Date Issued: August 9, 2021

File: SC-2021-001705

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Carter v. Amazon Canada Fulfillment Services, ULC, 2021 BCCRT 866

Between:

DOUG CARTER and ANDREA HERRINGTON

ApplicantS

And:

AMAZON CANADA FULFILLMENT SERVICES, ULC

Respondent

INTRODUCTION

1.      This dispute is about used book inventory the applicant sellers, Doug Carter and Andrea Herrington, intended to sell through the respondent e-commerce retailer, Amazon Canada Fulfillment Services, ULC (Amazon). The applicants decided to end their agreement with Amazon in 2021. The applicants say that as provided in the parties’ agreement, in January and February 2021 they submitted two “removal order” requests to have their inventory shipped back to them, but that Amazon cancelled the request both times and failed to return the goods or respond to their communications. The applicants claim $3,373.62 for the value of their 153 books.

2.      In its Dispute Response filed at the outset of this proceeding, Amazon only said it needed more time to investigate. In its later submissions, Amazon admits that in error it twice cancelled the applicants’ “removal order” requests. Amazon submits it has corrected its system error and is now ready to return the books to the applicants if they submit a new removal order to Amazon. Amazon says it should not have to pay the applicants anything. Amazon also says under the parties’ agreement the books’ value is only $1,234.36, based on the applicant’s “unit value” for each book minus Amazon’s applicable fees as set out under the parties’ agreement.

3.      Mr. Carter represents the applicants and Amazon is represented by an employee.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.

6.      Under section 42 of the CRTA, the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

8.      The parties’ contract contains a clause that says the parties agree to resolve disputes by binding arbitration, rather than court. The CRT is not arbitration and is also not a court. Neither party relied on this clause or argued the CRT was not an appropriate forum to resolve this dispute, and so I find the parties have waived application of this forum clause.

9.      The parties’ contract also names other Amazon affiliated entities but not the named respondent. However, since Amazon does not argue it was improperly named, I have adjudicated this dispute on the basis Amazon was properly named.

ISSUE

10.   The issue in this dispute is what is the appropriate remedy to address the applicants’ books in Amazon’s possession.

EVIDENCE AND ANALYSIS

11.   In a civil claim like this one, the applicants have the burden of proving their claim, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.

12.   The background facts are largely undisputed. As noted above, in 2020 the applicants decided to sell their inventory of used books through Amazon’s online platform. In 2021, the applicants decided to end that relationship and as discussed further below, filed “removal requests” under the parties’ agreement that would have Amazon return their goods for a small fee.

13.   In particular, the parties agree the applicants filed 4 removal requests in total: 2 on around January 17, 2021 and another 2 on about February 2, 2021. The parties also agree there are about 155 books in the applicants’ inventory held by Amazon (the applicants’ claim is for 153 books). The evidence shows on February 23, 2021 Amazon emailed the applicants that the “removals” had been completed and the applicants needed to wait up to 30 business days for the books to be shipped. At the same time, after the applicants expressed confusion about their ongoing “active” status and books still being sold, Amazon also emailed that “we are unable to address this decision any further”. Yet, as noted, the evidence also shows Amazon had in fact incorrectly cancelled the applicants’ removal requests and continued to sell their books. The applicants filed this CRT dispute on March 3, 2021, after Amazon had not responded to their last three communications attempts in late February 2021.

14.   Since Amazon admits it erred in cancelling the applicants’ removal orders twice, I find I do not need to detail the agreement’s provisions in detail about how removal orders are handled. I find Amazon breached the parties’ contract.

15.   I turn to the appropriate remedy.

16.   Damages for breach of contract are intended to put the innocent party in the same position as if the contract had been performed: see Water’s Edge Resort v. Canada (Attorney General), 2015 BCCA 319. If the contract had been performed, the applicants would have had their goods shipped back to them without having started this CRT dispute. 

17.   Amazon relies on the parties’ agreement for its position that it owes nothing because the applicants can still get their books back. The parties’ 27-page agreement, titled “Amazon Services Business Solutions Agreement”, sets out the various services Amazon provides to sellers. The relevant terms include:

a.    Under ‘Disclaimer & General Release’, Amazon disclaims any liability even if arising from Amazon’s negligence. Amazon does not warrant or guarantee that the Amazon site’s functions or services will be available or error free.

b.    Under ‘Limitation of Liability’, Amazon is not liable in either contract or tort to the applicant sellers for “cost of cover, recovery, or recoupment of any investment” made by the applicant sellers in connection with the agreement.

c.    Amazon will not pay any shipping costs.

18.   The applicants started this CRT proceeding because Amazon had failed to return their books and had not responded to their final communications. However, the applicants claim what they say is the books’ value, and say they no longer want the books’ return because they fear Amazon will return them damaged.

19.   Amazon says the contract does not provide for reimbursement for the books, since they are not lost or damaged. I agree, given the contract’s terms.

20.   I note I was unable to open Amazon’s spreadsheet setting out its itemized calculation for the books, though from the applicants’ submissions it is clear the applicants were able to review it as they commented on it in detail. I find it would be disproportionate and is unnecessary for me to ask Amazon to resubmit it, because it would not change my conclusion. Namely, I find the most appropriate result is an order for Amazon to return the applicants’ 153 books to them. My reasons follow.

21.   First, as noted, about a week before filing this dispute, the applicants clearly wanted the books returned. I find their concern about damage now is speculative.

22.   Second, Amazon has admitted its error and says the books are available for return.

23.   Third, contrary to the applicants’ submission and as mentioned, I find the parties’ contract as summarized above does not provide for compensation as claimed.

24.   Fourth, I cannot reconcile the applicants’ valuation with the parties’ contract. Its terms say that Amazon calculates reimbursement value based either on the current list price for the item or the median price the applicant sellers sold the item for over the past 18 months, or, another seller’s median price or current list price. I agree with Amazon that, contrary to the applicant’s arguments, shipping costs are not included in the unit reimbursement price.

25.   Given the above, I find an order for Amazon to return the books is the most appropriate remedy, given the parties’ contract and Amazon’s admission the books are available for return. Such an order falls within CRTA section 118(1)(b), for “recovery of personal property”. I find the only other alternative might be to dismiss the applicants’ claim, which I find would be inappropriate given Amazon’s admitted errors and agreement the books are available for return to the applicants.

26.   However, I do not agree with Amazon’s submission that the applicants must file a new removal order in order for the books to be returned. I could not order the applicants to do that, given that CRTA section 118 limits my ability to grant such injunctive relief. In any event, I find such an order would be an unnecessary step and would not bring finality to this dispute. Given Amazon’s breach and failure to address the problem before the applicants filed this dispute, I find the most appropriate remedy is for Amazon to return the books to the applicants at its own expense. I note that according to Amazon’s own terms, the associated cost is likely a nominal amount for the 153 books, less than $200 in total.

27.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. The applicants were substantially successful, and notably when they filed this dispute Amazon had not yet admitted they had erred. I find Amazon must reimburse Mr. Carter $175 in paid CRT fees. Mr. Carter also claims $31.90 for a corporate summary report and $2.33 for parking expenses incurred in serving Amazon with the Dispute Notice. I allow these reasonable expenses.

ORDERS

28.   Within 30 days of this decision, I order Amazon to send the applicants their 153 books in Amazon’s possession at Amazon’s expense, to Mr. Carter’s address set out on the Dispute Notice. Amazon must send the books by a method that tracks their delivery and requires one of the applicant’s signatures.

29.   Within 30 days of this decision, I order Amazon to pay Mr. Carter a total of $209.23, broken down as $175 for CRT fees and $34.23 in dispute-related expenses.

30.   Under section 48 of the CRTA, the CRT will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the CRT’s final decision. The Province of BC has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is in effect until 90 days after June 30, 2021, which is the date of the end of the state of emergency declared on March 18, 2020, but the Province may shorten or extend the 90-day timeline at any time. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

31.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of BC. A CRT order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of BC.