(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

West Kelowna Warriors dominate the Nanaimo Clippers

Three goals were scored during power plays

Fundraiser with wine to raise money for JoeAnna’s House

The Sovereign Order of St. John has committed to raise and donate $50,000

Okanagan artist donates painting to Okanagan College

Bryan Ryley, former instructor at the college donated an acrylic painting

Kiwanis Club donates money to Okanagan College

This establishes the Kiwanis Kelowna 2018 Legacy Education Endowment

VIDEO: Kelowna Rockets fall to Kamloops Blazers

The Rockets lost to their rivals in the regular season opener

Conservation officer frees B.C. deer from flotation gear mishap

BC Conservation Officer Service is reminding residents to keep backyards clear of entanglements

Fuhr: A looming pilot shortage

By Stephen Fuhr Recently, I had the pleasure of speaking with local… Continue reading

VIDEO: B.C.-born firefighter remembered by MP in emotional speech

Family asks first responders to look after one another in wake of suicide, growing concerns of PTSD

Airline has ‘close call’ with drone while en route to B.C. airport

Jazz Aviation reported the drone sighting near Vancouver to the RCMP and Transport Canada

Tragic accident claims life of B.C. toddler

Fundraising effort has been created to help mom and family

B.C. nanny charged with sex abuse of 3 children

Saanich Police seek potential victims of Johnathon Lee Robichaud from Central Saanich

‘I’m no quitter’ on climate change issues, McKenna says at G7 ministers meeting

David Suzuki says if McKenna believes what she’s saying, she too should quit

VIDEO: Inside an eerily empty mall in Canada

Only nine of 517 retail spaces are open for business as the grand opening postponed to next year

B.C. wildfires burned large areas affected by mountain pine beetles: Experts

The mountain pine beetle epidemic affected more than 180,000 square kilometres in B.C.

Most Read