(Black Press files)

B.C. Appeal Court rejects class action lawsuit aimed at Cold-FX

Man was suing over advertising that said product offered ‘immediate relief of cold and flu symptoms’

British Columbia’s highest court has dismissed an appeal from a Vancouver Island man who hoped to certify a class-action lawsuit against the makers of the cold and flu product Cold-FX.

Don Harrison wanted the B.C. Court of Appeal to overturn a lower court ruling that found, in part, that he failed to accurately identify a class of people who were concerned about the marketing of the ginseng-based natural remedy.

In a unanimous decision, a three justice panel of the Appeal Court says Harrison’s efforts to overcome some of the problems with his case identified by the lower court are “insufficient” and “come too late” to be taken into account.

Harrison launched his legal action in 2012 against Valeant Pharmaceuticals Inc. and its subsidiary that makes Cold-FX, Afexa Life Sciences Inc., over advertising that said the product offered “immediate relief of cold and flu symptoms” if taken over a three-day period at the first sign of illness.

He sought restitution for amounts that he and others spent on the product, alleging Valeant misrepresented the product, although those assertions have not been tested in court.

In dismissing the case, the Appeal Court says there have been repeated efforts by Harrison and his lawyer to refine the scope of the class action. But after six years and at least as many drafts of a notice of civil claim, Justice Harvey Groberman writes it is “entirely impractical to use the new definition” of the class that was produced for the Appeal Court.

READ MORE: B.C. jogger’s lawsuit against 10-year-old cyclist dismissed

In an 18-page judgment released Monday, Groberman says that while the proposed new definition of the class eliminates consumers who may have bought Cold-FX when its packaging didn’t carry the alleged misrepresentations, the wording still falls short.

“It does not include a requirement that the purchaser have read the misrepresentations, or have relied on them. More importantly, it does not contain any requirement that the person purchased or used the product for the purpose of immediate relief of cold or flu symptoms,” Groberman writes on behalf of the three justices.

During the proposed class period between 2002 and 2012, the court found Cold-FX was sold in a total of 14 formats, ranging from bottles to blister packs, and each one carried different descriptions and wording.

It would be “fanciful” to expect consumers to recall the precise representations included on the packages, writes Groberman.

“Given the number of different packages and the frequency of changes in the representations, the practical difficulties of placing individuals within or outside of the class will be insurmountable,” he says.

The justices concur that if the case were certified as a class action, each of the class members would likely have to be quizzed about how they purchased Cold-FX and whether they relied on its claims of immediate relief when they bought it.

Groberman also questions whether a class proceeding was Harrison’s best choice, pointing to case law involving matters where “different representations are made to different persons in different circumstances.”

“A class proceeding will often not be appropriate because of the need for detailed individual assessments of circumstances,” Groberman concludes.

Beth Leighton, The Canadian Press


Like us on Facebook and follow us on Twitter.

Just Posted

Chilliwack prolific offender charged in four alleged incidents in 12 days

Branden Tanner busted for alleged smash-and-grab Nov. 30, then incidents Dec. 3, Dec. 8 and Dec. 11

Four companies vying to open cannabis stores in locations across Chilliwack

Rezoning applications for non-medical cannabis outlets pending, and some will require variances

Christmas cheer, crafts and music at Chilliwack and Yarrow libraries

Make festive ornaments out of old books while enjoying Christmas music at Chilliwack libraries

Sardis Falcons top Heritage Woods in field lacrosse opener

The Falcons rallied from a halftime hole to take a big win on the road in Port Moody.

Fleeing driver picks fight with Chilliwack police dog, loses

Good dog ‘Griff’ also locates large quantity of what police believe to be crystal meth in Abbotsford

VIDEO: Royals reveal the images on their Christmas cards

Prince William and his wife Kate are shown outside in casual clothes, their three young children in tow

Media, robotics, Indigenous studies coming to B.C. Grade 12 classrooms in 2019-20

Provincial tests are also being changed for students in Grade 10 to 12, the Education Ministry said

ICBC to apply for 6.3% hike to basic insurance rates

Crown Corporation said it will be submitting its next basic rate application to the British Columbia Utilities Commission Friday

Stranded B.C. trucker writes final wishes before being rescued 3 days later

‘I was just praying someone would come along’

Canfor Corp. extending temporary curtailment of sawmills in B.C.; cutting hours

Vancouver-based company says the decision is due to declining lumber prices, high log costs and log supply constraints

Canada’s prospective world junior team members await final roster decisions

Thirty-four players were invited to the national junior selection camp

MAP: Christmas light displays in the Lower Mainland

Send us pictures of your National Lampoon-style lit-up homes, nativity scenes or North Pole playlands

Family searching for B.C. professor last seen at Colombian salsa club

Ramazan Gencay, a professor in economics at Simon Fraser University, was last seen in Medellin

Rash of bomb threats a learning opportunity for response capacity, Goodale

Thursday’s wave of bomb threats swept across communities on both sides of the Canada-U.S. border

Most Read