Canada: Immediate Relief: Application For Certification Of B.C. Cold-Fx Class Action Dismissed

The British Columbia Supreme Court recently dismissed an application for certification of a class action regarding the cold and flu product Cold-Fx in Harrison v. Afexa Life Sciences Inc. (Harrison). The plaintiff alleged that Cold-Fx was falsely marketed as providing "immediate relief" from cold and flu symptoms. Justice Dillon dismissed the application, finding, among other things, that there was no objectively identifiable class, no evidence of two or more persons who had common complaints that they sought to have resolved in a class action, no rational relationship between the proposed class and the proposed common issues, and no appropriate representative plaintiff. Notably, Justice Dillon concluded that Mr. Harrison was merely a placeholder for his counsel, and not a genuine representative for the class, as he had been recruited by counsel and there was no evidence that he had participated in the litigation other than providing a brief affidavit four years prior to the certification application.


Harrison is the latest word in a long saga of decisions regarding this proposed class action. The plaintiff alleged that the defendants falsely represented in labelling, packaging and advertising that Cold-Fx provides "immediate relief" from cold and flu symptoms if taken at the first signs of sickness. He proposed a class of all persons resident in British Columbia who purchased Cold-Fx after March 9, 2002. In response, the defendants asserted that Cold-Fx was never marketed as an after-the-fact cold or flu remedy, only a preventative natural health product that boosts the immune system.

Despite the straightforward nature of his assertion, the plaintiff's application was complicated by the wide variety of misrepresentations—27 in total—that he alleged. Over the proposed class period, Cold-Fx was available in a variety of forms, sizes, and packages, and both the packaging and advertising changed over time. In short, the plaintiff alleged different misrepresentations regarding different packaging and advertisements, many of which did not contain the alleged misrepresentations at all.


A number of the plaintiff's initial claims had been struck or abandoned as a result of prior applications, that had determined, among other things, what causes of action were adequately pleaded and satisfied section 4(1)(a) of the Class Proceedings Act (CPA). The certification hearing considered only whether the plaintiffs' allegations based on fraud, deceit, fraudulent misrepresentation, the Competition Act, unjust enrichment and waiver of tort, satisfied the remaining criteria for certification of a class action. Justice Dillon dismissed the application because the plaintiff failed to establish the required elements of section 4(1)(b) through (e) of the CPA.

In regard to whether there was an identifiable class, Justice Dillon accepted the defendants' argument that the proposed class definition was fatally flawed. It is critical that there is a class that is clearly defined from the beginning of the proceeding and that any person's claim to membership is capable of being determined by stated, objective criteria. Further, there must be an evidentiary basis to establish that there are two or more members in the class with a common complaint. Justice Dillon held that there must also be evidence to show that there is more than one person who desires to have their complaint determined through a class action. In this case, the plaintiff failed to meet this standard, as there was no evidence that Mr. Harrison or anyone else purchased Cold-Fx based on the alleged misrepresentations and no evidential link between the proposed class and any common complaint. Notably, Justice Dillon found that second-hand evidence that there were other persons who had told Mr. Harrison's counsel that they had purchased Cold-Fx and were interested in the class proceeding was not sufficient to satisfy this requirement.

Justice Dillon also found that the plaintiff had not shown that there was a rational relationship between the proposed class definition and the proposed common issues. This linkage must have an air of reality to ensure the class is not excessively broad. In other words, there must be an objectively established connection between the proposed class and the alleged claims. The proposed class failed to meet this standard because it included people with no claims against the defendants, since not all of the Cold-Fx products contained the alleged misrepresentations, not all the purchasers would have purchased Cold-Fx for immediate symptom relief, and not all of the purchasers were dissatisfied with the product. As a result, the proposed class was impermissibly overbroad.

With respect to whether Mr. Harrison was an appropriate representative, Justice Dillon noted that the representative plaintiff must advance the interests of the class fairly and adequately, which entails producing a plan for the proceeding and precludes conflicts of interest with other class members. The representative plaintiff cannot be a mere spectator or placeholder for the proceeding without a genuine stake in the outcome. Here, the proposed representative plaintiff was inappropriate because he had not been "vigorous" in prosecution of the case. There was no evidence at the time of the certification hearing that he had been involved or participated in the litigation since 2012. Mr. Harrison had also been recruited to serve as the representative plaintiff by counsel after he wrote a letter to a local newspaper criticizing Cold-Fx. Additionally, Justice Dillon found that the litigation plan was outdated, boilerplate and rudimentary. It failed to grapple with the complexities of the proposed class action and failed to set out a clear plan to determine liability or damages.

Consequently, the plaintiff's certification application was dismissed, with costs of the first certification hearing in 2013 thrown away awarded to the defendants. It is uncommon for costs of a certification hearing to be awarded in British Columbia, but the plaintiff had adjourned the first certification hearing in order to make significant amendments to the pleadings, which resulted in the action becoming mired in a mess of pleadings issues and related applications.


The decision in Harrison affirms the importance of the certification requirement that there is an objectively identifiable class of two or more persons with common complaints, and the need for a rational connection between a proper class definition and the proposed common issues. Justice Dillon's decision is also notable for the finding that Mr. Harrison is a mere placeholder for his counsel and not a genuine plaintiff with a real stake in the outcome that would adequately represent a class of plaintiffs. Both elements of the decision will be helpful for defendants that face potential class actions that are constructions of plaintiffs' counsel, rather than reflections of real complaints by actual litigants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions