(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

Devastating house fire in Millet area Oct. 17

Tetlock family has GoFundMe set up after losing everything they own

Three cannabis retail developments coming to the City of Wetaskiwin

Legalization leads to high costs for the city

Mentally healthy workplaces boost bottom line: speaker

Robert Manolson says employees looking for kinder workplaces

Wetaskiwin reader horrified at Trudeau’s weakness

Trudeau ignores child murderer’s transfer: writer

Federal carbon tax rebates will exceed the cost for most people affected

Officials say 70 per cent of people in those provinces will get back more than they end up paying out as fuel costs rise to incorporate the carbon tax.

Ponoka plays host to music arts program aimed at empowering youths

Ponoka Secondary Campus Grade 7s learned about awareness through song writing

$38,000 power bill in Ontario raising red flags for Albertans

MP Blaine Calkins is concerned about the potential costs of power for Albertans

Canadian troops, families take shelter in hotel after Florida hurricane

Most of the Canadians were evacuated from the military base before Hurricane Michael

Mega Millions, Powerball prizes come down to math, long odds

Biggest myth: The advertised $1.6 billion Mega Millions prize and $620 million Powerball prize aren’t quite real

2 Canadians advance to finals at world wrestling championships

Olympic champion Erica Wiebe just missed joining them with a loss 3-1 to three-time world champion Adeline Gray of the United States in the 76-kg event

Outdoor retailer MEC vows to boost diversity after online complaint

Mountain Equipment Co-op was criticized for perpetuating a white-only picture of the outdoors

Trump vilifies caravan, says he’ll cut Central American aid

Despite Mexican efforts to stop them at the Guatemala-Mexico border, about 5,000 Central American migrants resumed their advance toward the U.S. border Sunday in southern Mexico.

Rotating strike in Toronto will have ‘significant impact,’ says Canada Post

Canada Post union announces rotating strikes in four Canadian cities.

Most Read