(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

Haida Gwaii seabird conservation highlighted at international congress

Bird Studies Canada’s David Bradley is co-convening a symposium on biosecurity for island species

‘Beauty amongst such tragedy:’ B.C. photographer captures nature’s trifecta

David Luggi’s photo from a beach in Fraser Lake shows Shovel Lake wildfire, Big Dipper and an aurora

Ferry sailing delayed after divers check Northern Adventure

Divers called in to check propeller shaft, sailing to Haida Gwaii now 140 minutes behind

Haida Gwaii fishery staff gear up for marine mammal rescues

Haida fishery guardians and DFO fishery officers better equipped to rescue marine mammals

B.C. woman promoting ‘orange glow’ campaign to support firefighters

A Penticton woman is hoping an orange ribbon campaign will catch on throughout B.C.

Air Canada-led consortium signs deal to buy Aeroplan program

The deal would acquire the Aeroplan loyalty program from Aimia Inc

Microsoft uncovers more Russian attacks ahead of midterms

Evidence found of Russian hacking attempts targeting U.S. political groups

Animal crackers break free from their cages

PETA pressures Mondelez International to show animals roaming in their natural habitats

U.S. man admits slaying wife, blames her for daughters’ deaths

A 33-year-old Denver man is facing three first-degree murder charges

Muslims celebrate Eid al-Adha as pilgrims conduct hajj rites

More than 2 million pilgrims carry out the final rites of the hajj in Saudi Arabia

White Spot records B.C. Pirate Pak record day

Popular B.C.-Alberta event raises more than $116,000 to send kids and adults to Zajac Ranch

B.C. team stays alive in Little League World Series after another nail-biter

Surrey-based squad scored a 6-4 win over Mexico reps in Williamsport on Monday

Most Read