Executive Summary: Key Legal and Evidentiary Issues

• The court considered whether affidavits filed in support of class certification must comply with evidentiary rules, including admissibility under the Civil Procedure Rules.

• Hearsay evidence is only permitted in affidavits where the source is identified and the affiant expresses belief in the information’s truth.

• Opinion evidence from individuals not qualified as experts is inadmissible, even when offered as “context” for certification.

• Media articles and external reports attached to affidavits were found inadmissible as unsourced hearsay or irrelevant to the certification issues.

• Statements estimating legal costs and complexity of the proceeding were accepted as admissible when based on advice from senior counsel.

• The court confirmed that the low threshold of “some basis in fact” for certification does not lower the evidentiary standards for admissibility.

Facts of the case

James Williams commenced a proposed class action against the Attorney General of Nova Scotia, seeking certification under the Class Proceedings Act, S.N.S. 2007, c. 28. The certification motion is scheduled for December 16 to December 18, 2025. Williams alleges harm arising from conditions of confinement in Nova Scotia correctional institutions, particularly focusing on lockdowns and restricted or isolated confinement of inmates. In preparation for certification, Williams filed seven affidavits, including those of Emma Arnold, Zoë Caddell, and Dr. Stuart Grassian.

The Attorney General objected to all or portions of these affidavits, arguing they failed to comply with evidentiary rules. Williams’s counsel argued the affidavits were offered not to prove the truth of their contents but to provide context and demonstrate “some basis in fact” for meeting the certification requirements.

Outcome of the court’s decisions

The court held that affidavits for certification must comply with the Nova Scotia Civil Procedure Rules and evidentiary standards. The procedural nature of the certification motion does not permit a relaxation of admissibility standards, despite the low threshold of “some basis in fact” required.

Dr. Grassian’s affidavit was struck in its entirety. The court found that Dr. Grassian, a psychiatrist who had taught at Harvard for over 25 years, offered opinion evidence on the psychiatric effects of restrictive confinement. Because he had not been qualified as an expert in this proceeding, his opinion evidence was inadmissible.

Emma Arnold’s affidavit was largely accepted. The court allowed her statements in paragraph 14 regarding estimates of legal fees and disbursements, which were based on advice from senior counsel, Michael Dull K.C. She estimated fees of approximately $100,000.00 up to and including the certification motion, and in excess of $500,000.00 up to and including a common issues trial. The court found these statements admissible given the context and source.

Zoë Caddell’s affidavit was struck in full. It consisted mainly of attaching 29 exhibits, including 22 media reports and various reports and documents. The court found the media articles inadmissible as unsourced hearsay and not relevant to the certification issues. The attached reports—including Auditor General reports and annual reports of the East Coast Prison Justice Society Visiting Committee—were found largely irrelevant or inadmissible hearsay. The affidavit also attached the affidavit and expert report of Dr. James Austin from unrelated Ontario litigation, which was inadmissible as unqualified opinion evidence in this matter.

The decision focused solely on evidentiary issues at the certification stage; no insurance policy terms or clauses were discussed. The ruling underscores that even at the certification stage, admissible evidence is required to meet the procedural threshold.

There was no final successful party on the merits in this decision. No monetary award, costs, or damages were granted or ordered in this decision.