Kelowna woman suing diet supplement company wins minor victory in court

A B.C. court has refused to dismiss a case by a Kelowna woman who is suing a weight loss company whose products have since been recalled by Health Canada.

The company, Isagenix International, applied to the court to dismiss the case, saying that as Chera Harris was selling its products through an online marketing scheme the issue should be treated internally as an employer and employee issue, which is covered under an arbitration clause in her contract.

However, Justice Ward Branch dismissed the company's claim, allowing the Kelowna resident to continue with her litigation.

The case revolves around a line of products, marketed as Isalean bars and shakes, that was recalled by the Canadian Health Inspection Agency for vitamin and mineral over-fortification between Oct. 31, 2020 and Jan. 29, 2021.

According to a Notice of Claim filed last summer, Harris claims the products caused her sleeplessness, anxiety and depression all due to an overdose of vitamins and minerals.

"(Isagenix) neglected to include appropriate testing in their manufacturing process for the products to assess if an unsafe level of vitamins and minerals was being incorporated into the products," reads the notice of claim. "(Isagenix) knew or thought to have known that the product contained unsafe levels of vitamins and did not include a warning with the products about the levels of unsafe vitamins and minerals."

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According to court documents, Harris took Isagenix products between 2017 and 2020.

Harris also sold the products through a multi-level marketing scheme and made a commission from those sales. Court documents show she made more than $35,000 and enrolled 75 new "associated and preferred customers."

Because Harris had signed a contract to sell the products the company argued she couldn't sue them through conventual channels and it had to go through employment arbitration as per her contract.

Harris argued the arbitration clause did not apply to her claim since she was suing as an individual, not as her role working for the company.

Justice Branch sided with Harris.

"(Harris) wore two hats during the relevant period: she was both a consumer and an associate. This proceeding is brought in her capacity as the former, not the latter," Justice Branch said in the decision. "Just as she does not need to rely on her position as an associate in order to sue as a consumer, she cannot be precluded from bringing an action as a consumer because of her status as an associate."

The decision goes through the finer points of the Business Practices and Consumer Protection Act and whether a Harris was a "consumer" or a "supplier."

Justice Branch didn't buy the company's complicated argument surrounding the issue.

"Excluding broad swathes of consumers from protection based solely on their potential status as suppliers in other unrelated transactions with other parties undermines this purpose and should be rejected," the Justice said.

Ultimately, Isagenix's application to have the case thrown out was rejected, allowing Harris' claim its diet supplements made her sick to continue through the courts.

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