Docket:
T-132-13
Citation: 2013 FC 1289
Ottawa, Ontario, December 27, 2013
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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GAELEN PATRICK CONDON
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REBECCA WALKER AND
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ANGELA PIGGOTT
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Plaintiffs
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and
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ATTORNEY GENERAL OF CANADA
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Defendant
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REASONS FOR ORDER AND ORDER
(Order rendered
orally on December 17, 2013)
[1]
On December 13, 2013, Ms. Nicole Brittin [the
Proposed Intervener], through her counsel, the Merchant Law Group LLP
[Merchant], filed a Notice of motion to intervene in the present Motion for
certification of a class action. In the proposed class action, first filed
before the Court on January 18, 2013, the plaintiffs, represented by a
consortium of counsel, are seeking compensation for damages allegedly sustained
as a result of the loss of an external hard drive, by the defendant
representing the Government of Canada, and more particularly the Minister of
Human Resources and Skills Development Canada, which contained the personal
information of 583,000 Canadian Student Loan Program participants [the Class]. These
participants are residents of every Canadian province save for Quebec.
[2]
In her motion, dated December 9, 2013, the Proposed
Intervener is asking the Court to acknowledge that, as the proposed representative
of the Class in a similar action instituted before the Court of Queen’s Bench
for Saskatchewan, Nicole Brittin v The Minister of Human Resources and Skill
Development Canada and The Attorney General of Canada, Saskatchewan Q.B.
No. 107 of 2013 [the Brittin Action], she has standing as of right to be
heard in the present proceedings on the issues of the scope of certification
and the differences between the two class actions.
[3]
Ms. Brittin notes that she is presently being
served with all filed court materials in a second proposed class action
currently before the Court of Queen’s Bench for Saskatchewan, brought by the
plaintiffs’ counsel (Melinda Horstman v Her Majesty The Queen in Right of
Canada, Saskatchewan, Q.B. No. 1283 of 2013) [the Horstman action].
[4]
In the alternative, should the Court find that
she does not have standing as of right before it, she is asking for an order:
•
Granting her leave to intervene pursuant to Rule
109 of the Federal Courts Rules [the Rules] in order to present
submissions on points of law and facts “especially with respect to the
aforementioned Saskatchewan class action pursued by [her] […] and the conduct
of Plaintiff’s counsel in provincial court”;
•
That she be deemed a party but not be subject to
any order for costs pursuant to Campbell v Canada (Attorney General),
2012 FCA 45;
•
That she be served with all materials already
filed and those to be filed by the parties before the Court;
•
That, should this Court grant certification, Saskatchewan residents be excluded from the Class so that the Brittin Action may proceed to
certification.
[5]
As indicated above, the present proceedings were
first brought before the Court on January 18, 2013. As the judge overseeing its
special case management, I scheduled, during a conference call held on April
15, 2013, the certification proceeding to be heard in Toronto on December 17
and 18, 2013.
[6]
The Proposed Intervener was informed of this
hearing date during the first week of June 2013, yet she has failed to provide
a proper explanation as to why she has waited until the week before the hearing
to file her Notice of motion to intervene.
[7]
In her affidavit, sworn on December 9, 2013, the
Proposed Intervener brings three issues to the Court’s attention in order to
justify her intervention before it:
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First, she questions the appropriateness of the
plaintiffs’ counsel’s conduct in the two proposed Saskatchewan class actions.
She alleges that they presented a motion to stay the Brittin Action without advising
the presiding judge that, on July 9, 2013, three days prior to the hearing of that
motion, they had instituted their competing Horstman action. As a result, she
declares herself “suspicious of their intentions” before this Court;
•
Secondly, she goes on at great length as to how Merchant
has extensive experience with regard to managing class actions. Moreover, and
unlike the plaintiffs’ counsel, Merchant has offices in Saskatchewan. Without
properly substantiating her remarks, she is of the belief that Merchant will
provide more effective representation of the Class than plaintiffs’ counsel
will. She also fears that the defendant’s counsel is working in tandem with the
plaintiffs in order to stay the Brittin Action, as this has transpired in the eight
other proposed class actions before the provincial Superior Courts, which have
been stayed pending the result of the certification before the Court;
•
Thirdly, she was informed by her counsel that the
Court of Queen’s Bench for Saskatchewan is a preferred forum for this action as
the laws of Saskatchewan – the provincial statutes and common law, as well as
equity– provide for remedies otherwise unavailable in the Federal Court.
[8]
Pursuant to the Rules, the Proposed Intervener
does not have a standing as of right to be heard in the present proceedings.
The issues on which she seeks to be heard (the carriage of justice and the
proposed certification in Saskatchewan) are not relevant to the pending
certification hearing, as expressed in the criteria set forth in Rule 334.16 of
the Rules.
[9]
Meanwhile, in her Notice of motion to intervene and
in her affidavit, the Proposed Intervener does not indicate how her
participation in this file would assist the Court in the determination of
factual or legal issues relating to certification (Rule 109 of the Rules).
Rather, she seeks to convince the Court that her counsel would better represent
her interests and those of the Class members from Saskatchewan, and that the Court
of Queen’s Bench for Saskatchewan is a preferred forum for this national class
action, as the Brittin Action also proposes certification on behalf of a
national class.
[10]
This Court has clear jurisdiction to hear a class
action brought by a national class against the federal government. With all due respect for the contrary
opinion, it is also the preferred forum to hear this matter. The present Motion
for certification brought by the plaintiffs was instituted before January 21,
2013 when the statement of claim for the Brittin Action was brought before the
Court of Queen’s Bench for Saskatchewan. It has been specially case managed
since then, with a clear schedule set out and followed by the parties. Both
parties have provided the Court with comprehensive and well argued submissions
with regard to certification. Considering these developments, if this Court was
to exclude the class members from Saskatchewan, and perhaps in the future
exclude class members of other provinces based on similar reasons, then it
would inexplicably lose its jurisdiction over the matter.
[11]
In this light, even the Proposed Intervener
should recognize that it is completely understandable that the defendant prefers
to defend one class action before this Court rather than eight similar class
actions before different forums, with the risk of inconsistent rulings such a
situation could bring.
[12]
Moreover, when asked what rights and/or remedies
were available under the laws of Saskatchewan, which are otherwise unavailable in
other Canadian jurisdictions (including that of the Court), counsel acting on
behalf of the Proposed Intervener for the purpose of her motion could not provide
the Court with an answer, as he is not a member of the Saskatchewan Bar.
Counsel for the plaintiffs suggested that, as this argument was also submitted before
the Court of Queen’ Bench for Saskatchewan, the Proposed Intervener is likely referring
to Saskatchewan’s Privacy Act, RSS 1978, c P-4, which provides punitive
damages for an intentional violation of a privacy right. However, unlike what
they had pled in their Consolidated Statement of Claim, the plaintiffs no
longer submit before the Court that the defendant intentionally violated their privacy
as such a finding would not be supported by the facts here.
[13]
Furthermore, the judges of this Court routinely
apply provincial common law and civil law, as well as provide equitable
remedies when required. In fact, I note that plaintiffs in this case are
relying on certain provisions of the Civil Code of Québec - even though none of
the class members are Québec residents - simply because the external hard drive
was lost in Gatineau, Québec. The question as to whether or not these
provisions apply to the proposed class action will require an analysis based on
Quebec’s private international law.
[14]
In a certification hearing, the Court is
concerned with the identity of the proposed class representative, his or her
ability to represent the best interests of the class members, and the absence
of conflicts of interest. The Court is not concerned with any kind of “beauty
contests” between competing counsels seeking to certify their respective class
actions. It is not the role of the Court to assess which counsel is most
experienced and competent to represent the plaintiff(s) in a class action. While
the Proposed Intervener suggests that the plaintiffs do not adequately
represent her interests, she nonetheless has alleged the same negligent conduct
on the part of the defendant and, aside from the issue of punitive damages as
noted above, seeks similar compensation for damages allegedly suffered as a
consequence. As a result, I fail to see how the plaintiffs cannot fairly and
adequately represent her interests or those of other Saskatchewan Class
members, as is required by Rule 334.16(1)(e)(i).
[15]
Furthermore, if counsel for the plaintiffs acted
inappropriately before the Court of Queen’s Bench for Saskatchewan, then it behoves
that Court to remedy counsel’s conduct. I note, however, that their conduct has
been appropriate before this Court.
[16]
Sadly, the Proposed Intervener’s motion has
consumed valuable time at the hearing and has shifted the debate away from the
three objectives of a class action proceeding, which are favouring i) access to
justice, ii) judicial economy and iii) behaviour modification (on the defendant’s
part).
[17]
For these reasons, the Motion to intervene will
be dismissed, with costs in favour of both the plaintiffs and the defendant.
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