Fine print, be damned

Turns out a courier actually has to deliver

It’s a story with all the elements: David, Goliath and horse sperm.

Well, maybe the last one is a bit much.

But this is a story for anyone who has ever been left hanging by a courier company.

You know the feeling: you’re waiting for a critical package. It’s something you need for work, for a special birthday gift perhaps, and it doesn’t show up, despite the delivery promises. (This frustration is only matched by you taking five minutes to go to the bathroom, and finding a stickytag on the door announcing the courier has come and gone.)

But Nova Scotia small claims court adjudicator Augustus Richardson struck a blow for all the little folk with his decision in McKendrick vs. FedEx.

Here’s the nub of Richardson’s decision: “Can a national courier company advertise, name and charge for a delivery service called ‘priority overnight,’ and then bury in small print somewhere on its website the advice that delivery will actually take two days rather than one? And can it limit its liability to a shipper and a receiver who have relied on the company’s representation that the delivery service is ‘overnight’ to only $100? On the facts before me the answer must be ‘no.’”

Here’s the rest of the story, gleaned from court documents: a horse breeder named Chelsea McKendrick from Seaforth, N.S. wanted to breed one of her mares, using sperm from a Langley, B.C. stallion stable. The insemination process has its downsides, primarily because on both sides of the reproductive process, timing is of the essence.

As the adjudicator wrote, “Horse sperm is motile for only a very short time. It must be kept cold and used within roughly 24 hours of production. Timing is further complicated by the fact that mares, once they have ovulated, have a similarly short window of fertility. Matching the two takes careful and precise timing.”

McKendrick ordered the sperm, the supplier sent it by FedEx priority overnight, and everything was lined up - except the package didn’t arrive on the day it was supposed to. In fact, it arrived a full day later, having apparently overnighted in Mississauga, Ont.

The insemination was attempted, but failed.

That meant some special expenses: McKendrick had to hire a veterinarian to prepare the mare (including injections to trigger ovulation in time for the sperm delivery), along with further vet charges to actually inseminate the mare. In total, some $740.36 in out-of-pocket costs.

So McKendrick went to small claims court. FedEx’s defence was that “priority overnight” service didn’t actually mean overnight service, and that such information was included somewhere deep in its terms of service. Not only that, but the courier company argued that its contract limited damages to $100.

“I do not think that the supplier of a service can negate an express representation contained in the very name of the service it offers by burying a caveat to that representation somewhere on its website,” the adjudicator wrote, pointing out as well that FedEx pitches its priority overnight service as a solution for those who can’t wait two to three days. “Delivery would be ‘priority overnight.’ McKendrick’s reliance was reasonable given the name and nature of the service being provided. It was a reliance that FedEx obviously knew would exist - otherwise why offer such a service using such a name?”

The real fun was FedEx’s attempt to rely on the $100 limitation of damages in its contract. McKendrick didn’t have a contract with FedEx and hadn’t agreed to any limit on damages; the sperm supplier had signed the contract of service.

And the adjudicator decided it wasn’t even an issue with delivery, it was an issue of misrepresenting the available service, so FedEx would be order ed to pays the costs.

One small win.

“But this is a story for anyone who has ever been left hanging by a courier company.”

Russell Wangersky’s column appears in 39 SaltWire newspapers and websites in Atlantic Canada. He can be reached at rwanger@thetelegram.com Twitter: @wangersky.