In Nova Scotia, the Supreme Court has dismissed the motion to add Sandra Clark as a plaintiff and to appoint her as representative in a proposed class action against automobile insurers. The judge concluded that Ms. Clark cannot fairly and adequately represent the class.

For that reason, and for those given in an earlier decision, the application for certification of the class action is also dismissed. The decision was released on October 30, 2026.

The action pits Nathan Paul Forest Barnard and Dougalenes Bowman, the plaintiffs, against The Portage Mutual Insurance Company and other defendant insurers.

A first representative found unsuitable, a second proposed

On February 20, 2026, the judge issued a decision on certification motion, which had been heard in April 2025. In it, she indicated that she would have been prepared to certify it in part, except on one point: Ms. Bowman could not adequately represent the class.

According to that judgment, Ms. Bowman had had long-term disability benefits deducted from her weekly indemnities, not employment insurance disability benefits. The judge had also excluded from the proposed class those whose indemnities had been reduced because of long-term disability benefits or the Canada Pension Plan benefits.

The judge had given class counsel one month to indicate whether they wished to propose another representative. They confirmed that they did. In March 2026, they also confirmed by letter their intention to appeal the certification decision. No decision on an appeal is reported.

The plaintiffs then asked to amend the statement of claim to add Ms. Clark as a plaintiff and appoint her as representative. She falls within the class definition because her insurer, Intact Insurance Company, deducted employment insurance disability benefits from her indemnities.

Ms. Clark signed her affidavit on June 25, 2026, and the plaintiffs filed supplementary submissions on June 30.

The motion was heard in Halifax. The hearing resumed so the court could determine  whether class counsel could propose another representative and, if so, whether she met the statutory criteria, including the absence of a conflict of interest.

The defendant insurers targeted by the action

The proposed class action targets 18 automobile insurers, including The Portage Mutual Insurance Company, Intact Insurance Company, Aviva General Insurance Company, The Wawanesa Mutual Insurance Company and Co-operators General Insurance Company.

The court finds it can add a representative at the certification stage

The defendants argued that the statute does not allow the court to add or replace parties when it adjourns the certification hearing. They maintained that this power applies only when certification has been refused.

The judge rejected this interpretation, finding that the legislation allows the court to adjourn a certification hearing so that plaintiffs can amend their pleadings, add a new representative and present further evidence. She also noted that the rules of civil procedure permit parties to be added at any stage, provided the applicable requirements are met.

Since the only obstacle to at least partial certification was the lack of an adequate representative, the judge concluded that requiring the plaintiffs to start a new proceeding would waste time, money and judicial resources. She therefore allowed the hearing to continue to consider Ms. Clark's proposed appointment.

Court accepts late affidavit, rejects costs objection

Class counsel, Mr. Dull, filed an affidavit confirming that his firm, Valent Legal, has entered into an agreement with Ms. Clark indemnifying her against any costs award made against her in this proceeding.

The affidavit was filed after the deadline set by the court and after Ms. Clark's out-of-court cross-examination. At the hearing, the defendants asked that it be struck, but the judge ultimately admitted it despite the procedural irregularities.

She nonetheless found that the evidence is relevant and that the defendants plead no prejudice. Refusing the affidavit would have allowed the motion to proceed on the false premise that Ms. Clark's inability to pay costs should count against her. After weighing the factors, the interests of justice called for its admission.

The defendants argued that this inability rendered Ms. Clark unsuitable to act as representative. Given the indemnity agreement, the judge rejected that argument.

She also set aside the objection that Ms. Clark had not produced her own litigation plan: she had already found, in the certification decision, that the proposed plan, with amendments, met the applicable standard. The plaintiffs, for their part, argued that Ms. Clark satisfied the criteria for a representative, but the court did not follow them on that point.

What Ms. Clark knew about the case, according to her cross-examination

In her affidavit, Ms. Clark stated that she had reviewed the statement of claim, including all its amended versions, the certification decision and the proposed litigation plan. She had not drafted the litigation plan herself: she reviewed it with Mr. Dull and a few changes were made.

At the start of her cross-examination, held on August 11, 2026, she confirmed that she had told the truth and that the contents remained true and accurate.

Her answers then diverged. She could not say whether she had read the fourth amended statement of claim.

Regarding the litigation plan, she confirmed that she had neither read nor seen it: "No, that's why I have a lawyer." As for the February 20, 2026, decision, she first said she had not read it, then that she may have read it in June, then that she did not remember having read it, before returning to the June possibility. Asked whether she had any doubt, she answered: "I'm not questioning my answer. What I'm saying is that in June, I could very well have read it, but recently, I haven't."

She was also unaware that the claims included allegations of bad faith and fraud, and that the court had found them "manifestly incapable of being proven."

She had not read any of the affidavits filed by the plaintiffs in support of certification, had not spoken to any of the authors of those affidavits, and did not know that class counsel intended to appeal the certification decision.

The plaintiffs relied on Ms. Clark's affidavit and their supplementary submissions to establish that she had the minimum required knowledge of the proceeding. The defendants countered that her testimony was untruthful or, at best, unreliable, and that she lacked a basic understanding of the case.

Class counsel argued that a judge hearing a certification motion should not assess credibility on a paper record. The judge rejected this argument. At the certification stage, the court does not assess the merits of the claim or the strength of the action.

However, the doubts about Ms. Clark's credibility and reliability go to her suitability as a representative, not to the merits, the viability of the action, or her individual claim against Intact.

The plaintiffs were required to establish a minimal factual basis. The representative need not be "typical" or the best possible and need not know the factual or legal details of the case. She must, however, have a basic understanding of the case and of her role.

Representative found inadequate, class action not certified

The judge concluded that Ms. Clark gave false testimony, as well as other testimony that is, at best, unreliable, on information relevant to her suitability as a representative and not merely peripheral to the motion. This seriously calls into question the credibility and reliability of the rest of her affidavit.

The judge also found that Ms. Clark lacked a basic understanding of the case she was meant to advance.

She concluded that Ms. Clark "cannot fairly and adequately represent the interests of the class or vigorously and competently pursue the interests of the class.”

The order admits Mr. Dull's late affidavit, dismisses the motion to add Ms. Clark as a party and appoint her as representative, and dismisses the motion for certification of the class action.