Williams v. Nova Scotia (Attorney General)

Williams v. Nova Scotia (Attorney General) Court Supreme Court Date 2025-05-01 Citation 2025 NSSC 157 Docket Hfx 531490 Judge/Registrar/Adjudicator Campbell, Jamie S. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Williams v. Nova Scotia (Attorney General), 2025 NSSC 157 Date: 20250501 Docket: Hfx 531490 Registry: Halifax Between: James Williams Plaintiff and The Attorney General of Nova Scotia Representing his Majesty the King in right of Nova Scotia Defendant MOTION DECISION Judge: The Honourable Justice Jamie Campbell Heard: April 30, 2025, in Halifax, Nova Scotia Counsel: Michael Dull K.C. and Emma Arnold, for the Plaintiff Daniel Boyle and Lyndsay Scovil, for the Defendant By the Court: [1] James Williams is seeking the certification of a class action under the Class Proceedings Act, S.N.S. 2007, c. 28. The class proceeding relates to the use of staffing related lockdowns in provincial correctional facilities across Nova Scotia. Mr. Williams’ evidentiary record has been filed. The certification hearing is scheduled to take place on December 16, 17 and 18, 2025. The Attorney General wants to have a pre-certification motion concerning the admissibility of portions of the evidence filed on behalf of Mr. Williams. Mr. Michael Dull, K.C. as counsel for Mr. Williams argues that the issues of admissibility of evidence should be addressed as part of the certification hearing. [2] The parties agree that this is a discretionary decision. The law is as set out comprehensively by my colleague Justice Brothers in Champagne v. The Roman Catholic Episcopal Corporation of Halifax, 2019 NSSC 395. In that case the defendants in the proposed class action sought to have a preliminary motion to strike the claim against one of the three defendants and to strike a small portion of two expert reports. Justice Brothers noted the general principle that a certification motion should be the first procedural matter to be heard and determined, but that pre-certification motions are allowed “albeit in limited circumstances” (para. 16). Those circumstances have included when the court does not have jurisdiction to hear the matter or where a summary judgment motion has the potential to be dispositive of the matter. Counsel agreed that the appropriate test to be applied was set out by Justice Strathy then of the Ontario Superior Court, in Cannon v. Funds for Canada Foundation, 2010 ONSC 146. Justice Strathy noted the general wisdom of not “pruning affidavits” prior to the certification motion because inadmissible evidence can be ignored without prejudice to the position of the parties. He also referred to Andersen v. St. Jude Medical Inc., [2003] O.J. No. 3556, where the court deferred the ruling of admissibility until the certification hearing emphasizing that the admissibility of evidence should be considered when the critical issues on the motion are more clearly in focus. [3] In exercising the discretion as to whether to depart from the general rule that the certification motion should precede any other motions, the court should consider the following non exhaustive list of factors (Champagne, para. 12); a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined; b) the likelihood of delays and costs associated with the motion; c) whether the outcome of the motion will promote settlement; d) whether the motion could give rise to interlocutory appeals and delays that would affect certification; e) the interests of economy and judicial efficiency; and, f) in general, whether scheduling the motion in advance of certification would promote the “fair and efficient determination” of the proceeding. [4] In Champagne Justice Brothers denied the defendants’ request to schedule pre-certification motions. Dispositive of the Entire Proceeding or Substantially Narrow the Issues [5] The Attorney General intends to challenge the affidavit of Zoe Caddell in its entirety for hearsay and non-compliance with Nova Scotia Civil Procedure Rule 39.02, portions of the affidavit of Emma Arnold for argument and opinion, and portions of the affidavit of Dr. Grassian for relevance. Mr. Boyle, for the Attorney General, acknowledges that while the issue is not the weighing of evidence or finding of facts at the certification hearing stage the evidentiary record as filed must be evidence. [6] The Attorney General objects to substantial portions of the records, not a small part as in Champagne. The exercise proposed here is not a pruning of affidavits but appears to more substantial. If portions of the record are ruled inadmissible that will not dispose of the entire proceeding, but it will have the effect of limiting the scope of the argument at the certification hearing. Delays and Costs [7] There will be objections to substantial portions of the plaintiff’s evidentiary record. Those objections can be heard in advance, or they can be delayed and heard at the three-day certification hearing scheduled to start on December 16, 2025. If they are dealt with in advance, that can be done in large part by a motion in writing followed by brief submissions on the date set for a case management conference, May 27, 2025. That will not result in delay or significant added costs. Given the nature of the objections, they could take so much time at the certification hearing that dealing with them at that time could jeopardize completion of the certification hearing within the time scheduled. [8] The certification hearing is not a fact finding or evidence weighing exercise. But the defendant has an opportunity to file evidence in response. The scope and nature of that response must involve a consideration of the admissible evidence filed by the plaintiff. If the Attorney General were to be successful in having significant portions of materials filed on behalf of Mr. Williams ruled inadmissible, that would potentially limit the volume of the evidence to be filed in response. If the issue of admissibility is addressed only at the certification hearing the Attorney General would be required to respond to evidence that may not be admitted at the certification hearing. It is not a matter if merely ignoring inadmissible evidence but imposing on a party the need to respond to it, provisionally. Promotion of Settlement [9] A pre-certification motion will not act as an incentive to settlement or make settlement more or less likely. Economy and Judicial Efficiency [10] A pre-certification motion will of course involve another process. But the time spent in dealing with the issue of admissibility will be no greater if the motion is heard in advance of the certification hearing. The issue would have to be addressed at some point and doing that at the certification hearing will not be more efficient and will run the risk of derailing the scheduling of the certification motion itself. [11] If portions of the plaintiffs’ evidence are ruled inadmissible that will likely result in fewer witnesses being called by the Attorney General. Prejudice [12] While in both Cannon and Champagne the courts found that there was no prejudice to the defendants in having the motion to strike and certification motion heard at the same time, that is not the case here. Because the portions sought to be struck are significant, the Attorney General would be required to prepare to respond to all the evidence even though there would be a risk that portions of it would be ruled inadmissible. That prejudice may be limited when the disputed evidence relates to discrete portions of the evidentiary record. The dispute here involves substantial portions of the evidence that has been filed and is far more than a mere pruning of the affidavits. Fair and Efficient Determination [13] The general rule is that the certification motion takes precedence over other motions in the class proceeding. In this case, the motion sought to be made by the Attorney General does not deal with the merits of the certification application or amount to a detailed excising of a few impugned portions of affidavits. It addresses the scope of case that the Attorney General is required to meet during the three-day certification hearing in December 2025. Waiting to deal with the significant objections to the filed material until the certification hearing would unfairly require the Attorney General to prepare to meet a case that may or may not have to be met. That may involve calling witnesses and gathering evidence that will ultimately be unnecessary if the motion to strike portions of the plaintiff’s evidence is granted. [14] That concern must be considered having regard to the benefit of making the determination of admissibility in the context of the certification motion. Issues related to compliance with the basic rules relating to the admissibility of affidavits are not context driven. Issues of relevance will require an analysis that relates the impugned evidence to the context of the other evidence in the certification motion. When that is required, counsel will identify the context that may make the evidence relevant. That process should inform the decisions with respect to admissibility, and it can be done in a pre-certification motion. [15] The Attorney General’s motion for a pre-certification application is granted. The hearing will take place on May 27, 2025 at 9:30 am. If the parties are unable to agree upon a schedule for filing of written materials they should contact the court for directions. Campbell, J.