Recently it has become apparent that a troubling trend is developing in the use of cy pres remedies in class actions cases. This paper offers a critical interrogation of what is meant by “as near as possible” in cy pres awards by exploring the use of settlement funds in Canadian class actions. Using a comparative analysis of the use of different types of cy pres awards and the extent to which they achieve the class actions objectives — judicial economy, access to justice, and behavior modification — this paper provides a comprehensive understanding of the doctrine’s use in class actions. Two alternative methods of implementing the doctrine, informed by a more thorough understanding of the use of cy pres in class actions, are presented. In conclusion, the authors acknowledge that no settlement is perfect, but this does not mean that the courts should sit idly by while such inappropriate cy pres settlements continue to be negotiated. Instead the authors encourage the courts to reconsider the recent, troubling trend and instead seriously consider the regulatory nature of class actions and the ways in which granting the award can serve a regulatory purpose, as well as the underlying objectives of class actions in general. All this is to ensure that cy pres can continue to offer a class actions remedy “as near as possible” to the ideal remedy.
Potter et al. (Wed,) studied this question.