THE ADVOCATE 419
VOL. 77 PART 3 MAY 2019
recent B.C. class action lawsuits were used to support the Law Foundation’s
Child Welfare fund in the creation of the Child and Youth Legal Centre and
Access Pro Bono.
The remaining fifty percent of funds
The amended Class Proceedings Act effectively preserves the discretion of
the court to select appropriate recipients for the remaining fifty percent of
undistributed funds on a cy-pres basis. Here, the courts will be free to disburse
these funds directly to organizations addressing harms or serving
interests aligned with the nature of the class action on a case-by-case basis.
Presumably, the court will continue to hear submissions and recommendations
from counsel and other interested parties or potential recipients to
identify suitable recipients. The legislation also provides that this portion of
undistributed funds can be disbursed to the Law Foundation of British
Columbia at the discretion of the court.
Exemption for class actions addressing harms to Indigenous people
The new legislative scheme for undistributed awards includes an exemption
for class proceedings addressing “damage or loss suffered primarily by
Indigenous people of Canada”. In these cases, the legislation will not direct
the court to pay the presumptive fifty percent portion of any undistributed
funds to the Law Foundation of British Columbia. Instead, one hundred percent
of these funds will remain available for distribution on a case-by-case
basis at the discretion of the court so that this funding can be directed to
programs and initiatives specifically benefiting Indigenous peoples, ideally
with active input from Indigenous peoples themselves.
Like much litigation, class action lawsuits settle far more frequently than
they go to trial. To increase the access-to-justice-enhancing aspects of the
new scheme for undistributed funds, the recent amendments, including the
exemption, also specifically apply to class actions resolved by way of settlement.
This may simply codify common practice by signalling that settlement
funds that are not distributed to class members directly ought to be
distributed to recipients capable of providing some form of indirect benefit.
In this case, the Law Foundation of British Columbia will provide those indirect
benefits through one or more of its many programs or initiatives. Specific
reference to settlement funds will also provide more structure and
guidance for courts, which is consistent with the underlying purposes of
class action legislation.
In some class actions, parties may decide to distribute a portion of an
agreed settlement amount to recipients other than class members. For