In Syngenta AG v. Van Wijngaarden, 2025 BCCA 334, the British Columbia Court of Appeal reaffirmed the importance of the ordinary rules of evidence at certification hearings. The Court of Appeal also issued guidance on the certification of remedial common issues: where certified common issues cannot lead to a liability finding, it is an error to certify common issues about damages, disgorgement and health care cost recovery.
The rules of evidence still apply at certification
At certification, the plaintiff tendered thousands of pages of online materials appended to solicitors' affidavits. These materials included court documents from the United States, scientific studies, news articles, web pages, and advertisements, among other things. The Court of Appeal criticized this approach:
... there are many problems with the approach taken in this case in respect of the Dimson affidavits that appended hundreds of documents, retrieved from various online sources, to the affidavit of a lawyer who has no personal knowledge concerning their truth or authenticity, and in many cases was not even the person who retrieved them. This tactic has been appropriately criticized by certification judges in other cases:...
In rejecting the plaintiff's approach, the Court of Appeal provided a helpful overview of the evidentiary principles at certification:
- No relaxation of the rules of evidence. To be admissible, evidence must be relevant, not subject to an exclusionary rule, and its probative value must outweigh its prejudicial effect (para. 63).
- Hearsay is presumptively inadmissible. The tendering party must establish a recognized exception or show the statement is sufficiently reliable and necessary (para. 67).
- Information‑and‑belief. When providing evidence on information and belief, affiants must identify the source and swear they believe the information to be true; double hearsay remains inadmissible, and the source must be a person (not a group or corporation) (para. 69).
- Authentication is required. The party relying on a document must provide evidence that the document is what it purports to be (para. 76).
- Relevance is a threshold criterion for admissibility. Documents offered for a non‑truth purpose must still be relevant, and the tendering party must explain their relevance (paras. 82–86).
- "Public records" is a narrow exception. The exception applies only to a narrow category of documents that satisfy specific criteria; it does not apply to all "publicly available" records (paras. 89–93).
When met with an objection, the party tendering documentary evidence must adduce some evidence of authenticity and either (i) identify a hearsay exception or (ii) explain the document's relevance for a non-truth purpose (paras. 73, 86). In this case, it was an error for the chambers judge to admit a large tranche of documents without conducting this analysis.
The Court also rejected the submission that s. 5(5) of the Class Proceedings Actobliges defendants to authenticate documents tendered by the plaintiff. The plaintiff alone bears the burden to authenticate the documents upon which the plaintiff relies (para. 80).
Limits on remedial common issues
The Court struck proposed common issues addressing general damages, disgorgement, and subrogated health‑care costs because the plaintiff had not advanced common issues capable of establishing liability.
In reaching these conclusions, the Court of Appeal provided guidance about the certification of remedial common issues:
- General damages in negligence: The availability of general damages is not appropriate as a common issue where specific causation must be proven for each class member. In negligence, non-pecuniary damages cannot be established through a "sampling" of class members' alleged harm (paras. 135–143).
- Aggravated damages: The availability of aggravated damages is unsuitable as a common issue because these damages turn on an individual plaintiff's experience of harm.
- Subrogated health‑care costs: Claims under the Health Care Cost Recovery Act require proof that the defendant caused the plaintiff's injury. If specific causation cannot be proven, a health‑care cost recovery issue should not be certified as common.
- Disgorgement: If no pleaded cause of action could ground disgorgement on a class‑wide basis, a disgorgement issue should not be certified. With reference to Atlantic Lottery, the Court of Appeal said that it was "plain and obvious" that the plaintiffs had no pathway to disgorgement through negligence.
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