(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

VIDEO: Fires break out in scrap piles at Harmac mill

Nanaimo firefighters got blazes under control in early morning hours Saturday

Ladysmith Arts Council awarded $20K to develop public art strategy

The Arts Council of Ladysmith and District has been given $20,000 by… Continue reading

B.C. declares state of emergency as more than 560 wildfires rage

This is only the fourth state of emergency ever issued during a fire season

Naloxone workshop in Chemainus gives people the tools to deal with an overdose situation

Community paramedic provides valuable information amid growing opioid crisis

PHOTOS: B.C. city wakes up to darkness under wildfire smoke

The rest of the province also dealing with thick haze as smoky skies continue

Two hurt in car wreck on old Island Highway

Honda and Volkswagen crash at 10 p.m. Friday at highway intersection in Nanaimo

Authorities mull evacuation order for Zeballos

Smoke billowed from the steep hillsides of Zeballos on Friday evening, as… Continue reading

Safeway union urges prejection of mediator recommendations

Says mediator asks for too many concessions

Fire chases B.C. crews out of their own camp

Crews in Burns Lake had to leave after a wildfire reportedly overtook their sleeping quarters

To address peacock problem, B.C. city moves ahead on trapping plan

Surrey’s new bylaw focuses on ensuring people no longer feed the birds, ahead of relocation

Hospitals to see ‘delays’ in care after losing Saudi students, health group says

About 1,000 Saudi residents called back to kingdom after suspending diplomatic relations with Canada

Bernier diatribe against ‘extreme multiculturalism’ boosts Liberal coffers

Party spokesperson Braeden Caley says online donations doubled, social media engagement quadrupled

‘Disjointed’ system hinders British Columbia First Nations in wildfire fight

More than 550 wildfires were burning in B.C. and crews were bracing for wind and dry lightning

Most Read