(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

Team BC’s having fun, ‘feeling good’ about back-to-back victories

A junior curling team, based out of Langley, has yet to lose a game in the national championships.

Dr. Lipjob avoids jail, gets 30-day suspended sentence

She will have to serve the 30 days in prison if she commits a breach during her two-year’s probation

Surrey farmers taking stock of revamped Canada Food Guide

Products that were once big at the table — like meat and dairy — have been put on the back-burner

VIDEO: ‘The dog picks the job’: Meet the newest member of the Surrey RCMP

Cambria, a labrador-golden retriever mix, is the first victim services dog at the detachment

Cloverdale’s Dan Gibbons remembered for his devotion, humour

Longtime local served with RCMP for more than 35 years

Canada’s archive buys rare book that hints at Nazi plans for North America

The 1944 book may have served as a blueprint for a Nazi purge

Teravainen’s 3 points lift Hurricanes to 5-2 win over Canucks

Vancouver heads into all-star break on losing note

B.C. hospital apologizes for veteran’s five-day hallway stay

Clinical director of Victoria General Hospital says case of retired veteran ‘definitely excessive’

Speaker Darryl Plecas says ‘justice’ needed for legislature employees

Plecas spoke to media at the opening of a pedestrian and cycling bridge in Abbotsford Wednesday

Advocate hopes B.C. legislature scandal leads to more transparency

‘Depressing’ that it takes a scandal to inspire freedom of information reform, says Sara Neuert

Ex-Mountie involved in Taser death at Vancouver airport sues government

Kwesi Millington claims he acted in accordance with RCMP training

47 men arrested by Vancouver police for allegedly seeking sex with teenage girls

Seven of those arrested have been charged as part of a two-month operation

Richmond businesses struggle to hire and keep staff because of high cost of housing

Chamber of commerce calls for diverse housing options, redevelopment of George Massey corridor

LETTER: Seniors home care, day programs expanding, Adrian Dix says

B.C. health minister responds to latest Seniors Advocate report

Most Read