The Battle of Brittin: Local Merchant “Wins” Saskatchewan’s First Carriage Motion


This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Following the loss or theft of student loan data in late 2012, the Federal Government faced a bevy of proposed class actions. The Merchant Law Group commenced actions in multiple jurisdictions, including an action in Saskatchewan on behalf of Nicole Brittin. On behalf of Gaelen Condon, the Branch McMaster firm issued a claim in the Federal Court and eventually became part of a consortium of other firms who had commenced similar actions in various jurisdictions across Canada.  The Merchant Law Group was not part of the consortium.

In 2013 both the consortium and the Federal Government moved in Saskatchewan to strike or stay the Brittin action pending the outcome of the consortium’s motion for certification in the Federal Court. The Court denied aspects of this motion and deferred the rest until the Brittin certification motion. The Brittin action thereafter continued to proceed towards certification, as did the consortium’s action in the Federal Court.

Although it was not known at the time, shortly before the stay motion, Branch McMaster had made a “protective filing” and issued another proposed student loan class action in Saskatchewan on behalf of Melinda Hortsman. After the stay motion, Ms. Horstman eventually made her presence known, at which time the consortium asserted they should have carriage in Saskatchewan. As a result, the Brittin certification motion was deferred to deal with the carriage issue.  The Federal Court action proceeded and certification was granted in a March 17, 2014 decision reported at 2014 FC 250.

Justice Schwann heard the carriage motion and awarded carriage to the Merchant Law Group in an April 17, 2014 decision reported at 2014 SKQB 114. Interestingly, despite noting the law in a carriage contest is a “comparative exercise” of the “strengths and weakness” of the competing law firms,  the overriding basis of her decision to award carriage had nothing to do with any characteristics of the Merchant Law Group itself. Schwann J.’s decision rested on the strategic plan of Ms. Horstman and her counsel to leave the Saskatchewan action in abeyance if granted carriage. They argued it was more efficient and beneficial to continue with the certified action in the Federal Court which already covered all eligible Saskatchewan residents. Justice Schwann approached the matter from the perspective of the adequacy of the representative plaintiff. Ms. Horstman could not “vigorously and capably prosecute the interests of the class” in Saskatchewan if she did not intend to advance the action.  Furthermore, the Court concluded the duties of a representative plaintiff, ” cannot be delegated to another party who is not otherwise answerable to this Court.”

However, the Court’s award  of carriage is qualified given its conclusion that the Merchant Law Group must “face the reality” of the certification in the Federal Court. As a result, the Merchant Law Group only assumes carriage to the extent that the Brittin action is different from the certified Federal Court Action.  Therefore, the Merchant Law Group does not have carriage of any cause of action certified in the Federal Court which overlaps with the Brittin action. The old adage, “a win is a win” may not hold true in these circumstances.