(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

World of Wheels spins through Peachland

World of Wheels brings thousands for a day of family fun

Kelowna’s Shadow Ridge Golf Club beats the water

They pitched in and managed to get the upper hand on a soggy situation

Reel Reviews: Atypical college life

We say, “Life of the Party is pleasant and harmless.”

Caravan Farm Theatre fundraiser embraces outlaw spirit

The third annual Hands Up! Live Auction Fundraisder is June 2

Flood protection installations continue, as Okanagan Lake rises

Work is currently happening in Green Bay, West Kelowna

VIDEO: Canadian Forces help flood-ravaged Grand Forks residents heal

Sgt. Bradley Lowes says the military is used to dealing with traumatic times

Chilliwack Chiefs make history with first RBC Cup win

In front of a huge and noisy crowd, the Chiefs claimed their first-ever national junior A title.

UPDATED: Majority of flood evacuees in Kootenay-Boundary allowed to return home

Officials hope to have all 3,000 people back in their homes by Monday night

The Okanagan shines in foodie finalist list

Western Living has released their 2018 list of finalists

B.C. Lions bring back 6-time all-star offensive lineman Jovan Olafioye

He was acquired by the Montreal Alouettes last year.

Whitecaps rally for 2-2 draw with FC Dallas

Vancouver climbed out of a two-nil hole to tie FC Dallas 2-2

B.C. VIEWS: Making sense of climate policy

Flood and fire predictions have poor track record so far

Chilliwack Chiefs moving on to RBC Cup final after thrilling win over Ottawa

Kaden Pickering scored the winning goal in the 3rd period as Chilliwack won their semi-final 3-2.

Most Read