CANADA
PROVINCE OF QUÉBEC SUPERIOR COURT
DISTRICT OF MONTRÉAL (CLASS ACTION)
_________________________________________
No: 500-06-000411-070 UNION DES CONSOMMATEURS
Applicant
-and-
FERNAND SAVOIE
"Designated Person"
v.
VIDEOTRON General Partnership
Respondent
_________________________________________
In Re Videotron's "Extreme High-Speed"
Internet Service
NOTICE TO MEMBERS
1. TAKE NOTICE that the bringing of a class action was authorized May 30, 2011 by judgment rendered by the Honourable Pepita G. Capriolo, Justice of the Superior Court of Québec, on behalf of the natural persons forming part of the following group:
"Sub-group 1: Any natural person residing in Québec who, as of October 1, 2007 was a subscriber of Videotron's "Extreme High-Speed Internet" Service pursuant to a contract for a term of twelve months entered into prior to August 14, 2007.
Sub-group 2: Any natural person residing in Québec who, for the first time, subscribed, pursuant to a contract for a term of 12 months, to the "Extreme High-Speed Internet" Service between August 14 and September 30, 2007 and who had not been advised, at the time he or she subscribed to the service, that use of the bandwidth would be capped at 100Gb/month (upload and download) and that thereafter the subscriber would have to pay an extra $1.50 /Gb".
2. The chief justice has ordered that the class action authorized by the aforementioned judgment shall be brought in the District of Montréal.
3. For the purposes of this action, Applicant Union des consommateurs and the "Designated Person", Fernand Savoie, have elected to domicile at the offices of their attorneys at the following address:
1980 Sherbrooke Street West
Suite 700
Montréal, Québec H3H 1E8
Respondent's address is as follows:
VIDEOTRON General Partnership
612 Saint-Jacques Street
Montréal, Québec
H3C 4M8
4. Union des consommateurs has been ascribed the status of Representative for the purpose of instituting the class action.
5. The identical, similar or related questions of law or fact between each member of the group and the Respondent, and that your Applicant seeks to have decided by the class action are as follows:
1. Did the unlimited nature of the monthly bandwidth use (upload and download) specific to the Respondent's "Extreme High-Speed Internet" service constitute a fundamental feature of Respondent Videotron's obligations towards the members of the Group?
2. Did the clause dealing with modifications appearing in clause 3.9 of the "Terms and Conditions" to Videotron's Internet access services allow Respondent to unilaterally modify the "Extreme High-Speed Internet" service fixed-term contracts into which it entered with the members of the Group by capping that use at 100 Gb?
3. Does clause 3.9 of the "Terms and Conditions" to Videotron's Internet access services or its use contravene the mandatory provisions of the Consumer Protection Act and/or is it abusive within the meaning of the Civil Code of Québec. If so, in the circumstances, is that clause void or unenforceable against the subscribers?
4. If answered in the affirmative, does the aforementioned modification result in a decrease in the value of the Internet service?
5. Are the members of the Group entitled to claim the following from the Respondent, up to the expiry date of their subscription contracts:
a) Reimbursement of the charges, including taxes, for exceeding the 100 Gb limit;
b) A reduction in the price of the package offered and sold with unlimited data transfers, irrespective of whether or not they exceeded the cap of 100 Gb per month. If answered in the affirmative, determine the amount of the price reduction;
c) A sum of $25 per month as compensatory damages for the trouble and inconvenience caused to the "Designated Person" and to the members of the Group in having to verify their bandwidth use, and as compensation for loss of uploads and downloads incurred to keep their use under 100 Gb;
d) Punitive damages in the amount of $100 pursuant to the Consumer Protection Act;
6. Are the members of the Group who terminated their "Extreme High-Speed Internet" service subscription on the grounds of Respondent's unilateral modification of the service, entitled to claim reimbursement from Respondent of penalties or change fees imposed by Respondent, which include:
a) the cancellation fees imposed by Respondent;
b) maintenance of the discounts granted by Respondent under the Duo, Trio or Quattro Packages or, failing that, reimbursement of an amount equal to the discounts that they lost;
c) reimbursement of all other charges incurred as a result of the modification;
d) where applicable, reimbursement of any additional fees paid to a new Internet Service provider, for an equivalent service?
7. When did Respondent make the decision to terminate the unlimited data transfers and unilaterally impose additional fees for data transfers in excess of 100 Gb per month in connection with subscriptions for its service?
8. Did Respondent make false and misleading statements and did it disregard an important fact in contravention of the provisions set forth in the Consumer Protection Act and the Competition Act in failing to inform its clients, at the time of their subscription or renewal thereof, that it was about to modify the conditions of the service that it had offered to contract for a term of 12 months? Was the period between the date of the decision to terminate unlimited data transfers and August 14, 2007, the date the Respondent notified its subscribers of the modification, unreasonable, and, if answered in the negative, does it constitue a defence in this regard?
9. Depending on the answers to the preceding question, are the members of the Group who renewed their subscriptions or who subscribed to the "Extreme High-Speed Internet" service after Respondent decided to cap data transfers at 100 Gb per month without informing them thereof, entitled to claim additional punitive damages? If answered in the affirmative, what is the amount of such damages?
10. Are the members of the Group entitled to interests on the aforementioned amounts and to the additional indemnity provided for by law?
6. The conclusions sought by the Applicant against Respondent are as follows:
ALLOW the class action of the Applicant, of the "Designated Person" and of the members of the group against Respondent;
DECLARE THAT Respondent may not legally modify contracts which bind it to the respective members of the Group by capping their bandwidth use;
ORDER Respondent to pay the following to each member of the group, up to the expiry date of their subscription agreements:
a) Reimbursement of the charges, including taxes, for exceeding the cap of 100 Gb;
b) Reduction, from October 1, 2007, of the price of Videotron's "Extreme High-Speed Internet" service offered and sold with unlimited data transfers, irrespective of whether or not the cap of 100 Gb per month was exceeded;
c) A sum of $25 per month, from October 1, 2007, as compensatory damages for the trouble and inconvenience caused to the "Designated Person" and the members of the Group in having to verify their bandwidth use, and as compensation for the loss of downloads and uploads incurred to maintain their use under 100 Gb;
d) Punitive damages in the amount of $100 pursuant to the Consumer Protection Act;
and ORDER collective recovery of those sums in principal, interests and the additional indemnity provided for by law;
ORDER Respondent to pay to the members of the Group who cancelled their "Extreme High-Speed Internet" service subscriptions on the grounds of the modification of that service October 1, 2007:
a) the cancellation fee imposed by Respondent;
b) maintenance of the discounts granted by Respondent under the Duo, Trio or Quattro Packages or, failing that, reimbursement of an amount equal to the discounts that they lost;
c) reimbursement of all other charges that they incurred as a result of the modification;
d) where applicable, reimbursement of the additional charges paid to a new Internet Service provider, for an equivalent service;
ORDER Respondent to pay additional punitive damages in the amount of $1000 to each member of the group who renewed their subscriptions or who subscribed for the "Extreme High-Speed Internet" service after Respondent decided to cap data transfers at 100 Gb per month and who had not been informed at the time of their subscription or renewal of their subscription for the aforementioned service;
ORDER Respondent to pay to the "Designated Person" the sum of $481.53, the whole subject to the claim for additional punitive damages in the amount of $1000 if the evidence indicates that Respondent Videotron decided to impose the cap of 100 Gb before the "Designated Person" became a subscriber for "Extreme High-Speed Internet" service, the whole with interest plus the additional indemnity provided for by law;
ORDER Respondent to pay costs, including the costs of the notices and the expert's fees;
7. The class action to be brought by the Representative for the benefit of the members of the Group shall be an action seeking a declaratory judgment, compensatory and punitive damages.
8. Any member of the group, who has not been excluded following the manner hereinafter indicated, shall be bound by any judgment to be rendered in the class action.
9. The date after which a member may no longer request exclusion without special permission has been fixed at July 29, 2011.
10. A member, who has not already brought a suit in his or her own name, may request exclusion from the group by notifying the Clerk of the Superior Court of the District of Montréal, by registered mail before expiry of the deadline for exclusion.
11. Any member of the group who has brought a suit which final judgment on the class action would decide is deemed to have requested exclusion from the group, if he does not discontinue such proceedings before expiry of the exclusion period.
12. A member of the group, other than a representative or an intervenant, cannot be required to pay the costs of the class action.
13. A member may be allowed to intervene by the Court, if the Court considers such an intervention useful to the group. An intervening member may be required to submit to an examination for discovery at the request of the Respondent. A member who does not intervene in the class action cannot be required to submit to an examination for discovery unless the Court considers it necessary.
14. To be a member of the Group
If you wish to be included in the class action, you do not need to do anything. Without special permission, any member who is part of the group will be bound by the judgment to be rendered on the class action unless he or she requests exclusion.
If you wish to be excluded from the class action, you must send notice of your decision by registered or certified mail to the Clerk of the Superior Court of the District of Montréal, 1 Notre-Dame Street East, Room 1.120, Montréal, Québec H2Y 1B6, stating therein that you are a member of the "CLASS ACTIONS – VIDEOTRON – EXTREME HIGH-SPEED INTERNET SERVICE" group (500-06-000411-070) and that you wish to be excluded from the class action. This notice must be sent not later than July 29, 2011.
PLEASE GOVERN YOURSELF ACCORDINGLY
Montréal, June 29, 2011
ATTORNEYS FOR THE REPRESENTATIVE AND FOR THE GROUP
UNTERBERG, LABELLE, LEBEAU, LLP
1980 Sherbrooke Street West
Suite 700
Montréal, Québec
H3H 1E8
Website: www.recours-collectifs.ca
E-mail: contact@ullnet.com
Fax: 514-937-6547
UNION DES CONSOMMATEURS
6226 Saint-Hubert Street
Montréal, Québec
H2S 2M2
Website: www.consommateur.qc.ca/union
Telephone: 514-521-6820
Toll-free number: 1-888-521-6820
Fax: (514) 521-0736
PUBLICATION OF THIS NOTICE HAS BEEN ORDERED BY THE COURT
