Is It Viable? Is It Common? British Columbia Court Of Appeal Reinforces Requirements For Certification

This month, the Court of Appeal for British Columbia released two decisions within two days providing guidance on class action certification in the province: RateMDs Inc. v. Bleuler¹ and Syngenta AG v. Van Wijngaarden². Read together, these cases demonstrate the Court's continued emphasis on a plaintiff's onus to satisfy required elements of the certification threshold—pleading a viable cause of action and commonality—before an action can be certified. The Court also made it clear that evidence tendered in support of the plaintiff's "some basis in fact" burden for certification must meet ordinary admissibility criteria, and that the practice of appending large tranches of unidentified, unauthenticated, "publicly available" hearsay documents to a legal professional's affidavit is to be discouraged.

What you need to know

• Certification is not a rubber-stamping exercise. The Court signalled the need to scrutinize both the legal viability of claims at the pleadings stage and whether proposed common issues are in fact common. The Court reiterated its prior guidance that certification must be a "meaningful screening device".
• Novelty and complexity alone are not enough to get past certification. Novel or complex claims with no reasonable prospect of success must be distinguished from ones with an arguable chance at the pleadings stage.
• No commonality for remedial issues that turn on individual assessments. Damages assessments that require findings of specific causation or an assessment of individual circumstances are not suitable common issues.
• Normal rules of evidence apply to certification. The Court criticized the common practice of attaching large volumes of documents, which often appear to be sourced from media or online research, to lawyer or paralegal affidavits. Litigants must be able to authenticate documents and explain why they are admissible, including their relevance, probative value, and the source of information if the documents are hearsay.

The RateMDs decision

In RateMDs, the Court of Appeal for British Columbia allowed the defendant's appeal and dismissed certification of a proposed class proceeding brought on behalf of health professionals whose names, professional ratings and reviews were listed on the website RateMDs.com. The plaintiff alleged breach of statutory torts under provincial privacy legislation.

The Court of Appeal found the plaintiff had failed to plead a viable cause of action. The plaintiff's claims, although novel, could not succeed:

• No novel tort for use of personal information writ large. Privacy law does not give a plaintiff the right to control the use of any and all personal information—breach of privacy depends on content of the information or whether it gave rise to a reasonable expectation of privacy. That the tort was novel and complex was not enough to get it over the certification threshold. Health professionals cannot reasonably expect that information regarding their services is private, nor can they control which websites may publish such information. Public reviews of professional services are routinely available and do not, in themselves, constitute a breach of privacy.
• No claim for use of name absent commercial use. Asserting a claim for unauthorized use of name and likeness had no reasonable prospect of success because the defendant was not commercially exploiting the proposed class members' names; rather, they were merely the subject of reviews.

The Syngenta decision

In Syngenta, the Court of Appeal allowed, in part, an appeal of an order certifying a class proceeding on behalf of individuals exposed to herbicides containing paraquat. The plaintiff alleged that exposure to paraquat increases the risk of Parkinson's disease. The claim sounded in negligence, battery and unjust enrichment.

The Court found that the claim in battery could not be certified, relying on DeBlock v. Monsanto Canada ULC³ (a decision in which Torys represented the defendants) and Palmer v. Teva Canada Limited⁴ (read our previous bulletin on this case) to hold that alleged exposure to a product is insufficient to meet the element of direct contact required for battery.

The Court also struck common issues relating to various remedies because:

• general damages in negligence and subrogated health care costs require proof of individual causation and therefore are not appropriate common issues;
• aggravated damages are not suitable to determination in common, as they require proof of an individual plaintiff's experience of harm; and
• disgorgement is not an available remedy to the pleaded cause of action in negligence.

In its reasons, the Court sanctioned a tactic commonly employed by plaintiffs: tendering hundreds or thousands of pages of online materials (in this case, U.S. court documents, news articles, scientific studies, web pages and advertisements) appended to solicitors' or law clerks' affidavits. The Court's view was that this strategy violated evidentiary principles.

Key takeaways

Together, RateMD and Syngenta contain two key takeaways pertaining to (a) the gatekeeping function of certification criteria; and (b) the rules of evidence that apply to certification records.

Certification criteria serve an important gatekeeping function

RateMD and Syngenta reinforce the role of certification criteria as a threshold to certification, with the Court of Appeal reminding application judges that they play an important gatekeeping role "to ensure that only claims in the common interest of class members are advanced". Courts must conduct a rigorous analysis of whether a plaintiff has met each of the certification criteria, even if faced with novelty or complexity. Pleadings that have no reasonable chance of success—i.e., claims that have insufficient legal or factual rationale—must be disposed of at an early stage.

This level of scrutiny also extends to the common issues criterion. Proposed common issues that largely turn on individual assessments, such as causation or individual circumstances, cannot be decided on a class-wide basis and should not be certified. This includes compensatory and aggravated damages, and health care recovery costs.

The ordinary rules of evidence apply at a certification hearing

An application for certification in British Columbia must be supported by affidavit evidence to demonstrate there is "some basis in fact" for the common issues criterion. Syngenta tightens the parameters around the type of evidence parties may lead on a certification application:

• Evidence must be relevant and probative. Evidence will only be admissible if it is relevant, its probative value outweighs its prejudicial effect, and it is not subject to an exclusionary rule (i.e., impermissible hearsay).
• Hearsay is presumptively inadmissible. Although affiants may tender evidence based on information and belief, they must identify the source. That source cannot be a corporation—it must be an individual. Double hearsay will always be inadmissible.
• Documents must be authenticated. A document cannot be tendered unless the party relying on it proves that the document is what it purports to be. Defendants are not required to authenticate documents tendered by the plaintiff. That burden rests with the plaintiff.
• Documents tendered for non-truth purposes must be relevant in some other way. Relevance is a necessary threshold for admissibility: if a party relies on the fact of the document and not the truth of its contents, it must demonstrate how the document relates to the claims.
• The "public records" exception is narrow. Not all "publicly available" documents are "public records". The public documents exception applies to written statements prepared by public officials in the exercise of their public duty, and may not be admitted if not reliable.
• Large amounts of documents cannot be admitted without assessing their authenticity and admissibility. Judges must conduct these evidentiary analyses prior to relying on the documents.

Implications

Defendants faced with certification applications should carefully assess the plaintiff's application record and consider their strategy regarding the following:

• Viability of the plaintiff's pleadings. If the pleadings lack a viable legal basis or fail to plead the requisite material facts to meet the alleged causes of action, they are vulnerable to being struck on certification, despite being framed as novel or complex. Defendants should consider which pleadings to argue should be struck.
• Commonality of proposed common issues. Proposed common issues that would require individual assessments to resolve are not certifiable. Defendants should assess proposed common issues to determine whether they have the requisite level of commonality.
• Documents that do not meet the rules of evidence cannot be admitted.The Court of Appeal confirmed a plaintiff cannot simply append documents to an affidavit without explaining why they are authentic, where they come from, and why they are relevant. Defendants should consider challenging evidence that fails to meet these requirements.

Footnotes

1 RateMDs Inc. v. Bleuler, 2025 BCCA 329.

2 Syngenta AG v. Van Wijngaarden, 2025 BCCA 334.

3 DeBlock v. Monsanto Canada ULC, 2023 ONSC 6954.

4 Palmer v. Teva Canada Limited, 2024 ONCA 220.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.