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A Class on Class Definitions: BCCA Finds Class Definition Overbroad in Proposed Cold-Fx Class Action

A central component of every class action is the class definition. It determines “who’s in and who’s out” of the litigation, and a class action cannot be certified unless an appropriate identifiable class is proposed. Whether the plaintiff has proposed an appropriate class is a frequent battleground at certification. In order for a class definition to pass muster, the class must be objectively identifiable and there must be a rational relationship between the defined class and the common issues in the action. If the class definition casts a net that is “overbroad” and unnecessarily captures individuals who do not, in fact, have a claim, the Court may find that the action does not meet the test for certification. The B.C. Court of Appeal’s recent decision in Harrison v. Afexa Life Sciences Inc., 2018 BCCA 165 [Harrison] offers an example of a case in which the plaintiff’s proposed class definition fell short of the mark.

In Harrison, the plaintiff alleged that the defendants had made false claims on product packaging that the product provided “immediate relief” from colds and flus. The plaintiff sought to certify a class comprising all British Columbians who purchased any Cold-Fx product between 2002 and 2012. However, here, none of the product packages in Canada made a claim for “immediate relief” of cold and flu symptoms on the front of the package, only approximately 30% of the product packages contained any mention of “immediate relief” at all (in the dosing information), and the plaintiff led no evidence that any consumer had actually purchased the product in reliance on a representation of “immediate relief”.

The Court of Appeal upheld the chambers judge’s finding that the proposed class was overbroad and insufficiently related to the misrepresentation claims at the heart of the action to be certified. The class as defined included purchasers who were not exposed to the alleged representations, purchasers who did not rely on the alleged representations, and purchasers who bought or used the product for some purpose other than “immediate relief” of cold and flu symptoms. The class was clearly “much broader than it should have been” and certification was refused.

The Court of Appeal also rejected the plaintiff’s attempt to fix the defects in the class definition on appeal. The Court accepted that appellate courts can, in appropriate cases, consider a modified class definition. However, they should not do so where the proposed modifications are significant or where allowing an amended class definition would prejudice the defendant, either because there will be incomplete evidence relevant to the class definition or because the defendant might have employed a different strategy in responding to the certification application if the class had been differently defined at first instance.

Here, the Court of Appeal found it was too late for the plaintiff to try to amend the class definition without prejudicing the defendants. The action was commenced in 2012 and dealt with purchases going back to 2002. The Court of Appeal found that, at this point in time, it was highly unlikely that consumers would recall whether they read or relied on the alleged representations, or that further investigations by class members would realistically allow them to determine whether they fell within or outside the class. As such, even a narrowed class should not be allowed. In any event, the Court also found that the proposed narrowed class remained deficient. It still omitted any requirement that the consumer must have read or relied on the representations, or that it had purchased or used the product for the purpose of “immediate relief” of cold and flu symptoms.

Harrison provides a useful clarification for the requirements for class definition, particularly in cases involving alleged misrepresentations, and confirms that certification may be denied where the plaintiff has failed to put forward in a timely way a class definition that it is rationally connected to the common issues and not overbroad.



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