Gayle Vallance Plaintiff v. DHL Express (Canada), Ltd. (dba DHL Canada) and DHL Express (USA), Inc., 2024 BCSC 140

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vallance v. DHL Express (Canada), Ltd., 2024 BCSC 140 Date: 20240130 Docket: S213608 Registry: Vancouver Between: Gayle Vallance Plaintiff And DHL Express (Canada), Ltd. (dba DHL Canada) and DHL Express (USA), Inc. Defendants Before: The Honourable Justice Matthews Reasons for Judgment Counsel for the Plaintiff: J.S. Stanley A. Bespflug C. Ohama-Darcus E.A. Emery Counsel for DHL Express (Canada), Ltd. dba as DHL Canada: E.M. Mackinnon J.C.P. Naudie H. Mallabone D. Fitzgerald Place and Date of Hearing: Vancouver, B.C.

September 18-20, 2023 Place and Date of Judgment: Vancouver, B.C. January 30, 2024 Table of Contents Overview ... 4 Preliminary Issue – Applicability and Effect of Blackman and Macfarlane 5 Horizontal Stare Decisis . 9 Blackman . 10 MacFarlane . 12 Subsequent Appellate Cases . 13 Section 4(1)(a) – Cause of Action .. 14 Legal Principles . 14 Competition Act 15 Misrepresentation .. 15

Material Facts . 17 Criminal Intent 19 Causation and Loss . 20 British Columbia Business Practices And Consumer Protection Act and Other Provincial Consumer Protection Legislation .. 22 Damage or Loss and Compensable Harm .. 23 Causation - Detrimental Reliance . 25 Disgorgement 27 Differences Between Provincial Consumer Protection Legislation .. 28 Unjust Enrichment 29 Tort of Deceit 31 Punitive Damages . 32 Wilful Concealment 33 Sections 4(1)(b)-(e) – Evidence and Evidentiary Threshold for Certification 34 Legal Principles . 34 Evidence Led by Ms. Vallance . 35 Ms.

Vallance’s Evidence . 38 The Evidence of Other Proposed Class Members . 42 Section 4(1)(b) – Identifiable Class .. 44 Section 4(1)(c) – Common Issues .. 45 Proposed Common Issues . 45 Legal Principles . 46 False and Misleading Representations . 48 Detrimental Reliance or Causation .. 52 Conclusion on Common Issues . 54 Section 4(1)(d) – Preferable Procedure .. 54 Section 4(1)(e) – Representative Plaintiff .. 54 Disposition .. 55 APPENDIX A .. 56 Overview [ 1 ] Gayle Vallance and the proposed class members in this proposed national class action purchased goods online that were shipped to Canada by the defendant DHL Express (Canada), Ltd., doing business as DHL Canada, and its international affiliates.

Ms. Vallance alleges that DHL Canada charged undisclosed fees for customs clearance imbedded in what were described as import duties and taxes charged by the Canadian Border Services Agency. She seeks to certify this class action to claim damages for the fees or restoration of the fees pursuant to the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 [ BPCPA ] , similar provincial consumer protection legislation of other provinces, and the Competition Act , R.S.C. 1985, c. C-34 . Ms.

Vallance also seeks damages for unjust enrichment and the tort of deceit. [ 2 ] DHL Canada does not dispute that it charged what it calls a processing fee for taking packages through the customs clearance process but it asserts that the processing fee was disclosed. It submits that decisions of this court and the Court of Appeal for British

Columbia preclude this claim and that Ms.

Vallance has not met her burden regarding any of the certification elements set out in s. 4 of the Class Proceedings Act , R.S.B.C. 1996, c. 50 . [ 3 ] A court hearing a certification application must make a certification order if the pleadings disclose a cause of action, there is an identifiable class of two or more persons, there are common issues of fact or law, a class proceeding is the preferable procedure to resolve the common issues, and there is a representative plaintiff who will fairly represent the interests of the class, who has proposed a workable plan of advancing the proceeding and notifying the class members, and who does not have an interest in conflict with the class. [ 4 ] A significant argument advanced by DHL Canada is that previous cases about customs processing fees stand for the proposition that such claims are doomed to fail and not certifiable.

Ms. Vallance argues that these cases do not stand for those propositions and are distinguishable. Because of the prevalence of the arguments about those cases on certification, I will review them and determine their applicability as a preliminary issue. [ 5 ] All of the certification elements are in dispute. The core issues are:

a) Whether Ms. Vallance has adequately pleaded detrimental reliance or an alternate theory of causation in order to disclose causes of action for breaches of the BPCPA and other provincial consumer protection legislation;

b) whether the evidence provides some basis in fact for the common issues in circumstances where Ms. Vallance did not disclose an individual communication she had with DHL Canada about the processing fee and other class members, who swore affidavits, did not state that they had deposed to all facts relevant to certification; and

c) whether the evidence of the varying communications that the class members had with DHL Canada preclude a common inquiry into whether DHL Canada’s representations were false or misleading. Preliminary Issue – Applicability and Effect of Blackman and Macfarlane [ 6 ] DHL Canada submits that this case is the latest in a series of custom brokerage fee cases sought to be brought as class actions, all of which have failed, including Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc. , 2009 BCSC 201 ; and MacFarlane v.

United Parcel Service Canada Ltd., 2009 BCSC 740 [ MacFarlane ] , aff’d 2010 BCCA 171 [ MacFarlane BCCA ]. DHL Canada submits that just as Blackman and MacFarlane failed, so too should this case. [ 7 ] Before reviewing those cases, I will review the evidence about importation of good bought from places outside Canada and Ms. Vallance’s claims to provide context for the analysis of Blackman and MacFarlane. [ 8 ] In these reasons, where the evidence is simply background or is non-controversial, I will state it as fact.

Where evidence is contested or is not conceded and it is on a point other than non-controversial background information, I will identify the debate. To the extent that I state or find facts, I only do so for the limited purpose of determining whether the certification evidentiary standard, “some basis in fact” for the

section 4 elements except s. 4(1)(a), has been met. [ 9 ] DHL Canada provides package delivery and express courier services in every province and territory in Canada. When it is involved in delivering packages that have been sent from locations outside of Canada, it works with foreign affiliated companies in countries outside of Canada. [ 10 ] Ms.

Vallance’s claim on behalf of the proposed national class is that DHL Canada charges a fee for bringing packages that it has agreed to deliver through the border that it does not disclose but falsely represents as part of import tax and/or duty charges to be paid to the Canadian Border Services Agency.

She alleges that while there are often import and duty taxes owing, the amount charged by DHL Canada is not purely import tax and duty remitted to the Canadian Border Services Agency, but includes a customs clearance fee that DHL Canada charges to take the package through the importation process and to remit the import taxes and duties to the Canadian Border Services Agency. [ 11 ] Ms. Vallance alleges that when the package comes into the country, DHL Canada notifies the receiver that there are “import duty/tax” or “import duty/tax and clearance fees” owing.

She alleges that the communications do not include that this amount includes a processing fee charged by and retained by DHL Canada. [ 12 ] DHL Canada’s affiant, Asteway Desta, deposed how a purchase made by a person in Canada, using DHL Canada as the domestic shipper, makes its way from the foreign place of purchase to the Canadian receiver. Ms. Desta deposed that a foreign vendor will typically contract with an affiliate of DHL Canada in that country. Ms.

Desta deposed that the vendor contracts with the foreign DHL affiliate to ship the package to Canada, at which point it engages DHL Canada to clear the shipment through customs and deliver it to the purchaser. [ 13 ] Ms. Desta deposed that the relationship between DHL Canada and persons such as the proposed class members is governed by the DHL Express Terms and Conditions of Carriage which are posted on DHL Canada’s website. They stated that DHL Canada may perform customs clearance services. Ms.

Desta deposed that DHL Canada has a Service & Rate Guide which is also published on its website and which states that a processing fee will be applied to all non-document shipments. [ 14 ] Ms. Desta deposed that Canada Border Services Agency collects the duties and taxes payable on imported goods in Canada. It is a requirement of law to report goods imported into Canada to Canada Border Services Agency without delay: Reporting of Imported Goods Regulation , SOR 86-873, s.12 . If goods are imported by an authorized courier such as DHL Canada, the courier must report them before entry.

Canada Border Services Agency requires documentation of the contents of the shipment, the declared value and the country

of manufacture to determine the tariff classification and the value of the goods. [15] Ms. Desta deposed that some shipments may be exempt from duties or taxes but still must clear customs. [16] Ms.

Desta deposed that DHL Canada provides custom clearance services by which it acts as the purchaser’s agent and reviewsthe shipping documentation, completes the Canada Border Services Agency required declarations and forms, categorizes the goods basedon value, manages queries from Canada Border Services Agency, pays the applicable duties and taxes to Canada Border ServicesAgency to secure the release of the shipment, requests corrections or refunds relating to Canada Border Services Agency accounting forgoods, and maintains the records that are required to be maintained by law. [17] DHL Canada charges a fee for clearing customs which it calls a processing fee.

In 2021, its base processing fee was $17.00. If2.5% of the shipment value is higher than the base rate, then the processing fee will be 2.5% of that amount. [18] DHL Canada does not charge a processing fee on shipments that do not require customs clearance, such as documents or deminimis shipments where the value is below a certain threshold. [19] Ms. Desta deposed that purchasers are not required to use DHL Canada’s custom clearance services and pay the processing fee.They can self-clear a shipment or hire an independent broker.

If the receiver chooses to do so, DHL Canada will hold the shipment untilit has been notified that the applicable duties and/or taxes have been paid to Canada Border Services Agency. [20] Ms. Desta deposed that DHL Canada communicates with the receiver about amounts owing through different means, dependingon the contact information that the receiver provided to the shipper and that the shipper provided to the DHL affiliate. Those meansinclude by email, SMS and/or telephone calls.

If the communication is by email, a link is provided to an online portal where the receivercan view the calculation of the amounts, download relevant documents, and pay the amounts owing. If the communication is by SMS,the online portal is hyperlinked to the SMS message. Ms. Desta deposed that DHL Canada used standard wording for emailcommunications and SMS communications. The standard wording changed during the class period and differed depending on whetherthe communication was by SMS or text. If the communication was by telephone, it was not standard. [21] Ms.

Vallance deposed to her experience with this process. She deposed that she had used DHL Canada often. She deposed that inFebruary 2021, she purchased books from a seller in the United Kingdom. She deposed the books were purchased for her personal use. [22] Ms. Vallance deposed that before delivery of the books, she received an email from DHL Canada which stated that there was“Canada Customs duties & taxes (Import charges) and you must pay it online before release of the shipment” and set out an amountowing of $33.16. Ms.

Vallance deposed that she paid the $33.16 on the understanding that the money she paid to DHL Canada was owedto the government for duties and taxes. She deposed that DHL Canada did not tell her that the $33.16 included an additional fee chargedby and retained by DHL Canada. After Ms. Vallance requested a receipt and received one from DHL Canada, she learned that $17.85 ofthe $33.16 was a DHL Canada processing fee ($17.00) and GST on the processing fee ($0.85). Based on the receipt, Ms. Vallancebelieves there were no duties owing on her shipment. [23] Ms.

Vallance alleges that DHL Canada’s practice is to imbed its processing fee in a charge that it describes to the receiver asimport duties and/or taxes. She deposed that DHL Canada did not disclose to her that it charged a fee for the customs clearance serviceuntil after she paid it.

She alleges that DHL Canada’s communications contain false and misleading representations and its practice is adeceptive practice that prevents the receivers from exploring the avenues for clearing customs including self-clearing or hiring a differentbroker and not paying DHL Canada’s processing fee. [24] DHL Canada asserts that it is common knowledge that packages must clear customs, and that it has a contractual relationshipwith every receiver that provides for that. [25] As I will discuss below, other purported class members have made affidavits about their experiences but Ms.

Vallance’sdescription of her experience suffices to provide the context for the claim. Horizontal Stare Decisis [26] In R. v.

Sullivan, 2022 SCC 19 at paras. 61–63, 73, the Supreme Court of Canada clarified the application of horizontal staredecisis, the doctrine which determines whether a superior court may decline to follow the principles of law set by a court of the samelevel of court within the province. [27] Horizontal stare decisis requires a judge to examine prior judicial decisions by courts of coordinate jurisdiction and firstdetermine whether the ratio is binding or distinguishable: Sullivan at para. 64. If binding, the judge must then determine whether theprecedent must be followed or departed from.

The court may only depart from a binding case if one or more of the exceptions describedin Re Hansard Spruce Mills, [1954] 4 D.L.R. 590, (B.C.S.C.) apply: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or 3. The earlier decision was not fully considered, e.g. taken in exigent circumstances. Sullivan at para. 75. [28] Aspects of Blackman and of Macfarlane are distinguishable, at least on the issue of whether or not a cause of action exists.

Inaddition, the first Re Hansard Spruce Mills exception applies, as aspects of those decisions have been undermined by subsequentappellate decisions.

Blackman [ 29 ] In Blackman , the plaintiff in a proposed class action claimed that customs brokerage fees were a breach of the BPCPA . The Blackman decision was made on the defendants’

summary trial application. The parties agreed the matter was appropriate for

summary trial disposition. [ 30 ] The plaintiff in Blackman alleged that the conduct of the defendant customs brokerage and defendant carrier constituted deceptive acts or practices within the meaning of s. 4 of the BPCPA . Ms. Vallance also claims that DHL Canada’s conduct pertaining to processing fees is a deceptive act or practice within the meaning of s.4 of the BPCPA . [ 31 ] The s. 4 claims of a deceptive act or practice in Blackman are the claims most applicable to this case. The s. 4 claims in Blackman were, with one exception, framed as failures to disclose.

The plaintiff alleged, for example, failure to disclose a fee and failure to provide customers with an opportunity to arrange customs clearance by themselves: at paras. 58–59. The exception is an allegation of a misleading description of interest charges on funds. The judge found that the fee was not interest, and that the consumer could not have been led to an error in judgment by the information: at para. 79. [ 32 ] Justice Garson, then on this court, was the chambers judge in Blackman .

Justice Garson held that a failure to disclose could not qualify as a deceptive act under the BPCPA definition, which was sufficient to dispose of the s. 4 claims: at paras. 67, 70. [ 33 ] Ms. Vallance alleges express misrepresentations, e.g. the text message describing the processing fee as a tax/duty (import charge). Accordingly, the reason for the dismissal in Blackman does not apply in this case where positive misrepresentations are alleged. In addition, in cases decided after Blackman, the law on whether a failure to disclose may qualify as a deceptive act under the BPCPA has evolved.

I will address this below. [ 34 ] However, in Blackman , Garson J. went further and stated that regardless of whether failure to disclose could constitute a deceptive practice, the court would not find the alleged lack of disclosure to constitute deceptive conduct. Justice Garson’s reasons for this conclusion were based on the facts in that case. For example, Garson J. concluded that Fedex provided accurate information to consumers at paras. 71–73. [ 35 ] Whether the facts of this case will preclude finding of a deceptive act or practice is a matter which requires a merits-based analysis on evidence.

While DHL Canada asserts that a certification application is not devoid of a merits analysis, it is certainly not a robust, or merits-focussed, analysis: Nissan Canada Inc. v. Mueller , 2022 BCCA 338 , leave to appeal to SCC ref’d, No. 40479 (4 May 2023) [ Nissan Canada ] at paras. 134, 138. [ 36 ] The type of analysis that led to Garson J.’s findings in Blackman was factually intensive and merits-focussed and therefore does not assist with whether the s. 4 claims in this action disclose a cause of action pursuant to s. 4(1) (

a) of the Class Proceedings Act . The applicability of Blackman on whether there is evidence to support a BPCPS s.4 common issue is also very limited given the factual merits analysis at the Blackman

summary trial. [ 37 ] Justice Garson also dismissed the unjust enrichment claim in Blackman . Justice Garson concluded there was no merit to this claim because there was a contract between the plaintiff and the defendants that served as a juristic reason. DHL Canada relies on Garson J.’s analysis of the contract as arising from legislation relating to bills of lading. Justice Garson’s reasoning was referred to with approval by the Court of Appeal in MacFarlane .

I will apply this reasoning when I address the unjust enrichment cause of action. [ 38 ] Justice Garson dismissed the claim for illegal interest charged on disbursement fees, the claim that services were unsolicited within the meaning of s. 11 of the BPCPA , and the claims that the fees were unconscionable within the meaning of s. 8 of the BPCPA . None of those claims are equivalent to claims made in this case so the analysis on those claims is not relevant.

MacFarlane [ 39 ] Blackman was applied by Justice Goepel, then of this court, in MacFarlane to preclude certification of claim pertaining to custom brokerage fees. [ 40 ] In MacFarlane , the plaintiff abandoned his s. 4 BPCPA claim due to Garson J.’s decision in Blackman . [ 41 ] In MacFarlane at para. 28 , Goepel J. recited certification legal principles, including that the case must be subjected to the “air of reality test” described in Samos Investments Inc. v. Pattison , 2001 BCSC 1790 , aff’d 2003 BCCA 87 , at paras. 155–157 .

Justice Goepel explained that even if the case passed the threshold for the pleadings disclosing a cause of action, if the claims did not have an air of reality, certifying the claim would not further the goals of efficiency or fairness. [ 42 ] In MacFarlane , Goepel J. held that because of Garson J.’s decision in Blackman there was no air of reality to the MacFarlane claim and it could not be certified: at paras. 43–44.

The Court of Appeal held that the only question in that case was whether the transaction was an unsolicited transaction under s. 11 of the BPCPA , and Goepel J. did not err in determining, based on Blackman , that there could not be no cause of action for a s. 11 claim.

That claim is not made in this case, and therefore MacFarlane cannot be dispositive of whether this claim discloses a cause of action [ 43 ] The Court of Appeal did not address how to square Goepel J.’s determination that the claim lacked an air of reality with the Court of Appeal’s determination that Goepel J. had determined that the claim failed under s. 4(1) (a). The air of reality test was a merits- based inquiry into the viability of a claim sought to be certified which had its origins in Samos . It has never been applicable at the s. 4(1) (

a) stage. Although I am not aware of a case expressly articulating that this test is no longer applicable to the s. 4(1) (b)-(

e) certification considerations, review of the jurisprudence demonstrates that the air of reality test has been supplanted by an approach by which the certification judge avoids a merits-focussed approach, while still giving the claim more than symbolic scrutiny: Pro-Sys

Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 103 [ Pro-Sys ]; Finkel v. Coast Capital Savings Credit Union , 2017 BCCA 361 at para. 51 ; and Nissan Canada at paras. 134, 138 . Subsequent Appellate Cases [ 44 ] In Blackman , Garson J. concluded that a failure to disclose could not qualify as a deceptive act under the BPCPA : at paras. 67, 70. [ 45 ] In Seidel v. TELUS Communications Inc. , 2011 SCC 15 [ Seidel SCC ] the Supreme Court of Canada considered whether to lift a stay on proceedings in a consumer protection class action pertaining to a contract of adhesion.

The Supreme Court of Canada stated, at para. 37, that it was important to interpret consumer protection legislation generously in favour of consumers. In Wright v. United Parcel Service Canada Ltd. , 2015 ONSC 2220 , Justice Horkins of the Ontario Superior Court of Justice questioned the correctness of Blackman because Garson J. had not considered or undertaken a generous, consumer-protection oriented

interpretation of the BPCPA : at para. 39. [ 46 ] In Stanway v. Wyeth Canada Inc. , 2012 BCCA 260 at para. 80 , the Court of Appeal for British Columbia explained that in s. 4(3) (b)(vi) of the BPCPA the words “representation by a supplier ... that fails to state a material fact” are such that an omission can constitute a deceptive practice and ground a cause of action. This clearly indicates that a failure to disclose has the potential to qualify as a deceptive act under the BPCPA . I followed this in a recent certification decision, Bowman v.

Kimberly Clark Corporation , 2023 BCSC 1495 at para. 158 . [ 47 ] Accordingly, the law has evolved since Blackman in a way that eliminates the precedential value of the conclusions reached by Garson J. at paras. 67 and 70. Section 4(1)(a) – Cause of Action [ 48 ] Ms. Vallance discontinued her claims against DHL Express (USA), Inc. Her claim continues against DHL Canada only. Legal Principles [ 49 ] Section 4(1) (

a) of the Class Proceedings Act requires that the pleadings disclose a cause of action. Assuming all facts pleaded to be true, the pleadings disclose a cause of action unless it is plain and obvious that the claim cannot succeed: Pro-Sys at para. 63 ; Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24 at para. 20 ; and Hollick v. Toronto (City) , 2001 SCC 68 at para. 25 . [ 50 ] In undertaking the s. 4(1) (

a) inquiry, the court must read the pleadings generously, permitting novel but arguable claims and accommodating inadequacies in form to the extent reasonable by allowing for amendments: Finkel at para. 17 ; and Sherry v. CIBC Mortgage Inc. , 2020 BCCA 139 at para. 53 . Novel claims should be allowed to proceed to trial where they will permit an incremental development in the law: Atlantic Lottery Corp. Inc. v. Babstock , 2020 SCC 19 at para. 19 , citing R. v.

Imperial Tobacco Canada Ltd. , 2011 SCC 42 at para. 21 [ Imperial Tobacco ]. [ 51 ] Nevertheless, the court must address issues that call into question whether the case has a legal foundation. If the case is bound to fail, or if it is clear that if the facts alleged are taken to be true a court would not recognize the claim, the claim should not be permitted to proceed: Atlantic Lottery at paras. 18–19; and Finkel at para. 18 , citing Wakelam v.

Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc. , 2014 BCCA 36 at para. 64 . [ 52 ] A claim will be bound to fail if the pleading does not set out the elements of the cause of action and the material facts in support of them: Imperial Tobacco at para. 22 ; Sekhon v. Canada (AG), 2019 BCSC 1164 at para. 30 ; and Kindylides v. Does, 2020 BCCA 330 at paras. 29 , 31, leave to appeal to SCC ref’d, 39728 (October 14, 2021) . Competition Act [ 53 ] Pursuant to s. 36 of the Competition Act , a person who has suffered loss or damage as a result of conduct which is contrary to a

Part IV provision, including false or misleading representations made contrary to s. 52 or s. 52.01, may sue for an amount equal to the loss or damaged proved. [ 54 ] DHL Canada argues that Ms. Vallance’s claim does not disclose a cause of action under the Competition Act because she has not pleaded an actionable misrepresentation and because she has failed to plead material facts in support of her claim that the processing fee is not accurately described by DHL Canada. Misrepresentation [ 55 ] Sections 52 and 52.01 of the Competition Act prohibit false or misleading representations. DHL Canada characterizes Ms.

Vallance’s claim as pleading omissions. It is correct that Ms. Vallance has pleaded that DHL Canada did not disclose, and did not advise, that the fees charged to class members included a processing or brokerage fee (at paras. 5, 24, 41 and 45 of the further amended notice of civil claim). However, these paragraphs must be considered in the context of the pleading as a whole, where Ms.

Vallance pleads false representations and misleading representations pertaining to communications about duties and taxes owing because they did not include the information that the amounts said to be owing to DHL Canada included processing fees charged by DHL Canada. See paras. 1-6, 17-21, 24-27 of the further amended notice of civil claim. [ 56 ] For example, Ms. Vallance pleads that DHL Canada:

a) made “misleading representations” about the nature of the processing fee at para. 20 of the further amended notice of civil claim; b) “knowingly and recklessly made representations to the Plaintiff and other Class Members that were false or misleading” at para. 25 of the further amended notice of civil claim;

c) sent electronic messages to the class members that were “false or misleading in a material respect” at para. 26 of the further amended notice of civil claim; and

d) made “representations” that “were false, misleading and deceptive” at para. 27 of the further amended notice of civil claim. [ 57 ] DHL Canada’s characterization of Ms. Vallance’s further amended notice of civil claim, in a manner that is different from the pleading read as a whole, is not a basis on which to find it is bound to fail. It is inconsistent with the guiding principle of reading pleadings generously.

It is inconsistent with the authorities that require that consumer protection legislation be interpreted generously in favour of consumers: Seidel SCC at para. 37 . [ 58 ] DHL Canada submits that a misrepresentation by omission is not an offence under the Competition Act , citing Hoy v. Expedia Group , 2022 ONSC 6650 at para. 117 ; and Palmer v.

Teva Canada Ltd. , 2022 ONSC 4690 at para. 253 . [ 59 ] In Hoy , the focus of Perell J.’s reasoning that the claims were bound to fail was that despite that the pleading used the words misrepresentation, the gravamen of the complaint was a failure to disclose (at para. 117). The plaintiff did not plead that the defendant’s representations were false or inaccurate. That is manifestly different than Ms.

Vallance’s pleading. [ 60 ] Similarly, in Palmer , Perell J. considered a failure to warn pleading to be a failure to disclose claim. [ 61 ] Moreover, I do not accept that DHL Canada’s re-characterization of the amended notice of civil claim, if accurate, would render it bound to fail. If the facts alleged are true, then DHL Canada communicated to the class members that they owed money to DHL Canada for duties and taxes, and did not communicate that the sum owed to DHL Canada was not all duties in taxes but included a processing fee charged by DHL Canada.

Such representations could fairly be characterized as a false, misleading, and misrepresentation by omission. The jurisprudence that the Competition Act does not impose a duty of disclosure does not stand for the proposition that a failure to disclose is not actionable if the circumstances around the lack of disclosure include a representation that is false or misleading. Material Facts [ 62 ] Rule 3-1(2)(

a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 , provides that a notice of civil claim must set out the material facts in support of a claim. Rule R. 3-7(1) prohibits pleading evidence. Material facts are facts that prove the elements of a cause of action: Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 45–48 ; Kindylides v. Does , 2020 BCCA 330 at para. 34 , leave to appeal to SCC ref’d, 39728 (October 14, 2021) .

Evidence is the means by which material facts are proved. [ 63 ] In Imperial Tobacco at para. 22 , the Supreme Court of Canada stressed the importance of pleading material facts, explaining that while a claimant may not be able to prove the material facts at the time they are pleaded, the claimant must plead them nonetheless.

It is not open to the claimant to wait and see how the evidence develops before pleading material facts. [ 64 ] Nevertheless, sometimes the pleading of the elements of the cause of action will also amount to pleading material facts, and sometimes is not even necessary to plead the elements if they can be inferred from the other matters pleaded: Watson v. Bank of America Corporation , 2015 BCCA 362 at para. 101 .

Whether a pleading is adequate must be assessed keeping in mind the purpose of pleadings which is to give the other party notice of the case it will have to meet. [ 65 ] The review of pleadings to determine if they are bound to fail must take into account other principles of pleadings including the prohibition against prolix, redundant, lengthy pleadings and pleading evidence. Common sense governs and so a pleading will not be struck if what is alleged to be missing does not preclude the defendant from knowing the case to be met: Watson at paras. 99–102 . [ 66 ] Ms.

Vallance claims damages pursuant to s. 36 of the Competition Act . The elements of a s. 36 claim are:

a) the person suffered loss or damage,

b) as a result of conduct that this contrary to any provision in

Part VI of the Competition Act or an order under the Competition Act made by the Competition Tribunal or another court. [ 67 ] Ms. Vallance pleads conduct that is contrary to ss. 52 and 52.01 , which are Competition Act

Part VI provisions. The elements of conduct that is contrary to s. 52 of the Competition Act are:

a) the defendant made representation to the public that is false or misleading;

b) the defendant made false or misleading representation knowingly or recklessly; and

c) did so for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest. [ 68 ] The elements of conduct that is contrary to s. 52.01 of the Competition Act are:

a) the defendant caused or sent a false or misleading representation in an electronic message;

b) the defendant sent the electronic message containing the false or misleading representation knowingly or recklessly; and

c) did so for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest. Criminal Intent [ 69 ] The intent elements of ss. 52 and 52.01. require pleas that the defendant acted “knowingly or recklessly” when making the false or misleading representations (s. 52) and sending electronic communications containing false or misleading representations (s. 52.01). [ 70 ] DHL Canada asserts that Ms.

Vallance has pleaded facts about the impact of the alleged misrepresentations, but no material facts about DHL Canada’s knowledge or intent other than bare conclusory facts. [ 71 ] I do not agree. In addition to several places where Ms. Vallance pleads that DHL Canada’s conduct was undertaken knowingly or recklessly, she also pleads, at para. 28 of the further amended notice of civil claim, that DHL Canada’s conduct was planned and deliberate. [ 72 ] It is correct that Ms. Vallance does not plead extensive material facts about knowledge and intention.

In Watson , the Court of Appeal for British Columbia upheld the certification judge’s rejection of the submission that where the plaintiff failed to plead the mental element of conduct contrary to s. 45 of the Competition Act , the claim was bound to fail.

The Court of Appeal, at paras. 101–102, upheld the chambers judge’s reasoning and held that common sense and the pleading as a whole were such that an express pleading of the mental element would be redundant and therefore not necessary. [ 73 ] In the circumstances of this case, the only material facts that could be pleaded would be synonyms for knowingly or recklessly. Requiring more, runs the risk of requiring pleading evidence of intention.

Common sense and the rules against prolix and redundant pleadings govern. [ 74 ] The claim is not bound to fail due to the pleading of the intention element of the Competition Act claims. Causation and Loss [ 75 ] DHL Canada submits that Ms. Vallance has not pleaded materials facts to support that reliance on DHL Canada’s representations caused her a loss. [ 76 ]

Section 36 of the Competition Act requires causation between the false or misleading representations and the alleged loss. The jurisprudence has contained a debate as to whether causation must be advanced through a pleading of detrimental reliance or whether it can be proven through other theories of causation. See: Valeant Canada LP/Valeant Canada S.E.C. v. British Columbia , 2022 BCCA 366 at paras. 233–235 ; Krishnan v. Jamieson Laboratories Inc. , 2021 BCSC 1396 at paras. 67–71 and 181–189 , aff’d WN Pharmaceuticals Ltd. v. Krishnan , 2023 BCCA 72 ; British Columbia v.

Apotex , 2022 BCSC 1 at paras. 150–153 ; and Bowman at paras. 54–58 . [ 77 ] I will not review the debate in these reasons because I consider it to be settled that the causation element of s. 36 of the Competition Act can be advanced through a pleading of detrimental reliance or through a pleading that the defendant’s misleading representations caused the plaintiff to spend more than he or she would have had the representation not been made: at paras. 233–235. [ 78 ] In this case, Ms.

Vallance pleads detrimental reliance, and she pleads that had DHL Canada not falsely represented that the sums were owing for duty and taxes without disclosing that they included a fee to be paid to DHL Canada, the proposed class members would have been able to avoid that fee by clearing customs themselves or hiring another customs broker to do it. I consider both pleas to be supported by material facts, consistent with legal principles I have set out, at paras. 5, 19, 20, 35, 40 and 48 of the further amended notice of civil claim. [ 79 ] For example, at para. 20 of the further amended notice of civil claim, Ms.

Vallance pleads that the class members had no legal obligation to pay the customs clearance fee that DHL Canada charged and would not have paid fees that they were not legally obliged to pay. She pleads that had DHL Canada not made misleading representations about the nature of the fees, the class members would not have paid them. [ 80 ] DHL Canada argues that Ms. Vallance must plead, for example, that she would have avoided the processing fee by self-clearing her books or hiring an independent broker and that that these options would be less expensive. I do not agree.

This would be pleading evidence, not material facts. [ 81 ] DHL Canada’s submission in this regard overlaps with its submission that Ms. Vallance has not pleaded loss or material facts to support a loss. DHL Canada submits that no loss can be claimed if there was no alternative means for Ms. Vallance and the class members to receive their packages in a timely way, more conveniently, and/or pay less fees. [ 82 ] This submission does not assist with determining whether the pleading discloses a cause of action. Ms.

Vallance has pleaded loss due to paying DHL Canada a fee that she had no legal obligation to pay and would not have paid if she knew she had no legal obligation to pay it. Whether, at the end of the day, there will be facts found that support this claim is not a matter that is considered at this stage. [ 83 ] DHL Canada also submits that the law does not support Ms. Vallance’s claim as a loss, i.e. if she proves what she has alleged, there is no loss at law because she received the customs clearance services for which she paid the processing fee.

This is an argument relevant to whether the claim discloses a cause of action. [ 84 ] I do not accept it. Valeant stands for the proposition that a claim is not bound to fail if the loss claimed is that the plaintiff paid more for something or paid for something that the plaintiff would not have paid for had the representation not been made. The question of loss is not whether the plaintiff got something for what he or she paid, it is whether the representation caused the plaintiff to pay when

he otherwise would not, or to pay more. British Columbia Business Practices And Consumer Protection Act and Other Provincial Consumer Protection Legislation [ 85 ] Ms. Vallance pleads that within the meanings set out in the BPCPA : the proposed class members are consumers; DHL Canada’s delivery services are services; DHL Canada is a supplier; and the supply of delivery services by DHL Canada are consumer transactions. She alleges that Ms.

Vallance and the class members relied on DHL Canada’s representations that the fees that DHL Canada charged to them were for import duties or taxes charged by Canada Customs for goods being shipped to Canada. She alleges that DHL Canada’s representations were false, misleading and untrue and were deceptive acts and practices as described in s. 4 and contrary to s. 5 of the BPCPA . [ 86 ] Ms. Vallance seeks damages pursuant to s. 171 of the BPCPA or relief in the form of a declaration and restoration order under s. 172 of the BPCPA . [ 87 ] Ms.

Vallance also makes similar claims under consumer protection legislation of other provinces on behalf of proposed class members whose claims are covered by consumer legislation in other provinces as follows:

a) Alberta: Consumer Protection Act , R.S.A. 2000, c. C-26.3 ;

b) Saskatchewan: The Consumer Protection and Business Practices Act , S.S. 2013, c. C-30.2 ;

c) Manitoba: Consumer Protection Act , C.C.S.M. c. B120 ;

d) Ontario: Consumer Protection Act , 2002, S.O. 2002, c. 30, Sch. A .;

e) Quebec: Consumer Protection Act , C.Q.L.R. c. P-40.1 ;

f) Prince Edward Island: Business Practices Act, S.P.E.I. c. B-7;

g) Newfoundland & Labrador: Consumer Protection and Business Practices Act , S.N.L. 2009, c. C-31.1 . [ 88 ] DHL Canada argues that Ms. Vallance has not pleaded loss, damage or a viable theory of compensable harm and has ignored crucial differences in the various provincial statutes. Damage or Loss and Compensable Harm [ 89 ]

Section 171 of the BPCPA permits a person to bring an action for damages against a supplier where that person has suffered damage or loss due to a contravention of the act or its regulations. [ 90 ] DHL Canada submits that Ms. Vallance’s pleading of loss is insufficient for the same reasons discussed above in relation to the Competition Act claim. I do not accept the submission for the same reason. [ 91 ] DHL Canada also submits that Ms.

Vallance has failed to plead material facts to support compensable harm, citing Palmer at paras. 231–235 ; and Hoy at paras. 212–224 . [ 92 ] In Palmer , the plaintiffs ingested a drug that was contaminated. They did not suffer any adverse medical consequences. They sued for their medical bills in investigating potential adverse consequences as well as the cost of the drug on the basis that it was valueless but they paid for it. As discussed above, in Hoy , Perell J. held that there was no cause of action under the Competition Act for failing to disclose the contamination.

In Palmer , Perell J. did not answer the question of whether the same was true under provincial consumer protection legislation. Justice Perell held that the constituent element of loss could not be established in that case because: [231] For the reasons described above, the law, as it exists in Canada, does not provide compensation for an increase of risk of harm as such. As noted above, compensation is for actualities not an increase in potentiality.

Further, in the immediate case there is no basis in fact for claiming compensation for refunds and for wasted pills and there is no social utility in advancing these de minimis claims . [232] To the extent that any of the consumer protection statutes require damages as a constituent element for liability , there is no basis in fact that any Class Members have suffered any compensable harm . The heads of damages for medical bills and for medical monitoring arising from an increased risk of experiencing cancer are not recoverable.

As for refunds and wasted pills, the advice from Health Canada was to continue taking the valsartan medication unless advised to stop by a health care provider and so there may not have been many returned or wasted drugs. The voluntary recall was directed at retailers, and some of the consumers who were personally out-of- pocket might as a matter of common sense return their valsartan for a refund when they got a replacement for their prescription.

The heads of damages for refunds and the expense of bills thrown away are de minimis and do not satisfy the preferable procedure criterion. [Emphasis Added]. [ 93 ] Prior to this passage, Perell J. stated that he was addressing the certification elements of cause of action, common issues and preferability together, in an amalgamated way. Justice Perell did not always express whether particular aspects of his reasons pertained to particular certification elements.

Justice Perell’s comments about compensable harm in the underlined portions of this passage turn on the lack of the required evidentiary substratum for common issues and preferability, i.e. some basis in fact. That is expressly not a requirement for determining whether a cause of action exists; the court may not consider evidence on that certification element. [ 94 ] Similarly, in Hoy , Perell J.’s discussion on compensable harm is based on lack of evidence to satisfy the some basis in fact

requirement for the certification elements : Hoy at para. 97 . [ 95 ] DHL Canada’s misplacement of this argument as a cause of action issue is apparent when considering DHL Canada’s submissions applying the compensable harm point to this case. DHL Canada submits that there is no suggestion that the plaintiffs did not receive what they paid for when they paid for customs clearance services. I understand that DHL Canada’s position in the litigation generally is that the class members had ample notice that they were paying for customs clearance services and received adequate services for the fee they paid.

However, those are evidentiary matters that are merits-focussed. [ 96 ] In addition, these positions are not entirely responsive to Ms. Vallance’s claim, which is that the class members did not have notice that they were paying for custom clearance services because DHL Canada’s representations about that were misleading. They have pleaded that they had other choices to clear their packages through customs. The fact that DHL might have done so adequately is, from the proposed class members’ perspective, beside the point. [ 97 ] I am of the view that there is no plain and obvious flaw in this claim.

Causation - Detrimental Reliance [ 98 ] An element under s. 171 of the BPCPA is that the damage or loss was suffered due to a contravention of the BPCPA or its regulations. That element is referred to as the causation element. The wording of s. 172 of the BPCPA is slightly different, but also incorporates a causation element. [ 99 ] DHL Canada submits that Ms.

Vallance must plead detrimental reliance and she has not done so adequately because she has not pleaded material facts on detrimental reliance. [ 100 ] Like under the Competition Act , there has been a debate in the jurisprudence as to whether the only means of satisfying the causation element of these provisions is detrimental reliance.

In Bowman , I concluded that the weight of the jurisprudence is that detrimental reliance is not always required for the causation element of s. 171 based on a breach of ss. 4 , 5 , or 8 of the BPCPA , or to seek declaratory and restorative remedies under s. 172 , as long as the plaintiff has pleaded an alternative theory of causation. [ 101 ] DHL Canada acknowledges that detrimental reliance is not always required, but asserts that in this case, individual reliance is required as it is the only path to establish causation.

DHL Canada did not articulate whether what it refers to as individual reliance is different from detrimental reliance. [ 102 ] I do not understand DHL Canada to be asserting a new kind of reliance when it refers to individual reliance. I understand its submissions to be that reliance cannot be based on an allegation of a common representation because it is inherently individual, citing Ileman v. Rogers Communication Inc., 2014 BCSC 1002 at para. 67 , aff’d 2015 BCCA 260 . [ 103 ] In Ileman , Justice Weatherill was considering the debate about detrimental reliance in the context of a s. 4(1) (

a) analysis. However, his proposed reconciliation of the divergent authorities based on the category of representation has not been picked up in the more recent caselaw. In Seidel v. Telus Communications Inc. , 2016 BCSC 114 at paras. 88–104 , Justice Masuhara undertook a thorough review of the law. At para. 89 he stated that under ss. 4 and 5 of the BPCPA , a deceptive act or practice includes conduct that is “capable of deceiving or misleading; actual deception is not required”: (emphasis by Masuhara J.), citing Knight v.

Imperial Tobacco Canada Limited , 2005 BCSC 172 at para. 2 9, rev’d in part, 2006 BCCA 235 . Accordingly, Masuhara J. concluded that the question of deception can be litigated without reference to the circumstances of the class members because the focus is on what the defendant did and the effect it was capable of having, not what effect it actually had, a proposition that was stated in Knight and repeated in Stanway at para. 77 . [ 104 ] In any event, in this case, Ms. Vallance has pleaded detrimental reliance in relation to her BPCPA claim at para. 62 of the further amended notice of civil claim.

I consider the pleas to be adequate and to be supported by material facts, consistent with legal principles I have set out, at paras. 5, 19, 35, 60, 62, 68, 69, 74, 75, 80, 81, 85, 86, 92, 93, 98, 99, 105, and 106 of the further amended notice of civil claim. [ 105 ] In addition, at paras. 64, 70, 76, 82, 87, 94, 100, 107 and 109 of the amended notice of civil claim, Ms.

Vallance has pleaded an alternate causation theory, that as a result of DHL Canada’s false, misleading and untrue representations, the class members suffered loss and damages in the amount they unknowingly paid to DHL Canada for DHL Canada’s processing or brokerage fees. [ 106 ] In my view, this alternate theory, that DHL Canada’s representations caused the class members to pay fees not knowing what they were paying for, and believing them to be paid for government duties and/or taxes, is analogous to causation theories that have been allowed to ground a claims as not bound to fail in recent cases such as Krishnan; Bowman; and MacKinnon v.

Pfizer Canada Inc. , 2021 BCSC 1093 , aff’d 2022 BCCA 151 (except on punitive damages). [ 107 ] As I have set out above, the novelty of a pleading is not usually a ground to preclude the plaintiff from pursuing the claim. In Finkel , the Court of Appeal for British Columbia considered the alternate causation theory involving breach of contract or a failure to disclose that was alleged to be a deceptive act or practice, to be novel, but held that s. 171 is capable of the broad

interpretation necessary for such a claim to be available at law: Finkel at paras. 78–79, 83, 87 . [ 108 ] Applying that reasoning here, I am satisfied that Ms. Vallance’s plea of detrimental reliance and her alternate plea of causation are such that the claim is not bound to fail for lack of a pleading of causation. Disgorgement [ 109 ] In paras. 66, 78, and 102 of the further amended notice of civil claim, Ms. Vallance pleads for relief under certain provisions of the BPCPA , the Saskatchewan and the Newfoundland and Labrador consumer protection legislation. She seeks declaratory relief and

seeks to have monies paid by class members to DHL Canada restored to them including “the disgorgement of profits or revenues”. [ 110 ] In Atlantic Lottery , the Court set out to clarify the legal terminology pertaining to restitution and disgorgement, including the historical usage of those terms interchangeably. Justice Brown, for the Court, explained that restitution returns a wrongful benefit, the defendant received from the plaintiff, to the plaintiff where the defendant’s gain corresponds to the plaintiff’s loss.

Disgorgement is a type of remedy calculated exclusively by reference to the defendant's wrongful gain, irrespective of whether it corresponds to damage suffered by the plaintiff and, indeed, irrespective of whether the plaintiff suffered damage at all: Atlantic Lottery at para. 23. [ 111 ] In Koubi v. Mazda Canada Inc. , 2012 BCCA 310 , the plaintiffs alleged in a putative class action that Mazda Canada’s representations as to the quality of its components, including door locks, were deceptive acts by a supplier contrary to ss. 4 and 5 of the BPCPA .

The Court of Appeal for British Columbia determined that a breach of the BPCPA cannot constitute the “wrong” for purposes of a claim in unjust enrichment, or other relief not contemplated by the statute (including disgorgement). The Court held that the BPCPA is an exhaustive code for the regulation of consumer transactions and that so called “anti-enrichment” claims premised on breach of the BPCPA are not available in law: Koubi at paras. 63–65 . The Court of Appeal in Wakelam cited this analysis with approval (see paras. 55–66).

See also Hoy at paras. 145–161 , which reviews and summarizes this case law with a focus on disgorgement. [ 112 ] I agree that the jurisprudence is settled on this point; a claim for disgorgement under provincial consumer legislation is bound to fail. [ 113 ] Accordingly, the last sentence of para. 66 of the further amended notice of civil claim is bound to fail. It shall be struck. However, striking it does not affect the viability of the balance of the claims under provincial consumer protection statutes. Differences Between Provincial Consumer Protection Legislation [ 114 ] DHL Canada asserts that Ms.

Vallance has ignored crucial differences between the provincial consumer protection legislation such that the claims ought not be allowed to proceed. However, DHL Canada has not, in its written submissions, said what those are. [ 115 ] In Palmer at para. 229 , Perell J. described the provincial consumer protection statutes as similar with significant differences. One of the significant differences he described was that under the Ontario legislation, privity of contract between the supplier and the consumer is required. Ms.

Vallance has pleaded privity of contract in her claims under the Ontario legislation, the Quebec legislation, the Prince Edward Island legislation, and the Newfoundland and Labrador legislation. [ 116 ] In addition, Ms. Vallance’s claims for relief are not the same under all of the provincial consumer protection statutes because not all provide for restorative relief. Her pleadings reflect those significant differences between the statutes. Similarly, the Alberta and Ontario consumer protection legislation require notice be given within a year of the alleged unfair practice.

Section 7.2(3) and s. 101 of those respective provincial statutes permit the court to allow the claim despite the notice having not been given if the interests of justice warrant it. Ms. Vallance has pleaded waiver of the notice requirements pursuant to those sections of those statutes. [ 117 ] Despite the lack of specifics as to why DHL Canada submits that these pleadings fall short, it is the plaintiff’s burden to persuade me that they disclose a cause of action. Based on the plaintiff’s submissions and my review, I am persuaded.

Unjust Enrichment [ 118 ] An action in unjust enrichment restores money or property to a plaintiff who can establish: (1) the defendant was enriched; (2) the plaintiff suffered a corresponding detriment; and (3) the absence of a juristic reason for the enrichment: Pro-Sys at para. 85 . [ 119 ] DHL Canada submits that Ms. Vallance’s pleading does not include any material facts pertaining to deprivation and lack of juristic reason. DHL Canada submits that Ms.

Vallance’s pleading goes through rituals of pleading unjust enrichment but is bereft of substance because it does not account for the fact that the class members received the customs clearance services and so there can be no deprivation. [ 120 ] For the reasons given above, I am not persuaded that DHL Canada’s position that the class members received valuable services for the processing fees they paid is an answer to the claims. In any event, the evidence going to those alleged facts cannot be considered at this stage. [ 121 ] Ms.

Vallance has pleaded that the class members suffered a deprivation that corresponded to DHL Canada’s gain. Ms. Vallance pleads that the deprivation is the funds that class members paid to DHL Canada for DHL Canada’s hidden processing fees. This is a valid pleading, including material facts, on corresponding deprivation. [ 122 ] DHL Canada also submits that the plaintiff has not pleaded material facts in support of the no juristic reason element of this claim.

DHL Canada submits that because the arrangement between the class members and DHL Canada was governed by a contract through the common law of bills of lading and statutory law of bills of lading there could be no plea of lack of juristic reason. [ 123 ] In Atlantic Lottery at para. 71, Brown J. held that where the claim pleaded a contract that included the transaction that the plaintiff claimed was unlawful, and the claim contained no pleading nor material facts to support vitiating that contract, the claim was bound to fail because a contract is in the established category of juristic reasons.

I accept that as a matter of law, there is a contract as DHL Canada asserts: Blackman at paras. 34–41, 114 , see also MacFarlane BCCA at para. 10 . [ 124 ] In this case, Ms.

Vallance has pleaded that any contracts that existed did not provide a juristic reason because a hidden processing or brokerage fee was outside the scope of the contract, there was no consideration for such a term that flowed to the class members, and any such contracts should be treated as repudiated or rescinded. [ 125 ] DHL Canada asserts that without pleading the contents of the contracts between the receivers, foreign shippers, and foreign DHL

affiliate, the claim lacks material facts. I do not agree. DHL Canada took me through the contracts at the certification hearing. Setting their contents out in the notice of civil claim would not be pleading material facts because many aspects of those contracts are not material. Doing so would also likely offend the rules on prolix and lengthy pleadings. [ 126 ] Ms. Vallance has pleaded that the contracts do not pertain to the dispute or there was no consideration of a term pertaining to a processing fee. This plea is valid and contains material facts.

It distinguishes the decision in Blackman regarding unjust enrichment. [ 127 ] At para. 57 of the further amended notice of civil claim, which appears under the “unjust enrichment” heading, Ms. Vallance pleads that the proposed class members are “entitled to restitution of DHL Canada’s financial gain”. Though the word “disgorge” does not appear here, the emphasis on the remedy, being the amount of DHL Canada’s financial gain, supports an

interpretation of the pleadings to seek disgorgement as a remedy for unjust enrichment. As discussed above, in Atlantic Lottery , the Supreme Court of Canada made it clear that the word restitution should not be used to mean disgorgement. Accordingly, para. 57 of the further amended notice of civil claim is struck. [ 128 ] In the relief sought section, para. 37 (

m) seeks “restitution”. It does not suffer from the same problem as para. 57 because it does not seek restitution of DHL Canada’s financial gain. Accordingly, striking para. 57 does not undermine the relief sought for unjust enrichment. Tort of Deceit [ 129 ] The tort of deceit has the following elements:

a) a false representation made by the defendant;

b) that the defendant knew or was reckless to, the falsehood of the representation;

c) that the false representation caused the plaintiff to act;

d) and that, as a result, the plaintiff suffered a loss. See: Bruno Appliance and Furniture, Inc. v. Hyrniak , 2014 SCC 8 at para. 21 [ 130 ] DHL Canada asserts that Ms. Vallance’s pleadings set out the elements in a bare and conclusory manner, without any material facts. [ 131 ] With regard to the first, third and fourth elements, when the further amended notice of civil claim is read as a whole, sufficient material facts are in the pleading.

I have referred to those above in relation to the other causes of action. [ 132 ] In addition, I accept that with regard to the first element of the tort of deceit, a false representation, also called a fraudulent misrepresentation, need not be a positive statement, and/or can be a partially true statement from which a party can draw a reasonable but incorrect conclusion: Kuhnke v. Karner , 2022 BCCA 399 at para. 45 . In relation to this tort, Ms.

Vallance’s pleadings that DHL Canada made false and misleading representations, and failed to disclose the fee it was charging by hiding it in the representation about duty and taxes, meet those requirements. [ 133 ] With respect to the second element, intention, I refer to my analysis of the intention element of the Competition Act and reach the same conclusion. In the context of this claim, nothing will be added by pleadings synonyms for Ms. Vallance’s pleadings that DHL Canada made the false and misleading representations knowingly and intentionally. Punitive Damages [ 134 ] DHL Canada submits that Mr.

Vallance has not pleaded material facts to support the claim for punitive damages. [ 135 ] Ms. Vallance’s pleadings pertaining to punitive damages include that DHL Canada’s conduct was high-handed, showed a marked departure from the ordinary standards of decent behaviour, was planned and deliberate and merits punishment. This portion of the further amended notice of civil claim also refers to the facts set out in further amended notice of civil claim. [ 136 ] In Kirk v.

Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111 at para. 140 , Garson J. concluded that the facts pleaded and the evidence in support of the facts pleaded did not describe conduct that could be characterized with the punitive damages descriptors. Instead, the pleadings and the evidence described a mistake the defendant made that had disastrous consequences. [ 137 ] DHL Canada relies on Hoy at paras. 171–177 , where Perell J. struck a claim for punitive damages because the pleading went no further than “a mere breach of consumer protection legislation”. DHL Canada submits that Ms.

Vallance’s pleadings regarding punitive damages are bald assertions unsupported by material facts and so the court should follow Hoy . [ 138 ] Kirk stands for the proposition that pleading a mere mistake cannot support a plea for punitive damages. Similarly, Hoy stands for the proposition that pleading a mere breach of consumer protection legislation cannot support a plea for punitive damages. [ 139 ] It is not accurate to characterize Ms. Vallance’s pleading as seeking punitive damages based on a mere breach of consumer protection law. The conduct pleaded is very different from a mere mistake.

The pleading is that DHL Canada engaged in high-handed, planned, and deliberate conduct to hide the customs clearance fee by falsely representing it was taxes and duties owing to the government. [ 140 ] I conclude that material facts are pleaded in relation to the pleading for punitive damages.

[ 141 ] The claim for punitive damages is not bound to fail. Wilful Concealment [ 142 ] Ms. Vallance pleads that DHL Canada wilfully concealed the existence of the processing fee. [ 143 ] Ms. Vallance does not plead this as a cause of action or seek a common issue based on wilful concealment. It may be, as DHL Canada surmises, relevant to any limitation defence that DHL Canada will rely on. [ 144 ] Since the limitation issues are not raised at this certification hearing and no common issue is raised based on this pleading, I decline to consider it further.

Sections 4(1)(b)-(e) – Evidence and Evidentiary Threshold for Certification Legal Principles [ 145 ] The proposed representative plaintiff must show some basis in fact to support the certification elements in s. 4(1) (b), (c), (

d) and (

e) of the Class Proceedings Act : Hollick at paras. 24–26 ; Finkel at para. 19 . [ 146 ] The “some basis in fact” threshold is low. It is not a burden to prove anything on the balance of probabilities: Nissan Canada at paras. 134–136. The threshold is deliberately low because there has been no discovery and the evidence has not been through the trial laboratory. The low threshold anticipates that the evidence will be more developed at trial and the findings of fact may well be different.

In Finkel at paras. 19–20 , the Court of Appeal explained that the “‘some basis in fact’ standard does not require the court to weigh and resolve conflicting facts and evidence” and that the court is ill-equipped to resolve conflicting evidence at the certification stage. [ 147 ] While the certification hearing should not be merits-focussed, there is to be more than symbolic scrutiny of the evidence: Pro-Sys at para. 103 . Still, this scrutiny is about the evidence going to the certification requirements, not the merits.

At para. 104, the Supreme Court of Canada in Pro-Sys went on to explain that the purpose of a more than symbolic scrutiny of the evidence is to ensure that if the matter proceeds on a class basis, it will not founder “at the merits stage by reason of the requirements of s. 4(1) of the CPA not having been met”. [ 148 ] Section 5(5) of the Class Proceedings Act requires each person bringing an application for certification, and each person swearing an affidavit in response to an application for certification, to depose that there are no material facts pertaining to certification that have not been disclosed.

To be understood, that provision must be read in the context of the preceding subsections of s. 5 : 5

(1) An application for a certification order under section 2 (2) or 3 must be supported by an affidavit of the applicant.

(2) A copy of the notice of application and supporting affidavit must be filed and (

a) served by ordinary service on all persons by whom or on whose behalf a pleading has been filed in the proceeding, and (

b) served by personal service on any other persons named in the style of proceedings.

(3) Unless otherwise ordered, there must be at least 14 days between (

a) the service of a notice of application and supporting affidavit, and (

b) the day named in the notice of application for the hearing.

(4) Unless otherwise ordered, a person to whom a notice of application and affidavit is served under this

section must, not less than 5 days or such other period as the court may order before the date of the hearing of the application, file an affidavit and serve a copy of the filed affidavit by ordinary service on all persons by whom or on whose behalf a pleading has been filed in the proceeding.

(5) A person filing an affidavit under subsection (2) or (4) must (

a) set out in the affidavit the material facts on which the person intends to rely at the hearing of the application, (

b) swear that the person knows of no fact material to the application that has not been disclosed in the person's affidavit or in any affidavits previously filed in the proceeding, and (

c) provide the person's best information on the number of members in the proposed class. Evidence Led by Ms. Vallance [ 149 ] DHL Canada submits that the evidence tendered by Ms. Vallance suffers from several problems, which when considered cumulatively, render the evidence inappropriate and insufficient to serve as some basis in fact for the s. 4(1) (b)-(

e) certification requirements. The problems that DHL Canada asserts are: the evidence has internal conflicts, not all of those who made affidavits made the attestation required by s. 5(5) (

b) of the Class Proceedings Act ; the contents of the affidavits, in particular Ms. Vallance’s, are not substantively in accordance with the s. 5(5) (

b) attestation; and the affidavits made by the proposed class members are almost identical

calling into question whether they reflect the various affiants’ own evidence. [ 150 ] Section 5(1) of the Class Proceedings Act requires a certification application to be supported by an affidavit of the applicant and s. 5(4) requires a person on whom a certification application is served to provide an affidavit. Taking into account those provisions, on a plain reading, the s. 5(5) (

b) attestation requirement applies to the parties, i.e. the proposed representative plaintiff(

s) and the defendant(s), but does not apply to non-party affiants. Proposed class members who are not the representative plaintiff are not parties. [ 151 ] DHL Canada submits that the attestation requirement applies to all affiants on a certification application, relying on N&C Transportation v. Navistar International Cantlie v. Canadian Heating Products Inc. , 2016 BCSC 2129 at para. 31 , rev’d in part on other grounds, 2018 BCCA 312 ; British Columbia v. Apotex Inc., 2022 BCSC 1383 at para. 49 [ Apotex ] ; and Fleming v.

British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2023 BCSC 296 at para. 82 . [ 152 ] I do not agree that N & C Transportation or Apotex stand for that proposition. [ 153 ] The issue in N & C Transportation was whether the defendant was required to file an affidavit and if it did so, whether that affiant was required to make the s. 5(5)(

b) attestation. DHL Canada refers to para. 31, where Justice Skolrood quoted Class Actions in Canada, loose-leaf ed. (Toronto: Canada Law Book, 2014) and in that quote, the words “each affiant” are used in reference to the s. 5(5) (

b) attestation. Justice Skolrood quoted the passage on the point of whether the defendant was required to have a representative make an affidavit , not whether non-party affiants have a s. 5(5) (

b) obligation, [ 154 ] In Apotex , at para. 46 , Justice Fitzpatrick explained that “ the requirement in s. 5(5) (

b) applies to a plaintiff, as above, and also a responding defendant(

s) in a class proceeding”. Justice Fitzpatrick was considering whether a person, employed and specifically authorized by the plaintiff to make its affidavit on certification, had a s. 5(5) (

b) obligation when making an affidavit on behalf of the government plaintiff . Apotex is not authority for the proposition that s. 5(5) (

b) has application beyond the affidavits of parties. [ 155 ] In Fleming at para. 82 , Justice E. MacDonald determined she should give less weight to an affidavit made by a non-party who had not made the “attestation that is required by s.5(5) (b)”. There is no consideration, beyond that statement, of the issue of whether a non-party is required to make a s. 5(5) (

b) attestation. I do not consider Fleming authority for that proposition. [ 156 ] Accordingly, I conclude that Ms. Vallance has a s. 5(5) (

b) obligation but the other purported class members do not. [ 157 ] DHL Canada asserts that the affidavits are not just deficient for failure to make the attestation (except for Ms. Vallance) but also for failure to make the affidavit in accordance with a general duty to disclose all material facts pertaining to the subject matter of their evidence, regardless of whether there is an attestation requirement. DHL Canada submits that Ms. Vallance and the proposed class member affiants have omitted material facts pertaining to the communications they had with DHL Canada over their packages.

I will review that allegation below. I agree that such omissions would diminish the use to which the affidavits can be put, especially on the issue of whether there is some evidence to support a common issue of false or misleading representation.

If there is a missing evidence on what representations were made by DHL Canada, then the Court may not be able to conclude that the proposed common issues that pertain to the alleged false or misleading representations can be decided commonly. [ 158 ] It is also clear that the failure to comply with the attestation is relevant to what weight a court gives evidence: Cantlie v. Canadian Heating Products Inc., 2017 BCSC 286 at para. 171 . DHL Canada asserts that Ms. Vallance made the attestation, but did not include all material evidence in her affidavit.

I will address this below. [ 159 ] DHL Canada also relies on Larsen v. ZF TRW Automotive Holdings Corp. , 2023 BCSC 1471 , at para. 33 , where Justice Majawa observed that the court must consider the evidence put forth by the plaintiff on certification as a whole and where that body of evidence conflicts, it will not pass the evidentiary threshold of some basis in fact.

I agree that conflicts in evidence could have that outcome where the conflicts are on evidence, for example, of whether a common issue is common; or for another example, if aggregate damages are sought, whether they can be determined on a class wide basis. [ 160 ] Finally, DHL Canada asserts that the affidavits of Ms. Vallance and the other purported class members are “boilerplate” or “cookie cutter” affidavits, and that undermines the credibility of the affiants and affects what weight ought to be given to their affidavits: Wood-Tod v. The Superintendent of Motor Vehicles , 2020 BCSC 155 at para. 94 .

I agree with this statement of how evidence should be assessed. Ms. Vallance’s Evidence [ 161 ] Ms. Vallance’s affidavit evidence about the processing fee is as follows: 7. At 11:19 am on February 26, 2021, I received an email from DHL advising that my shipment was in Richmond, British Columbia, but that I needed to pay $33.16 (CDN) in "duties and taxes" before DHL would release the shipment to me and that if it was not paid in 5 days, my package would be returned. Attached as Exhibit A is a true copy of this email. 8. After receiving the aforementioned email, I paid DHL the sum of $33.16 (CDN).

I did so on the understanding that all of this money was required to be paid to the government as "duties and taxes” for lawfully allowing me to receive my package. I believed this to be the case because the email made reference to "duties and taxes" and at no time prior to paying this sum did DHL advise me that it would also include an additional fee for their services. 9. When I paid the sum of $33.16 I did not receive a receipt for this payment and none was provided to me in advance before I paid it. I sent DHL an email at 12:33 pm on February 26, 2021 asking for a receipt as none was provided.

This is set in the aforementioned email. 10. DHL eventually provided me with a receipt for the $33.16 (CDN) for the sum that I previously paid. Attached as Exhibit B is a true copy of this receipt. Upon review of this receipt, I learned for the first time that DHL charged a "processing fee" of $17.00 (CDN) plus $0.85 (CDN) for GST for a total of $17.85 (CDN). DHL never advised me, prior to payment, that the sum of $33.16 (CDN) included an

additional fee for its services. Had I known of this, I would have refused to pay it as I had already paid an additional £57.00 for shipping. 11. While the email I received from DHL indicated that "duties and taxes" were to be charged, the invoice shows that there were no charges for "duties" at all. [ 162 ] The other evidence, including Ms. Vallance’s evidence on cross examination, demonstrates that Ms. Vallance’s affidavit does not include all of her interactions with DHL Canada. In addition, it is not possible, based on Ms.

Vallance’s evidence on cross examination, to understand exactly how many communications she had in what order, including on the crucial issue of whether she knew about the processing fee before she paid it. [ 163 ] Ms. Desta deposed that DHL Canada sent Ms. Vallance a text message about her shipment from DHL Canada on February 23 and 24, 2021. Ms. Vallance was asked about this on cross examination and testified that she did not recall that. On re-examination on her cross examination, Ms.

Vallance testified that the number to which DHL Canada sent the text messages was a landline. [ 164 ] As set out above, in para. 7 of her affidavit, Ms. Vallance deposed that she received the communication that she alleges contained the false and misleading representation, by email on February 26, 2021. She appended the email as Exhibit A to her affidavit. She deposed that it described “duties and taxes” owing. In fact, it describes “duties and taxes (import fees)” owing.

She deposed that the first time she became aware that she had paid $17.00 as a customs processing fee as part of what was described in Exhibit A to her affidavit, was when she requested and was sent a receipt for the payment, which she appended as Exhibit B to her affidavit. [ 165 ] Ms. Desta deposed that Ms. Vallance’s Exhibit A was sent to her as a result of a phone call that Ms. Vallance made to DHL Canada. Ms. Desta deposed that DHL Canada called Ms.

Vallance on February 26, 2021 because she had not paid the amounts owing for her delivery, and spoke to her father, although at her cross examination it was stipulated by Ms. Vallance’s counsel that DHL Canada spoke to Ms. Vallance’s husband. Ms. Desta deposed that the same day, Ms. Vallance requested and received a code to access the DHL Canada’s online portal. Ms. Desta deposed that through the online portal, there was information describing the customs processing fee. Ms. Desta also deposed that on January 26, 2021, Ms. Vallance telephoned DHL Canada, and after that call, DHL Canada sent Exhibit A to Ms.

Vallance. [ 166 ] At her cross examination, Ms. Vallance agreed that she called DHL Canada. She testified that she did so because she had received an invoice and was surprised by the processing fee. She also testified that she called DHL Canada to make the payment. She also testified that she called DHL Canada to get a receipt. It is not clear whether these references are to the same phone call or more than one phone call. [ 167 ] If Ms.

Vallance did make the payment by telephone, or made a call at which she was given a code to access the online portal to make a payment, there were opportunities for communications about what she was paying for, through the telephone call or through the online line portal (which had material describing the processing fee as a processing fee). [ 168 ] Although the evidence about what happened in what order is not at all clear, it appears that Ms. Vallance spoke to DHL Canada by phone at least once before she paid and before she received Exhibit B.

If that is correct, then her evidence that she called DHL Canada because she was surprised by the processing fee might mean she learned of the processing fee and called DHL Canada before she paid it. This calls into question whether the false and misleading representations, that she alleged that DHL Canada made to her and to the proposed class members were common, because an aspect of what she asserts was commonly false and misleading was the hidden fee. If Ms.

Vallance was already aware of the processing fee before she paid DHL Canada $33.16 then the processing fee was not hidden when she paid it. [ 169 ] What Ms. Vallance refers to as a receipt and appends as Exhibit B to her affidavit, is described as an invoice on its face and it is dated February 23, 2021. Ms. Vallance did not depose as to when she received Exhibit B, nor did she append the email by which the receipt was sent, so it can be determined when, in relation to Exhibit A, it was sent. [ 170 ] Overall, Ms.

Vallance’s affidavit about the communications she had with DHL Canada pertaining to the delivery of her books, and the amounts she paid to DHL Canada, is problematic as a foundation of common issues on the core allegation in this case because her affidavit is incomplete and therefore unreliable. In addition, the evidence discloses more than one opportunity for her to learn about the customs processing fees through communications that she did not describe in her affidavit and for which the content of the communications is unknown. [ 171 ] In her affidavit, Ms.

Vallance described two communications with DHL Canada about the fees – Exhibit A, which she asserts is the false and misleading communication, and Exhibit B, which she described as the first information she had that the money she paid included a customs processing fee. Leaving aside the text messages, which she asserts she did not receive, Ms. Desta’s evidenc

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