In a June 17 decision in Williams v. Nova Scotia (Attorney General), 2025 NSSC 184, Justice Jamie Campbell found that the entirety of two affidavits and large portions of a third were inadmissible for the certification of a proposed class action alleging that Nova Scotia’s use of lockdowns in provincial jails is unlawful.
“If a class representative is required to show some basis in fact for each of the certification requirements, that low bar must be met using admissible evidence,” wrote Justice Campbell. “A certification motion is not an exception to the rules that govern the proper contents of affidavits.”
“Affidavits do not allow for a form of evidentiary free for all, in which the deponent ‘speaks their mind’ or ‘tells their truth,’ with argument, speculation, opinion and irrelevant facts included for context or narrative,” he added. “If evidence is not admissible, it should not and cannot be part of an affidavit.”
The three affidavits advanced by counsel for the representative plaintiff, James Williams, and opposed by the Nova Scotia attorney general were from Dr. Stuart Grassian, a psychiatrist practising in Massachusetts, Emma Arnold, a staff lawyer with People’s Advocacy and Transformational Hub (PATH), a Dartmouth, N.S.-based non-profit legal clinic, and Zoë Caddell, an articled clerk with PATH.
Grassian’s affidavit offered his opinion on the psychiatric effects of restricted and isolated “lockdown” confinement on prison inmates. Arnold’s affidavit provided the views of lawyers on whether the requirements for certification had been met and estimates of legal fees and disbursements. Caddell’s three-paragraph-long affidavit, meanwhile, had 29 exhibits attached, 22 of which were online news reports from organizations such as Global News, CTV News and CBC News.
Justice Campbell found Grassian’s affidavit inadmissible because it contained opinion evidence before the psychiatrist had been qualified as an expert. Parts of Arnold’s affidavit containing opinion and argument were struck, except paragraph 14, the section providing estimates of legal costs. Finally, the court struck all of Caddell’s affidavit, finding that the attached exhibits contained inadmissible hearsay, opinion and irrelevant information.
The class action statement of claim was filed in March following a January ruling by the Nova Scotia Supreme Court that it is illegal to confine inmates in their jail cells because of staffing shortages.
“Conditions for prisoners at Nova Scotia’s correctional facilities are deplorable,” reads the statement of claim. “Staffing-related lockdowns and the severe, continuing damage they cause to prisoners in the correctional facilities form the basis of this (legal) action.”
The class action has yet to be certified and none of the allegations have been tested in court. Williams, the representative plaintiff, has been incarcerated at Central Nova Scotia Correctional Facility in Dartmouth since September 2020 and alleges he has spent about 75 per cent of his time in jail under lockdown because the facility doesn’t have enough staff to properly guard inmates.
According to a March 2025 analysis by Toronto-based Aird & Berlis LLP partner Kate Findlay, courts are increasingly emphasizing their gatekeeping role, requiring plaintiffs to provide a “minimal evidentiary basis” for certification, particularly for proposed common issues.
The “some basis in fact” standard, established by the Supreme Court of Canada, continues to be refined, noted Findlay. Courts are distinguishing between the need for evidence supporting the existence of common issues and the prohibition against a full merits-based review at certification.
Counsel for the plaintiff, James Williams, were Arnold and PATH co-founder Michael Dull, the founding partner of Halifax-based Valent Legal. Dull did not respond to an email requesting comment.
Counsel for the Nova Scotia attorney general were lawyers Daniel Boyle and Lyndsay Scovil of the Nova Scotia Department of Justice. Boyle did not reply to an email seeking comment.
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