A recent decision of the Divisional
Court, in which Bennett Jones and its co-counsel acted for
the class, held that whether brokerage fees charged by UPS to
customers receiving deliveries in Canada are unsolicited is an
appropriate issue to be adjudicated by way of a class action.
United Parcel Service Canada Ltd. (UPS) provides international
courier services. It is required by law to collect customs duties
and HST on shipments entering Canada. The class members are
customers of UPS with standard-form shipping contracts. The class
members alleged that UPS unlawfully collected "brokerage
fees" in addition to standard customs duties and HST.
Justice Horkins certified the case as a class action in the
first instance. UPS sought leave to appeal. Leave was only granted
with respect to one common issue: whether the brokerage fees were
unsolicited. The appeal was dismissed and certification of the
class action upheld.
The appeal turned on the fact that the contracts at issue were
standard-form. UPS argued that the court could not determine
whether the brokerage services were unsolicited on a common basis,
since it would need to look at each transaction separately, and
consider the knowledge of the consignor and consignee about the
brokerage services on an individual basis. The Divisional Court
disagreed. It held that the plaintiffs' argument centered on
the standard-form contracts which, in all cases, were either
"non-negotiable" or the "entire agreement"
between the parties, and those contracts did not contain any terms
relating to the provision of brokerage services or the associated
cost. This had nothing to do with the consignors, and since UPS had
not pointed to any ambiguity in the standard-form contracts, the
rules of contract did not permit the court to admit evidence of
subjective intention to interpret the contract. Thus, in
determining the merits of the claim, the focus would not be on the
knowledge of the consignor at the time of entering into the
Further, to the extent that UPS was arguing that the focus
should be on the conduct of the consignee in requesting the
services, a request from the consignee would require knowledge of
the services and consent by the consumer to pay for them –
neither of which existed in this case.
Lastly, the representative plaintiffs had evidence to show that
they did not ask UPS to perform the brokerage services, and UPS did
not inform them that they would be receiving and paying for the
services. The Divisional Court held that this provided some basis
in fact for the proposition that the services were unsolicited by
UPS's customers and that it was a question that could be
determined across the class as a common issue.
This case involved several years of pre-certification
litigation. It was a unique case procedurally since the
certification motion was heard at the same time as the summary
judgment motion on several of the issues. This was done on the
consent of the parties.
In the first instance, the plaintiffs were successful on both
motions. UPS sought to appeal both the certification order and the
summary judgment order. The appeal of the motions, however, has
been complex. Due to the differences in appeal routes, UPS had an
absolute right to appeal the summary judgment decision to the Court
of Appeal, but needed leave to appeal certification of the common
issues decision to the Divisional Court. Due to scheduling issues,
leave to appeal the certification decision alone required two
separate hearings. Leave was only granted to appeal one of the
certified common issues. As discussed above, UPS was unsuccessful
on its appeal of the common issue at the Divisional Court. It is
now seeking leave to appeal the Divisional Court's decision to
the Court of Appeal, which as a result of Rule 61.03.1(1), will be
heard in writing.
By direction of the Court of Appeal, the appeal of the summary
judgment motion has been stayed pending the resolution of the
common issue appeal.
In short, though steps were taken by counsel to try and
streamline the litigation by hearing the certification motion and
the summary judgment motion together, the appeal procedure has been
time-consuming as a result of the differing appeal routes. The
ongoing saga will continue with the upcoming motion in writing for
leave to appeal the certification decision to the Court of
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guide to the subject matter. Specialist advice should be sought
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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