Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a r c h 2 0 1 4 21 be achieved in the settlement context as well. I wasn't sure, and I'm still not sure, that I'm seeing [that]." There is a movement to implement post-settlement monitoring and report- ing to ensure the terms of the settlement are complied with. And that discus- sion often includes involving the judge in overseeing the settlement process. "I think we need judges to police the lawyers," says Ward Branch, founding partner of Branch MacMaster LLP in Vancouver, who has been involved in 150 class actions, acting in an equal number of cases for both sides. "The only people who can make us do a better job are the judges." In his 2011 paper, "Take-Up Rates: The Real Measure of Access to Justice" co- authored with Greg McMullen and pre- sented to the Osgoode Symposium on Class Actions, he examines why it is the majority of class members do not make settlement claims and attempts to identify solutions. Simplification should be part of the approach following a settlement, he con- cludes. He suggests the claim form should be short, simple, and in plain English. It could also involve technology — offering the form online makes it more accessible, for instance. There are situations where claimants need not be burdened with the task of filling out a form at all. He also suggests newspaper ads to provide notice to claimants are no longer good enough. Technology can be helpful in locating claimants in the post-settle- ment process. A settlement administrator can help identify venues online and else- where to target potential class members. The defendant's database might well be a logical place to start. In the veterans' pension class action, Manuge v. Canada, the veterans had been receiving pen- sions — just not the correct amounts. In that situation, the list of veterans already receiving pensions was retrieved, retroac- tive cheques were drafted following the settlement decision, and sent by mail. There was no need for claim forms at all. "The lesson is, if you have a list, use it," says Branch, adding simplification, in both the process and the form where lists aren't available, will likely result in an increased percentage of class members benefitting from the settlement. Warren Winkler, both as Ontario's chief justice as well as recently in retire- ment, has been outspoken about what happens following class settlements. In hearing the class action involving Indian Residential Schools in Baxter v. Canada (Attorney General) in 2006, he required financial information about the admin- istration of the settlement and claims procedure be provided to the court for approval. "The court must be vigilant in scrutinizing the settlement, and in particular, its claims resolution and dis- tribution mechanism, to ensure that the interests of the absent class members who are being bound by the settlement will be adequately protected," Winkler wrote. A web site was created by Aboriginal Affairs and Northern Development Canada displaying the breakdowns of the payments made to class members as well as related statistics and updates in an attempt to make it transparent. Class action cases and class members could be quite different from one to the next, and the technology available to help reach class members may well develop further. Post-settlement approaches do differ from one case to the next. "We really try to tailor the notice program in each case," says Garth Myers, an associate in the litigation group at Koskie Minsky LLP who works primarily on class pro- ceedings. In The Trustees of the Labourers' Pension Fund of Central and Eastern Canada v. Sino-Forest Corp., where it was alleged the company materially overstat- ed the size and value of its forestry assets and its revenues, class members were shareholders. Myers' team tried to reach them by approaching brokers in Canada and the United States and asking them to circulate letters to clients they knew traded in Sino-Forest shares. In Dolmage v. Ontario, the Huronia Regional Centre settlement, class members were people with intellectual disabilities. Again, Myers turned to those people most likely to have contact with the class members — organizations that work with people with intellectual disabilities. In both cases, the court appointed an administrator to assist with carrying out the settlement. That allows someone with the expertise of using different means to reach out to class members to work effi- ciently, a task Myers suggests would be overwhelming for a law firm. The role of technology continues to evolve along with the process. Where possible, Myers keeps class members updated through e-mail and Twitter feeds. "Technology has made commu- nication with class members easier and cheaper," he says. "It's getting increasingly effective as time goes on." Scott Kugler, a partner at Gowling Lafleur Henderson LLP's Toronto office where he serves as leader of the firm's class actions group, points out there are situations where the amount pay- able to class members is too small to be distributed efficiently. In those situ- ations courts will carefully consider the selection of cy près recipients, often a charitable organization that best reflects the cause of the beneficiaries. Although that process, too, has limitations. "In Sorenson v. Easyhome Ltd., the court refused to approve a cy près beneficiary despite the fact that the distribution would benefit class members because the cy près beneficiary was a pro bono client of class counsel," says Kugler. But he points out courts are becom- ing increasingly insistent the proceeds of the settlement are actually paid to class members. "You want the objectives to be achieved in the settlement context as well. i wasn't sure, and i'm still not sure, that i'm seeing [that]." CAtherINe PIChé, université de Montréal

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