(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

Heritage-themed storytimes slated for Clearbrook Library

Heritage Abbotsford Society receives funding from Canada Post Community Foundation

Fraser Valley Comedy Festival runs from Langley to Hope

Highlights include ‘All-Stars in Abby’ show on Oct. 26

VIDEO & SLIDESHOW: PBR invades Abbotsford Centre

Professional bull riding entertains thousands in attendance on Saturday

Here’s what you need to know about Abbotsford’s 17 school board candidates

Includes professional/education backgrounds, their priorities and brief answers to four questions

PHOTOS: Langley and Abbotsford Olympians Swim Club holds competition

Event at Walnut Grove pool first intra-club swim meet of the season

Secret supper clubs test appetite for cannabis-infused food ahead of legalization

Chefs are eagerly awaiting pot edibles to become legal in Canada

Giants hand Victoria their first lost of the season

Langley’s WHL team went head to head with the Royals for the second day in a row, beating them 3-2.

Students unhappy with SFU’s response after violent incident in class

Professor, students say a man threw chairs and hit a female student

Enbridge to begin building road to access pipeline explosion site in B.C.

An explosion Tuesday knocked out a 91-centimetre line

Man struck by car in Burnaby: reports

Pedestrian was taken to hospital

Andrew Scheer on revamped NAFTA deal: ‘I would have signed a better one’

Conservative leader says he wouldn’t have signed USMCA

Matheson will have NHL hearing after Canucks rookie Pettersson hit

The 19-year-old Swedish centre appeared woozy after the hit

Police looking into VPD-involved collision that sent 3 to hospital

The independent police watchdog has been notified

Police investigate after woman stabbed in Vancouver

Report came in about a ‘disturbance’ in the Killarney neighbourhood

Most Read