Similar to cy près distributions in common law Canada and the United States, Quebec courts distribute the balances of damages in class actions to third party charity organizations. This is a crucial step in the class action procedure as it
is the judge’s final opportunity to protect absent class members’ rights by ensuring that these distributions serve class members’ interests. Despite the frequncy of this practice, the Quebec jurisprudence has not developed a consistent approach to choosing recipients, and judges rarely provide written reasons on the issue. This makes it difficult for absent class members to understand how distributions serve their interests and, in some circumstances, could even create the perception that litigation actors put their own interests ahead of those of the class.
This paper provides an empirical survey of balance distributions in Quebec, and emphasizes the importance of providing written reasons for choosing recipients, in order to demonstrate how a distribution specifically serves class members’ interests and to develop a consistent approach to choosing distribution recipients. Such an approach should consider the interests of the class members as well as the objectives of the class action: access to justice, behaviour modification, and judicial economy. The approach should also minimize settlements with fixed third party distributions, ensure that recipients are unrelated to the litigation actors, and aim to distribute funds to specific projects or services that may serve class members.