Developing a Consistent Approach to Balance Distributions in Quebec

• Author: Chris Trivisonno
• Pages: 321-371

321

DEVELOPING A CONSISTENT

APPROACH TO BALA NCE

DISTRIBUTIONS IN QUEBEC

Chris Trivisonno

Abstract: Similar to cy prè s distributions in common law Ca nada

and the United States, Quebec courts distribute the balances

of damages in cla ss actions to third party charity organiz a-

tions. This is a crucial step in the class action procedure as it

is the judge’s f‌inal opportunit y to protect absent class mem-

bers’ rights by ensuring that these d istributions serve class

members’ interests. De spite the frequncy of this practice,

the Quebec jurisprudence has not developed a consistent

approach to choosing recipients, and judges rarely provide

written rea sons on the issue. This makes it di ff‌icult for absent

class members to understand how distributions serve their

interests and, in some circumstances, could even create the

perception that litigation actors put thei r own interests ahead

of those of the class.

This paper provides an empirical survey of balance dis-

tributions in Quebec, and emphasizes the import ance of

providing written reasons for choosing recipients, in order

to demonstrate how a distr ibution specif‌ically serves class

members’ interests and to develop a consistent approach to

choosing distr ibution recipients. Such an approach should

consider the interests of the class members as well as the ob-

jectives of the clas s action: access to justice, behaviour modi-

f‌ication, and judicial economy. The approach should also

minimize settlements with f‌ixed th ird party distr ibutions,

ensure that recipients are unrelated to the litigation actors,

and aim to distr ibute funds to specif‌ic projects or services

that may serve class members.

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323

DEVELOPING A CONSISTENT APPROACH

TO BALANCE DISTRIBUTIONS IN

QUEBEC

Chris Trivisonno*

A. INTRODUCTION

In class actions where d amages have been assessed collectively, there is

often a portion of the damages that is not distributed to cla ss members,

either because some members did not successfully f‌ile individual claims

or because the court found that distributing a portion of the damages

would be impracticable. In these instances, the balance i s distributed to

a third part y organization according to either the settlement agreement

or the discretion of the judge. This distribution is meant to serve the

interests of the cla ss members by providing an indirect benef‌it. These

distributions, c alled cy près in the common law, have been the focus of

considerable scholarly attention in the rest of Canada1 and the United

* This paper was c ompleted in collaboration with t he Class Actions Lab at the

Faculty of Law, Universit y of Montreal, an organizat ion aimed at collecting,

consolidati ng, and sharing empiric al research on class ac tions in Quebec and

across Can ada. The Lab is currently pr ioritizing rese arch into the execution

of judgments and t he distribution of dama ges in class actions. Tha nk you to

Catherine P iché, professor at the Faculty of Law, Universit y of Montreal, for

her time, enthus iasm, and insightf ul comments on drafts of th is paper. Thank

you as well to Charle s-Antoine Péladeau and Hugo Vaillancou rt for their input.

Chris Triv isonno is a recent graduate of th e McGill University Faculty of

Law. He currently pra ctices in New York.

1 See, for example, Jasm inka Kalajdzic, “The “Il lusion of Compensation”: Cy

Près Dist ributions in Canadi an Class Actions” (2013) 92 Canadian Bar Review

173 [Kalajdzic]; Jeff Berrym an, “Class Actions and the E xercise of Cy-Pres

Doctrine: Ti me for Improved Scrutiny” in Jeff Be rryman & Rick Big wood,

The Law of Remedies: Ne w Directions in the Common Law (Toronto: Irwin Law,

2010) 727 [Berrym an]; Christi na Sgro, “The Doctrine of Cy Près In Ont ario

Class Action s: Toward A Consiste nt, Principled, And Transpa rent Approach”

(2011) 7:2 Canadian Class Action Review 265; E Rebecc a Potter & Natash a

Razack, “ Cy Pre s Awards in Canad ian Class Actions: A Cr itical Interrogation

of What is Meant by ‘As Near A s Possible’” (2010) 6(2) Canadian Class Action

Review 29 9.

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