Return to Sender: ONCA Dismisses Appeal of Consumer Protection Class Action Certification in Robson v Federal Express Canada Corporation

In Robson v Federal Express Canada Corporation (“Robson”),[1] the Court of Appeal for Ontario dismissed the appeal of the certification of a consumer protection class action against Federal Express Canada Corporation and related companies (“FedEx”).

This article begins with a summary of the plaintiff's claim and the certification decision of the motion judge. The article then summarizes the Court of Appeal’s decision, identifying key aspects of the Court’s analysis of the cause of action, common issues, and class definition criteria. The decision suggests that Ontario may be a well-suited venue for consumer protection class actions against parcel delivery companies, as compared to British Columbia and Quebec, where similar cases have proven unsuccessful.[2]

(a) Background

(i) The Claim

In Robson, the plaintiff alleges that FedEx charges fees for unsolicited services to consumers who ship goods into Canada and misleads consumers about the nature of those fees.

The claim addresses transactions in which a consumer purchases and imports goods from a vendor abroad, and FedEx delivers the purchased goods to the consumer in Canada.[3] Upon delivery, FedEx sends the consumer an invoice, which includes charges for a “Clearance Entry Fee” and “Advancement Fee”, among others (the “Unsolicited Service Fees”).

The plaintiff alleges that FedEx misleads consumers to believe that the Unsolicited Service Fees are customs-related fees imposed by the government that FedEx has paid on the consumers’ behalf. It is alleged that, in reality, FedEx charges these fees in exchange for arranging customs clearance of the goods in question. The plaintiff alleges that consumers do not request such services from FedEx (and could arrange for customs clearance on their own behalf), nor do they agree to the amount FedEx charges.

The claim seeks remedies for breaches of Ontario’s Consumer Protection Act, 2002 (“CPA”),[4] including section 13 (charging fees for unsolicited services) and sections 14, 15, and 17 (engaging in unfair practices of false, misleading, deceptive and/or unconscionable representations), as well as for unjust enrichment.

(ii) The Motion Judge’s Decision

On October 8, 2024, Justice Morgan granted the plaintiff’s certification motion.[5] He rejected FedEx’s argument that the CPA was not applicable because the relevant contract was entered into between FedEx and the vendor, not the consumer. While this argument had succeeded in a similar case in Quebec, Perry-Fagant v Federal Express Canada Corporation (“Perry-Fagant v FedEx”)[6], Justice Morgan distinguished that decision on the basis of differences between Quebec and Ontario’s consumer protection laws, and found that the legal relationship between FedEx and the consumer fell “within the CPA’s ambit” such that the claim disclosed a cause of action.[7]

Justice Morgan certified a class definition that included consumers from 2016 to present, declining to shorten the class period to reflect the presumptive two-year limitation period.[8] Having found that the claim discloses a cause of action, Justice Morgan also concluded that the plaintiff had satisfied the remaining certification criteria.[9]

(b) The Court of Appeal’s Decision

FedEx appealed Justice Morgan's decision with respect to three certification criteria: (i) cause of action, (ii) common issues, and (iii) class definition.

(i) The CPA Could Apply to FedEx’s Dealings with the Class

Justice Favreau, writing for the Court, rejected FedEx’s argument that the motion judge erred in finding that the CPA could apply to FedEx’s relationship with the class. Much like the motion judge, the Court found that there were “notable differences” between the consumer protection laws of Quebec and Ontario such that Perry-Fagant v FedEx was not “determinative or even persuasive” on the issue of the applicability of the CPA.[10]

Reading sections 1 and 2(1) of the CPA,[11] the Court found that even if the contract was entered into between FedEx and the vendor outside of Ontario, it would still be possible that FedEx “conduct[ed] business or other dealings” with class members such that the CPA applied.[12]

At the same time, the Court referred favourably to Wright v United Parcel Service Canada Ltd (“Wright v UPS”)[13], in which Justice Horkins found that a similar class proceeding disclosed a cause of action under sections 13-15 of the CPA.[14]

The Court of Appeal in Robson arrived at a similar result, affirming the motion judge’s holding that the plaintiff’s claim disclosed a cause of action under sections 13-15 of the CPA. While the Court acknowledged that FedEx may have good defences to these claims, it held that those defences should be decided on a proper evidentiary record, not in the context of the reasonable cause of action test at certification.[15]

(ii) Variance in Representations Does Not Prevent the Certification of Misrepresentation Common Issues

Justice Favreau also rejected FedEx’s argument that the motion judge erred in certifying common issues related to unfair practices and misrepresentations (sections 14 and 15 of the CPA) because class members would have had different communications with the vendor and/or FedEx. FedEx relied in part on a decision of the Supreme Court of British Columbia in another parcel delivery class action, Vallance v DHL Express (Canada), Ltd (“Vallance v DHL”)[16], in which the Court refused to certify a misrepresentation common issue because different class members were exposed to different representations.[17]

Again, the Court of Appeal distinguished Vallance v DHL on the basis of differences between British Columbia’s and Ontario’s consumer protection laws. While the British Columbia Business Practices and Consumer Protection Act “requires the plaintiffs to establish a causal link between the impugned practice and a pecuniary loss,” Ontario’s CPA has no such requirement.[18] At least in Ontario, at the certification stage, “the existence of other communications does not undermine the commonality of the issues in the unfair practices claim.”[19]

(iii) Where Discoverability Is an Issue, the Class Period Should Not Be Narrowed by the Presumptive Two-Year Limitation Period

Lastly, the Court of Appeal upheld Justice Morgan’s decision to certify a class definition extending beyond the presumptive two-year limitation period. Justice Favreau reiterated that “where the resolution of the limitation issue depends on a factual inquiry, such as when the plaintiff discovered or ought to have discovered the claim, the issue should not be decided on the motion for certification.”[20] Because the claim in Robson raised discoverability issues (due to the allegations of undisclosed fees and misrepresentations), the longer class period was appropriate.[21]

Of note is the Court’s negative treatment of Bernstein v Peoples Trust Company, in which Justice Perell narrowed the class to people whose claims fell within the basic limitation period. He did so to avoid a conflict between class members whose claims were and were not presumptively statute-barred.[22] The Court of Appeal rejected this line of reasoning, as any such conflict between class members can and should be resolved by the creation of subclasses.[23]

(c) Conclusion: Ontario May Be Well-Suited for Consumer Claims Against Parcel Delivery Companies

In its analysis of both the cause of action and common issues criteria, the Court of Appeal declined to apply cases from British Columbia (Vallance v DHL) and Quebec (Perry-Fagant v FedEx) due to differences in the provinces’ consumer protection laws. At the same time, the Court referred favourably to the Ontario Superior Court’s decision in Wright v UPS, and gave effect to the broad framing of sections 1 and 2(1) of the CPA. Ultimately, Robson suggests that Ontario may be a well-suited venue for consumer class actions against parcel delivery companies or similarly situated defendants.

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