(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

College of New Caledonia announces early childhood educator training

Fort St. James student may benefit from the program expansion

Vulnerable B.C. communities receive funds for structural flood mitigation

Communities throughout British Columbia that have been partial to flood risks in… Continue reading

B.C. students to benefit from internship investment

As someone who has ample experience going through the often tedious process… Continue reading

BC Coroners Service urges public to drive with care

With summer officially here and upcoming road-trips with family or friends looking… Continue reading

Highlights and winners from the Binche Fishing Derby

The third annual event was a massive succes

BC Games’ Athletes Corner: What’s your favourite pump up song?

Check out what’s playing in the earbuds of BC Summer Games athletes before they compete

BC Wildfire update on Okanagan blazes

Watch the media briefing on the current fire situation in the Okanagan.

UPDATED: Evacuation alert issued due to Dog Creek Trail Wildfire

UPDATED: The Dog Creek wildfire has grown substantially over the past two… Continue reading

RCMP help to save goats from wildfire

The fast-approaching wildfire, sparked Thursday, forced the evacuation of five homes

VIDEO: Near drowning captured on popular B.C. river

Search and Rescue manager says the popular pastime of floating in the summer is inherently dangerous

Crosswalk vandalism leaves black mark for Cowichan as B.C. Games begin

Rainbow crosswalk defaced just days after being painted

Photo gallery: BC Games Day 1

A brief look at action from the 2018 BC Summer Games in the Cowichan Valley

UPDATED: Anti-pipeline campers digging in as eviction deadline expires

The City of Burnaby had ordered the Kinder Morgan pipeline protesters out for violating bylaws

Trump was taped talking of paying Playboy model: AP source

Source says former personal lawyer Michael Cohen secretly recorded discussion prior to 2016 election

Most Read