The Doctrine of Cy Près in Ontario Class Actions: Toward a Consistent, Principled, and Transparent Approach

• Author: Christina Sgro
• Pages: 265-292

265

THE DOCTRINE OF CY PRÈS

IN ONTARIO CLASS ACTIONS:

TOWARD A CONSISTENT,

PRINCIPLED, A ND TR A NSPARENT

APPROACH

Christina Sgro

Abstract: Thi s essay explores the contentious aspects of the

use of the legislated cy près doctrine in Ontar io class actions

and provides recommendations on how to improve the con-

sistency, transparency, and overall fairness of cy près distri-

butions. The focus of this essay is a series of f‌ive suggested

approaches that the court can adopt when fashioning or ap-

proving the cy près application of funds in whole or partial

judgments and settlements. These alternative schemes pro-

vide methods to aid the court in deciding exactly who should

be the recipient of cy près funds and why such a benef‌iciary

should receive cy près funds. The suggested approaches em-

phasize the importance of establishing a nex us between the

cy près recipient and the underlyi ng cause of action, as well

as providing an ind irect benef‌it to class members. Through-

out the essay, the contentious aspects of Ont ario’s use of the

cy près doctrine and potential alternatives to it s current use

are illustrated through a comparative analysis of the use of

cy près in the United States. This essay culminates in a f‌inal

recommendation to Ontar io courts, proposing an optimal ap-

proach to choosing the most appropriate cy prè s recipients, as

well how to convey this choice effectively in judgment. The

overall analysi s considers the various approaches with refer-

ence to class action objectives: judici al economy, access to jus-

tice, and behaviour modif‌ic ation.

* Please note that t his paper was writt en in relation to a law school

course requir ement and it was written from t he perspective of a

law student wit h the support of faculty.