In Syngenta AG v. Van Wijngaarden, 2025 BCCA 334, released Sept. 24, Justice Heather MacNaughton upheld certification of common issues alleging negligence in the sale of paraquat-based herbicides, as well as a claim for punitive damages.
“We’re gratified the Court of Appeal left intact the core of our case, allowing hundreds of people who have Parkinson’s disease and were users or in contact with paraquat to get access to justice,” said class counsel Daniel Bach of Siskinds.
Between the early 1960s and 2017, the appellants, Syngenta AG, Syngenta Crop Protection LLC, Syngenta Canada Inc. and Syngenta Crop Protection AG, and their corporate predecessors, marketed and sold in Canada herbicides containing the active ingredient paraquat.
The respondents, Johannes Van Wijngaarden and the Estate of Wayne Gionet, alleged that exposure to paraquat increases one’s risk of developing Parkinson’s disease, and that Syngenta knew or ought to have known of this risk but failed to disclose it.
They commenced a class proceeding against Syngenta seeking remedies for negligence, battery, and unjust enrichment on behalf of those who have been diagnosed with Parkinson’s after using the relevant products, as well as their surviving family members.
In Gionet v. Syngenta AG, 2024 BCSC 1440, a chambers judge certified the class proceeding only in relation to the negligence and battery claims.
The judge also certified common issues regarding the appropriateness of general damages and punitive damages, disgorgement, and recovery of health care costs under the Health Care Costs Recovery Act.
Syngenta appealed the decision, arguing that the certification judge erred in certifying a common issue in battery and by certifying remedial issues that cannot be answered in common across the class.
The appellant submitted that putting a product into the stream of commerce did not meet the requirement for a battery claim that there be “direct contact” between the plaintiff and the defendant.
Justice MacNaughton cited Palmer v. Teva Canada Limited, 2024 ONCA 220 in which the Ontario Court of Appeal upheld a decision denying certification for a toxic battery claim brought by individuals who alleged that they were exposed to medication contaminated with chemicals known to increase the risk of cancer.
In Palmer, the Ontario Court of Appeal affirmed that directness is an essential element of the tort of battery and that exposure is not direct physical contact.
Justice MacNaughton also found that exposure does not satisfy the requirement of directness for the tort of battery.
“It is not enough to say, as the plaintiffs plead, that by putting herbicide containing paraquat into the stream of commerce, the requirement of ‘directness’ is satisfied. There are numerous stages between the start of the stream and its end with the plaintiffs. We are left, in essence, with a disguised negligence claim,” the judge wrote.
The court also held that the certification judge had erred in improperly admitting certain exhibits of an affidavit by a lawyer for the law firm representing the plaintiffs.
However, the court rejected argument by Syngenta that the certification judge made certain factual findings that were only available to her if the exhibits that should not have been admitted were relied upon for their truth.
The findings that Syngenta challenged on this basis included findings that Syngenta’s corporate predecessor had detected paraquat in animals’ brains during internal studies and that the company had an internal policy to the effect that scientists would not measure paraquat in the brains of study animals.
Additionally, they also challenged findings that Syngenta had internally acknowledged that it could not say paraquat does not enter the brain, does not cause any changes in the brain, or that data show that paraquat does not cause Parkinson’s disease in humans.
Justice MacNaughton held that transcripts from the deposition of Syngenta’s corporate representative in the U.S. litigation provided sufficient support for the above findings.
“The overall factual narrative described by the certification judge remains supported by admissible evidence,” she wrote.
On the issue of remedies, the court found that the certification judge had erred in certifying a common issue on general damages, noting that the appropriateness of general damages could not be determined without determining specific causation.
“Both parties agree that specific causation cannot be determined at a common issues trial. It follows that the question of specific causation cannot be addressed via a common issue, regardless of the risk that paraquat may create, or the harm experienced by a certain sample size of individuals,” the judge wrote.
She did, however, uphold certification of the common issue of whether the defendants were liable for punitive damages.
“[T]he plaintiffs have introduced admissible evidence … which provides some evidence that Syngenta acted in an oppressive and high-handed manner by making claims that were undermined by its own studies and by attempting to influence the scientific consensus on the dangers of paraquat,” the judge wrote.
The judge also held that the certification judge erred in certifying common issues dealing with claims for restitution, aggravated damages and subrogated health care recovery costs.
The court allowed the appeal in part, dismissing Syngenta’s remaining grounds of appeal.
Counsel for Syngenta were Jill Yates, Stephanie Sugar and Kevan Hanowski of McCarthy Tétrault LLP. They were not immediately available for comment.
Counsel for the plaintiffs were Daniel Bach, Tyler Planeta and Gigi Pao of Siskinds.
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