Harrison v. Afexa Life Sciences Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Harrison v. Afexa Life Sciences Inc.,

2016 BCSC 2123
Date: 20161116
Docket: S140954
Registry: New Westminster
Between:
Don Harrison
Plaintiff
And
Afexa Life Sciences Inc. and
Valeant Pharmaceuticals Inc.
Defendants
Before: The Honourable Madam Justice Dillon
Reasons for Judgment

Counsel for the Plaintiff:
J.M. Green
J. Hanson
Counsel for the Defendants:
G. Zacher
A. DSilva
S. Hosseini
Place and Dates of Trial/Hearing:
New Westminster, B.C.

April 4-8, 2016
Place and Date of Judgment:
New Westminster, B.C.

November 16, 2016
Harrison v. Afexa Life Sciences Inc.
Page 2
Introduction
[1]
The plaintiff, Don Harrison (Harrison), has applied for certification of the
action as set out in the 2nd Amended Notice of Civil Claim as a class proceeding
pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA), on his own
behalf and on behalf of all persons resident in British Columbia who purchased
Cold-Fx between March 9, 2002 to July 16, 2012.
[2]
The plaintiffs basic claim is that the defendants labelling, packaging, and
advertising of the product Cold-Fx stating that it provided immediate relief of cold
and flu symptoms if taken according to directions at the first signs of cold or flu,
constituted fraud, deceit and fraudulent misrepresentation, breach of s. 52
Competition Act, R.S.C. 1985, c. C-34, and unjust enrichment through waiver of tort.
[3]
The first certification hearing, based upon the original Notice of Civil Claim
filed March 9, 2012, commenced on September 3, 2013, but became a quagmire of

pleadings issues ultimately involving applications to further amend. A 2nd Amended
Notice of Civil Claim was proposed in December 2014. The defendants brought an
application to strike which was heard on February 4, 2015. Justice Truscott issued
reasons on April 23, 2015 (Harrison v. Afexa Life Sciences Inc., 2015 BCSC 638
(Harrison No.1)) in which certain claims were struck, others were disallowed in part,
and particulars were ordered for others. A proposed further 2nd Amended Notice of
Civil Claim was the subject of a case conference and then a hearing on June 23,
2015. At that hearing, the plaintiff again proposed a further amended Notice of Civil
Claim (the sixth proposed amendment). Reasons for judgment of January 21, 2016
(Harrison v. Afexa Life Sciences Inc., 2016 BCSC 83 (Harrison No.2)) dealt with the
pleadings to date.
[4]
As a result of these proceedings, the following actions were either struck or
abandoned: breach of the Food and Drugs Act, R.S.C. 1985, c. F-27; restitutionary
relief based on alleged breaches of the Food and Drugs Act and the Business
Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (BPCPA); breach of
Page 3
collateral contract and contractual duty of good faith/honest performance; unlawful

interference with economic relations/unlawful means; and constructive trust.
[5]
The plaintiff failed to provide particulars as ordered with respect to certain
actions under the BPCPA and did not pursue claims under this legislation at the
continuation of the certification hearing. The parties agreed that Truscott J. had
decided the requirements of s. 4(1)(a) CPA with respect to all pleaded causes of
action in Harrison No. 1 and Harrison No. 2.
[6]
At a case management conference of March 8, 2016, it was ordered by
consent that, among other matters, the plaintiff abandon claims for fraud, deceit, and
fraudulent misrepresentation based upon television advertising, and that the plaintiff
forego any claims for damages beyond the payment of monies for the Cold-Fx
product.
[7]
The certification hearing that had begun in September 2013 then re-
commenced in April 2016.

[8]
The defendant has not filed a Response to Civil Claim, but opposes the
plaintiffs application for certification.

Background
[9]
The named defendant, Valeant Pharmaceuticals Inc., actually Valeant
Pharmaceuticals International, Inc. (Valeant), is a Canadian company that acquired

the defendant, Afexa Life Sciences Inc. (Afexa), in 2011 and amalgamated in 2012.
Afexa introduced the product Cold-Fx to the Canadian market in 1996.
[10]
Cold-Fx is a natural health product made from the ginseng extract CVT-
E002. It is used to strengthen the immune system and to prevent and relieve colds
and flu. It is not a drug but, as a natural health product, has been licensed since
2007 by Health Canada pursuant to the Natural Health Products Regulations,
SOR/2003-196 enacted under the Food and Drugs Act. The Health Canada product
information from 2011 recommends the use of Cold-Fx to boost the immune system,
Page 4
thereby helping to reduce the frequency, severity, and duration of cold and flu
symptoms. Valeant manufactures two formulations of Cold-Fx: regular strength
containing 200 mg of CVT-E002 (regular) and extra strength containing 300 mg
of CVT-E002 (extra strength). Health Canada approved both formulations in
2007, with a recommended dose of one capsule twice daily.
[11]
Upon first approval of Cold-Fx by Health Canada, Afexa, then called CV
Technologies Inc., issued a news release stating that Health Canada had given
approval for Cold-Fx both on a preventative basis and for immediate short term relief
of colds and flu. Afexa said that the low dosage as approved was not associated
with a specific duration of use and approval of higher doses for short term use for
immediate relief was still being sought.
[12]
The plaintiff says that the claim that Cold-Fx provides immediate short term
relief of colds and flu is unfounded and unapproved. The basis of the plaintiffs claim
in fraudulent misrepresentation is that the labelling or advertising of Cold-Fx, as
providing immediate relief of cold and flu symptoms if taken at the first signs of cold
or flu, was false and misleading.
[13]
Valeant says that Cold-Fx is not marketed as an after the fact cold remedy,
but is a preventative immune boosting product. The parties generally agreed on

when and where the alleged representations appeared on Cold-Fx products and
advertising materials.
[14]
During the proposed class period from 2002 to 2012 (relevant time), Valeant
packaged Cold-FX Regular and Cold-Fx Extra in a variety of forms and sizes
including bottles, cartons, and blister packages with sizes ranging from 12 capsules
to as many as 225 capsules. There were ten products of regular strength and four
products of extra strength introduced to the Canadian market during this period. The
images, product descriptions, and wording appearing on the packaging for each of
these products varied and changed over time.

[15]
Page 5
The plaintiff agrees that not all of these products are subject to this action
because not all of the products contained labelling or packaging that included the
offending words that are the subject of the misrepresentations. There are 27 alleged
misrepresentations; however, the plaintiff did not isolate in pleading or generally
which particular product, identified through a UPC number, used packaging or
labelling containing an offending representation. Both for packaging and for
advertising, the plaintiff provided samples of the use of some, but not all, of the
offending words. From a review of the evidence, it is apparent that not all of the
packaging contained all of the offending words during the relevant time. Rather,
some of the packaging contained some of the words for some, but not all, of the
relevant time. None of the alleged representations appeared on the front of the label
or packaging of any of the products.
[16]
Valeant engaged in extensive marketing for Cold-Fx over the relevant time.
This included print advertisements, a Brand Ambassador programme, direct mailing

initiatives, retail displays, brochures, sponsorships, and website advertising. Not all
of the advertising for Cold-Fx contained the offending words. Print advertising for
Cold-Fx varied over the years and, similar to the packaging, did not contain the
same representations throughout the relevant time. The plaintiff did not identify in
pleading or generally which advertising contained the offending words, although
samples were given.
[17]
For example, the plaintiff alleges that packaging stated that Cold-Fx was
capable of providing immediate relief of cold and flu and immediate relief of cold
and flu symptoms. However, there were no labels or packaging that contained the
latter words and the phrase immediate relief never appeared on the front of a
package.
[18]
The words, recommended dose for immediate relief, did appear as part of
the dosing recommendation in smaller font on the back of the label or packaging.
This wording contained in the dose recommendation appeared on regular 18 and 20
blister packs from 2004 to 2006 and from 2007 to 2011, on the 150 capsule bottle
Page 6
from 2004 to 2007, and on the 180 capsule bottle from 2005 to 2006. It appeared on
the extra strength 12 blister packs from 2007 to 2008, on the 100 capsule bottle from
2007 to 2008, and on the 45 capsule carton in 2007. The dose recommendation
containing the words immediate relief did not appear after 2009 on any extra
strength packaging and after 2011 on any product packaging. The product labels
that contained the dose recommendation with the words immediate relief
accounted for approximately 30% of Cold-Fx volume shipped between 2004 and
2012.
[19]
The plaintiff alleges that the defendants labelled, packaged, or advertised that
Cold-Fx should be taken, at the first sign of cold or flu symptoms, or at the first
sign of symptoms for optimal results, or at the first sign of a cold or flu, or at the
first sign of symptoms. However, the phrase at the first sign of cold or flu
symptoms did not appear on any packaging printed during the relevant time. The
words first sign appeared on certain extra strength packages in different forms from
2008 to 2009 and 2011 to 2012, but never appeared on regular packaging. When
the words did appear on the back of the extra strength package or label, they were
included in a phrase related to obtaining best or optimal results, or boosting the
immune system.
[20]
The plaintiff alleges that a three successive day dosing recommendation that
appeared on packaging was stated as being effective in treating the cold or flu.
This appeared on the back of certain, but not all, packaging and for some portion,
but not all, of the relevant time. The plaintiff argues that the wording saying that the
recommended dosage should start at the first signs of cold or flu implied that the
product would deliver immediate relief.
[21]
The plaintiff alleges that certain representations were made in the context of a
dosage or duration of use that was not in accordance with the Health Canada
Monograph or product license for Cold-Fx. The defendant clarified that there is no
product monograph issued by Health Canada for Cold-Fx because a monograph
would only be issued for an active ingredient and not for a specific product. The
Page 7
plaintiffs point, however, was that the statements and recommended dose as they
appear on the product do not correlate to what Health Canada approved according
to the Health Canada issued licencing product information.
[22]
The plaintiff also claims that representations of dosage, recommended use, or
duration of use as being clinically proven, or having undergone rigorous scientific

evaluation, or supported by more than 10 clinical trials were false. However, the
words clinically proven did not appear on any packaging before 2012, and the
plaintiff has not identified where the other representations appeared.
[23]
Similarly, the alleged representation that taking a three day dosing regimen
as early as possible to enhance immune function was backed by science did not
appear on product packaging. It was, however, contained in certain brochures in
2005 and 2006, and then in a Rexall drug store flyer in 2011. Typically, these
brochures have a short duration and flyers last one week.
[24]
Similar circumstances continue throughout the evidence of the history of the
alleged misrepresentations. Certain alleged statements were never included on

packaging (effective in treating the onset of cold or flu, as soon as I sense a cold
coming on I reach for the bottle of Cold-Fx, take Cold-Fx as early as possible,
Extra works, and backed by science). Some of the representations that were not
on packaging were included in consumer brochures or handouts in limited years
(onset of cold or flu in 2005 and 2006, and take Cold-Fx as early as possible in
2005 and 2006). These brochures and handouts would typically only have been
used for short duration. Some of the statements were included as a quotation from a
user on the Cold-Fx website for a limited time (as soon as I sense a cold coming on
I reach for the bottle of Cold-Fx).
[25]
The 2nd Amended Notice of Civil Claim states that the plaintiff, Harrison,
purchased Cold-Fx for personal use from a Costco store in February of 2011. It
states that Harrison reviewed the packaging before paying and then used the
product as directed. The pleading continues to state: [w]ritten on the package was
the [word] Extra, and instructions indicating the ingestion of a 3-day dose of
Page 8
Cold-Fx could help relieve him of the cold or flu symptoms he was experiencing. He
experienced no relief of his symptoms. In a prior 2nd Amended Notice of Civil
Claim, the plaintiff had alleged that in the period prior to purchasing Cold-Fx, he had
seen television advertising which led him to believe that the product could help
relieve his cold or flu symptoms. Rather than provide particulars, as ordered, of this
claim related to television advertising, the plaintiff decided to forego any claim in
relation to television advertising.
[26]
Harrison swore an affidavit in support of the certification application on
July 10, 2012. He said that he purchased one bottle of Cold-Fx in or about February
2011. Harrison stated that full details of material facts were as set out in the original
Notice of Civil Claim attached to his affidavit. Paragraph 2 of that original Notice of
Civil Claim simply stated that Harrison purchased Cold-Fx for personal use in
February 2011. Despite argument at multiple hearings now, Harrison has not
updated his affidavit. Much of the affidavit as it relates to the litigation plan and
common issues are outdated by amendments to the pleadings and a change of law
firm by plaintiffs counsel. More significantly, there is no evidence as to what specific
product Harrison purchased, why Harrison purchased Cold-Fx, whether he read or
relied upon any or a certain representation, whether he used the product, or whether
he thought that it worked or not.
[27]
The evidence established that Harrison wrote a letter to the editor of the
Ladysmith Chemainus Chronicle on February 14, 2012 after watching a television

documentary about Cold-Fx. He complained that Cold-Fx was a colossal scam and
contains no ingredients which would do anything to supress a common cold, that it
was manufactured offshore under substandard conditions, and that Health Canada
should recall the product. Following this letter, plaintiffs counsel contacted Harrison
to ask that he act as the representative plaintiff in this lawsuit. The action was
commenced in March 2012.
[28]
Harrison gave the names and addresses of four persons whom he stated
were interested in seeing certification of this class action. A lawyer, formerly
Page 9
associated with plaintiffs counsel, swore in June 2012 that he had been informed by
those same four people that they were interested in the class proceeding and that
they had purchased Cold-Fx during the relevant time. None of those persons nor
anybody other than Harrison has provided an affidavit as a purchaser in support of
certification. In particular, neither Harrison nor anybody else has said that they used
Cold-Fx, that they were exposed to certain representations which influenced their
purchases, or that they were dissatisfied with the results.
[29]
From evidence adduced by the defendants, it appears that two of the four
persons identified by Harrison either work or have worked for plaintiffs counsels
former law firm and a third resides at the same address as one of the others. In the
four years since the action was commenced, plaintiffs counsel has advertised the
class action on his website and intervened in online discussions to disparage the
product and to encourage more participants to engage in the lawsuit. Plaintiffs
counsel has suggested, in online commentary and without evidential foundation, that
the defendant has paid people to endorse Cold-Fx on social media.
[30]
The evidence of the defendant was that some Cold-Fx purchasers would not
have read the representations, or that if they did, they may have interpreted it
differently. Not all would have purchased the product for short term relief. Most
Cold-Fx users have not complained about the product. There have been few
requests for refunds which are available if a consumer is dissatisfied with the
product.
[31]
The plaintiff alleges that the representations were false or misleading, that
Cold-Fx was not effective in treating the cold or flu if taken according to the
recommended dose and duration, and that the defendants made the representations
knowingly or recklessly. Further, the plaintiff alleges that the defendants supressed
their own study which established that the product was ineffective.
[32]
In support of these allegations, the plaintiff presented the expert evidence of
Dr. Adil Virani, a clinical pharmacist, who was asked to determine, among other
things, whether it could be ascertained whether Cold-Fx was effective in providing
Page 10
immediate relief of colds and flu, and then whether the doctor himself was of the
opinion that Cold-Fx was effective in providing immediate relief of cold and flu. To
answer these and other questions, Dr. Virani reviewed the studies that the
defendants had placed on the Cold-Fx website, in addition to a study not released
publicly. It is not necessary here to detail Dr. Viranis assessment of these studies.
He came to the opinion that none of the studies that he reviewed supported the
claim that Cold-Fx was effective for providing immediate relief of colds and flu,
mainly because none of the published trials utilized a design where Cold-Fx was
given shortly after the onset of cold or flu symptoms.
[33]
It should be stated here that the gist of the plaintiffs claim is not that Cold-Fx
is worthless for its stated purpose as a preventative measure to prevent or fight off
cold or flu. The claim is that purchasers of Cold-Fx bought the product for short term
relief because of certain representations contained on the labels or in the marketing
of the product, and that those representations were false.
[34]
The defendants provided the expert opinion of Professor Michael Mulvey, a
professor of marketing, to address issues related to consumer decision making and

buyer behaviour. He provided information about consumer behaviour, including how
decisions to purchase are made. Without delving substantially here into this multifaceted issue, the conclusions of Professor Mulvey were that there are many
different types of consumers with many different buying patterns. Consumers of
Cold-Fx exhibit varied patterns of motivating conditions, information source
exposure, preference, and use. Also, information sources may affect different
purchasers in different ways. He said that it was not possible to generalize that the
buying pattern of a single consumer is representative of all others in the
marketplace and that not all consumers rely upon package labels or marketing, or
believe those claims, or are influenced by them. He said that there was no
methodology for identifying which purchasers actually purchased Cold-Fx because
of the alleged misrepresentations.
Page 11
Legislative Provisions
[35]
The requirements for certification as a class action are found in s. 4(1) CPA
which states:
Class certification
4 (1) The court must certify a proceeding as a class proceeding on an
application under section 2 or 3 if all of the following requirements are met:
(a) the pleadings disclose a cause of action;
(b) there is an identifiable class of 2 or more persons;
(c) the claims of the class members raise common issues,
whether or not those common issues predominate over issues
affecting only individual members;
(d) a class proceeding would be the preferable procedure for
the fair and efficient resolution of the common issues;
(e) there is a representative plaintiff who
(i) would fairly and adequately represent the
interests of the class,
(ii) has produced a plan for the proceeding that
sets out a workable method of advancing the
proceeding on behalf of the class and of
notifying class members of the proceeding, and
(iii) does not have, on the common issues, an
interest that is in conflict with the interests of
other class members.
[36]
Relevant factors to consider in determining whether a class proceeding is the
preferable procedure for resolution of the common issues are set out in s. 4(2) CPA
as follows:
(2) In determining whether a class proceeding would be the preferable
procedure for the fair and efficient resolution of the common issues, the court
must consider all relevant matters including the following:
(a) whether questions of fact or law common to the members
of the class predominate over any questions affecting only
individual members;
(b) whether a significant number of the members of the class
have a valid interest in individually controlling the prosecution
of separate actions;
(c) whether the class proceeding would involve claims that are
or have been the subject of any other proceedings;
Page 12
(d) whether other means of resolving the claims are less

practical or less efficient;
(e) whether the administration of the class proceeding would
create greater difficulties than those likely to be experienced if
relief were sought by other means.
[37]
The relevant provisions of the Competition Act are as follows:

Recovery of damages
36 (1) Any person who has suffered loss or damage as a result of
(a) conduct that is contrary to any provision of Part VI, or
(b) the failure of any person to comply with an order of the
Tribunal or another court under this Act,
may, in any court of competent jurisdiction, sue for and recover from the
person who engaged in the conduct or failed to comply with the order an
amount equal to the loss or damage proved to have been suffered by him,
together with any additional amount that the court may allow not exceeding
the full cost to him of any investigation in connection with the matter and of
proceedings under this section.
Limitation
(4) No action may be brought under subsection (1),
(a) in the case of an action based on conduct that is contrary
to any provision of Part VI, after two years from
(i) a day on which the conduct was engaged in, or
(ii) the day on which any criminal proceedings relating
thereto were finally disposed of,
whichever is the later; and
(b) in the case of an action based on the failure of any person
to comply with an order of the Tribunal or another court, after
two years from
(i) a day on which the order of the Tribunal or court
was contravened, or
(ii) the day on which any criminal proceedings relating
thereto were finally disposed of,
whichever is the later.
False or misleading representations

52 (1) No person shall, for the purpose of promoting, directly or indirectly, the
supply or use of a product or for the purpose of promoting, directly or
indirectly, any business interest, by any means whatever, knowingly or
Page 13
recklessly make a representation to the public that is false or misleading in a

material respect.
Proof of certain matters not required
(1.1) For greater certainty, in establishing that subsection (1) was
contravened, it is not necessary to prove that
(a) any person was deceived or misled;
Representations accompanying products

(2) For the purposes of this section, a representation that is
(a) expressed on an article offered or displayed for sale or its
wrapper or container,
(b) expressed on anything attached to, inserted in or
accompanying an article offered or displayed for sale, its
wrapper or container, or anything on which the article is
mounted for display or sale,
(c) expressed on an in-store or other point-of-purchase
display,
(d) made in the course of in-store or door-to-door selling to a
person as ultimate user, or by communicating orally by any
means of telecommunication to a person as ultimate user, or
(e) contained in or on anything that is sold, sent, delivered,
transmitted or made available in any other manner to a
member of the public,
is deemed to be made to the public by and only by the person who causes
the representation to be so expressed, made or contained, subject to
subsection (2.1).
Discussion
[38]
The objects of a class action are the promotion of access to justice, judicial
economy, and behaviour modification (Western Canadian Shopping Centres Inc. v.

Dutton, 2001 SCC 46 at paras. 2629; Lee v. Georgia Properties Partnership, 2012
BCSC 1484 at para. 10; Sun-Rype Products Ltd. v. Archer Daniels Midland
Company, 2013 SCC 58 at paras. 7779 (Sun-Rype); Finkel v. Coast Capital
Savings Credit Union, 2016 BCSC 561 at para. 37). The broad purpose of the CPA
is to provide an effective means of resolving situations where two or more people
have the same or similar complaints (Chartrand v. General Motors Corporation,
2008 BCSC 1781 at para. 46). It is not intended to create complaints where none
exist (Chartrand at para. 46).

[39]
Page 14
The CPA is to be interpreted generously towards the plaintiff with the key
question being whether the suit is appropriate for a trial of common issues (Knight v.
Imperial Tobacco Canada Limited, 2006 BCCA 235 at para. 20; Lee at para. 30).
[40]
The standard of proof to be applied to the certification requirements is that the
plaintiff must show that there is some basis in fact for each of the certification
requirements, with the exception of s. 4(1)(a). Section 4(1)(a) is subject to the rule
that pleadings should only be struck if it is plain and obvious that no claim exists
(Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Pro-Sys Consultants Ltd. v.
Microsoft Corporation, 2013 SCC 57 at para. 99 (Pro-Sys SCC); Charlton v. Abbott
Laboratories, Ltd., 2015 BCCA 26 at paras. 8182). This hearing is not meant to test
the merits of the action, but the class representative does have to establish an
evidentiary basis for each of the certification requirements (Hollick at para. 25;
Pro-Sys SCC at paras. 99100). The requirement to show some basis in fact does
not require the court to resolve conflicting facts and evidence; rather, it asks the
court to focus on the form of the action to determine whether it can appropriately go
forward as a class action (Pro-Sys SCC at paras. 99, 102). Each case is to be
decided on its own facts with sufficient facts established to satisfy the court that the
conditions for certification have been met to the degree that the matter should be
allowed to proceed on a class basis (Pro-Sys SCC at para. 104).
(a) Do the pleadings disclose a cause of action?
[41]
The first certification requirement of s. 4(1)(a) CPA was decided by Truscott J.
in Harrison No. 1 and Harrison No. 2. The remaining causes of action are: (a) fraud,
deceit, and fraudulent misrepresentation; (b) damages pursuant to s. 36 Competition
Act; and (c) unjust enrichment and waiver of tort.
[42]
It should be noted that the fraud, deceit, and fraudulent misrepresentation
claim was first proposed in December 2014 and was not included in causes of action
in the original Notice of Civil Claim.

[43]
Page 15
The plaintiff did not comply with the order for particulars related to a claim
under s. 172 (3)(a) BPCPA and that cause of action is not, therefore, allowed to
proceed (Harrison No. 2 at para. 54).
(b) Is there an identifiable class of two or more persons?
[44]
The plaintiff has proposed that the class consists of all persons resident in
British Columbia who purchased Cold-Fx, supplied, offered for sale, advertised, or
promoted by the Defendants between March 9, 2002 to present. Although only
Harrison is named as a plaintiff and only Harrison filed an affidavit to state that he
purchased one bottle of Cold-Fx in or about February 2011, a lawyer formerly
associated with plaintiffs counsel swore an affidavit in 2012 that there were four
other persons who had informed him that they were interested in the class
proceeding and that they had purchased Cold-Fx during the relevant time. The
plaintiff has argued that this is sufficient to establish an identifiable class of two or
more persons based upon the decision in Wakelam v. Wyeth Consumer
Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36 at paras. 98100, 105, leave
to appeal refd [2014] S.C.C.A. No. 125.
[45]
The defendant has argued that there is no genuine plaintiff here and there is
no evidence to show that either Harrison or anybody else has real complaints. The
defendant contends that the plaintiff has failed to show some basis in fact to
demonstrate that there is a link between the claim and two or more bona fide
claimants. The defendant also says that the proposed class is overly broad, not
rationally connected to the alleged common issues, and the plaintiff has not
proposed a methodology to appropriately narrow the class.
[46]
It is critical that the class be defined clearly at the outset and that a particular
persons claim to membership be determinable by stated, objective criteria (Western

Canadian Shopping Centres Inc. at para. 38; Sun-Rype at para. 57; Ileman v.
Rogers Communications Inc., 2014 BCSC 1002 at para. 122, affd 2015 BCCA 260,
leave to appeal refd [2015] S.C.C.A. No. 342; Seidel v. Telus Communications Inc.,
2016 BCSC 114 at paras. 125127). In Ileman, the inability to resolve objectively the
Page 16
identity of the persons who met the definition of the class meant that the case was
not amenable to a class proceeding. The court said:
[125] However, the proposed class definition is problematic in terms of
identifying the persons who have a potential claim for relief against the
Defendants. In order to establish that an individual is in the class, an
investigation is required regarding whether the individual purchased the
cellular telephone services for primarily personal, family or household
purposes. In other words, although it is possible to define the class, it is not
possible to objectively identify the persons who meet the definition. The
Defendants will be entitled to cross-examine anyone purporting to meet the
definition. (Emphasis in original.)
[47]
There must be an evidentiary basis to support an assertion of an identifiable
class (Chartrand at para. 52; Sun-Rype at para. 52; Singer v. Schering-Plough

Canada Inc., 2010 ONSC 42 at paras. 129-130).
[48]
There must be more than one person in the proposed class with a complaint
(Lee at para. 43). It is not enough to say that others have been in contact with
counsel if there is no evidence to show that any of these people desire their common
complaint to be determined through a class action (Lee at para. 42). There must be
evidence to show some basis in fact that two or more persons will be able to
determine if they are in fact a member of the class (Sun-Rype at para. 58). There
must be a basis in fact to demonstrate that a member of the putative class
possesses the information necessary to determine class membership (Sun-Rype at
para. 61).
[49]
The problem in Sun-Rype was that indirect purchasers, even knowing the
names of the products in issue, would not be able to know whether the particular
product that they purchased contained the particular sweetener that was at issue
and the plaintiffs had not offered evidence that could help to overcome the problem
of identifying which product contained the offensive sweetener. There must be some
evidence to show that there is some basis in fact for the class member to be able to
determine which product she purchased that contained the offensive sweetener
(Sun-Rype at paras. 6566). Justice Rothstein, writing for a majority of the Court,
concluded:
Page 17
[67]
The appellants' claim that "although some class members may not be
able to self-identify, class membership is determinable by reference to the
nature of the purchases made by each individual and the quantity of HFCS in
the products purchased" (response factum, at para. 71). However, this is no
answer to the self-identification problem. While there may have been indirect
purchasers who were harmed by the alleged price-fixing, they cannot selfidentify using the proposed definition. Allowing a class proceeding to go
forward without identifying two or more persons who will be able to
demonstrate that they have suffered loss at the hands of the alleged
overchargers subverts the purpose of class proceedings, which is to provide
a more efficient means of recovery for plaintiffs who have suffered harm but
for whom it would be impractical or unaffordable to bring a claim individually.
In this case, class membership is not determinable. (Emphasis in original).
[50]
Justice Rothstein also said:

[72]
A key component in any class action is that two or more persons fit
within the class definition. If, as in this case, there is no basis in fact to show
that at least someone can prove they fit within the class definition, the class
cannot be certified because the criteria of an identifiable class of 2 or more
persons is not met. No amount of expert evidence establishing that the
defendants have harmed the class as a whole does away with this
requirement.
[51]
In Chartrand, the plaintiff brought an action in negligence and unjust
enrichment against the manufacturer of certain vehicles and sought to define the
class as all owners of specific vehicles that had been originally equipped with an
automatic transmission and a certain type of braking system. The manufacturer had
the contact information for all of the original purchasers, but argued that there was
no air of reality to the commonality of the proposed claims and no evidence to
support an air of reality to the proposition that there was a class of persons who
shared the same safety concerns as the plaintiff. In rejecting the argument that there
was an identifiable class, the court said that it was not enough to point to a group of
people in British Columbia who were owners of the specific vehicles without
evidence that two or more people had a complaint against the manufacturer for a
dangerously defective product or that the manufacturer was unjustly enriched at their
expense (Chartrand at para. 53; Singer at para. 131). There had to be some rational
relationship between the class and the proposed common issues, an air of reality
testing the linkage between the plaintiffs claim and the proposed class, so that the
Page 18
class was not unnecessarily broad (Chartrand at paras. 6061, 6768; Singer at
para. 131).
[52]
The requirement not to be overbroad does not mean that everyone in the
class must share the same interest in resolution of the asserted common issues
(Hollick at para. 21). However, a class definition will be overbroad if there is no
connection between some of the proposed class and the alleged
misrepresentations, or if the connection cannot be established objectively.
[53]
Four recent cases from this Court make it clear that a proposed class that
includes persons who have no claim or no claim which raises a common issue is
overbroad and will not be certified. In Unlu v. Air Canada, 2015 BCSC 1453, the
proposed class included persons who may have purchased an air ticket for reasons
not protected by the BPCPA, and so included persons who did not have a claim. In
Ileman, because a subjective, inescapably individualistic exercise or investigation
was required to determine which purchasers in the class purchased the product for
personal purposes, it was not possible to objectively identify persons who met the
definition of the class. A similar principle was applied in Jiang v. Peoples Trust
Company, 2016 BCSC 368, where because it was not possible to identify the class
with reference to objective criteria, the requirements of s. 4(1)(b) CPA were not met.
[54]
In Clark v. Energy Brands Inc., 2014 BCSC 1891, the plaintiff had alleged that
the labelling and marketing of a beverage constituted misrepresentation. Justice

Verhoeven concluded that there was no identifiable class of two or more persons. As
indicated at para. 145 of his reasons, the proposed class included persons who had
no claim against the defendants, as well as persons who did not rely on any of the
representations set out in the plaintiffs claims, who purchased the product for
reasons unconnected to the plaintiffs claims, and who would have purchased the
product in any event.
[55]
The proposed class here includes all persons resident in British Columbia
who purchased Cold-Fx between March 9, 2002 to present. The essential

complaint is that the defendants misrepresented that Cold-Fx provides short term
Page 19
relief of cold and flu symptoms. However, neither Harrison nor anybody else who
has been identified has said why they purchased the product, whether they had read
or were aware of the representations, or whether they thought that the product
worked for the stated purpose or not. In this circumstance, there is no evidential link
between any member of the proposed class and a complaint based upon the alleged
misrepresentations.
[56]
The evidence that others had told counsel that they were interested in the
class proceeding and that they had purchased Cold-Fx during the relevant time does
not go so far as to establish that such persons have a complaint that they intend to
pursue. The fact that such persons may have contacted counsel does not establish
that there is a common complaint that these persons desire to be determined
through the class action process.
[57]
The class definition is overly broad. It includes persons with no claims
because some of the Cold-Fx products sold during the relevant time did not contain
any of the misrepresentations, not all of the purchasers would have purchased the
product for short term relief, not all of the persons would have purchased the product
because of the representations, and not all of the purchasers were dissatisfied with
the product.
[58]
The plaintiff has also failed to provide a means other than subjective
examination to determine whether an individual purchaser falls within the class. The
evidence shows that there are many reasons for a person to purchase this product.
There does not appear to be an objective process to identify persons who purchased
the product because of the representations. Nobody has come forward in the four
years that this action has been progressing to say that the representations induced
them to purchase the product, despite plaintiff counsels publication of the action.
[59]
The plaintiff has failed to provide some basis in fact that any person
purchased Cold-Fx based upon the alleged misrepresentations. Not a single person
has self-identified as someone who relied upon the representations as alleged, and
the plaintiff has not proposed a realistic methodology to objectively identify members
Page 20
of the proposed class. There is no evidence that anyone seeks to have a common
complaint determined through the class action process.
[60]
The requirement of s. 4(1)(b) has not been met.

(c) Do the claims of the class members raise common issues?
[61]
The question on commonality is whether allowing the suit to proceed as a
class proceeding will avoid duplication of fact-finding or legal analysis (Western

Canadian Shopping Centres Inc., at para. 39; Ileman at para. 129). The answer to
this question can be simply met. In Lee, as here, there was no evidence of other
persons with actual complaints. Justice Savage (as he then was), writing at para. 46,
found in this circumstance that it could not be said that the claims of the class
members raise common issues as s. 4(1)(c) requires.
[62]
In Unlu, the individual purchasers reason for the transaction involved an
individual question that only the individual consumer could answer. In this
circumstance, Justice Adair found that the plaintiff had failed to show some basis in
fact that the determination of the reason for the transaction as a common issue
could be made on a class wide basis (Unlu at paras. 9495). The same can be said
here.
[63]
The requirement of s. 4(1)(c) has not been met.

(d) Is the class proceeding the preferable procedure for the fair and
efficient resolution of the common issues?
[64]
In view of conclusions reached in relation to other requirements of s. 4(1)
CPA, it is not necessary to decide this issue.

(e) Is there an appropriate representative plaintiff?
[65]
The representative plaintiff must fairly and adequately represent the interests
of the class, produce a plan for the proceeding that sets out a workable method of
advancing the proceeding, and not have an interest in conflict with other class
members. General attributes of an appropriate representative plaintiff were
Page 21
described in Miller v. Merck Frosst Canada Ltd., 2015 BCCA 353, leave to appeal
refd [2015] S.C.C.A. No. 431:
[75] The representative plaintiff represents the class, but need not be
representative of the class: Hollick v. Toronto (City), 2001 SCC 68 at para.
21. He or she need not have a claim typical of the class, or be the best
possible representative. Instead, the court must be satisfied that the
proposed representative will vigorously and capably prosecute the interests
of the class: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC
46 at para. 41.
[66]
In Watson v. Bank of America Corporation, 2014 BCSC 532 (Watson BCSC),
Chief Justice Bauman (as he then was), noted at paras. 347348 that whether the
representative plaintiff is willing to vigorously and capably prosecute the interests of
the class may depend upon her motivations, the competence of class counsel, and
her ability to bear necessary costs. On appeal, for reasons indexed as 2015 BCCA
362 at para. 189, the Court of Appeal did not interfere with the findings of Bauman
C.J.S.C. with respect to the representative plaintiffs identity.
[67]
The representative plaintiff must have a claim against the defendant and not
be simply a nominee with no stake in the potential outcome (Farquhar v. Liberty

Mutual Insurance Co., [2004] O.J. No. 148 at paras. 910 (S.C.)).
[68]
As Justice Martinson stated in Chartrand at para. 97, the expectation that the
representative direct litigation, instruct counsel, and authorize settlement means that
he should be more than a spectator. Justice Martinson went on to state the
following:
[99] What is needed is a genuine plaintiff with a real role to play and not a
placeholder plaintiff for the entrepreneurial interests of lawyers who have so
much at stake. The CPA does not contemplate that causes of action,
legitimate though they may be, will be identified, and class members
recruited, for the ultimate financial gain of lawyers or organizers. See:
Richard, at para. 42; Poulin v. Ford Motor Co. of Canada, (2007), 52 C.P.C.
(6th) 294 at para. 63 (Ont. S.C.J.); and Fantl v. Transamerica Life Canada,
(2008), 60 C.P.C. (6th) 326 at para. 104 (Ont. S.C.J.).
[69]
Similarly, as stated in Singer:

[216] A class action must have a representative plaintiff who has a real
interest in the dispute and will provide fair representation to the class. The
representative must be able to instruct counsel and to exercise independent
Page 22
judgment concerning the important issues that will arise during the progress
of the litigation. The representative plaintiff cannot be a mere benchwarmer or
a puppet manipulated by counsel. These concerns were addressed by
Perell J. in Fantl v. Transamerica Life Canada, (2008), 60 C.P.C. (6th) 326,
[2008] O.J. No 1536 (Sup. Ct.) at para. 63, aff'd [2008] O.J. No. 4928, 66
C.P.C. (6th) 203 (Div. Ct.), and aff'd 2009 ONCA 377, [2009] O.J. No. 1826
The identity of plaintiffs and class representatives is
particularly important in class action proceedings where they
have responsibilities to prosecute the action on behalf of and
in the interests of the class: Englund v. Pfizer Canada, [2007]
S.J. No. 273 (C.A.) at para. 50; Hoffman v. Monsanto Capital
Inc. and Bayer Cropscience Inc., [2007] S.J. No. 182 (C.A.) at
paras. 87-92. There are many good reasons for a class
proceeding having a genuine plaintiff with a genuine claim and
exposure to costs if the claim is unmeritorious. The presence
of a genuine claimant reduces frivolous claims, acts as a
check and balance to the excesses of entrepreneurial law
firms, provides a voice to protect the interests of the absent
class members, and goes some distance to ensuring that the
access to justice and behaviour modification provided by the
Act make a meaningful contribution to both private and social
good.
[70]
Section 4(1)(e)(ii) also asks whether the representative plaintiff has produced
a litigation plan that provides a framework within which the case will proceed. The
litigation plan demonstrates that the representative plaintiff and class counsel have a
clear grasp of the complexities involved in the case and plan to address them
(Watson BCSC at para. 351). The elements to be addressed in a litigation plan
include: steps to be taken to identify and locate necessary witnesses; collection of
relevant documents from members of the class and others; the exchange and
management of documents; ongoing reporting to the class; mechanisms for
responding to inquiries from class members; the intended process for discoveries;
the need for experts and how they will be identified and retained; the plan for
resolving individual issues; and the plan for how damages are to be assessed
(Public Service Alliance of Canada Pension Plan Members v. Public Service Alliance
of Canada, [2005] O.J. No. 2693 at para. 29 (S.C.); Singer at paras. 224226).
There should also be information so that the court can determine whether counsel,
as selected, has the capacity to undertake prosecution of the claim (Singer at
paras. 226227). It is anticipated that litigation plans will require amendments as the
proceeding continues (Watson BCSC at para. 351).

[71]
Page 23
The affidavit of Harrison is dated in 2012 and has not been updated to reflect
the realities of this litigation, despite requests by defence counsel to do so. Harrison
has stated only that he purchased Cold-Fx in 2011. He has not said what specific
product he purchased. He has not said that he purchased the product for short term
relief based upon any of the alleged misrepresentations. Harrison has not
established some basis in fact that he has a complaint against the defendants.
[72]
There is no evidence that Harrison has been involved in this litigation since
2012. His description of the litigation plan is outdated, in part because it refers to
legal representation by those who, apart from Mr. Green, are no longer involved. In
his expression of his understanding of a representatives duties, Harrison does not
make reference to any developments in the case other than those that occurred
before a case management judge was appointed. In this circumstance, it cannot be
said that Harrison has been vigorous in the prosecution of the case.
[73]
Harrison was recruited by his lawyer. Harrison had expressed in public that
he thought that Cold-Fx was a colossal scam based upon a television

documentary; however, there is no evidence that he had any idea about
representations in the labelling or marketing of the product, or that he was ever
concerned or felt harmed by them. He has not actively participated in this litigation.
He has no real interest in the outcome.
[74]
In these circumstances, it cannot be concluded that Harrison is a genuine
plaintiff who will vigorously protect the interests of the class.

[75]
The litigation plan that Harrison proposes is outdated, boilerplate, and
rudimentary. It does not reflect the substantial difficulty that the plaintiff has
experienced with pleadings. The information about the experience, capability, and
resources available to plaintiffs counsel is so out of date and now inaccurate as to
disable this Court from determining whether counsel is capable of undertaking this
action. The plan does not reflect current law on damages and provides no clear plan
as to how liability will be determined. It does not address individual issues.

[76]
Page 24
The plaintiff has not discharged the burden of showing that the requirements
of s. 4(1)(e) CPA have been met.

Costs
[77]
This is a continuation of the certification hearing that commenced in 2013.
When the plaintiff requested significant amendments to his pleadings, the court
adjourned the certification hearing and ordered the matter of costs thrown away to
be dealt with by written submissions. The court then provided a ruling on costs in
Harrison v. Afexa Life Sciences Inc., 2014 BCSC 523 and said:
[42] On the continuation of the certification hearing, if the defendants are
successful in defeating the claims of immediate relief for the purpose of
certification, they may be in a position to seek all the costs that they now seek
for having prepared for this allegation.
[78]
The defendants have been successful in defeating the immediate relief
claims on certification and shall have costs thrown away with respect to the first four
day certification hearing as Truscott J. ordered.
Summary and Disposition
[79]
In summary, the plaintiff has failed to satisfy the requirements under s. 4(1)(b)
CPA to show some basis in fact that an identifiable class exists, under s. 4(1)(c)
CPA to show some basis in fact that the claims of the class members raise common
issues, and under s. 4(1)(e) CPA to show some basis in fact that there is an
adequate representative plaintiff or litigation plan. In view of these conclusions, it is
not necessary to address the requirements under s. 4(1) (d) CPA.
[80]
The plaintiffs application for certification of this action as a class proceeding
is dismissed.
Dillon J.
________________________________
The Honourable Madam Justice Dillon

Harrison v. Afexa Life Sciences Inc.

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Harrison v. Afexa Life Sciences Inc.

Enviado por

Direitos autorais:

Formatos disponíveis

IN THE SUPREME COURT OF BRITISH COLUMBIA