COURT FILE NO.: 97-GD-39574CP
COURT FILE NO.: 97-GD-42399
DATE: 20140423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD CAROM, 3218520 CANADA INC., 662492 ONTARIO LIMITED and OSAMU SHIMIZU
Plaintiffs
– and –
BRE-X MINERALS LTD., BRESEA RESOURCES LTD., now known as SASAMAT CAPITAL CORPORATION, JOHN B. FELDERHOF, JEANNETTE WALSH, Estate Trustee of the Estate of DAVID G. WALSH, deceased, JEANNETTE WALSH, personally, T. STEPHEN McANULTY, NANCY JANE McANULTY, JOHN B. THORPE, ROLANDO C. FRANCISCO, HUGH C. LYONS and PAUL M. KAVANAGH
Defendants
Paul J. Pape, for the Plaintiffs
Angus T. McKinnon, for Deloitte Restructuring Inc., Trustee in Bankruptcy for Bre-X Minerals Ltd.
Martin Aquilina, for James F. Roache, a Class Member
AND BETWEEN:
DONALD CAROM, 3218520 CANADA INC., 662492 ONTARlO LIMITED and EUGENE SCHONBERGER
Plaintiffs
– and –
INGRID FELDERHOF and SPARTACUS CORP.
Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: April 2, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] In a certified class action, known as Carom v. Bre-X Minerals Ltd., the Plaintiffs bring a motion for the following orders:
• An Order relieving Class Counsel, Paul J. Pape and Sutts, Strosberg LLP from the undertaking they made to the Court on April 6, 2005 to continue to prosecute Carom v. Bre-X Minerals Ltd.
• An Order dismissing Carom v. Bre-X Minerals Ltd. without costs.
• An Order dismissing Carom v. Felderhof, a companion uncertified class action, without costs.
• An Order paying Sutts, Strosberg LLP a counsel fee of $458,515, which is the balance of funds being held in trust under paragraph 27(a) of the Amended Bresea Settlement Agreement (the “Bresea Settlement Agreement”).
• An Order declaring that the approximately $500,000 that is being held in trust under paragraph 27(c) of the Bresea Settlement Agreement as a reserve for an adverse costs award should be allocated 67% in favour of the Canadian Class and 33% to the U.S. Class.
• An Order declaring that the balance of the Class Action Claimants Fund that would be payable to Canadian Class Members (approximately $4.2 million) under paragraph 27 (d) of the Bresea Settlement Agreement should be paid cy-près to the Access to Justice Fund of the Law Foundation of Ontario or alternatively directing that Deloitte Restructuring Inc., Bre-X’s Trustee in Bankruptcy administer a claims process.
[2] Deloitte Restructuring Inc., formerly Deloitte & Touche Inc., the Trustee in Bankruptcy of Bre-X Minerals Ltd., (“the Trustee”) brings an unopposed cross-motion for the following orders:
• An Order directing the payment to it of $35,000 for work performed for the U.S. claims process of the Bresea Settlement Agreement.
• An Order directing the payment to it of $50,000 for work performed in managing the Bresea Settlement Agreement funds.
• An Order determining whether the aforesaid $35,000 and $50,000 should be paid from: (a) the Class Action Claimants Fund (paragraph 27 (d) of the Bresea Settlement Agreement) or (b) the Adverse Costs Award Fund (paragraph 27 (c) of the Bresea Settlement Agreement).
[3] The Trustee takes no position with regard to the relief sought on the Plaintiffs’ motion. To the extent that the Trustee’s consent is required to the without costs dismissal of Carom v. Bre-X Minerals Ltd., the Trustee consents.
B. FACTUAL BACKGROUND
1. The Bre-X Class Action and Related Actions
[4] On April 3, 1997, a proposed class action, Carom v. Bre-X Minerals Ltd., was commenced in Ontario for persons in Canada who purchased shares in Bre-X between May 1, 1993 and March 26, 1997 and suffered a “net trading loss.” The gist of the action was that a stock fraud had been committed by certain Defendants misrepresenting the evidence that Bre-X had discovered gold at a mine site in the Philippines and the purchasers of shares suffered losses in trades of Bre-X shares.
[5] There was a companion class action in the United States in the District Court in Texas for American purchasers of shares. The U.S. Class was smaller than the Canadian Class.
[6] Although the quantum of the losses has never been adjudicated, the losses were estimated to exceed $1 billion.
[7] The Plaintiffs in the Carom v. Bre-X action are: Donald Carom; 3218520 Canada Inc., whose president is Greg Winsor; 662492 Ontario Limited, whose president is Ivo Battistella; and Osamu Shimizu, who died on December 19, 2010. There was not an order to proceed after Mr. Shimizu died. Donald Carom was never named a representative plaintiff.
[8] Pape Barristers PC and Sutts, Strosberg LLP became Class Counsel. They did not provide an indemnity for costs to the Plaintiffs.
[9] The Defendants in the class action were: Bre-X Minerals Ltd., Bresea Resources Ltd., John B. Felderhof, Jeannette Walsh, Estate Trustee of the Estate of David G. Walsh, deceased, Jeannette Walsh, personally, T. Stephen McAnulty, Nancy Jane McAnulty, John B. Thorpe, Rolando C. Francisco, Hugh C. Lyons, and Paul M. Kavanagh.
[10] By consent order dated April 4, 2002, the Bre-X Class Action was dismissed without costs against John B. Thorpe, Rolando C. Francisco, Hugh C. Lyons, and Paul M. Kavanagh.
[11] The remaining Defendants are: (1) John Felderhof; (2) Jeannette Walsh in her capacity as the Estate Trustee of David G. Walsh, deceased; (3) Jeannette Walsh personally; (4) T. Stephen McAnulty; (5) Nancy Jane McAnulty, and (6) Bre-X Minerals Ltd., although the action against it is stayed pursuant to s. 69 of the Bankruptcy and Insolvency Act.[^1]
[12] As a result of the revelation that there was no gold discovery, Bre-X’s business failed, and on November 5, 1977, it made an assignment into bankruptcy in the Alberta Court of Queen’s Bench.
[13] Deloitte & Touche Inc., now known as Deloitte Restructuring Inc., (the “Trustee”), was appointed the Trustee in Bankruptcy for the Estate of Bre-X Minerals Ltd., a bankrupt.
[14] With Bre-X in bankruptcy, there was a derivative action under Ontario's Business Corporations Act,[^2] brought in the bankruptcy proceedings, known as Deloitte & Touche Inc. v. Felderhof, in which the Trustee was the Plaintiff. The Defendants in that companion action came to be: (1) John Felderhof; (2) Ingrid Felderhof, his former wife; and (3) Jeannette Walsh in her capacity as the Estate Trustee of David G. Walsh, deceased.
[15] To be somewhat more precise, following the Trustee’s appointment and in accordance with the directions of the Inspectors of the Bankruptcy Estate and the Alberta Court of Queen’s Bench in Bankruptcy, the Trustee pursued claims against various parties in an attempt to recoup monies on behalf of the Bre-X Bankruptcy Estate. Amongst the matters pursued were: (a) the Derivative Action, which had been commenced in the company’s name in Ontario before the company’s bankruptcy against insiders, including John Felderhof, David Walsh and Bresea Resources Ltd.; (b) an action that was commenced in Alberta in respect of business expenses improperly charged to the company; (c) proceedings in the Philippines against certain of Bre-X former junior geologists; (d) the dissolution of a $10M Trust that had been established by Bre-X in the Channel Islands to fund the defence costs of the company’s Officers and Directors; (e) an action in the Cayman Islands against John and Ingrid Felderhof and companies controlled by them in which the Trustee obtained a Marvea injunction freezing the Felderhofs’ assets; and (f) an action in the Bahamas against the Estate of David Walsh and companies controlled by him in which the Trustee obtained a Mareva injunction freezing Walsh’s assets.
[16] In December 1997, the Plaintiffs commenced a separate proposed class action against Ingrid Felderhof and her company, Spartacus Corp. The Plaintiffs, however, never brought a motion to certify that action as a class proceeding.
[17] The Carom v. Bre-X Minerals Ltd. action was certified as a class proceeding by order dated June 23, 1999 as amended by the order of the Court of Appeal dated October 31, 2000.
[18] By the order of June 23, 1999, the Carom v. Bre-X Minerals Ltd. action was stayed against Nancy Jane McAnulty, but she was ordered to be bound by the results of any trial.
[19] Class Counsel in the Bre-X Class Action and Counsel for the Trustee in the Derivative Action worked together to prosecute the two actions but progress was slow because a decision was made to idle the actions to await the outcome of criminal proceedings brought by the Ontario Securities Commission against Mr. Felderhof.
[20] The Bre-X Class Action did advance for the purpose of a partial settlement involving Bresea Resources, which is discussed below, and eventually the examinations for discovery were completed subject to outstanding undertakings being answered.
[21] The U.S. Class Action was certified for the purpose of approving the settlement with Bresea Resources.
2. The Bre-X Claims Process
[22] Following the bankruptcy of Bre-X in 1997, in order to determine the extent of possible claimants in the bankruptcy, the Trustee ran a claims submission process that terminated in 2003. It produced slightly over $1 billion in claims.
[23] No steps have been taken since 2003 to update the information received by the Trustee from the claims process.
[24] It is to be noted that the claims process asked claimants to estimate the "amount of loss claimed against Bre-X Minerals Ltd." The class definition, however, requires the class member to suffer a "net trading loss".
[25] For the purposes of a distribution program, the Trustee has described the claims process as having serious limitations for several reasons. First, no steps have been taken to verify the validity of the claims submitted. Second, no steps have been taken to determine whether the claim amount reflects the Canadian Class Definition (“Net Trading Loss”) or whether submitted claims reflect the gross loss suffered on the collapse of the company’s share prices. Third, the Trustee is not aware of whether any of the claimants opted out of the Canadian Class Action following certification.
[26] Class Counsel has analyzed the data available from the claims process and advises that there were 5,051 Canadian claimants. There were 482 U.S. claimants.
[27] Of the Canadian claimants: (a) 3,230 have claims below $10,000, with an average individual claim of $3,133 ($10 million in the aggregate); (b) 1,549 have claims between $10,000 and $100,000, with an average claim of $28,019.00 ($43 million in the aggregate); and (c) 249 have over $100,000, with an average claim of $227,644 ($57 million in the aggregate.) The total claimed by Canadian claimants is approximately $110 million.
[28] The Trustee has estimated a fixed price of $450,000 to complete the claims process with a distribution process. This sum, however, does not include advertising costs, referee costs, and legal fees, and the price would increase if the class size exceeded 5,000 claimants.
[29] Class Counsel estimate advertising costs will be significantly in excess of $100,000 for a distribution process.
3. The Bresea Resources Settlement Agreement
(a) The Settlement with Bresea Resources
[30] Between 2002 and 2005, the Plaintiffs in the Carom v. Bre-X Minerals Ltd. action and the Trustee in the Derivative Action settled the claims against the Defendant Bresea Resources for $9 million, subject to approval by courts in Alberta, Ontario and Texas. Of this sum, approximately $7 million was available for the Canadian and U.S. Class Actions. This settlement took the Defendant Bresea Resources out of the various proceedings.
[31] The Bresea Settlement Agreement arose from claims by the Trustee and by the Ontario and Texas Class Action Plaintiffs based on allegations of insider trading.
[32] In addition, Bre-X was, at the time of its bankruptcy, the owner of shares in Bresea and Bresea was the owner of Bre-X shares. The Bresea Settlement Agreement provided for the payment by Bresea of the sum of $7 million to the Class Action. It provided that the Settlement Amount was to be delivered to the Trustee and applied by it in a specified fashion. The $2 million Bresea Share Purchase Amount was to be paid to the Trustee for the benefit of the Bankruptcy Estate.
[33] The questions for the motions now before the court largely concern the distribution of the funds from the settlement with Bresea Resources.
[34] The Bresea Settlement Agreement required the approval of the Texas Court. Ultimately, the Bresea Resources Settlement was approved by the courts of Alberta, Ontario, and Texas. It was approved by the Alberta and Ontario Courts respectively in June 2002 and approved by the Texas Court in September 2004.
[35] The settlement funds from the Bresea Resources Settlement have been held by the Trustee.
[36] The Bresea Settlement Agreement provides that the Trustee shall be paid its reasonable costs of administering and distributing the Bresea Settlement Funds.
[37] Under the Bresea Settlement Agreement, approximately $7 million was allocated to four funds as follows:
• The paragraph 27(a) “Costs Reserve Fund,” being $1,750,000 for legal costs and disbursements for the Plaintiffs’ counsel in the Canadian and U.S. class actions.
o There is now $458,515 in this fund. In the motion now before the court, Class Counsel asks for payment of this sum.
• The paragraph 27(b) fund, being $200,000 for the payment of the fees and disbursements of Siskinds LLP. This fund has been spent.
• The paragraph 27(c) “Adverse Costs Award Fund,” being US$500,000 to pay any adverse costs award in the Ontario or U.S. class actions to a maximum of $250,000 per jurisdiction. There is now approximately US$575,000 in this fund.
• The paragraph 27(d) “the Class Action Claimants Fund,” being the balance of the Bresea Settlement funds. Subject to certain adjustments that I shall discuss, there is now $5,144,828 in this fund. The Trustee is holding 33% of this fund for the benefit of the Class Members of the American Class Action. The balance available for the Canadian Class is $3,447,035.
o Class Counsel in the Canadian Class Action seeks an order that 67% of the Canadian Class Action Claimants Fund plus $250,000 from the Adverse Costs Award Fund be distributed cy près rather than a distribution of these funds to Canadian Class Members.
[38] The Bresea Settlement Agreement did not determine what portion of the Class Action Claimants Fund was to be for the benefit of U.S. Class Members and what portion was to be for the benefit of Canadian Class Members. As will be mentioned below, the allocation was settled by court orders that followed negotiations between Canadian and American Class Counsel.
(b) The Paragraph 27 Funds of the Bresea Settlement Agreement
[39] Paragraph 27 of the Bresea Settlement Agreement is the source of the various funds discussed above; it states:
- The Settlement Amount delivered by Bresea to Deloitte shall be applied by Deloitte as follows: …
(a) First, Deloitte shall set aside and hold $1,750,000 less amounts paid pursuant to Section 40 of the Settlement Amount as payment of legal fees, costs, disbursements and taxes in the Ontario Class Action and the U.S. Class Action allocated as follows …
(c) Third, Deloitte shall set aside and hold US$500,000 of the Settlement Amount as a reserve for the purpose of paying any award of Court costs to Defendants in either the Ontario Class Action or the U.S. Class Action, up to a maximum of US$250,000 per action; such payments of Court costs will be made only provided (1) an award of Court costs is made in Defendants’ favour in either the Ontario Court or the Texas Court; and (2) such Court authorizes the payment of Court costs by Deloitte from this reserve. The reserve created by this sub-Section will terminate only upon the expiration of all appeal periods in both the Ontario Class Action and the U.S. Class Action, or no later than December 31, 2006, without Court authorization to the contrary.
(d) Fourth, the remainder of the Settlement Amount, (the “Class Action Claimants Fund”) shall be distributed among the Ontario Class Members and the U.S. Bre-X Class Members who file a proof of claim in accordance with the directions given by the Ontario Court and the Texas Court. Deloitte shall be paid its reasonable costs of administering and distributing the Class Action Claimants Fund, as well as its reasonable costs of administering the claims process described in Sections 15-19, which costs shall be paid from and form a first charge on the Class Action Claimants Fund.
(c) The Paragraph 27 (a) Fund and Class Counsel’s Undertaking
[40] Subject to court approval, the funds under paragraph 27(a) of the Bresea Settlement Agreement could be drawn down during the course of the litigation to pay the lawyers for the work they were doing.
[41] On April 6, 2005 Canadian Class Counsel moved for approval of payment pursuant to paragraph 27(a). Class Counsel sought payment of 50% of the value of the work they had performed from November 30, 1999 to March 20, 2005 plus G.S.T. and disbursements.
[42] On April 6, 2005, Justice Winkler made the following Order:
1.THIS COURT ORDERS that Deloitte & Touche Inc., as Trustee of the Estate of Bre-X Minerals Ltd. ("Deloitte"), be and is hereby authorized and directed to pay out of the Canadian Trust established by the Amended and Restated Settlement Agreement made as at May 1, 2002 among Deloitte, Bresea Resources Ltd., now known as Sasamat Capital Corporation, Harvey T. Strosberg, Class Counsel in the Ontario Class Action, Yetter & Warden, as representative of Lead Plaintiffs and Proposed Class Representatives in the U.S. Class Action, Siskinds, Cromarty, Ivey and Dowler, Counsel on behalf of the Plaintiffs in the Ontario Bresea Action, and Docken & Co., Counsel on behalf of the Plaintiffs in the Alberta Action:
(a) to Sutts, Strosberg LLP, the sum of $564,978.87, being $393,187.05 as the value of 50% of the work performed from November 30, 1999 to March 20, 2005, plus GST thereon of $27,523.09, plus disbursements of $144,268.73 inclusive of GST; and
(b) to Paul J. Pape, Barristers, the sum of $98,969.73, being $81,477.55 as the value of 50% of the work performed from November 18, 1999 to March 20, 2005, plus GST thereon of $5,703.43, plus disbursements of $11,788.75 inclusive of GST.
- THIS COURT ORDERS that Sutts, Strosberg LLP and Paul J. Pape Barristers be and are hereby authorized to apply to this Court at intervals no less than quarterly for authorization for Deloitte to pay to them out of the Canadian Trust further payments on the basis of 50% of the value of work performed plus GST plus disbursements plus applicable taxes.
[43] In the context of seeking the April 6, 2005 order, Class Counsel made the following undertaking to the Court:
AND UPON HEARING counsel for the plaintiffs and receiving the undertaking of Sutts, Strosberg and Paul J. Pape to complete this action even if the Canadian Trust Fund is exhausted before this action is completed (“Undertaking”)
[44] Class Counsel believed, that because of the injunctions in the Cayman Islands and the Bahamas and their working relationship with the Trustee, it was reasonable to give the Undertaking because it seemed that there would a meaningful recovery of funds from the Defendants.
[45] On December 11, 2012, at the request of Class Counsel, pursuant to paragraph 27(a), I ordered the payment of disbursements only; namely: $7,002.56 to Pape Barristers P.C.; and $114,397.36 to Sutts Strosberg LLP. There have been no other payments under paragraph 27(a) The current balance of the fund pursuant to paragraph 27(a) is $458,515.
[46] As of December 9, 2013, Sutts, Strosberg LLP has incurred unbilled disbursements of $25,873.20 and Pape Barristers PC has incurred unbilled disbursements totaling $1,149.74.
[47] From November 30, 1999 to December 2013, at usual hourly rates, Sutts, Strosberg LLP has unbilled work in progress totaling $1,265,080 without a calculation of applicable taxes and Pape Barristers PC has unbilled work in progress totaling $384,530 without a calculation of taxes.
(d) The Paragraph 27 (c) Trust Fund
[48] The Paragraph 27(c) fund was designed to be a contingency fund to protect the Plaintiffs in Canada and in the United States for their exposure to an adverse costs award.
[49] The Bresea Agreement did not close until February 4, 2005, and thus the date of “December 31, 2006” in paragraph 27(c) of the Settlement Agreement should have been deleted, but this was overlooked. By my order dated March 4, 2013, I ordered that s. 27(c) of the Bresea Settlement Agreement be amended to: delete the date of December 31, 2006. I ordered that Deloitte continue to hold in trust US$573,153 plus future interest as a reserve for the purposes of paying any adverse costs award.
[50] Given that Class Counsel proposes that the Bre-X class action be dismissed on consent without costs and given that an adverse costs award is not possible in the U.S. class action, which was certified only for settlement purposes, there is no possibility of an adverse costs award being made against the Plaintiffs.
[51] However, the agreement makes no provision for the distribution of the Adverse Costs Award Fund under paragraph 27(c) if the fund is unused.
[52] Class Counsel submits that this fund be divided so that the Canadian Class Members receive the benefit of 67% and the American Class Members receive the benefit of 33%. American Class Counsel, however, submits that this fund should be divided equally.
(e) The Paragraph 27(d) Funds for Class Members
[53] Section 27(d) of the Bresea Settlement Agreement provides that the remainder of the settlement funds paid pursuant to the Bresea settlement are to be distributed between the Canadian Class Members and the U.S. Bre-X Class Members. The Agreement, however, did not provide for how the funds were to be divided between the Canadian Class and the U.S. Class.
[54] The matter of the allocation of the paragraph 27(d) funds became a matter of negotiation between Canadian and American Class Counsel and the approval of the respective courts.
[55] On August 5, 2010, Judge Folsom of the U.S. District Court approved the allocation of the money held in the paragraph 27(d) trust on the basis of a division of 67% in favour of the Canadian Class and 33% to the U.S. Class.
[56] On March 7, 2013, I ordered that the money held in the paragraph 27(d) trust be divided 67% to the Canadian Class and 33% to the U.S. Class.[^3]
[57] On May 30, 2013, Justice LoVecchio of the Alberta Court ordered that the approximately $5.2 million in trust be divided 67% to the Canadian Class and 33% to the U.S. Class.
4. Recoveries by the Trustee in Bankruptcy
[58] The Trustee was able to recover two significant sums of money during the course of its administering the Estate.
[59] A settlement of the Trustee’s challenge to the Channel Island Trust resulted in the net recovery of some $5 million (some $10 million was recovered and in accordance with the settlement terms some $5 million was paid out to fund a series of individual defence funds for the benefit of certain of Bre-X former officers and directors).
[60] In addition, as noted above, the Trustee recovered funds as a part of the Bresea Settlement Agreement in payment for certain shares of Bresea owned by Bre-X at the time of the company’s bankruptcy.
[61] With the approval of the Inspectors of the Bre-X Estate and the Alberta Court of Queen’s Bench, in Bankruptcy, the Trustee utilized the funds it recovered for the Bre-X Estate to pursue litigation on behalf of the Estate.
[62] When the Trustee concluded that it lacked sufficient financial resources to continue the litigation and that, based on its investigations, there was no reasonable prospect of a meaningful financial recovery, it entered into a settlement with the remaining Defendants and sought and, as mentioned again below, obtained Court approval for a without costs discontinuance of the various outstanding actions it controlled, including the Ontario Derivative Action.
[63] Approval was granted in Ontario on March 7, 2013, by the Alberta Court of Queen’s Bench on May 30, 2013, and by the High Court of the Grand Cayman Islands on August 7, 2013. A final discontinuance of the Bahamas proceedings was recently obtained.
5. The Trustees Claim to a Portion of the Bresea Funds
[64] As noted above, the Trustee was involved in the claims process that was conducted in part for the purpose of determining eligibility by U.S. Class Members for the U.S. portion of the Class Action Claimants’ Funds.
[65] Based on a review of the Trustee’s time records, the Trustee has estimated that it incurred professional fees of approximately $35,000 in connection with its work on the U.S. claims process.
[66] The Trustee has been holding the Bresea Settlement Funds since 2005 and has incurred professional and legal fees in connection with responding to enquiries from the public and Class Counsel concerning the funds, disbursing portions of the Canadian and U.S. Trusts, and attempting to assist Ontario and U.S. Class Counsel in resolving their various disputes.
[67] In response to Canadian Class Counsel’s request, the Trustee reviewed its time records and estimated that it incurred some $50,000 in professional fees and disbursements in connection with managing the Bresea Settlement Funds. Canadian Class Counsel has expressed the view that the Trustee’s claim for this $50,000 is reasonable.
[68] The Trustee seeks payment to it of a total of $85,000 from the Bresea Settlement Funds to repay the costs it incurred in assisting in the U.S. Claims process and in administering the Bresea Settlement Funds.
[69] The Trustee now faces the prospect of suffering a shortfall in the funding of the Bre-X Bankruptcy Estate. Specifically, as at January 15, 2014, the Trustee had only $158,497 cash on hand and outstanding receivables for legal and professional fees totaling $295,561.
[70] The Trustee has estimated that it will incur further legal and professional fees and disbursements of some $278,494 to wind up the Bre-X Estate. While this funding shortfall may be covered if the Trustee recovers a significant portion of the Defence funds arising from the dissolution of the Channel Island Trust, the Trustee will not know how much of the approximately $700,000 that is currently available will be recovered until after this action is dismissed and the Trustee is in a position to call for the return of the balance of the Defence funds.
6. The Denouement of the Class Action
[71] Recently, as noted above, the Trustee ran out of money to prosecute the Derivative Action. The Trustee decided to end the action and the action in the Cayman Islands, and it sought to discontinue the actions, which requires court approval.
[72] The Trustee brought a motion to discontinue. On March 7, 2013, I concluded that given the current circumstances of the case at bar, a discontinuance without costs of the Derivative Action was the most reasonable resolution of the action and that it was appropriate to grant leave pursuant to s. 249 of the Ontario Business Corporations Act to dismiss the Ontario Derivative Action.[^4]
[73] On May 30, 2013, Justice LoVecchio of the Alberta Court of Queen’s Bench ordered that the Trustee could discontinue the Ontario Derivative Action, nunc pro tunc. He also instructed the Trustee to consent to the dismissal of the action in the Cayman Islands.
[74] On August 7, 2013, the Trustee’s action in the Cayman Islands Court was dismissed without costs, on consent, and the Mareva injunction was dissolved.
[75] The Trustee is in the process of winding up the estate in bankruptcy. When this is completed, it will pass its accounts and seek a discharge from the Alberta Court of Queen’s Bench.
[76] As a result of these orders described above, the Bre-X Class Action and the action against Ms. Felderhof are the only currently active actions.
[77] Class Counsel now believes that no purpose would be served by continuing the Carom v. Bre-X Minerals Ltd. action or the Carom v. Felderhof action. As a result of the evidence produced in the motion for a discontinuance of the Derivative Action, it appears that that most of the money in the Cayman Islands, which was subject to the Mareva injunction, has been dissipated for living expenses and legal expenses.
[78] It appears that there is no reasonable prospect of a recovery from any of the Defendants, even if the outstanding actions were successful.
[79] Ivo Battistella, on behalf of 662492 Ontario Limited, and Greg Winsor, on behalf of 3218520 Canada Inc., agree with Class Counsel's opinion and consent to the dismissal of the Class Actions without costs, subject to Court approval.
[80] Following the giving of notice that an order dismissing the actions without costs would be sought, no Class Member has objected to such an order being made.
[81] The Plaintiffs and the Defendants, save for Bre-X against whom the action is stayed, consent to the dismissal of the outstanding actions without costs.
7. The Proposal for a Cy-Près Distribution
[82] The Plaintiffs are requesting a cy-près award rather than a distribution process for the approximately $3.5 million being held for Canadian claimants under paragraph 27(d) of the Bresea Settlement Agreement. It seems likely that the cost of a distribution process would reduce the amount to be distributed to around $2.5 million or perhaps less given the cost of determining net trading losses. By my reckoning a distribution process would mean a recovery for Class Members of about 0.2 cents on the dollar.
[83] Based in part on their analysis of the information from the claims process and the estimated costs of a distribution process, Class Counsel have concluded that it would be most cost effective to distribute the funds held under paragraph 27(d) of the Bresea Settlement Agreement, cy-près to the Access to Justice Fund operated by the Law Foundation of Ontario (“LFO”).
[84] The Access to Justice Fund was created for class action cy-près awards following this Court’s order in Cassano v. Toronto Dominion Bank.[^5] Since then, at least four other cy-près payments to the Fund have been approved.[^6]
[85] No Class Member has objected to a cy-près award.
[86] James F. Roache, a Class Member, who is on the faculty of the University of Ottawa intervenes through counsel and asks that the funds be paid cy-près to the Telfer School of Business at the University of Ottawa.
[87] The Law Foundation has been advised of this proposal.
[88] Elizabeth Goldberg, C.E.O. of the LFO has advised Class Counsel that these proposed initiatives could be within the LFO objects.
[89] While Class Counsel agrees the Telfer School of Business at the University of Ottawa would be a worthy and appropriate recipient of a cy-près award, it does not recommend that an award be made because it submits that there are many other such institutions in Canada which would also be worthy recipients and it would be unfair to them to make an award in this manner as a part of the resolution of a class action.
[90] Rather, Class Counsel suggests that it would be fairer to pay the funds to the Access to Justice Fund, leaving it the Telfer School to apply and compete with other applicants for the funds. Thus, it would be for the LFO, which is institutionally equipped to address grant requests to make an informed choice.
C. DISCUSSION AND ANALYSIS
1. The Dismissal of Carom v. Bre-X Minerals Ltd. and Carom v. Felderhof
[91] Carom v. Felderhof was never certified as a class proceeding, and it can be dismissed on the consent of the parties and without court approval.
[92] The Representative Plaintiffs and Plaintiffs of Carom v. Bre-X Minerals Ltd. seek court approval of the dismissal of that action on consent and without costs. Thus, at first blush, it would appear that what is now being sought is settlement approval. However, the settlement approval request for a dismissal is unusual because the proposed dismissal is not meant to bind the Class Members and, practically speaking, the settlement is more like a discontinuance than a settlement, which usually involves a release of claims.
[93] Because the request is unusual, it is not clear what test the court should apply to determine whether to grant or refuse approval.
[94] Section 29 of the Class Proceedings Act, 1992,[^7] provides for the discontinuance, abandonment (which is how a proceeding by application may be discontinued), and the settlement of class actions. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[95] It may be noted that s. 29 (2) provides that a settlement of a class proceeding is not binding unless approved by the court. It is ss. 27 (2) and (3) of the Act, that prescribes the binding effect of a judgment on common issues. Sections 27 (2) and (3) state:
Effect of judgment on common issues
- (2) A judgment on common issues of a class or subclass does not bind,
(a) a person who has opted out of the class proceeding; or
(b) a party to the class proceeding in any subsequent proceeding between the party and a person mentioned in clause (a).
Idem
(3) A judgment on common issues of a class or subclass binds every class member who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that,
(a) are set out in the certification order;
(b) relate to claims or defences described in the certification order; and
(c) relate to relief sought by or from the class or subclass as stated in the certification order.
[96] It may be noted that s. 29 (4) of the Act provides for the dismissal of a proceeding for delay, which suggests that the jurisprudence about dismissal of an action or application for want of prosecution would guide the court for those circumstances.
[97] Case law interpreting s. 29 provides that the test for approving discontinuance is different from the test for approving a settlement.
[98] The central question on a motion for a discontinuance is whether the putative class members will be prejudiced.[^8] The abandonment or discontinuance does not have to be beneficial or in the best interests of the putative class members.[^9] Where the motion for leave to discontinue has been made in good faith and on reasonable grounds, the court must strike a balance between protecting the interests of absent class members and permitting the low cost resolution of marginal cases.[^10]
[99] In comparison, to approve a settlement of a class proceeding, the court must find that, in all the circumstances, the settlement is fair, reasonable, and in the best interests of the class.[^11]
[100] In determining whether a settlement is reasonable and in the best interests of the class, the following factors may be considered: (a) the likelihood of recovery or likelihood of success; (b) the amount and nature of discovery, evidence or investigation; (c) the proposed settlement terms and conditions; (d) the recommendation and experience of counsel; (e) the future expense and likely duration of litigation; (f) the number of objectors and nature of objections; (g) the presence of good faith, arm’s-length bargaining and the absence of collusion; (h) the information conveying to the court the dynamics of, and the positions taken by, the parties during the negotiations; and, (i) the nature of communications by counsel and the representative plaintiff with class members during the litigation.[^12]
[101] In my opinion, it is not necessary to decide what test to apply to grant approval for the Orders requested in the case at bar because the Orders requested satisfy both tests. Quite simply, there is no purpose to be served by continuing the remaining actions. Those actions would likely be dismissed for want of prosecution in any event and some decisions would then have to be made about the distribution of funds being held by the Trustee in the bankruptcy proceedings, which are also in the process of coming to an end.
[102] Accordingly, I grant approval for the dismissal of Carom v. Bre-X Minerals Ltd. and Carom v. Felderhof without costs.
2. The Discharge of Class Counsel’s Undertaking
[103] As sometimes happens in class actions, there is a partial settlement where the class settles with one defendant with the plan of continuing the action against the remaining defendants. The partial settlement funds are sometimes used to finance the litigation and they are not paid out to the class members. In the case at bar, a partial settlement was reached when the Canadian Class and the American Class settled with Bresea Resources, and Canadian Class Counsel applied to be paid its legal fees from the funds set aside for that purpose.
[104] It was in this context that Canadian Class Counsel gave an undertaking to complete the action even if the paragraph 27(a) funds were exhausted before the action was completed.
[105] Class Counsel have now reached the conclusion that there is no reasonable prospect of recovery of money even if the class action was successful. They, therefore, ask the Court to relieve and release them of their Undertaking.
[106] The undertaking now serves no useful purpose.
[107] Accordingly, I order that the undertaking is discharged.
3. The Approval of Class Counsel’s Fee
[108] Class Counsel seeks the payment of the balance of fund under paragraph 27(a) of the Bresea Settlement Agreement on account of their outstanding disbursements and as compensation for the unbilled work on this matter.
[109] There is $431,493 available for fees and HST after outstanding disbursements are paid. When this sum is reduced by HST (13%), $375,399 will then be available for current unbilled and unpaid fees.
[110] If that is paid, Class Counsel will have received $850,063 for the prosecution of the Bre-X litigation from November 1999 to December 2013.
[111] Against that recovery of fees, they will have incurred $2.6 million for fees at their usual rates during the same period. This recovery for fees will represent 33% of their time invested in the prosecution of the litigation.
[112] Class Counsel’s fee request is fair and reasonable in all the circumstances, and I approve the payment from the fund established by paragraph 27(a).
4. The Allocation of the Costs Reserve Fund
[113] The Cost Reserve Fund was created as a contingency fund for a contingency that cannot occur. There will not be an adverse costs award made against the American or the Canadian litigants.
[114] In these circumstances, Class Counsel in Carom v. Bre-X Minerals Ltd. submits that the funds should fall into the fund established under paragraph 27(d), for which the courts in Alberta, Ontario, and Texas have already decided that the funds should be allocated 33% to the U.S. Class Members and 67% to the Canadian Class Members.
[115] Class Counsel’s argument is a reasonable one, and it provides a possible interpretation of the Bresea Settlement Agreement either as a matter of an implied term or as a matter of interpreting paragraph 27 of the Agreement.
[116] In opposition, U.S. Class Counsel’s argument is that the paragraph 27(c) funds should be allocated 50:50. This too is a reasonable argument and a possible interpretation of the Agreement.
[117] Indeed, the U.S. Class Counsel’s interpretation is the interpretation that I prefer.
[118] Paragraph 27(c) is structured based on a 50:50 allocation notwithstanding that it was known that the Canadian Class was much larger than the American Class. In contrast, the paragraph 27(d) 33:67 ratio was arrived at later based on negotiations and the sensible conclusion that the distribution of settlement funds should be proportionate to the class size. That rationale does not of necessity apply to the exposure of the Plaintiffs to an adverse costs award. Further, a 50:50 distribution is fair and reasonable.
[119] I think a 50:50 distribution of these unused funds is appropriate, and I order accordingly.
5. The Payment of the Trustee in Bankruptcy’s Fees
[120] The Trustee assisted in conducting the U.S. Claims process and, as set out above, incurred professional fees of some $35,000. In accordance with s. 27(d) of the Bresea Settlement Agreement, the Trustee is entitled to be paid this amount from the U.S. portion of the Class Action Claimants Fund as the U.S. claims process benefitted U.S. Class Members exclusively. I so order.
[121] The Trustee incurred professional and legal fees of some $50,000 in connection with maintaining and administering the Bresea Settlement Funds. These costs were incurred for the benefit of both Ontario and U.S. Class Members and ought to be paid from the Canadian and U.S. portions of the paragraph 27(d) Class Actions Claimants Fund in the established ratio of 33:67. I so order.
6. A Scheme of Distribution or a Cy-près Payment
[122] Class action statutes envision the possible distribution of funds cy-près.[^13] The Act contemplates that the distribution will indirectly benefit the class. The Ontario Law Reform Commission in its Report on Class Actions, said that the purpose of a cy-près distribution was compensation for class members through a benefit that “approaches as nearly as possible some form of recompense for injured class members.” [^14]
[123] By benefiting the class, at least indirectly, the cy-près distribution provides access to justice and the expenditure at the expense of the defendant may provide some behaviour modification. In considering whether to approve a settlement, the court should have regard to the objectives of access to justice for class members and behaviour modification of the defendant as factors in considering whether or not to approve a particular cy-près award.[^15]
[124] As a general rule, cy-près distributions should not be approved where direct compensation to class members is practicable.[^16] Where the expense of any distribution among the class members individually would be prohibitive in view of the limited funds available and the problems of identifying them and verifying their status as members, a cy-près distribution of the settlement proceeds is appropriate.[^17] Where in all the circumstances an aggregate settlement recovery cannot be economically distributed to individual class members, the court may approve a cy-près distribution to credible organizations or institutions whose services or programs would benefit class members.[^18]
[125] In Managing Class Action Litigation: A Pocket Guide for Judges (3rd ed.),[^19] B.J. Rothstein & Thomas E. Willging have the following suggestions for judges considering approval of a cy-près distribution:
Cy près relief must come as close as possible to the objective of the case and the interests of the class members. Question whether the class members might feasibly obtain a personal benefit. Look for evidence that proof of individual claims would be burdensome or that distribution of damages would be costly. If individual recoveries do not seem feasible, examine the proximity or distance between the cy près recipient’s interests or activities and the particular interests and claims of the class members. When cy près relief consists of distributing products to charitable organizations or others, press for information about whether the products in question have retained their face value or might be out-of-date, duplicative, or of marginal value.
[126] In my opinion, the case at bar is an appropriate case for a cy-près award. I further conclude that the award should be made 80% to the the Access to Justice Fund of the LFO and 20% to the Telfer School of Business at the University of Ottawa.
[127] I make this award because: (a) s. 27(d) of the Bresea Settlement Court provides that the fund shall be distributed in accordance with the directions given by the Ontario Court; (b) Class Counsel conceded that both the Telfer School and the Access to Justice Fund were worthy recipients, and (3) in my opinion, Class Counsel’s concerns about unfairness to other worthy claimants is misguided.
[128] In my opinion, Class Counsel cannot delegate an important part of its responsibility of selecting a cy-près award recipient when making a recommendation that there should be a cy-près award; i.e. Class Counsel cannot delegate its responsibility in identifying the ultimate recipient of the award.
[129] To explain my opinion about how a cy-près award should be made in the circumstances of the Carom v. Bre-X Minerals Ltd. class action, it is necessary to emphasize that while the normal principles about the approval of a cy-près award are relevant, the request in the case at bar is made as a part of the court’s administration of the Bresea Settlement Agreement that has already been approved leaving it to the court to decide how the settlement funds should be distributed.
[130] The courts in Ontario and Texas have already exercised that authority to allocate the paragraph 27(d) funds 33:67, and now the court in Ontario is being asked whether to distribute the Canadian Class Members’ allotment cy-près as part of its authority to administer the settlement.
[131] Under s. 29 of the Act, the court’s choices are to approve or reject the settlement as proposed. However, in the case at bar, the court has already approved the settlement and the court is being asked how to administer the settlement in circumstances where a cy-près award under paragraph 27(d) of the Bresea Settlement Agreement is appropriate.
[132] In the case at bar, once it was determined that a cy-près award was appropriate, Class Counsel had the responsibility of designating the beneficiary. If one approaches the problem of identifying a worthy recipient in accordance with the principles that justify making a cy-près award, it follows that Class Counsel should consider the views of individual class members about whom should be a recipient of the Class’s largesse.
[133] Although the ultimate responsibility of identifying a worthy recipient rests with Class Counsel, how better to determine what is in the collective interest of Class Members than to listen to the views of the Class Members themselves? Ascertaining Class Members’ views will be possible because Class Counsel will give notice of the proposed settlement that will include its recommendation for a cy-près award recipient. In the case at bar, Class Members were notified about Class Counsel’s proposal for the allocation of the paragraph 27(d) funds. Class Members were thus given the opportunity to object or to suggest alternative recipients as a part of the notice process. This dialogue occurred in the case at bar and only the Telfer School responded with a suggestion.
[134] Whether as part of a proposed settlement or as part of an administration of an already approved settlement, a proposed cy-près award should provide a benefit to all the Class Members. When a Class Member (in this case, James F. Roache who is on the faculty of the Telfer School) asks that the funds be paid cy-près, Class Counsel will have to be satisfied that the request is not a self-serving request that does not benefit all Class Members. The opportunity to respond to a notice about a proposed cy-près award is not an opportunity for a Class Member to enrich their favourite charity, unless, coincidentally, the award to that charity is in the collective interest of the Class Members in the context of the purposes of the particular Class Action.
[135] Whether a particular cy-près award satisfies the purposes of the Class Proceedings Act, 1992, can be a matter of debate, because there may be many worthy candidates that could arguably be connected to the collective or common interests of the Class Members and the goals of the particular class action, but Class Counsel should, at least, consider the views of Class Members. In the case at bar, Class Counsel was satisfied that the Telfer School was an appropriate candidate for a cy-près award.
[136] The ultimate decision, however, remains with Class Counsel, and for the purposes of a settlement approval hearing, Class Counsel’s recommendation will generally be respected because the court’s role is not to remake the Agreement or to adjudicate the dispute between the Representative Plaintiff who gave instructions to Class Counsel and Class Members who might have given different instructions to Class Counsel.
[137] Repeating again that Class Counsel conceded that both the Telfer School and the Access to Justice Fund were worthy recipients of a cy-près award, which is to say that both recipients would provide a benefit to class members in the context of the Carom v. Bre-X Minerals Ltd. Class Action and in the absence of any appropriate reason to disqualify the Telfer School, Class Counsel ought to have included a worthy recipient in its cy-près award proposal.
[138] Given the court’s jurisdiction in the case at bar to administer the settlement, I conclude that the award should be made 80% to the the Access to Justice Fund of the LFO and 20% to the Telfer School of Business at the University of Ottawa.
[139] I wish to make it clear, because the case at bar may have implications for other cases about the administration of a settlement agreement, the court will normally not second guess the decision of Class Counsel between worthy and appropriate recipients of a cy-près award. The problem in the immediate case, however, is that Class Counsel’s recommendation was, in effect, a recommendation that the LFO, which in and of itself is a worthy candidate, should decide who are the other worthy candidates.
[140] In the case at bar, Class Counsel did not consider that it could change its original recommendation and accommodate Mr. Roache’s recommendation on grounds of unfairness to other Class Members who did not take the opportunity to express a view. Class Counsel was in no way obliged to change its recommendation and it could have rejected Mr. Roache’s suggestion on the basis that the Telfer School was not sufficiently connected to the purposes of the Carom v. Bre-X Minerals Ltd. class action or on the basis that the Access to Justice Fund would be the better recipient to serve the purposes of a cy-près award in the context of a class proceeding. Had Class Counsel proceeded in that fashion, I would not have second guessed its decision notwithstanding that the court was empowered under the Bresea Settlement Agreement to form its own opinion about allocating the s. 27(d) funds.
[141] Cy-près awards are somewhat controversial, and academics have debated whether and how such awards advance the purposes and public law policies of class actions.[^20] There has been some academic criticism about the transparency and rationale for how courts approve the recipients of cy-près awards. The simple answer is that courts are not in the business of being a grant approving institution and the issue of a cy-près award arises in the context of an adversarial system in which the court is responsive to the submissions of the parties and treats a cy-près award as subject to the same approach and the same principles that apply to the rest of the proposed settlement or to the administration of an approved settlement.
[142] Applying those principles to the case at bar, I conclude that the case at bar is an appropriate case for a cy-près award. I further conclude that the award should be made 80% to the the Access to Justice Fund of the LFO and 20% to the Telfer School of Business at the University of Ottawa.
D. CONCLUSION
[143] For the above reasons and in the manner described above, the Plaintiffs’ motion and the Trustee’s motion are granted. There should be no order as to costs.
Perell, J.
Released: April 23, 2014
COURT FILE NO.: 97-GD-39574CP
COURT FILE NO.: 97-GD-42399
DATE: 20140423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD CAROM, 3218520 CANADA INC., 662492 ONTARIO LIMITED and OSAMU SHIMIZU
Plaintiffs
‑ and ‑
BRE-X MINERALS LTD., BRESEA RESOURCES LTD., now known as SASAMAT CAPITAL CORPORATION, JOHN B. FELDERHOF, JEANNETTE WALSH, Estate Trustee of the Estate of DAVlD G. WALSH, deceased, JEANNETTE WALSH, personally, T. STEPHEN MCANULTY, NANCY JANE McANULTY, JOHN B. THORPE, ROLANDO C. FRANCISCO, HUGH C. LYONS and PAUL M. KAVANAGH
Defendants
AND BETWEEN:
DONALD CAROM, 3218520 CANADA INC., 662492 ONTARlO LIMITED and EUGENE SCHONBERGER
Plaintiffs
– and –
INGRID FELDERHOF and SPARTACUS CORP.
Defendants
REASONS FOR DECISION
Perell, J.
Released: April 23, 2014
[^1]: R.S.C. 1985, c. B-3.
[^2]: R.S.O. 1990, c. B-16.
[^3]: See Deloitte & Touche Inc. v. Felderhof, [2013] O.J. No. 1024 (S.C.J.).
[^4]: See Deloitte & Touche Inc. v. Felderhof, [2013] O.J. No. 1025 (S.C.J.).
[^5]: 2009 ONSC 3573.
[^6]: Skopit v. BMO Nesbitt Burns Inc., 2010 ONSC 6039; Smith Estate v. National Money Mart, 2010 ONSC 1334; Wein v. Rogers Cable Communications Inc., 2011 ONSC 7290; Markson v. MNBA Canada Bank, 2012 ONSC 589.
[^7]: S.O. 1992, c. 6.
[^8]: Durling v. Sunrise Propane Energy Group Inc. (2009), 98 C.P.C. (6th) 48 at paras. 14-29; Sollen v. Pfizer, 2008 ONCA 803, aff’g (2008), 2008 CanLII 8618 (ON SC), 290 D.L.R. (4th) 603 (S.C.J.).
[^9]: Coleman v. Bayer Inc., [2004] O.J. No. 1974 (S.C.J.) at paras. 30-39. See also: Coleman v. Bayer Inc., [2004] O.J. No. 2775 (S.C.J.).
[^10]: Westland v. Ontario Hospital Assn., 2013 ONSC 4631 at para. 7; Durling v. Sunrise Propane Energy Group Inc., [2009] O.J. No. 5969 (S.C.J.) at para. 18; Chopik v. Mitsubishi Paper Mills Ltd., [2003] O.J. No. 192 (S.C.J.) at para. 17.
[^11]: Fantl v. Transamerica Life Canada, [2009] O.J. No. 3366 (S.C.J.) at para. 57; Farkas v. Sunnybrook and Women’s Health Sciences Centre, [2009] O.J. No. 3533 (S.C.J.), at para. 43; Kidd v. Canada Life Assurance Company, 2013 ONSC 1868.
[^12]: See: Fantl v. Transamerica Life Canada, supra at para. 59; Corless v. KPMG LLP, [2008] O.J. No. 3092 (S.C.J.), at para. 38; Farkas v. Sunnybrook and Women’s Health Sciences Centre, supra, at para. 45; Kidd v. Canada Life Assurance Company, supra.
[^13]: Gilbert v. Canadian Imperial Bank of Commerce, [2004] O.J. No. 4260 at paras. 14-15 (S.C.J.); Cassano v. Toronto Dominion Bank 2009 ONSC 3573 at para. 14.
[^14]: Ontario Law Reform Commission, Report on Class Actions, 3 vols. (Toronto: Ministry of the Attorney General, 1982) vol. 2 at p. 573.
[^15]: Cassano v. Toronto Dominion Bank, 2009 ONSC 3573 at paras. 14-49.
[^16]: Cassano v. Toronto Dominion Bank, 2009 ONSC 3573 at para. 17.
[^17]: Markson v. MBNA Canada Bank, 2012 ONSC 5891 at para. 27; Helm v. Toronto Hydro-Electric System Ltd., 2012 ONSC 2602 at para. 11; Elliot v. Boliden Ltd. (2006), 34 C.P.C. (6th) 399 (Ont. SCJ); Serhan v. Johnson & Johnson, 2011 ONSC 128 at paras. 57-59.
[^18]: Sutherland v. Boots Pharmaceutical plc (2002), 21 C.P.C. (5th) 196 (Ont. S.C.J.) at para. 16; Alfresh Beverages Canada Corp v. Hoechst AG (2002), 16 C.P.C. (5th) 301 (Ont. S.C.J.).
[^19]: (Federal Judicial Center, 2010) at p.19.
[^20]: L. A. Bihari, “Saving the Law’s Soul: A Normative Perspective on the Cy Près Doctrine” (2011), 7 Can. Class Action Rev. 293; C. Sgro, “The Doctrine of Cy Près in Ontario Class Actions: Towards a Consistent, Principled, and Transparent Approach” (2011), 7 Can. Class Action Rev. 265; J. Berryman, “Nudge, Nudge, Wink, Wink: Behavioral Modification, Cy près Distributions and Class Actions” in Accessing Justice: Appraising Class Actions Ten Years After Dutton, Hollick & Rumley (Markham, Nexis Lexis, 2011); J. Kalajdzic, “Access to Justice: Revisiting Settlement Standards and Cy près Distributions” (2010), 6 Can. Class Action Rev. 215; E. R. Potter and N. Razack, “Cy Près Awards in Canadian Class Actions: A Critical Interrogation of what is Meant by “as near as possible” (2010), 6 Can. Class Action Rev. 297; J. Berryman, “Class Actions and the Exercise of Cy près Doctrine: Time for Improved Scrutiny in J. Berryman & R. Bigwood, The Law of Remedies: New Directions in the Common Law (Toronto: Irwin Law, 2009; J.C. Kleefeld, “Book Review: The Modern Cy près Doctrine: Applications and Implications by Rachael P. Mulheron” (2007), 4 Can. Class Action Rev. 203; Martin H. Redish, Peter Julian & Samantha Zyontz, “Cy près Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis” (2010) 62 Florida L. Rev. 617.