Cy-Pres Awards: Achieving The Goals Of Class Actions?

In the first set of class action decisions handed down by the Supreme Court of Canada, the Court stated that the advantages of class actions are "access to justice", "judicial economy" and "behaviour modification".¹  These advantages, often described as the goals of class actions, have been used in innumerable class action decisions since 2001.  It remains difficult to say what role these advantages or goals really play in class actions.

A case in point is the phenomenon of cy-pres awards.  Cy-pres ("as near as") awards are used when it is too costly, or impossible, to identify all members of a class or to distribute a settlement fund directly to class members.  In such a situation, settlement funds are instead paid to a third party, usually a charity or foundation, with some connection to a class.  There has been controversy in the selection of charities and how closely connected (or not) they are to the class.