEfINITIONS &
ASPIRATIONS
Judges, lawyers, and scholars have varying visions of access to justice,
particularly when contemplated in the context of class actions. For some,
class actions further access to justice because they permit the aggregation
of small claims that would otherwise not be litigable. For others, the class
action is more than the sum of its parts — it serves the ends of social justice
better than even a multitude of individual claims. While both of these are
legitimate in their own right, the approach one takes to the access to justice
imperative will ultimately affect how one assesses the success of class actions
in meeting their legislative objectives. Scholars and judges both have had
much to say about the concept.
Mauro Cappelletti’s ambitious Florence Access to Justice Project
marked the beginning of serious academic treatment of access to justice.7
[Cappelletti & Garth, “General Report”] in Mauro Cappelletti & Bryant Garth,
eds., Access to Justice, Vol. 1 (Holland: Sijthoff and Noordhoff, 1979) 1 at 8
[Cappelletti & Garth].
6 A more detailed examination of case law and academic scholarship on meanings
of access to justice is contained in Jasminka Kalajdzic, “Access to Justice for the
Masses? A Critical Analysis of Class Actions in Ontario” (LL.M. Thesis, University
of Toronto, 2009) [unpublished].
7 Professor Cappelletti, a leading comparative lawyer, took stock of a massive
amount of information about access to justice and law reform initiatives around
the world, and ultimately “codified a broadened notion of access beyond the
VOLUME 6, No 1, april 2010 217
Cappelletti examined the range of access to justice initiatives; from judicare
for the poor, to public law models designed to advance collective rights;
from alternative dispute resolution, to plain language movements. Three
decades later, the Project’s conclusion, with its emphasis on moving from
formal rights to substantive justice, remains apposite:
[T]he main conclusion arrived at is not so much that we need more rights
— or more statements of rights (important as these may be for constitu-
tional lawyers or political symbolism) — rather the on-going challenge is
to find new ways and means of making the rights citizens already possess
both “effective” and “enforceable.”8
In this way, academic commentators see access to justice as focusing on the
two main purposes of any legal system: “First, the system must be equally
accessible to all, and second, it must lead to results that are individually and
socially just.”9
With respect to class actions specifically, some access to justice schol-
arship ascribes to the mechanism a decidedly “social mission.” In the US,
commentators have emphasized how class actions serve the societal need to
redress wrongs. For these supporters of class actions, “the goal, consistently,
is ready, meaningful justice for the (relatively) disempowered in contempo-
rary, massified societies.”10 In Canada, Shaun Finn has characterized class
proceedings in a very similar way:
Class actions have arisen, in part, to help right the balance in favour of
the consumer or ordinary citizen. From this vantage point, the class action
can be described as the New Equity of our time. It has stepped outside the
boundaries of ordinary procedure by pursuing a mission that no other civil
lack of lawyers and beyond courts as the site of justice-seeking.” Marc Galanter,
“Access to Justice as a Moving Frontier” in Julia Bass, W.A. Bogart, & Frederick
Zemans, eds., Access to Justice for a New Century: The Way Forward (Toronto:
Law Society of Upper Canada/Irwin Law, 2005) 147 at 147–48 [Bass, Bogart, &
Zemans].
8 Kim Economides, “2002: A Justice Odyssey” [2003] V.U.W.L.R. 1, online: www.
austlii.edu.au/nz/journals/VUWLRev/2003/1.html. See also Cappelletti & Garth,
“General Report,” above note 5 (“Indeed, the right of effective access is increas-General Report,” above note 5 (“Indeed, the right of effective access is increas- (“Indeed, the right of effective access is increas-“Indeed, the right of effective access is increas-
ingly recognized as being of paramount importance among the new individual
and social rights, since the possession of rights is meaningless without mechan-
isms for their effective vindication.”).
9 Cappelletti & Garth, above note 5.
10 Francisco Valdes, “Procedure, Policy and Power: Class Actions and Social Justice
in Historical and Comparative Perspective” (2008) 24 Ga. St. U. L. Rev. 627 at
648.
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