In this paper I explore why class action settlements with the Crown seem 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 jurisdictions, 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 près has been used to apparent great effect on two occasions where the Crown (Federal and Ontario, separately) has been the defending party: (1) the Indian residential schools settlement, and (2) the Huronia Regional Centre settlement. On those occasions, the general criticisms of cy près provisions tend to fail.
Following an overview of the 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 settlements with the Crown. I then compare the relevant settlement provisions with the common criticisms of cy près.
I conclude that through the lens of actions in public law, the cy près doctrine helps to achieve the ends of class proceedings legislation. Applying the arguments of Stratas JA of the Federal Court of Appeal in Paradis Honey, I find the distinction between public and private law actions to be a helpful tool in explaining the success of the two government settlements in light of the general criticisms.