Judicial Consideration of us Proceedings in Canadian Class Action Settlement Approvals

In Canada, class action settlement approvals require that a court find that the settlement is fair and reasonable with respect to the settlement class as a whole. In some instances, due to a lack of factually comparable cases in Canada, but where there is a nearly identical proceeding in the US, the courts will look to the similar US settlement to aid in determining the fairness and reasonableness of the Canadian settlement. Reviewing a selection of judicial decisions regarding Canadian settlement approvals, this article draws some conclusions on the use of American settlements in Canadian approvals. Generally speaking, where the court is satisfied that Canadian counsel were aware of and took into consideration the American settlement and where the Canadian settlement amount is roughly in line, proportionally, to the US settlement, a finding of fairness and reasonableness is more likely.