(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

In Wetaskiwin, Angus Watt says no, we’re not heading into recession

Wetaskiwin Chamber of Commerce speaker says economy was down but not out

Blackfalds RCMP on scene of school bus collision and car jacking

RCMP are looking for a silver 2012 Mitsubishi Outlander with Alberta license plate BNR655

Police looking for missing 81 year old Thorsby man

Thorsby RCMP seek assistance to locate missing elderly male

Calmar break and enter investigated, suspect pictured

Leduc RCMP Investigate Break and Enter and Theft

County of Wetaskiwin approves lots at Dorchester development

Lots located at Pigeon Lake golf course have strong interest says developer

2-for-1: Total lunar eclipse comes with supermoon bonus

On Sunday night, the moon, Earth and sun lined up to create the eclipse, which was visible throughout North and South America

Top Canadian athletes inducted into the Canada Games Hall of Honour

Athletes doing incredible things for communities are inducted into Hall of Honour, says Games CEO

New Canada Food Guide nixes portion sizes, promotes plant-based proteins

Guide no longer lists milk and dairy products as a distinct food group

Blackfalds RCMP seeking information on activities of stolen Fountain Tire Truck

Blackfalds RCMP recovered truck following earlier collision and car-jacking

Red Deer RCMP arrest man after truck collides with six vehicles

No one was injured and the male driver was restrained by a nearby resident until police arrived

Liberals look to make home-buying more affordable for millennials: Morneau

Housing is expected to be a prominent campaign issue ahead of October’s federal election

Man accused of threatening to kill ‘as many girls as I see’

Christopher W. Cleary wrote he was angry because he’d never had a girlfriend and wanted to ‘make it right’ with a mass shooting

Cannabis-carrying border crossers could be hit with fines under coming system

Penalties are slated to be in place some time next year

Most Read