A nationwide consumer class action over FedEx customs-clearance fees will proceed to a liability trial before the court tackles aggregate damages and punitive damages, the Ontario Superior Court of Justice has ruled.
Justice E.M. Morgan's October 1 decision in Robson v. Federal Express Canada Corp., 2026 ONSC 5467 separates those issues for document production, pre-trial questioning and trial. The ruling determines how the litigation will proceed. It makes no finding that the fees were unlawful, awards no compensation and sets no trial date.
The court granted the FedEx defendants' request to split the proceedings, but refused their bid to add a separate question about whether Ontario's consumer-protection statute applies. Morgan found that question already embedded in the certified issues. He did not decide the statute's applicability on the merits.
A dispute over fees paid by consumers across Canada
Representative plaintiff Karen Robson alleges that Federal Express Canada Corporation and two FedEx Ground companies charged hidden or confusing fees that customers neither understood nor agreed to pay. The claim invokes Ontario's Consumer Protection Act, 2002 provisions on unsolicited services and unfair practices, and also raises unjust enrichment.
The certified class, as reproduced in this ruling, covers individuals in Canada who ordered shipments for personal, family or household purposes, rather than business purposes, and paid a Federal Express Canada invoice for a clearance entry, disbursement or advancement fee from 2016 to the present.
The action seeks $500 million in compensatory, restitutionary and/or disgorgement damages, plus $50 million in exemplary or punitive damages. Those are amounts claimed, not an award or a valuation accepted by the court.
The class action was certified in 2024, and certification was upheld on appeal in 2025. The new decision concerns the next stages of that existing case, rather than a fresh certification ruling.
Why the court separated the work
FedEx's lawyers argued that the damages evidence was largely distinct from, and much more extensive than, the material needed to decide liability. Waiting for financial disclosure and expert work on damages, they said, would unnecessarily hold up the liability case.
The plaintiff's proposed discovery plan sought roughly a decade of records, including transaction exports, invoices, remittance statements, financial accounts, profits and financing information. Defendants' counsel put the volume at about 4.8 million transactions requiring analysis and document review. That figure describes transactions, not a count of individual consumers.
The defendants also raised the commercial sensitivity of the financial information. Their position was that the material might never need to be produced if the plaintiff failed to establish liability, while the liability dispute centred on what customers were told and whether they had agreed to the services.
Robson's lawyers opposed the split. They argued that liability and damages evidence overlapped, particularly on punitive damages, and warned that separate stages could create significant delay.
Morgan considered the fairness and efficiency factors in Rule 6.1.01, including whether issues could be separated without undue repetition or inconsistent findings. He found the evidence largely distinguishable and the balance favoured proceeding first with liability.
The judge acknowledged that delay was a legitimate concern. But document production on liability was already complete, and the parties were ready to schedule oral examinations for discovery. He found the potential prejudice to the plaintiff speculative and outweighed by the burden of requiring the extensive damages disclosure before liability issues could get underway.
Nor did the overlap in evidence about the defendants' conduct prevent a split. Relevant evidence from the first stage would remain in the record for the second. Morgan said the defendants could and should collect second-stage material in the meantime; the ruling does not permanently excuse damages disclosure.
What remains for each stage
The order moves common issues 1(d), 2(b), 3(b) and 5 to a second stage, if reached. These concern whether relief can be calculated collectively and in what amount, as well as entitlement to and the amount of punitive damages. Other certified issues remain in the first stage, including liability and whether particular remedies are appropriate.
FedEx's proposed additional question about the Ontario statute followed the Court of Appeal's warning against deciding the merits of the parties' legal relationship at certification. Morgan held that the existing questions already allowed the defendants to contest the Act's application. Adding another would be redundant or invite unnecessary analysis.
For consumers, the immediate consequence is a staged route through the lawsuit. Whether the defendants owe relief, and any eventual recovery, remain unresolved. The court ordered no costs for either side because the motions had mixed results.
