NO.

                                                                                                VANCOUVER REGISTRY 

IN THE SUPREME COURT OF BRITISH COLUMBIA 

BETWEEN:

JOHN CHEN

PLAINTIFF

AND: 

CANADA POST CORPORATION, CYBERSURF CORP. and

3WEB CORP. 

DEFENDANTS 

 

Brought under the Class Proceedings Act

 

STATEMENT OF CLAIM

 

THE PARTIES

1.         The Plaintiff is a student and resides at #6 – 4899 Quebec Street, in the City of Vancouver in the Province of British Columbia.

 2.         The Defendant, Canada Post Corporation ("Canada Post"), is a Crown Corporation incorporated pursuant to the Canada Post Corporation Act, R.S.C. 1985, c. C-10.  Canada Post is an agent of Her Majesty in Right of Canada and has its registered/head office at 2701 Riverside Drive, Suite N0510, in the City of Ottawa, in the Province of Ontario.

 3.         The Defendant, Cybersurf Corp. (“Cybersurf”) is an Alberta corporation with its head office in the Province of Alberta at West Tower,  #300 – 1144 29th Avenue NE, Calgary, Alberta

 4.         The Defendant, 3Web Corp. (“3Web”) is an Alberta corporation registered extra-provincially within the Province of British Columbia on October 10th, 2000, under number A-0053832.  The company’s head office in Alberta is West Tower, Suite 300, 1144 – 29th Avenue NE, Calgary, Alberta and its head office within British Columbia is 1040 West Georgia Street, 15th Floor, Vancouver, British Columbia. 

 5.            Canada Post is an agent of Her Majesty in Right of Canada and carries on business with the following objects:

a.         To establish and operate a postal service for the collection, transmission and delivery of messages, information, funds and goods both within Canada and between Canada and places outside Canada;

b.                 To manufacture and provide such products and to provide such services as are, in the opinion of Canada Post, necessary or incidental to the postal service provided by it; and 

c.                  To provide to or on behalf of departments and agencies of, and corporations owned, controlled or operated by, the Government of Canada or any provincial, regional or municipal government in Canada or to any person services that, in the opinion of Canada Post, are capable of being conveniently provided in the course of carrying-out other objects of Canada Post.

 6.             Cybersurf is a public company trading on the Canadian Venture Exchange (CDNX) under the symbol “CY”.  It carries on business developing software, connectivity and communications solutions for the internet industry and has offices in Calgary, Alberta and Toronto, Ontario.

 7.         3Web is a wholly-owned subsidiary of Cybersurf and carries on business providing an enhanced internet experience to a subscriber base and has offices in Calgary, Alberta and Toronto, Ontario.

 

THE OFFER

8.            Canada Post entered into a partnership with Cybersurf and 3Web to offer for sale to Canadians, lifetime e-mail and unlimited internet access via a network provided by 3Web by means of a CD-Rom which contained installation software that provided access to those services. 

 9.                  The CD-Rom was sold in approximately 900 Canada Post retail outlets across Canada.

 10.       The CD-Rom was sold for $9.95 plus applicable taxes and was custom-tailored for Canada Post customers providing a branded internet home-page that included single click access to Canada Post's available internet-based services including postal code look-up, the "Electronic Post Office", “eParcel” and a shopping directory.

11.       The CD-Rom was sold by Canada Post at its retail outlets within the Province of British Columbia and across Canada throughout most of 2000 and 2001 and was purchased by more than 140,000 individuals. 

 12.       The Plaintiff learned about the CD-Rom through written forms of published advertisements and radio broadcasted advertisements and as a result thereof he visited a Canada Post retail outlet at 349 West Georgia Street, in the City of Vancouver, Province of British Columbia, where he purchased the CD-Rom in or about the month of March 2000.

 

 REPRESENTATIONS AND MARKETING

13.       The CD-Rom was advertised and represented by the Defendants  to provide lifetime access to the following ("the Service"):

 a.                  Free unlimited internet access;

 b.                  Free multiple e-mail accounts;

 c.                  Free software suite and set-up;

 d.                  No connection charges;

 e.                  No commitments;

 f.                    No requirement to pay for internet access again.

 14.       The Plaintiff and Class Members purchased the CD-Rom as a result of their reliance upon the representations hereinbefore referred to.

 

WITHDRAWAL OF FREE INTERNET ACCESS

 15.             In or about August, 2001, Cybersurf/3Web withdrew the availability of the Service.

 16.             Customers who purchased the CD-Rom were no longer able to access the Service.

 17.            Customers who had purchased the CD-Rom were advised by the Defendants that the Defendants would provide the service and that if the customers wished to continue the service they would be required to pay  $9.95 per month.

 

BREACH OF CONTRACT

 18.       The CD-Rom contains installation software for purposes of accessing the Service.

 19.       Access to the Service was the purpose for which the CD-Rom was purchased from the Defendants by the Plaintiff and Class Members.

 20.       Once the Service was no longer available, the CD-Rom lost its value as it now accesses a completely different service.  It no longer accesses a free unlimited access service, but rather an unlimited internet access service at a cost of $9.95 per month. 

 21.       The Cybersurf/3Web replacement offer of $9.95 per month unlimited access service is fundamentally different from the free unlimited internet access service which had been previously represented and advertised  by the Defendants as aforesaid. 

 22.       The Defendants failure to provide the service contracted for by the Plaintiff and Members of the Class with the purchase of the CD-Rom constitutes a fundamental breach of contract by the Defendants and each of them. 

 

DAMAGES

23.       As a result of the Defendants’ breach of contract aforesaid, the Plaintiff and Class Members have each suffered damages reflecting the purchase price of the CD-Rom, the loss of service and consequential losses as well.

 

THE CLASS

24.       The Plaintiff proposes that the Class herein be defined as follows: 

            “Any person in the Province of British Columbia, who purchased from Canada Post, lifetime e-mail and unlimited internet access by means of a  CD-Rom  containing installation software for accessing those services.”

 

 LEGISLATION

25.       The Plaintiff and Class Members plead and rely upon, inter alia, the provisions of the Class Proceedings Act,  RSBC 1996,  c.50, the Consumer Protection Act, RSBC, 1996, c.69, the Sale of Goods Act, RSBC 1996, c.410, the Trade Practice Act, RSBC, 1996, c.457, and the provisions of the Competition Act, RSC, 1985, c.C-34 and the Consumer Packaging and Labelling Act, RSC, 1985, c.C-38.

 

RELIEF CLAIMED

            WHEREFORE THE PLAINTIFF CLAIMS ON HIS OWN BEHALF AND ON BEHALF OF ALL CLASS MEMBERS:

 

            (a)            Damages for breach of contract;

(b)              Interest pursuant to the provisions of the Court Order Interest Act, RSBC, 1996, c.78 and amendments thereto;

(c)               Costs;

(d)              Such further and other relief as to this Honourable Court may seem meet.

 

PLACE OF TRIAL:              VANCOUVER, BRITISH COLUMBIA.

 

DATED at the City of North Vancouver, Province of British Columbia, this  7th day of May, 2002.

 

 

Solicitor for the Plaintiff

 

 

 

 

THIS STATEMENT OF CLAIM is filed by JAMES M. POYNER ESQ., Poyner Baxter, Barristers & Solicitors, whose address for delivery is Lonsdale Quay Plaza, #408 145 Chadwick Court, North Vancouver, B.C. V7M 3K1 (Telephone: 604-988-6321    Fax: 604-988-3632)

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