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

This essay explores the contentious aspects of the use of the legislated cy près doctrine in Ontario class actions and provides recommendations on how to improve the consistency, transparency, and overall fairness of cy près distributions. The focus of this essay is a series of five suggested approaches that the court can adopt when fashioning or approving the cy près application of funds in whole or partial judgments and settlements. These alternative schemes provide 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 emphasize the importance of establishing a nexus between the cy près recipient and the underlying cause of action, as well as providing an indirect benefit to class members. Throughout the essay, the contentious aspects of Ontario’s use of the cy près doctrine and potential alternatives to its 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 Ontario courts, proposing an optimal approach to choosing the most appropriate cy près recipients, as well how to convey this choice effectively in judgment. The overall analysis considers the various approaches with reference to class action objectives: judicial economy, access to justice, and behaviour modification.