In Blackman v. Fedex Trade Networks Transport & Brokerage (Canada) Inc. and Fedex Ground Package System, Ltd. (2009) (Blackman v. Fedex), the British Columbia Supreme Court addressed a number of claims made pursuant to the Business Practices and Consumer Protection Act (British Columbia) (BPCPA) in a proposed class action. In June 2008, the plaintiff (Blackman) had ordered $100 worth of sample products from a vendor in California and had paid the vendor $25 for shipping costs. The vendor and Blackman agreed that the products would be shipped by FedEx ground. A few days after the package arrived, Blackman received an invoice from the defendant, Fedex Trade Networks (FTN), for customs brokerage services in the amount of $32.75.
Dismissal of Claims under the BPCPA
Based on the brokerage fee, Blackman claimed that the brokerage services had been unsolicited under s. 11 of the BPCPA. The court rejected this claim, holding that Blackman was presumed to know that, legally, a courier is required to clear a shipment through customs if the owner does not present himself at the border. As such, the service was not unsolicited.
The court dismissed Blackman’s second claim that FTN’s conduct constituted a deceptive act or practice within the meaning of s. 4 of the BPCPA. The existence of the brokerage fees was set out in a Fedex publication. The failure to disclose such a fee does not constitute a deceptive practice. In addition, Blackman or his agent (the vendor) was presumed to know that a brokerage service would be required. (Neither party had made inquiries into this fact.)
The final claim under the BPCPA that the fees charged were so harsh as to constitute an unconscionable act or practice within the meaning of s. 8 of the BPCPA also failed. The fees charged were in line with other brokerage service providers. Note that this claim was primarily dismissed because Blackman had not argued that the quantum of the charges was unconscionable; rather, he had argued that any charge at all was unconscionable.
Blackman’s claims that the fee constituted a criminal interest rate and that FTN had been unjustly enriched were also dismissed. The court held that the disbursement fee (a component of the $32.75) was a service fee, not interest. There was no merit to the claim of unjust enrichment. The defendants successfully sought an order striking the entire action.
Claims Dismissed in Subsequent Case
In MacFarlane v. United Postal Service Canada Ltd. (2009), the British Columbia Supreme Court dealt with a virtually identical claim to that in Blackman v. Fedex. Relying on the decision in Blackman v. Fedex, the court held that,
As a result of the Blackman decision, the claim is doomed to fail at trial for all, or the great majority, of class members. The decision in Blackman settles most of the legal and factual questions raised in this proceeding.
The court went on to say, “While the plaintiff submits that this case is distinguishable from Blackman, the factual differences appear to be minimal or of no legal import.” As a result, the application for certification of the class in this case was likewise denied.