COURT FILE NO.: CV-09-376927CP COURT FILE NO.: CV-10-411191CP COURT FILE NO.: CV-10-417343CP DATE: 20170707

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH Plaintiffs – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendant

Jody Brown for the Plaintiffs Jasminka Kalajdzic for the subclass in action CV-09-376927CP

Sonal Gandhi and Lisa Brost for the Defendant

AND BETWEEN:

DAVID McKILLOP BY HIS LITIGATION GUARDIAN CHRISTINE VICTORIA GRACE CLARKE Plaintiff – and – HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant

AND BETWEEN:

MICHAEL SHARRON AS LITIGATION GUARDIAN OF MARY ELLEN FOX Plaintiff – and – HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: June 5, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6, Marie Slark, by her litigation guardian Marilyn Dolmage, and Patricia Seth, by her litigation guardian Jim Dolmage, sued Her Majesty the Queen in Right of Ontario (the Crown) with respect to institutional abuse at the Huronia Regional Centre in Orillia, Ontario, which was a centre for students with developmental disabilities.

[2] In a second class action, David McKillop, by his litigation guardian Christine Clarke, sued the Crown with respect to institutional abuse at the Rideau Regional Centre in Smith Falls, Ontario, which was another centre for students with developmental disabilities.

[3] In a third class action, Mary Ellen Fox, by her litigation guardian Michael Sharron, sued the Crown with respect to institutional abuse at the Southwestern Regional Centre in Cedar Springs, Ontario, which was another centre for students with developmental disabilities.

[4] The three class actions settled, and three settlements were approved by Justice Conway in 2013 and 2014, for a settlement fund of $67.7 million. Of this sum, a capped sum of $7 million plus interest was to be distributed as “Strategic Program Investments”. See Slark (Litigation guardian of) v. Ontario, 2013 ONSC 6686 and McKillop (Litigation guardian of) v. Ontario, 2014 ONSC 1282.

[5] The administration of the settlement claims process was completed in September 2016, and approximately $7.45 million remains to be allocated as Strategic Program Investments. The settlement agreements provided that the parties were to consult and try to achieve consensus on the allocation of these funds.

[6] In the action about Huronia, in August 2016, I appointed counsel for a subclass comprised of the Representative Plaintiffs for the sole purpose of representing them in the consultations about the distribution of the funds. Class Counsel’s fees are to be paid out of the Huronia funds subject to court approval.

[7] The parties distributed notice of the available funds and received 80 applications of interest, mainly from organizations that had some expertise and experience providing services or advocating for persons with developmental disabilities.

[8] By this motion, the Plaintiffs seek approval of an allocation of Strategic Program Investment funds to 37 applicants.

[9] The Crown agreed with respect to approximately $4.8 million of the allocation, but disagreed about the proposal to allocate the balance of approximately $2.7 million, which funds it submitted should be allocated to People First of Ontario, an organization specifically identified in the settlement agreements, or as an alternative, the Crown suggests adding to the allocation to be made to the University of Toronto and McMaster University, which made an application for an allocation of Strategic Program Investment funds that was accepted.

[10] For the reasons that follow, subject to certain directions and with some adjustments and disqualifications, I approve the Plaintiffs’ allocation of the Strategic Program Investments. The major changes are the disapproval, in whole or in part, of eight applications totaling $1,804,790, of which $772,973.13 should instead be allocated to the McMaster University project and the balance of $1,031,816.87 being allocated to People First of Ontario.

B. Factual and Procedural Background

[11] Huronia, Rideau, and Southwestern were residential institutions for child and adult students with developmental disabilities. The schools closed in 2009. In the three class actions, the class periods ranged from 1945-2009. In each class action, the Plaintiffs alleged that residents were subjected to systemic abuse.

[12] The Huronia action settled on the first day of trial, and the Southwestern and Rideau matters settled shortly thereafter. The Crown recognized that the model of secluded institutional care for developmentally challenged persons, without any independence or personal autonomy, was deeply flawed.

[13] On December 9, 2013, the Premier of Ontario made a speech of apology in the Legislature. Premier Wynne stated:

Mr. Speaker,

One of a government's foremost responsibilities is to care for its people, to make sure they are protected and safe. And therein lies a basic trust between the state and the people. It is on that foundation of trust that everything else is built: our sense of self, our sense of community, our sense of purpose. And when that trust is broken with any one of us, we all lose something - we are all diminished.

I stand to address a matter of trust before this house and my assembled colleagues, but I am truly speaking to a group of people who have joined us this afternoon and to the many others who could not make it here today. I am humbled to welcome to the legislature today former residents of the Huronia Regional Centre and Rideau Regional Centre in Smiths Falls and to also address former residents of the Southwestern Regional Centre near Chatham, along with all their families and supporters. I want to honour them for their determination and their courage and to thank them for being here to bear witness to this occasion.

Today, Mr. Speaker, we take responsibility for the suffering of these people and their families. I offer an apology to the men, women and children of Ontario who were failed by a model of institutional care for people with developmental disabilities. We must look in the eyes of those who have been affected, and those they leave behind, and say: "We are sorry."

As Premier, and on behalf of all the people of Ontario, I am sorry for your pain, for your losses, and for the impact that these experiences must have had on your faith in this province, and in your government. I am sorry for what you and your loved ones experienced, and for the pain you carry to this day.

In the case of Huronia, some residents suffered neglect and abuse within the very system that was meant to provide them care. We broke faith with them - with you - and by doing so, we diminished ourselves. Over a period of generations, and under various governments, too many of these men, women, children and their families were deeply harmed and continue to bear the scars and the consequences of this time. Their humanity was undermined; they were separated from their families and robbed of their potential, their comfort, safety and their dignity. At Huronia, some of these residents were forcibly restrained, left in unbearable seclusion, exploited for their labour and crowded into unsanitary dormitories.

And while the model of care carried out by this institution is now acknowledged to have been deeply flawed, there were also cases of unchecked physical and emotional abuse by some staff and residents. Huronia was closed in 2009 when Ontario closed the doors to its last remaining provincial institutions for people with developmental disabilities.

Today, Mr. Speaker, we no longer see people with developmental disabilities as something "other." They are boys and girls, men and women, with hopes and dreams like all of us. In Ontario, all individuals deserve our support, our respect and our care. We must look out for one another, take care of one another, challenge ourselves to be led by our sense of moral purpose before all else.

Today, we strive to support people with developmental disabilities so they can live as independently as possible and be more fully included in all aspects of their community.

As a society, we seek to learn from the mistakes of the past. And that process continues. I know, Mr. Speaker, that we have more work to do. And so we will protect the memory of all those who have suffered, help tell their stories and ensure that the lessons of this time are not lost.

[14] The gross settlement for the Huronia action, the Rideau action, and the Southwestern action was $67.7 million. The maximum compensation in each settlement was $42,000 per Class Member. Less than half of eligible Class Members received compensation, and of those who did, many received only the minimum $2,000 payment.

[15] All of the settlements contained a provision whereby unclaimed funds, up to a maximum of $7.7 million dollars, would be allocated cy-près according to Schedule "D" of each settlement agreement, which described the allocations as Strategic Program Investments.

[16] In the Huronia action, the surplus is $4.7 million with no reversion to the Crown, and this sum forms part of the $7.7 million dollars. A portion of the surplus from the other settlements was remitted to the Crown. The Huronia amount continues to accrue in interest and grow toward the maximum available of $5 million. The Rideau and Southwestern amounts have reached their maximum.

[17] The following amounts of Strategic Program Investment funds remain in each of the actions: (a) approximately $4.75 million in the Huronia action (all costs of the subclass counsel retainer will be paid out of this amount and interest will continue to accrue until the maximum amount is reached); (b) $1.7 million in the Rideau action; and (c) $1.0 million in the Southwestern action.

[18] Each Schedule "D" states that the purpose of the Strategic Program Investment fund is to enhance the ability of individuals with a developmental disability to guide and influence decisions affecting them.

[19] There are similarities and differences between the three settlements, which I will identify below, but taken together, the settlement agreements envisioned four categories of recipients of Strategic Program Investment funds; namely:

(1) An allocation to support People First of Ontario to establish strong governance and organizational capacity to represent and support individuals with a developmental disability. (2) An allocation to organizations that offer support to institutional survivors to tell and document their stories. (3) An expansion to funding for Person-Directed Planning which will support individuals with developmental disabilities to build their lives in the community by helping them to identify their life vision and goals, and then find and access services and supports in the community to meet these goals. (4) An allocation to organizations to develop an education and training program to raise awareness of students, family members, service providers, and governmental actors about the history of the [Southwestern Regional Centre][Rideau Regional Centre], the history of institutionalization, and the attitudes, factors and cultural dynamics which contributed to and perpetuated the conditions at Southwestern, and similar institutions, and the harm experienced by some class members while resident there.

[20] A significant difference is that the fourth allocation provision is not a part of the Huronia action settlement.

[21] In each of the settlement agreements, People First of Ontario is the only expressly identified organization for which an allocation may be made for the expressed purpose of establishing strong governance and organizational capacity to represent and support individuals with a developmental disability.

[22] People First of Ontario operates across the province. It was very supportive of the Representative Plaintiffs in advancing the three class actions. As an organization, it has the ability and scope to reach, benefit and empower individuals with disabilities, including Class Members, regardless of where they are in the province. On its website, People First of Ontario describes itself as follows:

People First of Ontario is a provincial organization of men and women labelled with an intellectual disability, supporting each other to reclaim our rights to be recognized as full citizens of Ontario. We do this through: Peer Support; Sharing Our Personal Stories; Developing Leadership Skills; Promoting Our Rights to Choose Where and With Whom to Live; and Making Sure Our Voices are Heard and Respected.

[23] Notice of the cy-près fund availability was distributed, and applicants had four months to apply. The notice advised applicants that successful applicant organizations would be required to, among other things: (a) sign an indemnity to save harmless the Crown from all legal claims made in respect of the allocations of funds; and (b) obtain and maintain in force insurance as is necessary and reasonable to meet its indemnity obligations.

[24] Organizations made up the bulk of the applications. After extensive consultation with Class Members about how to allocate the approximately $7.45 million of the Strategic Program Investment funds, the Representative Plaintiffs selected 37 applicants from 80 projects (worth approximately $37.5 million). The Representative Plaintiffs submit that the 37 applicants meet the legal requirements for a proper cy-près distribution and comply with the spirit and letter of Schedule “D” of the settlement agreements.

[25] In each of the settlement agreements, the parties agreed that they would consult and seek to agree on the specific organizations and specific one-time allocations to each organization. In the Rideau action settlement and in the Southwestern action settlement, if the parties fail to agree on which organizations are to receive allocations, the dispute may be referred to a mediator.

[26] The parties met and conferred on April 19, 2017, but were unable to agree on allocations of the Schedule "D" funds. The settlement agreements do not address what is to happen if the consultation and mediation were not successful, which is what happened.

[27] The Crown does not dispute 19 applications. (I have included Community Living Kingston and District as one of the undisputed applications because the Crown’s concern was technical about a modest ambiguity in the amount requested.)

[28] The Crown also does not oppose the application of People First of Ontario, but it requests that it be increased from $600,000 to $2,975,000, a $2,375,000 increase.

[29] Among the undisputed applications, the Crown accepted four applications provided that additional terms or conditions were added. The Crown’s concern was that certain applicants were not organizations and the applicants wanted for accountability structures to ensure that the funds could and would be used for their designated purposes.

[30] Thus, subject to conditions being added to ensure that there was proper accountability about the use of the funds, the Crown did not oppose the following four applications: (1) Vita Community Living Services; (2) Remember Every Name Art; (3) Project Creative Users - children’s book; and (4) Greg Hoskins. The Crown suggested that these applications would be acceptable if the applicant partnered with an organization that had the capacity to provide oversight and accountability measures.

[31] Among the opposed applications, there were two that, in addition to being opposed on their merits, were also opposed for the absence of accountability structures; namely: (1) Ximena Griscti; and, (2) Tear It Down Collective.

[32] It was also the Crown’s position that funds cannot be allocated to projects whose tenability is subject to approvals or permission outside of the applicant’s control. For this reason and others, the Crown opposes, in whole or in part, the following applications, totaling $2,264,690 (which would be redirected to People First of Ontario):

1. $7,920 (of $69,300) - Community Living Upper Ottawa
2. $69,000 – Root Spring Media
3. $482,200 – Tear It Down Collective
4. $217,000 – Inclusion Press Gathering
5. $35,408 – DAFRS Beatrice
6. $44,000 – L’Arche Toronto
7. $75,000 – YWCA Muskoka Book
8. $500,000 – White Pine Pictures
9. $48,900 – L’Arche Toronto – cemetery memorial
10. $90,000 (of $221,650) – Limestone Family Support Group
11. $248,452 (of $441,100) – Community Involvement Legacy Homes
12. $377,910 – Annabelle Chvostek
13. $62,900 – Ximena Griscti

C. Discussion and Analysis

1. The Law of Cy-Près Distributions

[33] Section 29(2) of the Class Proceedings Act, 1992, provides that a settlement of a class proceeding is not binding unless approved by the court. 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: 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.

[34] In determining whether to approve a settlement, the court, without making findings of fact on the merits of the litigation, examines the fairness and reasonableness of the proposed settlement and whether it is in the best interests of the class as a whole having regard to the claims and defences in the litigation and any objections raised to the settlement: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481 (S.C.J.) at para. 10.

[35] The Class Proceedings Act, 1992, does not expressly provide for cy-près distributions as a part of a settlement, but they are envisioned under the Act as an aspect of distributing a judgment for aggregated damages. Section 26 empowers the court with a broad discretion to distribute an aggregate assessment of damages (available pursuant to s. 24 of the Act) and s. 26(4) states:

(4) The court may order that all or a part of an award under section 24 that has not been distributed within a time set by the court be applied in any manner that may reasonably be expected to benefit class members, even though the order does not provide for monetary relief to individual class members, if the court is satisfied that a reasonable number of class members who would not otherwise receive monetary relief would benefit from the order.

[36] The court’s statutory authority for the distribution of a judgment or settlement award that includes a cy-près award is therefore circumscribed, and it must meet the requirements of s. 29 of the Act and be fair, reasonable, and in the best interests of the class. A cy-près award is 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: Carom v. Bre-X Minerals Ltd., 2014 ONSC 2507 at para. 141. A reasonable number of class members who would not otherwise receive monetary relief must benefit from the order.

[37] From a policy perspective, cy-près awards fulfill the compensatory and access to justice purposes of the Class Proceedings Act, 1992, and they also fulfill the behaviour modification policy goals of the Act.

[38] Cy-près distributions are generally intended to meet at least two of the principal objectives of class actions. They are meant to enhance access to justice by directly or indirectly benefitting class members, and they may provide behaviour modification by ensuring that the unclaimed portion of an award or settlement is not reverted to the defendant: Carom v. Bre-X Minerals Ltd., supra, at para. 123.

[39] A cy-près distribution should be justified within the context of the particular class action for which settlement approval is being sought, and there should be some rational connection between the subject matter of a particular case, the interests of class members, and the recipient or recipients of the cy-près distribution: Serhan Estate v. Johnson & Johnson, 2011 ONSC 128 at para. 59; Markson v. MBNA Canada Bank, 2012 ONSC 5891 at para. 43; Sorenson v. Easyhome Ltd., 2013 ONSC 4017; O'Neil v. Sunopta, Inc., 2015 ONSC 6213 at para. 16.

[40] In Sorenson v. Easyhome Ltd., supra, at para. 30, I stated:

30. Cy près relief should attempt to serve the objectives of the particular case and the interests of the class members. It should not be forgotten that the class action was brought on behalf of the class members and a cy près distribution is meant to be an indirect benefit for the class members and an approximation of remedial compensation for them. However well meaning, the prospect of a cy près distribution should not be used by Class Counsel, defence counsel, the defendant, or a judge as an opportunity to benefit charities with which they may be associated or which they may favour. To maintain the integrity of the class action regime, the indirect benefits of the class action should be exclusively for the class members.

[41] In Alfresh Beverages Canada Corp. v. Hoescht AG, [2002] O.J. No. 79 (S.C.J.) at para. 16, in one of the earliest cy-près decisions, Justice Cumming said that cy-près awards serve the important policy objective of general and specific deterrence of wrongful conduct. The theory is that the reversion of surplus settlement funds to the defendant does not further the deterrence function of class actions. Both the deterrence and the compensation goals of class actions are furthered where the monies are used in a manner that closely approximates the nature of the underlying action, and that aligns with the interests of the class members themselves.

2. The Crown’s Prioritization Submission and its Concerns and Objections

[42] In the allocation scheme promoted by Class Counsel and by the Representative Plaintiffs for the $7.45 million of Strategic Program Investment funds, $600,000 has been allocated to People First of Ontario, which had made a request for funding of $6 million.

[43] The Crown, however, submits that $4.8 million of the allocation of Strategic Program Investment funds be distributed to the projects to which it does not object and then the balance of approximately $2.7 million should be allocated to People First of Ontario, which would thus receive $2,975,000.

[44] It is the Crown’s position that more funds ought to be allocated to People First of Ontario, because funding this organization will provide a meaningful opportunity for individuals to express themselves, speak for themselves, empower themselves, and advocate for themselves and this allocation conforms with the directives of Schedule “D” of the settlement agreements.

[45] As an alternative to People First of Ontario, the Crown submits that the proposal received jointly from the University of Toronto and McMaster University, with involvement from CAMH, Bethesda Services and Surrey Place Centre, best fulfils the purpose of the Strategic Program Investment funds. The purpose of this application is to expand the tools to be used by medical educators to better serve individuals with disabilities and to provide individuals with developmental disabilities with a direct voice in the manner in which they receive health services. Under the proposed project, 19 to 34 individuals with developmental disabilities would be hired to create programs to be used to train medical professionals on how to best serve individuals with developmental disabilities. They trainees would be directly involved in the design of the training materials to determine what tools are most meaningful to their peers and the trainees would become educators to deliver training to both healthcare educators and other individuals with a disability. The applicants had requested $934,696.13 for a three-year program, but Class Counsel and the Representative Plaintiffs approved $161,723. (The difference is $772,973.13.)

[46] In addition to privileging the application of People First of Ontario or McMaster University, the Crown has raised four concerns or objections to the distribution scheme proposed by Class Counsel and the Representative Plaintiffs in the three actions.

[47] First, the Crown submits that several of the applicants are not organizations or legal entities known to law and that they lack accountability structures that will ensure that the Strategic Program Investment funds will be properly used.

[48] Second, the Crown is concerned that too many of the approved applications; i.e. ten applications with a value of $2 million, seem to have involved the support or patronage of the two Representative Plaintiffs in the Huronia action, their litigation guardians, the Dolmages, or a family member of the litigation guardians; that is, the Crown is concerned about the applications of: Huronia Speakers Bureau; Recounting Huronia; Authors for Justice; Project Creative Users; McMaster University; YWCA Muskoka Book; White Pine Pictures; Tear It Down Collective; and Remember Every Name. The Crown does not oppose four of these applications, which total $770,805, but it submits that the extent of the funding sought for the balance of the applications raises concerns.

[49] Third, the Crown objects that four of the applications totaling $381,780 contemplate the use of Strategic Program Investment funds for the direct benefit of individual Class Members; visualize: (1) the DAFRS application for $35,408 is to be used to provide supports and services to a single former Huronia resident; (2) $90,000 of the $221,650 Limestone Family Support Group application is earmarked for a single person; (3) $7,920 of the $69,300 application of Community Living Upper Ottawa is earmarked for rent supplements for two Rideau Class Members over a three-year period; and (4) $248,452 of the $441,100 application of Community Involvement Legacy Homes is to provide individualized support services to five Class Members.

[50] Fourth, the Crown opposes four of the applications totaling $1,423,010 designed to fund proposals from filmmakers or other artists; i.e., the Crown opposes that: (1) $62,900 be allocated to Ximena Griscti for 30 photographic studio portraits of former Huronia, Rideau, and Southwestern residents accompanied by one paragraph of text; (2) $500,000 be allocated to White Pine Pictures, a film production company to produce a film based on the filmmaker’s experience of having had family members at Huronia; (3) $482,200 be allocated to Tear It Down Collective, an arts organization to create various works; and (4) $377,910 be allocated to Annabelle Chvostek, a musician, to create music with some involvement of some Class Members.

[51] The Crown submits that these projects do not fit within the criteria of Schedule “D” and to the extent that these projects appear to contemplate some individual Class Members relating their experiences at the facilities, the Crown has already agreed to allocations of funds to organizations that offer support to Class Members to directly tell, convey and document their stories, from their perspectives. While the Crown agrees that there is value in projects that permit Class Members to tell and document their stories, it is the Crown’s position that it would be inappropriate to allocate a disproportionate share of available funds to projects of this type. It submits that there are already $2,529,660 worth of projects that involve storytelling and the sharing of Class Members’ experiences.

3. Discussion

[52] I can begin the discussion by addressing the Crown’s first concern, about the absence of accountability structures for four applicants that it did not oppose and of two applicants that it did oppose.

[53] I disagree with the Crown that several applicants are not legal entities or organizations encompassed by the settlement agreements. Legal entities include for-profit and non-profit organizations, but sole proprietorships and partnerships are also encompassed by the settlement agreements, and these entities are capable of having accountability structures.

[54] The Crown suggested that its concern about accountability structures could be addressed by the impugned applicant partnering with an organization that did have an accountability structure. I, however, have an alternative approach that adequately addresses the Crown’s concerns.

[55] I direct the already in place Administrator of the settlements, Crawford Class Action Services, to release the Strategic Program Investment funds only in accordance with the distribution scheme approved by the court and that any funds that cannot or that are not released within one year of the date of these Reasons for Decision be added to the sums to be paid to People First of Ontario.

[56] This direction will ensure accountability, and it will address any problems that may arise if a project cannot be implemented. For example, Remember Every Name’s funding is to be used to erect art on the cemetery at Huronia but necessary permissions may not be forthcoming for this project. Other projects may have similar problems arising from the facts that the institutions have closed and property has been sold to new owners. The Administrator, however, can address these problems before releasing funds and determine whether funds can be properly released to the applicant and whether other preconditions, including indemnities and insurance, have been satisfied.

[57] I further direct that the content of notification letters and other communications to recipients of Strategic Program Investment funds shall be agreed upon between the parties or directed by this court and such communications shall be delivered by Crawford Class Action Services.

[58] I further direct that if, after the proper distribution of Strategic Program Investment funds and the payment of counsel fees and the administrator fees and expenses, there are any remaining funds, then those funds be paid to People First of Ontario.

[59] Turning to the Crown’s second concern or objection, I see no cause for concern about the involvement of the Dolmages and the Representative Plaintiffs from the Huronia action, which as it happens, has the greater portion of the Strategic Program Investment funds to allocate. The Dolmages have been champions for the Class Members, and their exemplary and commendable involvement has simply continued into the process for the distribution of the Strategic Program Investment funds.

[60] As for the Crown’s third concern or objection that four of the applications, totaling $381,780, contemplate the use of Strategic Program Investment funds for the direct benefit of individual Class Members, commendable and as useful as this allocation may be to address hardships and individual cases of genuine need, I agree with the Crown that these allocations cannot be approved.

[61] This is not a matter of correcting an unfairness to other Class Members. I suspect that the other Class Members do not or would not object to these allocations, but cy-près awards are not meant to benefit individual class members or to treat some class members differently than others. Cy-près awards are designed for a collective purpose and to deal with a general problem that arises after the compensatory part of a distribution scheme has run its course.

[62] If there are surplus funds that are not to be returned to the defendant, then the parties are free to negotiate top up payments to individuals or additional compensatory allocation scheme as a part of the general distribution scheme, but if they negotiate a cy-près award, then it is a collective purpose that governs, not individualized compensation awards.

[63] I, therefore, do not approve of these particular allocations, and I direct that the $381,780 be added to the existing allocation ($161,723) being made to People First of Ontario.

[64] Turning to the fourth and last of the Crown’s concerns, the Crown opposes several of the applications totaling $1,423,010 designed to fund proposals from filmmakers or other artists.

[65] I agree with the Crown that having regard to other allocations that address storytelling and capturing the shameful history of Huronia, Rideau, and Southwestern, it is not fair, reasonable or in the best interests of the class as a whole to allocate these funds as proposed by Class Counsel and the Representative Plaintiffs. In my opinion, it would be in the best interests of the class and better reflect the terms of the settlement agreements to allocate $772,973.13 of these funds to the McMaster University project and to allocate the balance of $650,036.87 to People First of Ontario.

D. Conclusion

[66] Orders accordingly.

[67] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Class Counsel and the Representative Plaintiffs within 20 days of the release of these Reasons for Decision followed by the Crown’s submissions within a further 20 days.

Perell, J.

Released: July 7, 2017