BC Court of Appeal : 
The Rules of Evidence Are Not Relaxed at Certification

Courts perform an important gatekeeping function at certification. This includes being satisfied that the plaintiff has shown the required "some basis in fact" for each of the certification criteria other than reasonable cause of action. The certification process ensures that the substantial resources devoted to litigating class proceedings are only invoked where it is appropriate to do so. Syngenta AG v. Van Wijngaarden, 2025 BCCA 334 affirms the BC courts' commitment to requiring plaintiffs to discharge their burden at certification with properly admissible evidence: the rules of evidence are not relaxed.

The plaintiffs in Syngenta sought to rely on thousands of pages of purported internal documents, scientific studies, webpages and news articles appended to affidavits sworn by the plaintiffs' lawyer who had no personal knowledge of the documents' truth or authenticity and in many cases was not the person who retrieved them. The Court found that the disputed evidence was inadmissible: "the manner in which the plaintiffs sourced and tendered the [disputed] exhibits raises overlapping authentication, hearsay, and relevance issues" that could not be overcome by simply admitting the documents other than for their truth. The decision provides a helpful summary of the law on the admissibility of hearsay evidence at certification:

• While BC Rule 22-2(13) allows hearsay to be admitted on interlocutory applications, double hearsay remains inadmissible given the requirement under that Rule that the affiant identify the source of the hearsay information and swear or affirm that they believe the information to be true.
• Documents being tendered as party admissions must first be properly authenticated by the party tendering them, with evidence capable of supporting a finding that the document is what it purports to be. Section 5(5) of the BC Class Proceedings Act, which requires parties to disclose in affidavit evidence facts in their knowledge material to the certification application, does not impose an obligation on defendants to authenticate documents tendered by plaintiffs.
• The public records exception to the hearsay rule is not met simply because a record is publicly available, even if published by a government entity. Several other pre-conditions must be met.
• Finally, hearsay is only admissible if relevant. Where hearsay is tendered other than for the truth of its contents, the tendering party must identify its relevance for a non-truth purpose.

The Court of Appeal also noted that, faced with defendants’ objections to the exhibits’ admissibility, it was incumbent on the plaintiffs to provide admissible evidence supporting their authenticity and outline why individual documents should be admitted under a known hearsay exception or identify their relevance for a non-truth purpose. It was unreasonable to expect a certification judge to undertake the process of itemizing and categorizing the documents without assistance.

Have time to read more?

• Although the plaintiff's disputed hearsay evidence was inadmissible, the Court of Appeal ultimately upheld certification of the negligence common issues because other admissible evidence provided some basis in fact for certification of those common issues.
• The Court of Appeal's decision also confirmed important limits on the tort of battery in the context of product liability claims. There is no cause of action in battery for allegedly placing a dangerous product into the stream of commerce, because this lacks the necessary "direct contact" between the plaintiff and the defendant.
• The Court of Appeal also reversed the chambers judge's certification of remedies-related common issues where they required an assessment of specific causation or an individual plaintiff's experience of harm. Such issues are not common to the class.