(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

OUR VIEW: Surrey’s unsung heroes inspire

The Now-Leader was proud to celebrate some deserving unsung heroes in this city on Wednesday night

Metro Vancouver mayors cancel Surrey LRT in favour of SkyTrain

Doug McCallum claims he can build the line for the $1.65 billion already committed to light rail

Surrey opera singer brings Mozart’s ‘Così fan tutte’ to Vancouver stage

Nancy Hasiuk-Lay has been hailed for her ‘sparkling and crystalline vocal tone’

ZYTARUK: You don’t have to wear the ribbon – but look out if you don’t

Demonize and dog-pile. If you disagree with me, you are not only wrong, you are evil. The enemy…

Pedestrian airlifted following South Surrey collision

Police say initial indications are the victim was crossing mid-block when he was struck

Surrey Community Leader Award winners revealed

The 16th CLA awards, presented by the Now-Leader, recognized Surrey’s un-sung heroes

John Horgan shrugs off low turnout, change to referendum option

‘No’ proportional representation group says voting should be extended

Two more government pot shops to open in Kamloops

Two private applications are also in the queue to come before city council by the end of the year

2 B.C. men charged after allegedly stealing $1,400 worth of butter

The two men, ages 23 and 25, are facing charges of theft under $5,000, Coquitlam police said

Invasive fire ants join the tourist swarms at Hawaii Volcano National Park

Invasive species found at popular tourist destination

Ten-year sentence for man convicted of B.C. belt-strangling death

Shayne McGenn guilty of manslaughter in 2016 death of David Delaney, 63

Roy Clark, country singer, ‘Hee Haw’ star, has died

Guitar virtuoso died because of complications from pneumonia at home in Tulsa, Okla. He was 85.

Lack of funding, culture on campus biggest barriers for Indigenous students: report

Report based on nearly 300 responses found lack of support at post-secondary schools a big concern

Tinder sex assault suspect charged; additional alleged victims sought

Vincent Noseworthy of Alberta is accused of aggravated sexual assault, unlawful confinement and more

Most Read