Carom v. Bre-X Minerals Ltd, 2014 ONSC 2507

On April 23, 2014, Perell J., of the Ontario Superior Court, released his reasons on a series of motions and cross-motions in the Bre-X class action proceedings.

The issue facing Perell J. was how to dispense the money from the Settlement [for more background on these motions and the Settlement, click here] as the amount of Settlement funds available was less than the amount required to facilitate distribution and that distribution would therefore be impracticable. Class counsel proposed a cy-pres distribution whereby the funds would be given to a charitable institution related to either the class members or issues in the action. Class counsel proposed donating the money to the Access to Justice Fund operated by the Law Foundation of Ontario (“LFO”) which would then distribute the funds to various organizations.

In a surprising decision, Perell J. disagreed with class counsel’s recommendation and instead consented to one class member’s proposal that the funds be given to the University of Ottawa where the class member was a member of the faculty. He noted that class counsel has an obligation to consider the wishes of individual class members in requesting acy-pres award and that in the present case, the Telfer School at the University of Ottawa was the only specific recipient put forward. Accordingly, Perell J., noting that class counsel did not suggest that  the University of Ottawa was an unworthy candidate, determined that as it reflected the wishes of one of the class members, the funds should be distributed accordingly.