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CIVIL PROCEDURE - Class or representative actions - Definition of class

Friday, June 01, 2018 @ 8:43 AM  


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Appeal by the plaintiff from an order dismissing his application to certify his action as a class proceeding. The appellant alleged that the respondents falsely marketed their product, Cold Fx, as capable of providing relief from cold and flu symptoms. He argued that the product had no beneficial effects when taken at the onset of a cold or flu, and that the false claims made by the respondents induced consumers to purchase the product. Cold Fx was sold in a variety of formats during the proposed class period. The wording of representations on the packages varied for the different formats. It also changed, for a given format, over time. Certification as a class proceeding was refused because there was no identifiable class, the claims did not raise common issues and the appellant was not an appropriate representative plaintiff.

HELD: Appeal dismissed. While the judge erred in finding that there were no common issues, the judge made no error in finding that the class, as it was defined before her, was not sufficiently connected to the claims being pursued as to constitute an identifiable class for the purposes of a class proceeding. The evidence showed that members of the class would not have been exposed to a common set of representations. The representations that were relied on by the plaintiff in the proposed notice of civil claim did not correspond precisely with any format in which Cold Fx was sold. The representations made in advertising Cold Fx were neither uniform nor identical to those set out in the proposed notice of civil claim. There was no evidence that any consumer had purchased the product as a result of a misrepresentation. 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 would be insurmountable. The court was not persuaded by the appellant’s suggestion that this case, if tried under the Class Proceedings Act, could proceed without inquiries into the individual circumstances under which class members purchased the respondents’ product. Issues of causation and reliance would almost certainly have to be proven on an individual basis.

Harrison v. Afexa Life Sciences Inc., [2018] B.C.J. No. 764, British Columbia Court of Appeal, I.T. Donald, M.E. Saunders and H. Groberman JJ.A., April 30, 2018. Digest No. TLD-May282018009