Small-claims victory less than satisfying after promised FedEx overnight delivery of frozen perogies came thawed four days late

They are a culinary staple as integral to many a Manitoba Christmas dinner as homemade stuffing and cranberry sauce.

But when Donald and Doreen Bryk’s freshly frozen batch of homemade perogies absolutely, positively had to be delivered overnight to their son in Toronto, Federal Express didn’t live up to its famous promise.

Instead, the eight-dozen pockets of doughy goodnesss arrived four days later, Dec. 21, 2020, a thawed-out mess that went straight to the garbage bin.

And when FedEx refused to compensate the Bryks for the botched delivery, Donald Bryk took the corporate behemoth to court — and won.

"I guess they really don’t care if a guy like me gets his nose out of joint… there are thousands of people who don’t bother," said Bryk, a retired Court of Queen’s Bench judge. "When you are charging a premium for a specific service and you aren’t delivering that service and then say they aren’t even going to give you your money back, it really upset me. As a consumer I thought it was a terrible way to conduct business and I wanted to bring it to somebody’s attention."

Bryk said he is still awaiting payment of the $604.75 judgment he won in small-claims court last October.

"First off, it was, ‘Oh yeah, we will get it out as soon as we get a copy of the judgment,’ and then three weeks later they said the money is coming from (their) head office in Memphis, and four weeks later there is still nothing," he said. "It is kind of exasperating."

The story starts Dec. 17, 2020, with Donald Bryk’s visit to a FedEx shipping agent on Portage Avenue. Bryk said he was provided three options for delivery of his prized package, which also included gifts for his son, daughter-in-law and grandchildren. Bryk said he chose the "Priority Overnight" option, price tag $111, which a customer-service agent told him would see the package delivered to his son’s doorstep no later than 3 p.m. the following day.

"My son rearranged his schedule to make sure he would be at home to receive it… and then nothing," Bryk said. "I must have spent six or seven hours on the phone on the weekend trying to contact somebody to find out where it was."

When Federal Express Canada rejected his claim for compensation, he filed a small-claims lawsuit against them, alleging they reneged on their promise of a money-back guarantee.

In a statement of defence, Federal Express countered that its money-back guarantee was subject to its "terms and conditions" found on its website, which stipulated that the guarantee is suspended during "peak periods" such as Christmas. The company also cited the impact of the pandemic.

All of which means nothing, Bryk argued, if a customer is not advised of the terms and conditions at the time they purchase the service.

"It’s pretty basic contract law," he said. "I wouldn’t mind so much if I had been made aware of the terms and conditions, then I could say ‘no thanks, what’s the point?’ But not even being informed of the terms and conditions and being told they are taking your money on that basis?"

A hearing officer who adjudicated the matter accepted the FedEx employee was fully aware Bryk’s package contained perishable items and did not discuss or provide any written terms and conditions.

"I accept (Bryk) entered into a contract and terms and conditions are the ones he was aware of at the time of the agreement," the hearing officer said. Terms and conditions "were not presented, discussed nor accepted at the time of the agreement and cannot arbitrarily be added to the contract after the fact."

Bryk sought an additional $1,000 in general damages for "anxiety, frustration and disappointment" suffered by his family.

"I am not of the view that the claimant’s frustration amounts to a level of distress sufficient to warrant an award of general damages," the hearing officer ruled.

Federal Express Canada did not provide a comment in time for deadline Tuesday.

dean.pritchard@freepress.mb.ca