. . . and Yet So Far? the Utility of the Cy Près Doctrine in Class Proceedings Against the Crown

• Author: Aaron Dewitt
• Pages: 393-408

393

. . . AND YET SO FAR? THE UTILITY

OF THE CY PRÈS DOCTRINE IN

CLASS PROCEEDINGS AGAINST

THE CROWN

Aaron Dewitt

Abstract: In this paper I ex plore why class action settlement s

with the Crown s eem to redeem the role of the oft-deprecated

cy près doctrine in class proceedings. The equitable doctrine

of cy près has been adopted and adapted to class actions in

nine Canadian common law provincial jur isdictions, yet its

use has come under criticism for failing to be linked to the

cause of action or the goals of the class action legislation.

Despite this, cy prè s has been used to apparent great ef fect on

two occasions where the Crow n (Federal and Ontario, separ-

ately) has been the defending part y: (1) the Indian residen-

tial schools sett lement, and (2) the Huronia Regional Centre

settlement. On those occasions, the general criticisms of cy

près provisions tend to fail.

Following an overview of t he cy près doctrine and the goals

of class actions linked to the doctrine, I discuss application of

cy près in class actions. The critical discourse of the doctrine

is touched upon before reviewing the relevant provisions in the

two class action sett lements with the Crow n. I then compare

the relevant settlement prov isions with the common criticism s

of cy près.

I conclude that through the lens of actions in public law,

the cy près doctr ine helps to achieve the ends of class proceed-

ings legislation. Applying the arguments of Stratas JA of the

Federal Court of Appeal in Pa radis Hone y, I f‌ind the distinction

between public and private law actions to be a helpful tool i n

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394

explaining the success of the two government settlements in

light of the general critici sms.

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