… and Yet so Far? The Utility of the Cy Près Doctrine in Class Proceedings Against the Crown
Bibliographic record
Abstract
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.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.001 |
| Science and technology studies | 0.000 | 0.000 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".