Gagnon v. Amazon.com Inc., 2019 QCCA 1166

The class-action plaintiffs sought damages equal to the GST and QST that had been erroneously charged to them on their purchases from the defendant (Amazon). The two year period for applying to the ARQ for a refund under ETA s. 261 (and under the Quebec equivalent) had expired. The plaintiffs alleged that the Amazon invoices were “deceptive,” and relied on s. 227.1 of the Consumer Protection Act (Quebec), which provided:

No person may, by any means whatever, make false or misleading representations concerning the existence, charge, amount or rate of duties payable under a federal or provincial statute.

The Superior Court Justice of first instance had found that the claim was in substance for the recovery of GST and QST, being matters exclusively within the jurisdiction of the Tax Court of Canada and the Court of Quebec, respectively, so that this part of the plaintiffs’ claim was struck.

In reversing this finding and restoring the plaintiffs’ pleaded cause of action, Marcotte JCA stated (at paras. 44-46, TaxInterpretations translation):

[I]s the proposed class action actually grounded in civil liability, rather than being a disguised attempt to receive a tax refund to which the members no longer have a right?

If the alleged fault of the respondents rested solely on the erroneous collection of taxes on products sold, it could be concluded that the recourse sought attempted to circumvent the ETA and STA ….

However, here, to the extent that the alleged failure relates to a deceptive invoicing practice contrary to the CPA, and not simply to the collection of taxes on exempt products, I consider that the Superior Court remained competent to be seized of such action.

The class-action plaintiffs sought damages equal to the GST and QST that had been erroneously charged to them on their purchases from the defendant (Amazon). The class-action plaintiffs sought damages equal to the GST and QST that had been erroneously charged to them on their purchases from the defendant (Amazon). The two year period for applying to the ARQ for a refund under ETA s. 261 (and under the Quebec equivalent) had expired. The plaintiffs alleged that the Amazon invoices were “deceptive,” and relied on s. 227.1 of the Consumer Protection Act (Quebec) (“CPA”), which provided:

No person may, by any means whatever, make false or misleading representations concerning the existence, charge, amount or rate of duties payable under a federal or provincial statute.

Marcotte JCA accepted that the Quebec Superior Court would have had no jurisdiction to consider this claim if it was merely “a disguised attempt to receive a tax refund to which the [class action] members no longer have a right” (para. 44, TaxInterpretations translation) However, before allowing the claim to proceed, she stated (at para. 46):

[T]o the extent that the alleged failure relates to a deceptive invoicing practice contrary to the CPA, and not simply to the collection of taxes on exempt products, I consider that the Superior Court remained competent to be seized of such action.