Insurance Act
R.S.O. 1990, CHAPTER I.8
Historical version for the period June 24, 2004 to December 15, 2004.
Amended by: 1993, c. 10, ss. 1-51; 1993, c. 27, Sched.; 1994, c. 11, ss. 336-348; 1994, c. 27, s. 43 (2); 1996, c. 21, ss. 1-49; 1997, c. 16, s. 9; 1997, c. 19, s. 10; 1997, c. 25, Sched. E, s. 5; 1997, c. 28, ss. 64-147; 1997, c. 43, Sched. F, s. 5; 1999, c. 6, s. 31; 1999, c. 12, Sched. I, s. 4; 2000, c. 26, Sched. G; 2001, c. 8, ss. 43, 44; 2002, c. 14, Sched., s. 10; 2002, c. 17, Sched. F, Table; 2002, c. 18, Sched. H, s. 4; 2002, c. 22, ss. 114-132; 2002, c. 24, Sched. B, s. 39; 2002, c. 31, s. 10; 2004, c. 8, s. 46, Table; 2004, c. 11.
CONTENTS
Definitions | |
PART I | |
Insurance Ombudsman | |
Director of arbitrations | |
Committees | |
Arbitrators | |
Mediators | |
Evidence of mediation, evaluation, arbitration | |
Assessment of health system costs | |
Orders | |
Matters before the Superintendent | |
Appeal of Superintendent’s decision | |
Reference hearings | |
Exclusive jurisdiction | |
Rules | |
Proceedings before Director or arbitrator | |
Records of Superintendent | |
Information about insurers, etc. | |
Official documents as evidence | |
Right to a licence | |
Decision of Superintendent | |
Inquiries | |
Right of access | |
Duty to furnish information | |
Examination of insurers | |
Service of documents | |
Deemed service | |
Service of notice or process on chief agent or Superintendent, insurers outside Ontario | |
Annual report | |
PART II | |
Application of Part, insurance business in Ontario | |
Necessity for licence | |
Reinsurance with unlicensed insurer | |
Authorized insurers and insurance | |
Classes of insurance and licence conditions | |
Membership in compensation association | |
Conditions of automobile insurance licence | |
Scope of life insurance licence | |
Scope of fire insurance licence | |
Capital requirements, etc. | |
Information preliminary to licence | |
Documentary, etc., requirements | |
Filing of changes in by-laws, etc. | |
Corporate requirements | |
Right to licence and insurer’s name | |
Power of attorney of chief agent, insurers outside Ontario | |
Form, term, conditions of licence | |
Failure to pay claim, licence cancellation, etc. | |
Disciplinary action against insurers | |
Superintendent takes control | |
Appeal against Tribunal order to take control | |
Revival of licence | |
Notice of suspension or cancellation | |
Withdrawal procedure | |
Deposits | |
Report on share transfers | |
Returns | |
Information on claims | |
Business statements and capital or asset requirements | |
Notice of returns | |
Preparation of financial statements | |
Published statements | |
Statements that financial standing guaranteed by government prohibited | |
Powers of insurer to hold real estate | |
Variable life insurance contracts based on segregated funds | |
Variable life insurance contracts, forms and information folders | |
Life insurers to separate business accounts | |
Life insurance, distribution of parts of profits to participating policyholders | |
Insurance with unlicensed insurers | |
Trafficking in life insurance policies prohibited | |
Trafficking in life insurance policies prohibited | |
Privileged information | |
Form of insurance policy | |
Violation of law, effect of, on claim for indemnity | |
Reporting on applications to register | |
Authority of Minister | |
Regulations | |
Fees | |
Forms | |
PART II.1 | |
Definition | |
Appointment of actuary | |
Notice of appointment | |
When officers not to be actuary | |
Chief financial officer | |
Revocation of appointment | |
Ceasing to hold office | |
Filling vacancy | |
Statement of actuary | |
Duty of replacement actuary | |
Actuary’s valuation | |
Superintendent may appoint actuary | |
Right to information | |
Actuary’s report | |
Report to directors | |
Report to officers | |
Qualified privilege | |
Non-application of this Part | |
Non-application of s. 121.17 | |
Exemptions | |
PART III | |
Application of Part | |
Contracts deemed made in Ontario | |
Requirement for all terms to be set out in policy; relevance of proposal, etc. | |
Copy of proposal to be furnished to insured | |
No contract shall be inconsistent with Act | |
Contents of policy | |
Contracts providing for appraisals | |
Relief from forfeiture | |
How policy payable | |
Waiver of term or condition | |
Right of claimant against insurer where execution against insured returned unsatisfied | |
Court actions for recovery of insurance money, special rules | |
Non-payment of premium | |
Insurer to furnish forms for proof of loss | |
When action may be brought under contract | |
Mortgagee not to receive commission from insurer | |
Right to refund of premium on termination of contract | |
Contracts of title insurance | |
No racial or religious discrimination permissible | |
Payment into court | |
PART IV | |
Meaning of “agricultural property”, Part IV | |
Application of Part | |
Extent of coverage by contract | |
Renewal of contract | |
Form of contract | |
Mortgagees and other payees | |
Statutory conditions | |
Limitation of liability clause | |
Rateable contribution | |
Special stipulations | |
Subrogation | |
General reinsurance agreement | |
Fire Mutuals Guarantee Fund | |
PART V | |
Definitions, Part V | |
Application of Part | |
Group insurance | |
Insurer to issue policy | |
Contents of policy | |
Contents of group policy | |
Contents of group certificate | |
Insurable interest required | |
Insurable interest, defined | |
Contract taking effect | |
Default in paying premium | |
Payment of premium | |
Duty to disclose | |
Incontestability | |
Non-disclosure by insurer | |
Insurable age | |
Misstatement of age in group insurance | |
Effect of suicide | |
Reinstatement | |
Designation of beneficiary | |
Designation of beneficiary irrevocably | |
Designation in will, etc. | |
Trustee for beneficiary | |
Beneficiary’s share of insurance money | |
Right to sue | |
Insurance money free from other claims, etc. | |
Insured dealing with contract | |
Insured entitled to dividends | |
Transfer of ownership | |
Effect of assignment | |
Group life insured, enforcing rights | |
Capacity of minors | |
Proof of claim | |
Payment of insurance money | |
Action in Ontario | |
Documents affecting right to insurance money | |
Declaration as to sufficiency of proof | |
Declaration as to presumption of death | |
Court orders, application under s. 208 or 209 | |
Stay of proceedings | |
Appeal, ss. 208 to 210 | |
Court orders, insufficient evidence, etc. | |
Payment into court | |
Simultaneous deaths | |
Insurance money payable in instalments | |
Insurer holding insurance money | |
Court may order payment | |
Costs, s. 214 or 218 | |
Minors | |
Beneficiary under disability | |
Presumption against agency | |
Insurer giving information | |
PART VI | |
Interpretation, Part VI | |
Exception re insured | |
Application of Part | |
Out-of-province insurers | |
Approval of forms | |
Application form | |
Information for applicants, etc. | |
Information from brokers | |
Persons forbidden to act as agent | |
Policy, formal requirements | |
Inspection requirements | |
Misrepresentation or violation of conditions renders claim invalid | |
Statutory conditions | |
Notice of expiry or variation | |
Limitation on termination | |
Grounds to terminate | |
Policy coverage | |
Insurer not liable re excluded driver | |
Coverage of non-owner’s policy | |
Persons deemed not owners | |
Territorial limits | |
Rights of unnamed insured | |
Additional agreements | |
Liability for contamination | |
Other liability, possible exclusions | |
Liability for damage caused by machinery, etc. | |
Excluded driver endorsement | |
Liability, possible exclusions for other uses | |
Minimum liability under policy | |
Liability arising from use, etc., outside Ontario | |
Excess insurance | |
Agreement for partial payment of claim by insured | |
Liability for nuclear energy hazard | |
Advance payments and release by claimant | |
Defence where more than one contract | |
Application of insurance money, 3rd party claims, etc. | |
Notice of accident | |
Application of ss. 258.3 to 258.6 | |
Notice and disclosure before action | |
Duty to disclose limits | |
Duty of insurer re settlement of claim | |
Mediation | |
Notice of action and judgment against insured | |
Limitation period | |
Physical damage cover, limitations and exclusions | |
Partial payment of loss clause | |
Claims under other contracts to be adjusted | |
Accidents involving two or more insured automobiles | |
Payment for collision repair | |
Uninsured automobile coverage | |
Statutory accident principle established, automobile use, June 22, 1990 – Dec. 31, 1993 | |
Collateral source rule not to apply, automobile use, Oct. 24, 1989 – Dec. 31, 1993 | |
Protection from liability, automobile use, Jan. 1, 1994 - Oct. 31, 1996 | |
Publication of deductible amounts | |
Court Proceedings for Accidents on or after November 1, 1996 | |
Definitions, ss. 267.4 to 267.11 | |
Application of ss. 267.5 to 267.11, automobile use on or after Nov. 1, 1996 | |
Protection from liability | |
No action by uninsured owner or lessee | |
Joint and several liability with other tortfeasors | |
Collateral benefits | |
Mandatory arbitration re certain collateral benefits | |
Proceedings by action | |
Structured judgments | |
No gross-up for income tax | |
Statutory accident benefits | |
Winding-up orders | |
Publication of indexation percentage | |
Rules of interpretation, Statutory Accident Benefits Schedule | |
Guidelines, Statutory Accident Benefits Schedule | |
Immunity | |
Particulars of insurance | |
Rights of unnamed insured | |
Payment into court | |
Claimant’s obligation to inform | |
Information to Ministry of Community and Social Services, etc. | |
Release | |
Indemnification in certain cases | |
Terms of certain insurances, insurance under s. 265 | |
Other insurance | |
Subrogation | |
Dispute resolution | |
Mediation | |
Neutral evaluation | |
Litigation or arbitration | |
Limitation period | |
Arbitration | |
Appeal against arbitration order | |
Application for variation, Director’s or arbitrator’s order | |
Restrictions on who may represent | |
Stated case by Director | |
When arbitrator cannot act | |
Protection of benefits | |
Finding of possible unfair or deceptive business practice | |
Reports to the Assembly | |
Review of this Part | |
PART VII | |
Definitions, Part VII | |
Application of Part | |
Group insurance | |
Issue of policy | |
Contents of policy | |
Confinement clauses void | |
Confinement clauses void | |
Contents of group policy | |
Continuation of accident and sickness insurance where contract terminated | |
Contents of group certificate | |
Exceptions or reduction | |
Statutory conditions | |
Omission or variation of statutory conditions | |
Notice of statutory conditions | |
Termination for non-payment of initial or renewal premium | |
Right where premium unpaid | |
Insurable interest, defined | |
Insurable interest required | |
Capacity of minors | |
Duty to disclose | |
Incontestability | |
Application of incontestability to reinstatement | |
Pre-existing conditions | |
Misstatement of age | |
Designation of beneficiary | |
Death of beneficiary or insured, etc. | |
Trustee for beneficiary | |
Documents affecting title and assignment of contracts | |
Insurance money free from other claims, etc. | |
Group person insured enforcing rights | |
Simultaneous deaths | |
Payment into court | |
Where beneficiary a minor | |
Beneficiary under disability | |
Payments not exceeding $2,000 | |
Payment of insurance money | |
Action in Ontario | |
Insurer giving information | |
Undue prominence | |
Relief from forfeiture | |
Presumption against agency | |
PART X | |
Definitions, Part X | |
Application of Part | |
What fraternal societies required to be licensed | |
Cases in which societies not to be licensed | |
Societies deemed not to be fraternal societies | |
Guarantee and endowment insurance, exception to s. 342 (b) | |
Central body for Ontario or representative may be dealt with | |
By-laws and rules | |
Amendment of rules, Superintendent’s direction | |
Rules deliverable on demand | |
Limitation of member’s liability in fraternal society | |
Conditions of forfeiture restricted | |
How notice may be given to members | |
Head offices of Ontario societies | |
Actuary’s report | |
Where assets of society insufficient | |
Reduction of benefits, or increase of rates | |
Default of society in complying with request of Superintendent | |
Separate accounts for each class of insurance | |
Epidemic or unforeseen contingency | |
General or expense fund | |
Exception as to annual statement | |
Policy disclosures | |
PART XIII | |
Definitions, Part XIII | |
Authority for exchange of reciprocal contracts of insurance | |
Subscriber not to be deemed an insurer | |
Contract executed on behalf of subscribers | |
Filing by members of exchange | |
Licence for exchange, approval of change | |
Service of process | |
Reserves to be held by exchange | |
Investment of funds | |
Other insurance or reinsurance | |
Attorney not to act until licence granted | |
Suspension or revocation of licence | |
Fire insurance in unlicensed exchanges may be effected outside Ontario | |
PART XIV | |
Licensing of agents | |
Agent or broker deemed to be insurer’s agent | |
Fraudulent representations | |
Personal liability of agent for unlawful contracts | |
Licences of insurance adjusters | |
Prohibition against public adjusters of motor accident claims | |
Licences to partnerships | |
Licences to corporations | |
Provisions Relating to Agents, Brokers and Adjusters Generally | |
Acting as agent or adjuster without authority | |
Money held in trust by agent | |
No compensation to be paid by insurer not licensed | |
Limited or conditional licence | |
PART XV | |
Meaning of “rating bureau”, Part XV | |
Duties of rating bureaus and insurers | |
Application re risk classification system, rates | |
Approval of expedited applications, s. 410 | |
Approval of other applications, s. 410 | |
Hearing | |
Exemptions from approval process | |
Risk classification and rate determination regulations | |
Affiliated automobile insurers | |
Reconsideration, systems and rates | |
Ministerial policy, statements, systems and rates | |
Automobile insurance, systems and rates | |
Risk classification systems, emergency vehicles | |
Reports on risk classification and rate determination regulations | |
Inquiry | |
PART XVI | |
Meaning of “transfer”, Part XVI | |
Application | |
Transfer agreements, requirements | |
Transfer agreements, application for approval | |
Documents to be filed with Superintendent | |
Approval or rejection of transfer | |
Transfer of contracts where insurer leaves Ontario | |
PART XVII | |
Meaning of “insurer”, Part XVII | |
Investment and lending powers | |
Investments of other insurers | |
Restrictions and limitations, investment and lending | |
Prohibited loans and investments | |
Investments, value and formal requirements | |
Meaning of “cost of borrowing”, ss. 437.2 to 437.11 | |
Rebate of borrowing costs | |
Disclosure of cost of borrowing | |
Additional disclosure — term loans | |
Disclosure in applications for credit cards, etc. | |
Disclosure where credit cards, etc., issued | |
Additional disclosure: loans to which ss. 437.4 and 437.6 do not apply | |
Statement re mortgage renewal | |
Disclosure in advertising | |
Disclosing borrowing costs — advances | |
Regulations re disclosure | |
PART XVIII | |
Definitions, Part XVIII | |
Unfair or deceptive acts, etc., prohibited | |
Superintendent may investigate | |
Action on examination or investigation | |
PART XIX | |
Meaning of “examination”, Part XIX | |
Examinations, general | |
Powers of examination, etc. | |
Reports | |
No liability | |
Offences, false information, etc. | |
Order for compliance | |
Limitation period | |
Definitions
Definitions
1.In this Act, except where inconsistent with the definition sections of any Part,
“accident insurance” means insurance by which the insurer undertakes, otherwise than incidentally to some other class of insurance defined by or under this Act, to pay insurance money in the event of accident to the person or persons insured, but does not include insurance by which the insurer undertakes to pay insurance money both in the event of death by accident and in the event of death from any other cause; (“assurance contre les accidents”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “accident insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“accidental death insurance” means insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay an additional amount of insurance money in the event of the death by accident of the person whose life is insured; (“assurance en cas de décès accidentel”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “accidental death insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“accountant” means a person who is licensed under the Public Accountancy Act; (“comptable”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “accountant” is amended by the Statutes of Ontario, 2004, chapter 8, section 46, Table by striking out “Public Accountancy Act” and substituting “Public Accounting Act, 2004”. See: 2004, c. 8, ss. 46, Table; 51 (2).
“actuary” means a Fellow of the Canadian Institute of Actuaries; (“actuaire”)
“adjuster” means a person who,
(a) on behalf of an insurer or an insured, for compensation, directly or indirectly solicits the right to negotiate the settlement of or investigate a loss or claim under a contract or a fidelity, surety or guaranty bond issued by an insurer, or investigates, adjusts or settles any such loss or claim, or
(b) holds himself, herself or itself out as an adjuster, investigator, consultant or adviser with respect to the settlement of such losses or claims,
but does not include,
(c) a barrister or solicitor acting in the usual course of the practice of law,
(d) a trustee or agent of the property insured,
(e) a salaried employee of a licensed insurer while acting on behalf of such insurer in the adjustment of losses,
(f) a person who is employed as an appraiser, engineer or other expert solely for the purpose of giving expert advice or evidence, or
(g) a person who acts as an adjuster of marine losses only; (“expert d’assurance”)
“agent” means a person who, for compensation, commission or any other thing of value,
(a) solicits insurance on behalf of an insurer who has appointed the person to act as the agent of such insurer or on behalf of the Facility Association under the Compulsory Automobile Insurance Act, or
(b) solicits insurance on behalf of an insurer or transmits, for a person other than himself, herself or itself, an application for, or a policy of insurance to or from such insurer, or offers or assumes to act in the negotiation of such insurance or in negotiating its continuance or renewal with such insurer,
and who is not a member of the Registered Insurance Brokers of Ontario; (“agent”)
“aircraft insurance” means insurance against loss of or damage to an aircraft and against liability for loss or damage to persons or property caused by an aircraft or by the operation thereof; (“assurance-aéronef”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “aircraft insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“automobile” includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; (“automobile”)
“automobile insurance” means insurance,
(a) against liability arising out of,
(i) bodily injury to or the death of a person, or
(ii) loss of or damage to property,
caused by an automobile or the use or operation thereof, or
(b) against loss of or damage to an automobile and the loss of use thereof,
and includes insurance otherwise coming within the class of accident insurance where the accident is caused by an automobile or the use or operation thereof, whether liability exists or not, if the contract also includes insurance described in clause (a); (“assurance-automobile”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “automobile insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“boiler and machinery insurance” means insurance against loss or damage to property and against liability for loss or damage to persons or property through the explosion, collapse, rupture or breakdown of, or accident to, boilers or machinery of any kind; (“assurance des chaudières et machines”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “boiler and machinery insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“broker” means an insurance broker within the meaning of the Registered Insurance Brokers Act; (“courtier”)
“cash-mutual corporation” means a corporation without share capital that is empowered to undertake insurance on both the cash plan and the mutual plan; (“société mutuelle au comptant”)
“chief agency” means the principal office or place of business in Ontario of any licensed insurer having its head office out of Ontario; (“agence principale”)
“Commission” means the Financial Services Commission of Ontario established under the Financial Services Commission of Ontario Act, 1997; (“Commission”)
“compensation association” means a body corporate or unincorporated association the purpose of which is to provide compensation to claimants and policyholders of insolvent insurers and that has been designated under the regulations as a compensation association; (“association d’indemnisation”)
“contract” means a contract of insurance, and includes a policy, certificate, interim receipt, renewal receipt, or writing evidencing the contract, whether sealed or not, and a binding oral agreement; (“contrat”)
“credit insurance” means insurance against loss to the insured through the insolvency or default of a person to whom credit is given in respect of goods, wares or merchandise; (“assurance-crédit”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “credit insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“Director” means the director of arbitrations appointed under section 6; (“directeur”)
“disability insurance” means insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease; (“assurance-invalidité”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “disability insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“due application” includes such information, evidence and material as the Superintendent requires to be furnished, and also the payment of the fees hereinafter prescribed in respect of any application, certificate or document required or issued by virtue of this Act; (“demande régulière”)
“employers’ liability insurance” means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss to an employer through liability for accidental injury to or death of an employee arising out of or in the course of his or her employment, but does not include workers’ compensation insurance; (“assurance contre la responsabilité des employeurs”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “employers’ liability insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“endowment insurance”, as applied to a fraternal society, means an undertaking to pay an ascertained or ascertainable sum at a fixed future date if the person whose life is insured is then alive, or at the person’s death if he or she dies before such date; (“assurance mixte”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “endowment insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“exchange” or “reciprocal insurance exchange” means a group of subscribers exchanging reciprocal contracts of indemnity or insurance with each other through the same attorney; (“bourse” ou “bourse d’assurance réciproque”)
“fire insurance” means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss of or damage to property through fire, lightning or explosion due to ignition; (“assurance-incendie”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “fire insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“foreign jurisdiction” means a jurisdiction other than Ontario; (“ressort étranger”)
“fraternal society” means a society, order or association incorporated for the purpose of making with its members only, and not for profit, contracts of life, accident or sickness insurance in accordance with its constitution, by-laws and rules and this Act; (“société fraternelle”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “fraternal society” is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (2) by striking out “contracts of life, accident or sickness insurance” and substituting “contracts of life insurance or accident and sickness insurance”. See: 2002, c. 18, Sched. H, ss. 4 (2), 16 (2).
“governing executive authority” means the executive committee, executive board, management committee, grand executive committee or such other board, committee or body as is charged under the constitution and rules of a fraternal society with its general management between general meetings; (“organe de direction”)
“guarantee insurance” means the undertaking to perform an agreement or contract or to discharge a trust, duty or obligation upon default of the person liable for such performance or discharge or to pay money upon such default or in lieu of such performance or discharge, or where there is loss or damage through such default, but does not include credit insurance; (“assurance de garantie”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “guarantee insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“hail insurance” means insurance against loss of or damage to crops in the field, whether growing or cut, caused by hail; (“assurance contre la grêle”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “hail insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“head office” means the place where the chief executive officer of an insurer transacts business; (“siège social”)
“industrial contract” means a contract of life insurance for an amount not exceeding $2,000, exclusive of any benefit, surplus, profit, dividend or bonus also payable under the contract, and that provides for payment of premiums once every two weeks or at shorter intervals, or, if the premiums are usually collected at the home of the insured, at monthly intervals; (“contrat populaire”)
“inland transportation insurance” means insurance (other than marine insurance) against loss of or damage to property,
(a) while in transit or during delay incidental to transit, or
(b) where, in the opinion of the Superintendent, the risk is substantially a transit risk; (“assurance de transports terrestres”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “inland transportation insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“insurance” means the undertaking by one person to indemnify another person against loss or liability for loss in respect of a certain risk or peril to which the object of the insurance may be exposed, or to pay a sum of money or other thing of value upon the happening of a certain event, and includes life insurance; (“assurance”)
“insurance fund” or “insurance funds”, as applied to a fraternal society or as applied to a corporation not incorporated exclusively for the transaction of insurance, includes all money, securities for money and assets appropriated by the rules of the society or corporation to the payment of insurance liabilities or appropriated for the management of the insurance branch or department or division of the society, or otherwise legally available for insurance liabilities, but does not include funds of a trade union appropriated to or applicable for the voluntary assistance of wage earners unemployed or upon strike; (“fonds d’assurance”)
“insurance money” means the amount payable by an insurer under a contract, and includes all benefits, surplus, profits, dividends, bonuses, and annuities payable under the contract; (“sommes assurées”)
“insurance on the cash plan” means any insurance that is not mutual insurance; (“assurance au comptant”)
“insurer” means the person who undertakes or agrees or offers to undertake a contract; (“assureur”)
“life insurance” means an undertaking by an insurer to pay insurance money,
(a) on death,
(b) on the happening of an event or contingency dependent on human life,
(c) at a fixed or determinable future time, or
(d) for a term dependent on human life,
and, without restricting the generality of the foregoing, includes,
(e) accidental death insurance but not accident insurance,
(f) disability insurance, and
(g) an undertaking entered into by an insurer to provide an annuity or what would be an annuity except that the periodic payments may be unequal in amount and such an undertaking shall be deemed always to have been life insurance; (“assurance-vie”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “life insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“lodge” includes a primary subordinate division, by whatever name known, of a fraternal society; (“loge”)
“marine insurance” means insurance against,
(a) liability arising out of,
(i) bodily injury to or death of a person, or
(ii) the loss of or damage to properties, or
(b) the loss of or damage to property,
occurring during a voyage or marine adventure at sea or on an inland waterway or during delay incidental thereto, or during transit otherwise than by water incidental to such a voyage or marine adventure; (“assurance maritime”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “marine insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“Minister” means the Minister of Finance; (“ministre”)
“motor vehicle liability policy” means a policy or part of a policy evidencing a contract insuring,
(a) the owner or driver of an automobile, or
(b) a person who is not the owner or driver thereof where the automobile is being used or operated by that person’s employee or agent or any other person on that person’s behalf,
against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation thereof; (“police de responsabilité automobile”)
“mutual benefit society” means a mutual corporation formed for the purpose of providing sick and funeral benefits for its members, or for these and any other purposes necessary or incidental thereto except life insurance, but does not include a pension fund or employees’ mutual benefit society incorporated under or subject to the Corporations Act; (“société de secours mutuel”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “mutual benefit society” is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (3) by striking out “sick and funeral benefits” and substituting “insurance against sickness, disability or death”. See: 2002, c. 18, Sched. H, ss. 4 (3), 16 (2).
“mutual corporation” means a corporation without share capital that is empowered to undertake mutual insurance exclusively; (“société mutuelle”)
“mutual insurance” means a contract of insurance in which the consideration is not fixed or certain at the time the contract is made and is to be determined at the termination of the contract or at fixed periods during the term of the contract according to the experience of the insurer in respect of all similar contracts, whether or not the maximum amount of such consideration is predetermined; (“assurance mutuelle”)
“non-owner’s policy” means a motor vehicle liability policy insuring a person solely in respect of the use or operation by that person or on that person’s behalf of an automobile that is not owned by that person; (“police de non-propriétaire”)
“officer” includes a trustee, director, manager, treasurer, secretary or member of the board or committee of management of an insurer and a person appointed by the insurer to sue and be sued in its behalf; (“dirigeant”)
“owner’s policy” means a motor vehicle liability policy insuring a person in respect of the ownership, use or operation of an automobile owned by that person and within the description or definition thereof in the policy and, if the contract so provides, in respect of the use or operation of any other automobile; (“police de propriétaire”)
“paid in”, when applied to the capital stock of an insurer or to any shares thereof, means the amount paid to the insurer on its shares, not including the premium, if any, paid thereon, whether such shares are or are not fully paid; (“versé”)
“paid up”, when applied to the capital stock of an insurer or to any shares thereof, means the capital stock or shares on which there remains no liability, actual or contingent, to the issuing insurer; (“libéré”)
“plate glass insurance” means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss of or damage to plate, sheet or window glass, whether in place or in transit; (“assurance contre le bris des glaces”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “plate glass insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“policy” means the instrument evidencing a contract; (“police”)
“premium” means the single or periodical payment under a contract for insurance, and includes dues, assessments, administration fees paid for the administration or servicing of such contract, and other considerations; (“prime”)
“premium note” means an instrument given as consideration for insurance whereby the maker undertakes to pay such sum or sums as may be legally demanded by the insurer, but the aggregate of which sums does not exceed an amount specified in the instrument; (“billet de souscription”)
“property” includes profits, earnings and other pecuniary interests, and expenditure for rents, interest, taxes and other outgoings and charges and in respect of inability to occupy the insured premises, but only to the extent of express provision in the contract; (“biens”)
“property damage insurance” means insurance against loss of or damage to property that is not included in or incidental to some other class of insurance defined by or under this Act; (“assurance contre les dommages matériels”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “property damage insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“public liability insurance” means insurance against loss or damage to the person or property of others that is not included in or incidental to some other class of insurance defined by or under this Act; (“assurance de la responsabilité civile”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “public liability insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“rate”, in relation to automobile insurance, means all amounts payable under contracts of automobile insurance for an identified risk whether expressed in dollar terms or in some other manner and includes commissions, surcharges, fees, discounts, rebates and dividends; (“taux”)
“regulations” means the regulations made under this Act; (“règlements”)
“risk classification system”, in relation to automobile insurance, means the elements used for the purpose of classifying risks in the determination of rates for a coverage or category of automobile insurance, including the variables, criteria, rules and procedures used for that purpose; (“système de classement des risques”)
“salesperson” means a person who is employed by a licensed insurance agent or broker on a stated salary that is not supplemented by commission, bonus or any other remuneration to solicit insurance or transact, for a person other than himself or herself, an application for a policy of insurance, or to act in the negotiation of such insurance or in negotiating its continuance or renewal, or collects and receives premiums on behalf of his or her employer only, but does not include a licensed insurance agent, broker or employee engaged solely in office duties for an agent or broker; (“vendeur”)
“same-sex partner” means either of two persons of the same sex who live together in a conjugal relationship outside marriage; (“partenaire de même sexe”)
“sick and funeral benefits” includes insurance against sickness, disability or death under which the money payable upon the happening of sickness, disability or death does not exceed the limits prescribed by section 372; (“prestations de maladie et indemnités funéraires”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “sick and funeral benefits” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (4). See: 2002, c. 18, Sched. H, ss. 4 (4), 16 (2).
“sickness insurance” means insurance by which the insurer undertakes to pay insurance money in the event of sickness of the person or persons insured, but does not include disability insurance; (“assurance-maladie”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “sickness insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“spouse” means either of a man and a woman who,
(a) are married to each other,
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act, or
(c) are not married to each other and live together in a conjugal relationship outside marriage. (“conjoint”)
“sprinkler leakage insurance” means insurance against loss of or damage to property through the breakage or leakage of sprinkler equipment or other fire protection system, or of pumps, water pipes or plumbing and its fixtures; (“assurance contre les fuites d’extincteurs automatiques”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “sprinkler leakage insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“Superintendent” means the Superintendent of Financial Services appointed under the Financial Services Commission of Ontario Act, 1997; (“surintendant”)
“theft insurance” means insurance against loss or damage through theft, wrongful conversion, burglary, house-breaking, robbery or forgery; (“assurance contre le vol”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “theft insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“title insurance” means insurance against loss or liability for loss due to the invalidity of the title to any property or of any instrument, or to any defect in such title or instrument; (“assurance de titres”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “title insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
“Tribunal” means the Financial Services Tribunal established under the Financial Services Commission of Ontario Act, 1997; (“Tribunal”)
“upon proof”, as applied to any matter connected with the licensing of an insurer or other person, means upon proof to the satisfaction of the Superintendent; (“sur preuve”)
“workers’ compensation insurance” means insurance of an employer against the cost of compensation prescribed by statute for bodily injury, disability or death of a worker through accident or disease arising out of or in the course of employment. (“assurance contre les accidents du travail”) R.S.O. 1990, c. I.8, s. 1; 1993, c. 10, s. 2; 1994, c. 11, s. 336; 1996, c. 21, s. 1; 1997, c. 19, s. 10 (1); 1997, c. 28, s. 64; 1999, c. 6, s. 31 (1); 1999, c. 12, Sched. I, s. 4 (1, 2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “workers’ compensation insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1). See: 2002, c. 18, Sched. H, ss. 4 (1), 16 (2).
2. Repealed: 1997, c. 28, s. 66.
3. Repealed: 1997, c. 28, s. 66.
4. Repealed: 1997, c. 28, s. 66.
5. Repealed: 1997, c. 28, s. 66.
Insurance Ombudsman
5.1(1)The Superintendent shall appoint an employee of the Commission as Insurance Ombudsman. 1996, c. 21, s. 2; 1997, c. 28, s. 67.
Duties
(2)The Insurance Ombudsman shall inquire into complaints about insurers’ business practices.
Complaints
(3)A person may submit a written complaint about an insurer’s business practices to the Insurance Ombudsman if the person has submitted the complaint to the insurer and the complaint has not been resolved within a reasonable time.
Response
(4)The Insurance Ombudsman shall give the insurer an opportunity to respond to any complaint submitted under subsection (3).
Authority of Insurance Ombudsman
(5)After considering the complaint and any response, the Insurance Ombudsman may attempt to resolve the complaint or may recommend to the Superintendent that the Superintendent inquire into the complaint. 1996, c. 21, s. 2.
Director of arbitrations
6.(1)The Lieutenant Governor in Council shall appoint a director of arbitrations who shall carry out the duties and exercise the powers of the Director under this Act. R.S.O. 1990, c. I.8, s. 6 (1); 1996, c. 21, s. 3.
Acting Director
(2)If the Director is absent or if there is a vacancy in the office of Director, such person as may be designated by the Director shall act as and have all the powers of the Director.
Delegation
(3)The Director may delegate in writing any of his or her powers or duties to an employee of the Commission, subject to any limitation or condition set out in the delegation.
Idem
(4)The Director may appoint employees of the Commission or other persons to hold hearings on his or her behalf and to exercise the powers and perform the duties of the Director relating to such hearings. R.S.O. 1990, c. I.8, s. 6 (2-4).
Committees
7.(1)The Minister shall appoint one or more committees for the purposes of this Act.
Name
(2)The Minister shall assign a name to each committee. 1996, c. 21, s. 4.
Duties
(3)Each committee shall,
(a) perform such functions as are assigned to the committee by the Minister or the Superintendent; and
(b) perform such other functions as are prescribed by the regulations. 1996, c. 21, s. 4; 1997, c. 28, s. 67.
Same
(4)The Minister shall assign to one of the committees the function of recommending persons to conduct arbitrations under this Act. 1996, c. 21, s. 4.
Arbitrators
8.(1)The Superintendent shall establish and maintain a roster of candidates chosen by the Superintendent from the persons recommended to conduct arbitrations under this Act by the committee appointed under section 7. 1996, c. 21, s. 5; 1997, c. 28, s. 67.
Appointment
(2)The Director shall appoint arbitrators only from the roster of candidates. R.S.O. 1990, c. I.8, s. 8 (2).
Mediators
9.The Superintendent may appoint employees of the Commission or other persons to act as mediators. R.S.O. 1990, c. I.8, s. 9; 1997, c. 28, s. 67.
10.Repealed: 1996, c. 21, s. 6.
Evidence of mediation, evaluation, arbitration
11. (1) Repealed: 1997, c. 28, s. 68 (1).
(2) Repealed: 1997, c. 28, s. 68 (1).
(3) Repealed: 1997, c. 28, s. 68 (1).
(4) Repealed: 1997, c. 28, s. 68 (1).
Mediators
(5)A mediator shall not be required to testify in a civil proceeding or in a proceeding before any tribunal respecting any mediation conducted under this Act or respecting information obtained in the discharge of the mediator’s duties under this Act.
Neutral evaluation
(6)A person who performs an evaluation under section 280.1 shall not be required to testify in a civil proceeding or in a proceeding before any tribunal respecting the evaluation or respecting information obtained in the discharge of the person’s duties under this Act. 1996, c. 21, s. 7.
Arbitrators
(7)A person who is appointed as an arbitrator for the purposes of an arbitration under this Act shall not be required to testify in a civil proceeding or in a proceeding before any tribunal respecting any arbitration performed under this Act or respecting information obtained in the discharge of the person’s duties under this Act. 1997, c. 28, s. 68 (2).
12. Repealed: 1997, c. 28, s. 69.
12.1 Repealed: 1997, c. 28, s. 70.
12.2 Repealed: 1997, c. 28, s. 71.
13. Repealed: 1997, c. 28, s. 72.
14. Repealed: 1997, c. 28, s. 73.
Assessment of health system costs
14.1(1)The Lieutenant Governor in Council may, in accordance with the regulations, assess all insurers that have issued motor vehicle liability policies in Ontario for amounts prescribed by the regulations that are incurred by the Ministry of Health under an Act or program administered by that ministry.
Same
(2)If an assessment is made under subsection (1), the share of a particular insurer shall be determined in the manner prescribed by regulation.
Insurer’s duty to pay
(3)An insurer shall pay the amount assessed against it. 1996, c. 21, s. 10.
Same
(4)If an insurer fails to pay an assessment made under subsection (1), the Superintendent may suspend or cancel the insurer’s licence. 1996, c. 21, s. 10; 1997, c. 28, s. 74.
Same
(5)The Superintendent may revive the licence of an insurer whose licence was suspended or cancelled under subsection (4) if the insurer pays all amounts owing by the insurer under this section. 1996, c. 21, s. 10; 1997, c. 28, s. 74.
Orders
15.(1)The Superintendent shall determine matters before him or her by order and may make an order subject to such conditions as are set out in the order. R.S.O. 1990, c. I.8, s. 15 (1); 1997, c. 28, s. 75 (2).
Interim orders
(2)The Superintendent may make interim orders pending the final order in a matter before him or her. R.S.O. 1990, c. I.8, s. 15 (2); 1997, c. 28, s. 75 (2).
Matters before the Superintendent
16.(1)The Superintendent is not required to hold a hearing when making a decision but shall allow the parties affected by a matter before him or her to make written submissions.
Variation of decisions
(2)Subject to subsection (1), the Superintendent may reconsider and vary or revoke a decision or order made by him or her if the Superintendent considers it advisable to do so.
Making of rules
(3)The Superintendent may make rules for the practice and procedure to be observed in determining matters before him or her.
Superintendent’s powers
(4)In determining any matter, the Superintendent may,
(a) determine what constitutes adequate public notice;
(b) conduct any inquiry or inspection the Superintendent considers necessary;
(c) consider any relevant information obtained by the Superintendent in addition to information provided by the parties, if he or she first informs the parties of the additional information and gives them an opportunity to explain or refute it. 1997, c. 28, s. 76.
Appeal of Superintendent’s decision
17.(1)If an appeal is provided for, a person affected by a decision of the Superintendent may appeal the decision to the Tribunal.
Notice of appeal
(2)A notice of appeal shall be in writing and shall be served on the Superintendent and filed with the Tribunal within 30 days after the date of the Superintendent’s decision or within such other time period that this Act specifies.
Hearing
(3)The Tribunal shall hold a hearing of an appeal.
Parties
(4)The parties to an appeal are the person who requests the appeal, the Superintendent and the other persons whom the Tribunal specifies.
Power of the Tribunal
(5)Upon hearing an appeal, the Tribunal may, by order, confirm, vary or rescind the decision appealed from or substitute its decision for that of the Superintendent.
Stay of decision
(6)The filing of a notice of appeal does not stay the decision of the Superintendent but the Tribunal may grant a stay until it disposes of the appeal. 1997, c. 28, s. 76.
18. Repealed: 1997, c. 28, s. 76.
Reference hearings
19.(1)The Lieutenant Governor in Council may require the Tribunal to examine and report on any question related to insurance that, in the opinion of the Lieutenant Governor in Council, requires a public hearing. R.S.O. 1990, c. I.8, s. 19 (1); 1997, c. 28, s. 77.
Parties
(2)The Tribunal shall determine who may be a party to a reference hearing. R.S.O. 1990, c. I.8, s. 19 (2); 1997, c. 28, s. 77.
Exclusive jurisdiction
20.(1)This section applies with respect to proceedings under this Act before the Tribunal, the Superintendent and the Director and before an arbitrator. R.S.O. 1990, c. I.8, s. 20 (1); 1997, c. 28, s. 77.
Idem
(2)A person referred to in subsection (1) has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal is provided under this Act, his or her decision thereon is final and conclusive for all purposes.
Decisions, etc., not stayed
(3)An application for judicial review and any appeal from an order of the court on the application does not stay the decision made under this Act.
Court may grant stay
(4)Despite subsection (3), a judge of the court to which the application is made or a subsequent appeal is taken may grant a stay until the disposition of the judicial review or appeal. R.S.O. 1990, c. I.8, s. 20 (2-4).
Rules
21.Subject to the regulations made under paragraph 25 of subsection 121 (1), the Director may make rules for the practice and procedure to be observed in mediations under section 280, in performing evaluations under section 280.1, and in proceedings under this Act before the Director or an arbitrator. 1996, c. 21, s. 11.
Proceedings before Director or arbitrator
22.(1)For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Ontario Court (General Division) for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78.
Power to require evidence
(2)A person referred to in subsection (1) may require to be made or may take and receive affidavits or depositions and may examine witnesses upon oath.
Employment of stenographer
(3)The evidence and proceedings in any matter before a person referred to in subsection (1) may be reported by a stenographer who has taken an oath before the person to report the evidence and proceedings faithfully.
Oaths
(4)A person referred to in subsection (1) may administer and certify an oath required under this Act. R.S.O. 1990, c. I.8, s. 22 (2-4).
Records of Superintendent
23.(1)The Superintendent shall keep the following books and records:
1. A register of all licences issued under this Act, in which shall appear the name of the insurer, the address of the head office, the address of the principal office in Canada, the name and address of the chief or general agent in Ontario, the number of the licence issued, particulars of the classes of insurance for which the insurer is licensed, and such other information as the Superintendent considers necessary.
2. A record of all securities deposited by each insurer with the Superintendent, naming in detail the several securities, their par value, their date of maturity and value at which they are received as deposit. R.S.O. 1990, c. I.8, s. 23 (1); 1997, c. 28, s. 79.
Inspection
(2)The books and records required by this section to be kept shall be open to inspection at such times and upon payment of such fees as are approved by the Minister. R.S.O. 1990, c. I.8, s. 23 (2); 1997, c. 19, s. 10 (2).
24. Repealed: 1999, c. 12, Sched. I, s. 4 (3).
Information about insurers, etc.
Annual publication in The Ontario Gazette, notice of licence
25.(1)The Superintendent shall cause to be published in The Ontario Gazette in July of each year a list of the insurers licensed at the date of the list, and shall from time to time cause notice of the licence of an insurer not theretofore licensed and notice of suspension or cancellation or revivor of licence to be given by publication in The Ontario Gazette. R.S.O. 1990, c. I.8, s. 25 (1).
Certificates
(2)The Superintendent may issue a certificate,
(a) Repealed: 1997, c. 28, s. 81 (2).
(b) stating that a copy of, or extract from, a document or thing in the custody of the Commission is a true copy of, or extract from, the original;
(c) stating the amount payable to the Treasurer of Ontario under subsection 32 (3) or (4);
(d) stating the amount payable for an audit under subsection 101 (4);
(e) stating whether a document was served or delivered under this Act;
(f) stating whether any document required under this Act was filed;
(g) stating whether a document or notification was received or issued by the Superintendent, the Director, an arbitrator or a mediator under this Act.
(h) Repealed: 1997, c. 28, s. 81 (4).
(i) Repealed: 1997, c. 28, s. 81 (4).
R.S.O. 1990, c. I.8, s. 25 (2); 1997, c. 28, s. 81 (1-4).
(3)Repealed: 1997, c. 28, s. 81 (5).
Official documents as evidence
“official document” means a certificate, licence, order, decision, direction, inquiry or notice under this Act. R.S.O. 1990, c. I.8, s. 26 (1).
Idem
(2)An official document that purports to be signed on behalf of the Superintendent shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in the official document without proof of the signature or the position of the person appearing to have signed the official document. R.S.O. 1990, c. I.8, s. 26 (2); 1997, c. 28, s. 82.
True copies as evidence
(3)A true copy certified by the Superintendent under clause 25 (2) (b) is admissible in evidence to the same extent as and has the same evidentiary value as the document or thing of which it is a copy. R.S.O. 1990, c. I.8, s. 26 (3); 1997, c. 28, s. 82.
Right to a licence
27.It is the duty of the Superintendent to determine the right of an insurer in Ontario to be licensed under this Act. 1997, c. 28, s. 83.
Decision of Superintendent
28.(1)Every decision of the Superintendent upon an application for a licence shall be in writing and notice thereof shall be forthwith given to the insurer.
Certified copy
(2)The insurer, or any person interested, is entitled, upon payment of the prescribed fee, to a certified copy of the decision. R.S.O. 1990, c. I.8, s. 28.
Appeal
(3)The insurer or any person affected by a decision of the Superintendent made under subsection (1) may appeal the decision to the Tribunal. 1997, c. 28, s. 84.
Inquiries
29.The Superintendent or a person designated by the Superintendent may direct to an insurer any inquiry related to the contracts, financial affairs or the acts and practices of the insurer, and the insurer shall answer promptly, explicitly and completely. R.S.O. 1990, c. I.8, s. 29; 1997, c. 28, s. 85.
Right of access
30.The Superintendent or a person designated by the Superintendent may at any reasonable time examine the books, securities, documents and things related to the business of an insurer, agent, adjuster or broker. R.S.O. 1990, c. I.8, s. 30; 1997, c. 28, s. 85.
Duty to furnish information
31.(1)Persons who are licensed under this Act, officers and agents of an insurer, the chief agent of an insurer that has its head office outside Ontario and other persons engaged in the business of insurance in Ontario shall on request furnish the Superintendent or a person designated by the Superintendent with full information,
(a) relating to any contract of insurance issued by an insurer;
(b) relating to any settlement or adjustment under a contract of insurance; or
(c) respecting any activities related to the business of insurance. 1993, c. 10, s. 4; 1997, c. 28, s. 85.
Idem
(2)An insured person shall, on request, furnish the Superintendent or person designated by the Superintendent with full information relating to any contract of insurance issued to the insured person or to any settlement or adjustment affecting the insured person under a contract of insurance. R.S.O. 1990, c. I.8, s. 31 (2); 1997, c. 28, s. 85.
Examination of insurers
32.(1)Once each year or more frequently as the Superintendent may consider appropriate for all insurers or for a particular insurer, the Superintendent or a person appointed by the Superintendent,
(a) shall examine an insurer’s statement made under section 102;
(b) may make such inquiries as are necessary to ascertain the insurer’s condition and ability to meet its obligations as and when they become due; and
(c) may make such inquiries as are necessary to ascertain whether the insurer has complied with the requirements of this Act applicable to its transactions. R.S.O. 1990, c. I.8, s. 32 (1).
Exception
(2)Subsection (1) does not apply so as to require an examination of an insurer,
(a) Repealed: 1999, c. 12, Sched. I, s. 4 (4).
(b) in respect of which the Superintendent adopts an examination by another government. R.S.O. 1990, c. I.8, s. 32 (2); 1999, c. 12, Sched. I, s. 4 (4).
Preparation of abstracts, valuation
(3)The Superintendent may cause abstracts to be prepared of the books and vouchers and a valuation to be made of the assets and liabilities of an insurer and the insurer shall pay the Treasurer of Ontario for the cost of the preparation of the abstracts or the valuation upon receiving a certificate of the Commission stating the amount payable.
Expenses of examination
(4)Where the office of an insurer at which an examination is made under this section is outside Ontario, the insurer shall pay the Treasurer of Ontario for the cost of the examination upon receiving a certificate of the Commission stating the amount payable. R.S.O. 1990, c. I.8, s. 32 (3, 4).
Service of documents
33.(1)Unless otherwise provided in this Act or in the rules made by the Superintendent under subsection 16 (3) or by the Tribunal, service of any document for the purpose of a matter to be determined by the Superintendent or a proceeding before the Tribunal that may result in an order or decision affecting the rights or obligations of a person required to be licensed under this Act may be made,
(a) on any person, by personal service on the person to be served;
(b) on an insurer, by first class registered mail addressed to the insurer or its chief executive officer at the insurer’s head office in Ontario as identified in the records of the Superintendent;
(c) on a person who is not an insurer, by first class registered mail addressed to the person’s last known address;
(d) on any person, by leaving a copy of the document with the solicitor, if any, of the person to be served, or with an employee in the solicitor’s office; or
(e) on any person, by telephone transmission of a facsimile of the document in accordance with subsection (7). R.S.O. 1990, c. I.8, s. 33 (1); 1993, c. 10, s. 5 (1); 1997, c. 28, s. 86; 1999, c. 12, Sched. I, s. 4 (5).
Service at place of residence
(2)Where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected, the document may be served by,
(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and
(b) on the same day or the following day, mailing another copy of the document to the person at the place of residence. R.S.O. 1990, c. I.8, s. 33 (2).
Effective date of service
(3)Service by first class registered mail under subsection (1) and service at a person’s place of residence under subsection (2) is effective on the seventh day after the document is mailed in accordance with subsection (1) or (2). 1993, c. 10, s. 5 (2).
(4)Repealed: 1993, c. 10, s. 5 (2).
(5)Repealed: 1993, c. 10, s. 5 (2).
Acceptance of service by a solicitor
(6)Service on a solicitor is not effective unless the solicitor endorses on the document or a copy of it an acceptance of service on behalf of his or her client and the date of the acceptance.
Requirements for service by facsimile
(7)A document that is served by telephone transmission shall include a cover page indicating,
(a) the sender’s name, address and telephone number;
(b) the name of the person to be served;
(c) the date and time of transmission;
(d) the total number of pages transmitted, including the cover page;
(e) the telephone number from which the document is transmitted; and
(f) the name and telephone number of a person to contact in the event of transmission problems. R.S.O. 1990, c. I.8, s. 33 (6, 7).
Deemed service
34.(1)Where an attempt is made to effect service under subsection 33 (1) on an insurer or an agent, and for any reason service cannot be effected, the document may be served on the Superintendent and such service shall be deemed to be service on the insurer or agent.
Method of service
(2)Service may be made on the Superintendent under subsection (1) by first class registered mail addressed to the Superintendent at the Superintendent’s office, or by personal service on the Superintendent.
Superintendent to forward document
(3)Where a document is served on the Superintendent under subsection (1), the Superintendent shall forthwith mail the document to the insurer or agent at the address for the insurer or agent contained in the records of the Superintendent. R.S.O. 1990, c. I.8, s. 34.
Service of notice or process on chief agent or Superintendent, insurers outside Ontario
35.(1)Where the head office of a licensed insurer is situate out of Ontario, notice or process in any action or proceeding in Ontario may be served upon the chief agent of the insurer in Ontario or, where no appointment of a chief agent is then in effect, upon the Superintendent and such service shall be deemed service upon the insurer in the case of a corporation and upon members of the insurer in the case of an unincorporated body or association.
Insurer to file address
(2)Every licensed insurer shall file in the office of the Superintendent notice of a post office address to which any such notice or process may be forwarded by the Superintendent and shall from time to time notify the Superintendent of any change in the address so filed.
Superintendent to forward notice or process
(3)The Superintendent shall forthwith after the receipt of any such notice or process forward it to the insurer by registered mail addressed in the manner last notified to him or her for this purpose by the insurer. R.S.O. 1990, c. I.8, s. 35.
Annual report
36.(1)The Superintendent shall prepare for the Minister, from the statements filed by the insurers and from any inspection or inquiries made, an annual report, showing particulars of the business of each insurer as ascertained from such statement, inspection and inquiries, and such report shall be printed and published forthwith after completion.
Permissible investments
(2)In his or her annual report the Superintendent shall allow as assets only such of the investments of the several insurers as are authorized by this Act, or by their Acts or instruments of incorporation, or by the general Acts applicable to such investments.
Superintendent’s corrections of annual statements
(3)In his or her annual report the Superintendent shall make all necessary corrections in the annual statements made by all licensed insurers as provided in this Act, and the Superintendent is at liberty to increase or diminish the liabilities of such insurers to the true and correct amounts thereof as ascertained by him or her in the examination of their affairs at the head office thereof in Ontario, or otherwise.
Appraisement of real estate owned by insurer
(4)If it appears to the Superintendent, or if he or she has any reason to suppose, from the annual statements prepared and delivered to him or her by all insurers, that the value placed by any insurer, incorporated and licensed in Ontario, upon the real estate owned by it or any parcel thereof is too great, the Superintendent may require such insurer to secure an appraisement of such real estate by one or more competent valuators or the Superintendent may procure such appraisement at the expense of the insurer, and the appraised value, if it varies materially from the statement or return made by the insurer, may be substituted in the annual report of the Superintendent.
Appraisement of real estate held as security for loans
(5)In like manner, if it appears to the Superintendent, or if he or she has any reason to suppose, that the amount secured by mortgage or hypothec upon any parcel of real estate, together with the interest due and accrued thereon, is greater than the value of the parcel, or that the parcel is not sufficient for the loan and interest, the Superintendent may procure an appraisement thereof and, if from the appraised value it appears that the parcel is not adequate security for the loan and interest, he or she may write off the loan and interest a sum sufficient to reduce the loan to such an amount as may fairly be realizable from the security, in no case to exceed the appraised value, and the Superintendent may insert the reduced amount in his or her annual report.
Appraisement of other investments
(6)In like manner, if it appears to the Superintendent, or if he or she has any reason to suppose, that the value of any other investment of the funds of the insurer is less than the amount of the value of the investments shown in the books of the insurer, the Superintendent may make or cause to be made an appraisal of the security, and, if from the appraised value it appears that the value of the security as shown on the books of the insurer is greater than its true value as shown by the appraisal, he or she may reduce the book value of the security to such amount as may fairly be realizable from the security, in no case to exceed the appraised value, and the Superintendent may insert the reduced amount in his or her annual report. R.S.O. 1990, c. I.8, s. 36.
37. Repealed: 1997, c. 28, s. 87.
38. Repealed: 1997, c. 19, s. 10 (3).
PART II
GENERAL PROVISIONS APPLICABLE TO INSURERS
Application of Part, insurance business in Ontario
39.(1)This Part applies to insurance undertaken in Ontario and to all insurers carrying on business in Ontario.
Undertaking insurance
(2)An insurer undertaking a contract of insurance that under this Act is deemed to be made in Ontario, whether the contract is original or renewed, except the renewal from time to time of life insurance policies, shall be deemed to be undertaking insurance in Ontario within the meaning of this Part.
Carrying on business
(3)An insurer undertaking insurance in Ontario or that in Ontario sets up or causes to be set up a sign containing the name of an insurer, or that in Ontario maintains or operates, either in its own name or in the name of its agent or other representative, an office for the transaction of the business of insurance either in or out of Ontario, or that in Ontario distributes or publishes or causes to be distributed or published any proposal, circular, card, advertisement, printed form or like document, or that in Ontario makes or causes to be made any written or oral solicitation for insurance, or that in Ontario issues or delivers any policy of insurance or interim receipt or collects or receives or negotiates for or causes to be collected or received or negotiated for any premium for a contract of insurance or inspects any risk or adjusts any loss under a contract of insurance, or that prosecutes or maintains in Ontario an action or proceeding in respect of a contract of insurance, or a club, society or association incorporated or unincorporated that receives, either as trustees or otherwise, contributions or money from its members out of which gratuities or benefits are paid directly or indirectly upon the death of its members, or any of them, shall be deemed to be an insurer carrying on business in Ontario within the meaning of this Act. R.S.O. 1990, c. I.8, s. 39.
Necessity for licence
40.(1)Every insurer undertaking insurance in Ontario or carrying on business in Ontario shall obtain from the Superintendent and hold a licence under this Act. R.S.O. 1990, c. I.8, s. 40 (1); 1997, c. 28, s. 88.
Prohibition re: licence
(2)No person shall carry on business as an insurer or engage in an act constituting the business of insurance in Ontario without a licence under this Act.
Idem
(3)No insurer shall carry on business in Ontario as an insurer of a class of insurance that is not authorized by its licence under this Act.
Prohibition against acting on behalf of unlicensed insurer
(4)No person in Ontario shall do or cause to be done any act or thing mentioned in subsection 39 (3) on behalf of or as agent of an insurer that is not licensed under this Act. R.S.O. 1990, c. I.8, s. 40 (2-4).
Exception
(5)The following shall not be deemed insurers within the meaning of this Act or required or entitled to be licensed as such:
1. Pension fund societies incorporated under the Corporations Act.
2. Corporations mentioned in paragraphs 3 and 4 of section 343.
3. A trade union in Ontario that under the authority of its incorporating Act or charter has an assurance or benefit fund for the benefit of its own members exclusively.
4. Mutual benefit societies. R.S.O. 1990, c. I.8, s. 40 (5); 1997, c. 19, s. 10 (4).
Unauthorized insurance
(6)No insurer that is incorporated in Ontario and licensed under this Act shall carry on or solicit business as an insurer in another jurisdiction unless it is authorized to do so under the laws of that jurisdiction. R.S.O. 1990, c. I.8, s. 40 (6).
Prohibited benefits
(7)No mutual benefit society shall offer or pay a benefit that would have been prohibited under this Act on January 1, 1996. 1997, c. 19, s. 10 (5).
Reinsurance with unlicensed insurer
41.Subject to the regulations, nothing in this Act prevents a licensed insurer who has lawfully effected a contract of insurance in Ontario from reinsuring the risk or part thereof with an insurer transacting business out of Ontario and not licensed under this Act. R.S.O. 1990, c. I.8, s. 41.
Authorized insurers and insurance
What insurers may be licensed
42.(1)Upon due application and upon proof of compliance with this Act, the Superintendent may issue a licence to undertake contracts of insurance and carry on business in Ontario to any insurer coming within one of the following classes:
1. Joint stock insurance companies.
2. Mutual insurance corporations.
3. Cash-mutual insurance corporations.
4. Fraternal societies.
5. Repealed: 1997, c. 19, s. 10 (6).
6. Companies duly incorporated to undertake insurance contracts and not within classes 1 to 5.
7. Reciprocal insurance exchanges.
8. Underwriters or syndicates of underwriters operating on the plan known as Lloyds.
9. Repealed: 1997, c. 19, s. 10 (6).
R.S.O. 1990, c. I.8, s. 42 (1); 1997, c. 19, s. 10 (6); 1997, c. 28, s. 88; 1999, c. 12, Sched. I, s. 4 (6).
Authorized insurance
(2)A licence issued under this Act authorizes the insurer named therein to exercise in Ontario all rights and powers reasonably incidental to the carrying on of the business of insurance named therein that are not inconsistent with this Act or with its Act or instrument of incorporation or organization. R.S.O. 1990, c. I.8, s. 42 (2).
Classes of insurance and licence conditions
43.(1)The Superintendent may by order determine and define classes of insurance for the purposes of this Act and of licences granted to insurers under this Act.
Note: Despite the re-enactment of subsection 43 (1) by the Statutes of Ontario, 1997, chapter 28, subsection 89 (1), regulations made under subsection 43 (1) of this Act, as it read immediately before July 1, 1998, continue until the Superintendent makes an order under subsection 43 (1), as re-enacted by the Statutes of Ontario, 1997, chapter 28, subsection 89 (1), that is inconsistent with those regulations. See: 1997, c. 28, s. 89 (2).
Not a regulation
(1.1)An order made by the Superintendent under subsection (1) is not a regulation within the meaning of the Regulations Act.
Publication of list
(1.2)The Superintendent shall publish in The Ontario Gazette in July of each year a list of the classes of insurance authorized under subsection (1) and shall publish in The Ontario Gazette notice of all additions to or deletions from the list as soon as practicable after making them. 1997, c. 28, c. 89 (1).
Licence to carry on insurance business
(2)Subject to the provisions of the Parts of this Act that particularly relate to the classes of insurers mentioned in section 42, a licence may be granted to an insurer to carry on any one or more of the classes of insurance defined in section 1 or as are prescribed by the regulations made under subsection (1) of this section.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (2) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (5) by striking out “defined in section 1 or as are prescribed by the regulations made under subsection (1) of this section” at the end and substituting “defined under subsection (1)”. See: 2002, c. 18, Sched. H, ss. 4 (5), 16 (2).
Determination of classes of insurance by Superintendent
(3)For the purposes of this Act, the Superintendent may determine the class or classes of insurance into which the circumstances or conditions in any case may bring any insurance granted or that may be granted in respect thereto, and the policy form for the class of insurance to be used thereunder.
Conditions
(4)A licence may be issued subject to such limitations and conditions as may be prescribed by regulation. R.S.O. 1990, c. I.8, s. 43 (2-4).
Membership in compensation association
44.(1)Where a compensation association has been designated by the regulations as a compensation association for any of the following classes of insurance,
(a) automobile insurance;
(b) boiler and machinery insurance;
(c) fire insurance;
(d) inland transportation insurance;
(e) Repealed: 1999, c. 12, Sched. I, s. 4 (7).
(f) public liability insurance;
(g) plate glass insurance;
(h) property damage insurance;
(i) sprinkler leakage insurance;
(j) theft insurance;
(k) Repealed: 1999, c. 12, Sched. I, s. 4 (7).
(l) any such class or classes of insurance as may be designated in the regulations,
every insurer while licensed to carry on that class of insurance and for such other period of time as is provided in the compensation association’s by-laws shall be deemed to be a member of the compensation association and shall be bound by the by-laws and memorandum of operation of the compensation association. R.S.O. 1990, c. I.8, s. 44 (1); 1997, c. 19, s. 10 (7); 1999, c. 12, Sched. I, s. 4 (7).
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (6) and the following substituted:
Membership in compensation association
(1) Where a compensation association has been designated by the regulations as a compensation association for a class of insurers, every insurer in that class shall be deemed to be a member of the compensation association and shall be bound by the by-laws and memorandum of operation of the compensation association.
See: 2002, c. 18, Sched. H, ss. 4 (6), 16 (2).
Assessments and levies
(2)A member of a compensation association shall pay to the compensation association all assessments and levies made against the member by the compensation association, and, where the member fails to pay the assessment or levy within thirty days of the day the notice of the assessment or levy is mailed to the member,
(a) the compensation association may claim the amount of the assessment or levy, with interest, as a debt due from the member or if the insurer has ceased to be a member, from the former member; and
(b) the licence of the member to carry on insurance may be cancelled. R.S.O. 1990, c. I.8, s. 44 (2).
Non-application
(3)Subsections (1) and (2) do not apply to,
(a) a mutual insurance corporation that is a member of the Fire Mutuals Guarantee Fund or such other insurers designated under the regulations as being adequately covered by some other plan of compensation;
(b) an insurer whose business is limited to that of reinsurance;
(c) an insurer named in an agreement entered into under section 120 as an insurer to whom subsections (1) and (2) do not apply;
(d) a reciprocal insurance exchange; or
(e) a class of insurer designated by the regulations. R.S.O. 1990, c. I.8, s. 44 (3); 1997, c. 19, s. 10 (8); 1999, c. 12, Sched. I, s. 4 (8).
Conditions of automobile insurance licence
45.(1)A licence to carry on automobile insurance in Ontario is subject to the following conditions:
1. In any action in Ontario against the licensed insurer or its insured arising out of an automobile accident in Ontario, the insurer shall appear and shall not set up any defence to a claim under a contract made outside Ontario, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in Ontario and such contract made outside Ontario shall be deemed to include the statutory accident benefits referred to in subsection 268 (1).
2. In any action in another province or territory of Canada, a jurisdiction in the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule against the licensed insurer, or its insured, arising out of an automobile accident in that jurisdiction, the insurer shall appear and shall not set up any defence to a claim under a contract evidenced by a motor vehicle liability policy issued in Ontario, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in that jurisdiction. R.S.O. 1990, c. I.8, s. 45 (1); 1993, c. 10, s. 6; 1996, c. 21, s. 12.
Penalty for breach
(2)A licence may be cancelled when the holder commits a breach of condition as set out in subsection (1). R.S.O. 1990, c. I.8, s. 45 (2).
Scope of life insurance licence
46.Every insurer licensed for the transaction of life insurance may, under the authority of its licence, unless the licence expressly provides otherwise,
(a) include in any policy of life insurance, in respect of the same life or lives insured thereby, disability insurance and accidental death insurance; and
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (7). See: 2002, c. 18, Sched. H, ss. 4 (7), 16 (2).
(b) transact annuities of all kinds and insurance providing for the establishment of accumulation or endowment funds. R.S.O. 1990, c. I.8, s. 46.
Scope of fire insurance licence
47.(1)Every insurer licensed to carry on fire insurance may, subject to its Act of incorporation and subject to the restrictions prescribed by the licence, insure or reinsure any property in which the insured has an insurable interest against loss or damage by fire, lightning or explosion and may insure or reinsure the same property against loss or damage from falling aircraft, earthquake, windstorm, tornado, hail, sprinkler leakage, riot, malicious damage, weather, water damage, smoke damage, civil commotion and impact by vehicles and any one or more perils falling within such other classes of insurance as are prescribed by the regulations.
Insurance of automobiles
(2)An insurer licensed to carry on fire insurance may insure an automobile against loss or damage under a policy falling within Part IV. R.S.O. 1990, c. I.8, s. 47.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 47 is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (8). See: 2002, c. 18, Sched. H, ss. 4 (8), 16 (2).
Capital requirements, etc.
Capital requirements for joint stock Co. — life insurance
48.(1)A licence shall not be granted to a joint stock insurance company not licensed before the 1st day of January, 1971 unless the company furnishes to the Superintendent satisfactory evidence that if the company is applying for a licence to transact the business of life insurance, the company has paid up capital and surplus of not less than $2,000,000, or such greater amount as the Superintendent in the circumstances may require, of which at least $1,000,000 is paid up capital and at least $500,000 is unimpaired surplus. R.S.O. 1990, c. I.8, s. 48 (1); 1997, c. 28, s. 90.
Capital requirements for joint stock Co. — insurance other than life
(2)A licence shall not be granted to a joint stock insurance company unless the company furnishes to the Superintendent satisfactory evidence that if the company is applying for a licence to transact any insurance other than life insurance, the company has, in aggregate, a paid up capital and unimpaired surplus of not less than $3,000,000 or such greater amount as the Superintendent in the circumstances may require. R.S.O. 1990, c. I.8, s. 48 (2); 1997, c. 28, s. 90.
Capital requirements for other insurers — insurance other than life
(3)A licence shall not be granted to a mutual insurance corporation, a cash-mutual insurance corporation, an insurance company mentioned in paragraph 6 of subsection 42 (1), or to an underwriter or syndicate of underwriters operating on the plan known as Lloyds, except upon proof that the net surplus of assets over all liabilities exceeds the amount fixed by subsection (2) for the paid in capital stock of joint stock insurance companies, and that such net surplus of assets over all liabilities together with the contingent liability of members, if any, exceeds the amount fixed by subsection (2) for the paid up capital and surplus of joint stock insurance companies for the respective classes of insurance mentioned therein. R.S.O. 1990, c. I.8, s. 48 (3).
Exemption orders
(4)On the report of the Superintendent, the Lieutenant Governor in Council may by order exempt an insurer from the minimum capital requirements set out in subsection (2) or (3), as the case may be, if the insurer is offering its services only within Ontario or if the insurer is offering a specialized or limited service that in the opinion of the Lieutenant Governor in Council does not require the support of higher capital requirements. R.S.O. 1990, c. I.8, s. 48 (4).
Idem
(5)An exemption under subsection (4) may be made subject to such conditions as the Lieutenant Governor in Council may impose. R.S.O. 1990, c. I.8, s. 48 (5).
Capital requirements for other insurers — life insurance
(6)A licence shall not be granted to a mutual insurance corporation, a cash-mutual insurance corporation, an insurance company mentioned in paragraph 6 of subsection 42 (1), a reciprocal insurance exchange, or to an underwriter or syndicate of underwriters operating on the plan known as Lloyds, not licensed on the 30th day of June, 1971, except upon proof that the net surplus of assets over all liabilities exceeds the amount fixed by subsection (1) for the paid in capital stock of joint stock insurance companies, and that such net surplus of assets over all liabilities together with the contingent liability of members, if any, exceeds the amount fixed by subsection (1) for the paid up capital and surplus of joint stock insurance companies for the respective classes of insurance mentioned therein. R.S.O. 1990, c. I.8, s. 48 (6); 1999, c. 12, Sched. I, s. 4 (9).
Application of subs. (3)
(7)Subsection (3) does not apply to a mutual insurance corporation incorporated under the laws of Ontario that is a member of the Fire Mutuals Guarantee Fund. 1999, c. 12, Sched. I, s. 4 (10).
Restriction, premium note plan
(7.1)No mutual insurance corporation that is incorporated in Ontario to undertake contracts on a premium note plan may be licensed under this Act unless it is a member of the Fire Mutuals Guarantee Fund. 1999, c. 12, Sched. I, s. 4 (10).
Application of other Parts
(8)A licence shall not be granted to an insurer except upon proof that it has complied with the provisions of this Act and the regulations applicable to it. R.S.O. 1990, c. I.8, s. 48 (8).
Licence for both fire and life
(9)A licence shall not be granted to an insurer for the transaction of both fire and life insurance unless it maintains separate and distinct accounts, funds and securities in respect of its business of life insurance, and those funds and securities are available only for the protection of the holders of its policies of life insurance and are not liable for the payment of claims arising from any other class of insurance that it undertakes, and it complies with such other requirements as the Superintendent may impose for the purposes of this subsection. R.S.O. 1990, c. I.8, s. 48 (9).
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (9) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (9) by striking out “both fire and life insurance” and substituting “both property and life insurance”. See: 2002, c. 18, Sched. H, ss. 4 (9), 16 (2).
Evidence by insurer when head office is outside Ontario
(10)Where the head office of an applicant for a licence under this Act is situate out of Ontario, a licence shall not be granted except upon proof of its ability to provide for the payment at maturity of all its contracts, but the Superintendent may accept as sufficient the fact that it is licensed by any other government in Canada. R.S.O. 1990, c. I.8, s. 48 (10).
Licence of extra-provincial corporation
(11)A licence shall not be granted to a corporation that is incorporated under the law of a province other than Ontario unless its head office and chief place of business is situate in that province. R.S.O. 1990, c. I.8, s. 48 (11).
Information preliminary to licence
49.The Superintendent may require such notice of the application for a licence to be given by publication in The Ontario Gazette and elsewhere as he or she considers necessary. R.S.O. 1990, c. I.8, s. 49.
Documentary, etc., requirements
Documents to be filed by applicants for licence
50.(1)Before the issue of a licence to an insurer, such insurer shall file in the office of the Superintendent the following documents:
1. A certified copy of its Act or other instrument of incorporation or association and of its constitution and by-laws and regulations verified in a manner satisfactory to the Superintendent.
2. A certified copy of its last balance sheet and auditor’s report thereon.
3. If the head office of the insurer is out of Ontario, notice of the place where the chief office of the insurer in Ontario is to be situate.
4. If the head office of the insurer is out of Ontario, a power of attorney from the insurer to an agent resident in Ontario.
5. Copies of all policy forms and forms of application for insurance proposed to be used by the insurer in Ontario.
6. Any evidence or documents required by other Parts of this Act.
Evidence
(2)The applicant for a licence shall furnish such evidence as the Superintendent considers necessary that the requirements of this Act have been complied with and that the applicant is entitled to the licence applied for.
Paying cost of examination
(3)When the Superintendent considers it necessary to conduct an examination of the affairs of an applicant for a licence, the applicant shall pay the costs of the examination upon receiving a statement thereof certified by the Superintendent. R.S.O. 1990, c. I.8, s. 50.
Filing of changes in by-laws, etc.
51.Every licensed insurer shall file in the office of the Superintendent certified copies of every amendment, revision or consolidation of its Act or other instrument of incorporation or association and of its constitution, by-laws and regulations verified in a manner satisfactory to the Superintendent within thirty days after the passing or adoption of the amendment, revision or consolidation. R.S.O. 1990, c. I.8, s. 51.
Corporate requirements
Statement of expenses of organization
52.(1)Upon application being made for a licence under this Act by an insurer incorporated after the 1st day of January, 1925 under any general or special Act of Ontario, there shall be submitted to the Superintendent a sworn statement setting forth the several sums of money paid in connection with the incorporation and organization of the insurer, and such statement shall, in addition, include a list of all unpaid liabilities, if any, in connection with or arising out of the incorporation and organization.
To what limited
(2)Until the licence is granted, no payments on account of expenses of incorporation and organization shall be made out of the money paid in by shareholders, except reasonable sums for the payment of clerical assistance, legal services, office rental, advertising, stationery, postage and expense of travel, if any. R.S.O. 1990, c. I.8, s. 52 (1, 2).
Conditions precedent to issue of licence
(3)The Superintendent shall not issue the licence until he or she is satisfied that all the requirements of this Act and of the Corporations Act as to the subscriptions for shares in the capital of the insurer, the payment of money by shareholders on account of their subscriptions, the election of directors and other preliminaries have been complied with, and unless he or she is satisfied that the expenses of incorporation and organization, including any commission payable in connection with subscriptions for shares in the capital of the insurer, are reasonable. R.S.O. 1990, c. I.8, s. 52 (3); 1997, c. 28, s. 90.
Right to licence and insurer’s name
Right to licence
53.(1)An insurer that has applied for a licence and has complied with this Act and the Corporations Act is entitled to the licence. R.S.O. 1990, c. I.8, s. 53 (1).
Name of insurer
(2)The Superintendent may refuse to licence an insurer where the name of the insurer is,
(a) the same as or similar to the name of another insurer and the assumption or use of the name in Ontario would be likely to deceive or mislead the public; or
(b) if the name of the insurer is objectionable on any public grounds. R.S.O. 1990, c. I.8, s. 53 (2); 1997, c. 28, s. 90.
Power of attorney of chief agent, insurers outside Ontario
54.(1)Every licensed insurer that has its head office outside Ontario shall file with the Superintendent an executed copy of a power of attorney from the insurer to a chief agent resident in Ontario.
Execution of power of attorney
(2)The power of attorney shall be under the seal of the insurer, and shall be signed by the president and secretary or other proper officers of the insurer in the presence of a witness who shall make oath as to its due execution.
Authentication
(3)The official positions held by the officers signing the power of attorney shall be verified by an oath of a person cognizant of the fact.
Contents of power of attorney
(4)The power of attorney shall declare at what place in Ontario the chief agency of the corporation is and shall expressly authorize the chief agent to receive service of process in all actions and proceedings against the insurer in Ontario for any liability incurred by the insurer therein, and also to receive from the Superintendent all notices that the law requires to be given, or that it is thought advisable to give, and shall declare that service of process for or in respect of such liability on the chief agent is legal and binding on the insurer.
Authority conferred
(5)The power of attorney may confer upon the chief agent any further or other powers that the insurer considers advisable.
Effect of copy as evidence
(6)The production of a copy of the power of attorney certified by the Superintendent is sufficient evidence for all purposes of the power and authority of the person therein named to act on behalf of the insurer in the manner and for the purposes set forth in the certified copy.
Changes in chief agent
(7)Where the insurer changes its chief agent in Ontario, it shall, within seven days of the appointment, file with the Superintendent a similar power of attorney, stating the change and containing a similar declaration as to service of process and notices.
Service of process thereafter
(8)After the power of attorney is filed, any process in any action or proceeding against the insurer for liability incurred in Ontario may be validly served on the insurer upon its chief agent, but nothing in this section renders invalid service in any other mode in which the corporation may be lawfully served. R.S.O. 1990, c. I.8, s. 54.
Form, term, conditions of licence
Form
55.(1)Subject to section 382, the licence shall be in such form or forms for the different classes of insurers as may be from time to time determined by the Superintendent, and shall specify the business to be carried on by the insurer. R.S.O. 1990, c. I.8, s. 55 (1); 1997, c. 28, s. 90.
Conditions
(2)The Superintendent may, at any time and in respect of any licence of an insurer,
(a) set a term for the licence;
(b) impose any conditions or limitations that the Superintendent considers appropriate relating to the carrying on of the insurer’s business; or
(c) vary, amend or revoke any condition or limitation to which the licence is subject.
Notice
(3)The Superintendent shall not exercise any power under subsection (2) until he or she has given the insurer notice of intention to exercise the power and has afforded the insurer a reasonable opportunity to make written submissions.
Application
(4)Subsections (2) and (3) apply in respect of licences in force on the date this section comes into force and in respect of licenses issued after the date this section comes into force.
Appeal to Tribunal
(5)The insurer may appeal the decision of the Superintendent to the Tribunal. 1997, c. 28, s. 91 (1).
Failure to pay claim, licence cancellation, etc.
56.(1)Where written notice has been served on the Superintendent and upon proof of an undisputed claim arising from loss insured against in Ontario remaining unpaid for the space of sixty days after being due or of a disputed claim after final judgment in the regular course of law and tender of a legal, valid discharge being unpaid, the Superintendent may suspend or cancel the licence. R.S.O. 1990, c. I.8, s. 56 (1); 1997, c. 28, s. 92.
Revival of licence
(2)The licence may be revived and the insurer may again transact business if, within six months after notice to the Superintendent of the failure of the insurer to pay an undisputed claim or the amount of a final judgment as provided in this section, such undisputed claim or final judgment upon or against the insurer in Ontario is paid and satisfied. R.S.O. 1990, c. I.8, s. 56 (2).
57.Repealed: 1997, c. 19, s. 10 (10).
Disciplinary action against insurers
Superintendent’s report
58.(1)Upon examination, from annual statements, or upon any other evidence, the Superintendent shall make a report if he or she,
(a) finds, with respect to an insurer incorporated or organized under the laws of Ontario, that the assets of the insurer are insufficient to justify its continuance in business or to provide for its obligations;
(b) is of the opinion that there exists a state of affairs that is or may be prejudicial to the interests of persons who have contracts of insurance with an insurer licensed in Ontario;
(c) finds that an insurer licensed in Ontario has failed to comply with any provision of law or with its Act or instrument of incorporation or association; or
(d) becomes aware that the licence of an insurer licensed in Ontario has been suspended or cancelled by any government in Canada.
Notice to insurer
(2)The Superintendent may give notice in writing, which shall include a copy of the report made under subsection (1), to the insurer stating that the Superintendent intends,
(a) to suspend or cancel the insurer’s licence; or
(b) to take possession and control of the assets of the insurer if incorporated or organized under the laws of Ontario.
Request for hearing
(3)Within 15 days after receiving the notice, the insurer may request in writing that the Tribunal hold a hearing before the Superintendent takes any action described in the notice.
Hearing
(4)If, within the time period allowed, the insurer requests a hearing, the Tribunal shall hold a hearing.
No request for hearing
(5)If, within the time period allowed, the insurer does not request a hearing, the Superintendent may, by order,
(a) suspend or cancel the licence of the insurer; or
(b) take possession and control of the assets of the insurer if incorporated or organized under the laws of Ontario.
Interim order
(6)If the Superintendent is of the opinion that the interests of the public may be adversely affected by any delay in making an order mentioned in subsection (5), the Superintendent may make an interim order before the expiry of the time period for the insurer to request a hearing or, if the Tribunal holds a hearing, before the final determination of the hearing.
Interim order in force
(7)Unless the Superintendent revokes an interim order,
(a) the interim order remains in force indefinitely if, within the time allowed, the insurer does not request a hearing;
(b) the interim order remains in force until the final determination of the hearing if, within the time period allowed, the insurer requests a hearing.
Powers of Tribunal
(8)At a hearing, if the Tribunal finds that one or more of the circumstances described in clauses (1) (a), (b), (c) and (d) exist, it may,
(a) suspend or cancel the licence of the insurer; or
(b) order the Superintendent to take possession and control of the assets of the insurer if incorporated or organized under the laws of Ontario.
Copy of order to insurer
(9)If the Tribunal makes an order described in clause (8) (b), the Superintendent shall deliver a copy of the order to an officer of the insurer. 1997, c. 28, s. 94.
59. Repealed: 1997, c. 28, s. 94.
60. Repealed: 1997, c. 19, s. 10 (11).
61. Repealed: 1997, c. 28, s. 95.
Superintendent takes control
Power of Superintendent upon taking control
62.(1)If the Superintendent has taken possession and control of the assets of the insurer, he or she shall thereafter conduct its business and take such steps as in his or her opinion should be taken toward its rehabilitation, and for such purposes the Superintendent has all the powers of the board of directors of the insurer, and, without limiting the generality of the foregoing, the Superintendent may,
(a) exclude the directors, officers, employees and agents of the insurer from the premises, property and business of the insurer; and
(b) carry on, manage and conduct the operations of the insurer and in the name of the insurer preserve, maintain, realize, dispose of and add to the property of the insurer, receive the incomes and revenues of the insurer and exercise all the powers of the insurer. R.S.O. 1990, c. I.8, s. 62 (1); 1993, c. 10, s. 9; 1997, c. 28, s. 96 (1).
Application to court
(2)While the Superintendent has possession and control of the assets of an insurer under this section, the Superintendent may apply to the court for an order for the winding up of the insurer under Part VI of the Corporations Act. R.S.O. 1990, c. I.8, s. 62 (2); 1997, c. 28, s. 96 (2).
Appointment of managers
(3)Where the Superintendent is in possession and control of the assets of an insurer and is conducting its business, he or she may appoint one or more persons to manage and operate the business of the insurer and,
(a) each person so appointed is a representative of the Superintendent; and
(b) the remuneration of any such person, other than an employee of the office of the Superintendent, shall be fixed by the Superintendent. R.S.O. 1990, c. I.8, s. 62 (3); 1997, c. 28, s. 96 (3).
Relinquishing control
(4)Whenever the Superintendent believes that an insurer whose assets are in the possession and control of the Superintendent meets all the requirements of this Act and that it is otherwise proper for the insurer to resume possession and control of its assets and the conduct of its business, the Superintendent may relinquish to the insurer the possession and control of its assets, and after that time the powers of the Superintendent under this section cease.
Rehabilitation efforts futile
(5)If the Superintendent considers that further efforts to rehabilitate an insurer whose assets are in the possession and control of the Superintendent would be futile, the Superintendent may relinquish to the insurer the possession and control of its assets, and after that time the powers of the Superintendent under this section cease. 1997, c. 28, s. 96 (4).
Expenses of proceedings
(6)The expenses of the Superintendent incurred in rehabilitation proceedings under this section and section 58 shall be paid by all insurers licensed under this Act to carry on business of the same class or classes as the insurer who is the subject of the proceedings, and the share of each shall be the proportion of the expenses that the net premium income received from the insurer’s policyholders in Ontario in its last preceding fiscal year bears to the total net premium income received from the policyholders in Ontario by all insurers of that class in their respective last preceding fiscal years. R.S.O. 1990, c. I.8, s. 62 (6); 1997, c. 28, s. 96 (5).
Advisory committee
(7)The insurers required to bear the said expenses of the Superintendent may appoint a committee of not more than six members to advise the Superintendent in respect of all matters pertinent to the rehabilitation of the insurer whose assets are in the possession and control of the Superintendent. R.S.O. 1990, c. I.8, s. 62 (7).
Appeal against Tribunal order to take control
63.(1)Despite section 62, an insurer may appeal to the Divisional Court from any order made by the Tribunal under clause 58 (8) (b) within thirty days after the delivery of a copy of the order to an officer of the insurer. 1993, c. 10, s. 10 (1); 1997, c. 28, s. 97 (1).
Stay
(2)An order of the Tribunal under clause 58 (8) (b) shall take effect immediately, but where there is an appeal, a judge of the Divisional Court may grant a stay until any appeal is disposed of. R.S.O. 1990, c. I.8, s. 63 (2); 1993, c. 10, s. 10 (2); 1997, c. 28, s. 97 (2).
Documents to be filed
(3)The Tribunal shall file with the Divisional Court,
(a) the decision of the Tribunal;
(b) the report of the Superintendent;
(c) the record of the hearing; and
(d) all written submissions by the appellant to the Tribunal. 1997, c. 28, s. 97 (3).
(4) Repealed: 1993, c. 10, s. 10 (3).
Order
(5)Where an appeal is taken under this section, the court may by order direct the Superintendent to take such action as the court considers proper or refrain from taking any action specified in the order and the Superintendent shall act accordingly. R.S.O. 1990, c. I.8, s. 63 (5).
Further decision
(6)Despite the determination of the appeal under this section, the Superintendent and the Tribunal have power to make any further reports and orders on new material or where there is a material change in the circumstances, and any such further order is subject to appeal under this section. 1993, c. 10, s. 10 (4); 1997, c. 28, s. 97 (4).
Revival of licence
64.Where the licence of an insurer is suspended or cancelled under this Act, it may be revived if the insurer makes good the deposit, or the deficiency, as the case may be, to the satisfaction of the Superintendent. R.S.O. 1990, c. I.8, s. 64; 1997, c. 28, s. 98.
Notice of suspension or cancellation
65.If a licence of an insurer is suspended or cancelled, notice of such suspension or cancellation shall be published in The Ontario Gazette and elsewhere as the Superintendent directs, and thereafter any person transacting business on behalf of the insurer except for winding-up purposes is guilty of an offence. 1997, c. 28, s. 99.
Withdrawal from Automobile Insurance
Withdrawal procedure
65.1(1)For the purpose of this section, an insurer is withdrawing from the business of automobile insurance if the insurer does anything that results or is likely to result in a significant reduction in the amount of gross premiums written by the insurer for automobile insurance in any part of Ontario, including any of the following things that have or are likely to have that result:
1. Refusing to process applications for automobile insurance.
2. Declining to issue, terminating or refusing to renew contracts of automobile insurance.
3. Refusing to provide or continue coverages or endorsements in respect of contracts of automobile insurance.
4. Taking actions that directly or indirectly result in termination of contracts between the insurer and the agents and brokers who solicit or negotiate contracts of automobile insurance on behalf of the insurer.
5. Reducing the ability of the agents or brokers to solicit or negotiate contracts of automobile insurance on behalf of the insurer.
6. Reducing the insurer’s ability to act as a servicing carrier or ceasing to act as a servicing carrier under the Plan of Operation of the Facility Association.
7. Taking actions that directly or indirectly result in the termination of any contract between the insurer and the Facility Association.
8. Engaging in any activity or failure to act that is prescribed by the regulations.
Withdrawal from automobile insurance
(2)An insurer shall not withdraw from the business of automobile insurance except in accordance with this section. 1993, c. 10, s. 11.
Procedure for withdrawal
(3)An insurer that intends to withdraw from the business of automobile insurance shall file with the Superintendent a notice in the form provided by the Superintendent. 1993, c. 10, s. 11; 1997, c. 28, s. 100.
Time for notice
(4)The notice shall specify the date that the insurer intends to begin to withdraw from the business of automobile insurance and shall be filed at least 180 days before that date. 1993, c. 10, s. 11.
Additional information
(5)The Superintendent may require the insurer to provide such information, material and evidence as the Superintendent considers necessary in addition to the information, material and evidence required to be provided in the notice. 1993, c. 10, s. 11; 1997, c. 28, s. 100.
Authority to withdraw
(6)The insurer may withdraw from the business of automobile insurance on or after the date specified in the notice under subsection (4). 1993, c. 10, s. 11.
Superintendent’s powers
(7)Despite subsection (6), the Superintendent may,
(a) authorize the insurer to withdraw from the business of automobile insurance before the date specified in the notice under subsection (4); or
(b) prohibit the insurer from withdrawing from the business of automobile insurance until a date specified by the Superintendent that is not later than ninety days after the date specified in the notice under subsection (4). 1993, c. 10, s. 11; 1997, c. 28, s. 100.
Application of regulations under subs. 121 (1), par. 16
(8)The Superintendent may order that the regulations made under paragraph 16 of subsection 121 (1) do not apply to a class of contracts, coverages or endorsements specified by the Superintendent to which an insurer is a party. 1993, c. 10, s. 11; 1997, c. 28, s. 100.
Deposits
66.(1)At any time, the Superintendent may require an insurer to deposit, in any amount the Superintendent considers necessary, securities acceptable to the Superintendent and on such conditions as the Superintendent considers proper.
When to be made
(2)The securities shall be deposited with the Superintendent within 30 days of the date that the requirement is made or within such longer period of time as is agreed to by the Superintendent. 1997, c. 19, s. 10 (14).
Appeal
(2.1)An insurer may appeal to the Tribunal the decision of the Superintendent to require a deposit. 1997, c. 28, s. 101 (2).
Withdrawal of deposit
(3)No part of a deposit shall be withdrawn without the approval of the Superintendent. 1997, c. 19, s. 10 (14).
Failure to comply
(4)The Superintendent may suspend the licence of an insurer that fails to deposit securities in the amount and within the time required by,
(a) the Superintendent under subsection (1) if the insurer has not appealed the Superintendent’s decision; or
(b) the Tribunal under subsection (2.1) if the insurer has appealed the Superintendent’s decision. 1997, c. 28, s. 101 (3).
Vesting
(5)Securities deposited with the Superintendent are vested in the Superintendent without any formal transfer.
Interest
(6)The insurer is entitled to the interest and dividends paid on securities while the securities are on deposit with the Superintendent, if the insurer is in compliance with this Act.
Substitution
(7)The Superintendent may permit an insurer to substitute other securities for those deposited by the insurer.
Reciprocal deposits
(8)If an insurer incorporated under the laws of Ontario or a reciprocal insurance exchange provided for in Part XIII wants to be licensed by another province that requires a deposit, the Superintendent may hold securities as a deposit on a reciprocal basis for the other province.
Purpose of deposits
(9)The Superintendent shall hold and administer a deposit as security for the Ontario contracts of the insurer and for any contracts in a reciprocating province.
Order to fix amount
(10)If a reciprocating province requires that the amount of a deposit be in a fixed amount, the Lieutenant Governor in Council may, by order, fix the required amount of the deposit and list the reciprocating provinces with respect to the deposit.
Claims
(11)If an insurer that has deposited securities with the Superintendent under this section ceases to carry on the business of insurance in Ontario or if its licence is suspended or cancelled under this Act, the Superintendent shall notify each reciprocating province of the cessation, suspension or cancellation.The notice shall state that the reciprocating province is entitled to submit to the Superintendent an accounting of all claims and liabilities outstanding in the reciprocating province in respect of the insurer before the deposit is released to the insurer.
Out-of-province insurer
(12)If the Superintendent is notified that an insurer that has deposited securities with the Superintendent has ceased to transact business in a reciprocating province or that the insurer’s licence to transact the business of insurance has been suspended or cancelled in that province, the Superintendent may, at the request of the reciprocating province, take any action that the Superintendent could take if the insurer ceased to carry on the business of insurance in Ontario or could take if the licence of the insurer were suspended or cancelled in Ontario.
Notice to insured
(13)If the Superintendent receives notice that an order has been made in another province for the administration of a deposit of an insurer in respect of which Ontario is a reciprocating province and that a date has been fixed by the trustee in the other province for the termination of the administration of the deposit, the Superintendent shall give notice of the termination date to persons insured under Ontario policies issued by the insurer.
Application to court
(14)The Superintendent may, at any time, make application to a court of competent jurisdiction for directions regarding the administration of securities deposited by an insurer under this section. 1997, c. 19, s. 10 (14).
67.-99. Repealed: 1997, c. 19, s. 10 (14).
Report on share transfers
100.No transfers of shares of an insurer shall be entered in the book or books maintained for that purpose until thirty days after notice thereof has been deposited with the Superintendent if,
(a) the transfer relates to 10 per cent or more of the issued shares of the insurer for the time being enjoying voting rights; or
(b) the directors have reason to believe that the transfer would result in a majority of the issued shares of the insurer for the time being enjoying voting rights being beneficially owned by any one person. R.S.O. 1990, c. I.8, s. 100; 1997, c. 28, s. 102.
Returns
101.(1)When required by the Superintendent, licensed insurers shall prepare and file with the Superintendent or with an agency designated by the Superintendent a return respecting the experience of the insurer’s business in a form approved by the Superintendent containing such information as the Superintendent may require. R.S.O. 1990, c. I.8, s. 101 (1); 1997, c. 28, s. 102.
Compilation of data
(2)The Superintendent may require any agency so designated to compile the data so filed in such form as he or she may approve, and the expense of making the compilation shall be apportioned among the insurers whose data is compiled by such agency by the Superintendent, who shall certify in writing the amount due from each insurer, and it is payable by the insurer to such agency forthwith. R.S.O. 1990, c. I.8, s. 101 (2).
Audit and direction
(3)If it appears to the Superintendent that the insurer’s records of premium income and claims paid are not kept in such a manner as to show correctly the experience of the insurer for the purposes of the return, the Superintendent may nominate an accountant to proceed under his or her direction to audit the books and records of the insurer and to give such instructions as will enable the officers of the insurer to keep the records correctly after the audit. R.S.O. 1990, c. I.8, s. 101 (3); 1997, c. 28, s. 102.
Expenses of audit
(4)The insurer shall pay the accountant for an audit under subsection (3) forthwith upon receiving a certificate of the Superintendent stating the amount payable. R.S.O. 1990, c. I.8, s. 101 (4); 1997, c. 28, s. 102.
Debt to the Crown
(5)Any amount payable to an accountant under subsection (3) that is not paid within thirty days from the date on which the insurer receives the Superintendent’s certificate becomes a debt owing to the Crown. R.S.O. 1990, c. I.8, s. 101 (5); 1997, c. 28, s. 102.
Information on claims
101.1Every insurer shall provide the Superintendent or an agency designated by the Superintendent with information prescribed by the regulations about applications for insurance and claims made to the insurer at such times and subject to such conditions as are prescribed by the regulations. 1996, c. 21, s. 13; 1997, c. 28, s. 102.
Business statements and capital or asset requirements
Annual and interim statements
102. (1) Subject to sections 370 and 374, every licensed insurer shall,
(a) prepare annually and deliver to the Superintendent or his or her designate, on or before the prescribed date for the prescribed category of insurer, a statement of the condition of affairs of the insurer for the year that ended, at the election of the company in its by-laws, on the 31st day of October or the 31st day of December next preceding the delivery of the statement; and
(b) prepare and deliver to the Superintendent or his or her designate when required by the Superintendent, for the prescribed category of insurer, an interim statement for the period specified by the Superintendent containing such information as the Superintendent considers necessary to assess the insurer’s condition of affairs. R.S.O. 1990, c. I.8, s. 102 (1); 1994, c. 11, s. 337; 1997, c. 19, s. 10 (15, 16).
Contents of annual statement
(2) A statement of the condition of affairs of an insurer under clause (1) (a) shall be in a form approved by the Superintendent, and shall set out,
(a) the assets, liabilities, revenues and expenses of the insurer for the year;
(b) particulars of the business done by the insurer in Ontario during the year; and
(c) such other information as the Superintendent considers necessary to assess an insurer’s condition of affairs. R.S.O. 1990, c. I.8, s. 102 (2).
Auditor’s report
(3) A statement of the condition of affairs of an insurer under clause (1) (a) shall be accompanied by a report of an auditor prepared in the manner required by the Superintendent. R.S.O. 1990, c. I.8, s. 102 (3).
Modified statement
(4) The Superintendent may, in writing, direct an insurer to prepare and file a modified statement respecting the business of the insurer in Ontario only, in lieu of filing the annual statement that the insurer is required to file under clause (1) (a). 1997, c. 28, s. 103.
Who may verify statement
(5) In the case of a corporation, such statement shall be verified by the president, vice-president or managing director, or other director appointed for the purpose by the board of directors, and by the secretary or manager of the corporation. R.S.O. 1990, c. I.8, s. 102 (5).
Indirect collection of personal information
(6) The Superintendent is authorized to obtain from insurers personal information about identifiable individuals where the collection of the information is required to monitor the condition of affairs of the insurer and the information is collected on a statement made under subsection (1). R.S.O. 1990, c. I.8, s. 102 (6).
(7) Repealed: 2002, c. 18, Sched. H, s. 4 (10).
Required level of capital or assets
(8) Every insurer licensed under this Act shall maintain capital or assets (in compliance with such requirements as may be prescribed by regulation governing the level of capital or assets to be maintained) in an amount that bears not less than a reasonable relationship to the outstanding liabilities, premiums and loss experience of the insurer. 1999, c. 12, Sched. I, s. 4 (11).
Same
(8.1) The amount required by subsection (8) shall be calculated in accordance with such requirements as may be prescribed by regulation, and the calculation shall exclude any investments of the insurer that are not authorized by this Act or that were not authorized by law at the time they were acquired. 1999, c. 12, Sched. I, s. 4 (11).
Exception
(9) Subsection (8) does not apply to a mutual insurance corporation that is a member of the Fire Mutuals Guarantee Fund or to an insurer licensed to transact only,
(a) the business of life insurance;
(b) the business of accident and sickness insurance; or
(c) the business of life insurance and the business of accident and sickness insurance. 2002, c. 18, Sched. H, s. 4 (11).
(10) Repealed: 2002, c. 18, Sched. H, s. 4 (12).
Life insurance policies
(11) No insurer incorporated and licensed under the laws of Ontario to transact life insurance shall issue a policy that does not appear to be self-supporting upon reasonable assumptions as to interest, mortality and expenses. 1997, c. 19, s. 10 (17).
Exemption from filing requirements
(12) The Superintendent may, in writing, exempt completely or in part any insurer or any category of insurer from any or all of the filing requirements imposed under this section for the period of time specified in the exemption. 1997, c. 19, s. 10 (17).
Notice of returns
103.Notice of the requirements for returns under section 101 or 102 is sufficient if it is sent by first class ordinary mail addressed to the insurer at the insurer’s address for service of notice or process as identified in the records of the Superintendent. R.S.O. 1990, c. I.8, s. 103.
Preparation of financial statements
104.The financial statements required under this Act shall be prepared in accordance with this Act and the regulations. R.S.O. 1990, c. I.8, s. 104.
Published statements
105.A statement purporting to show the financial condition of an insurer differing from the financial condition shown by the statement filed with the Superintendent, or a balance sheet or other statement in form differing from the form prescribed by the regulations, shall not be published or circulated, and every insurer publishing such a statement is guilty of an offence. R.S.O. 1990, c. I.8, s. 105.
Statements that financial standing guaranteed by government prohibited
106.Every person who represents orally or in writing that the issue of a licence to an insurer or the printing or publication of an annual statement in the report of the Superintendent or in any other publication of the Superintendent or any other circumstance of the supervision or regulation of the business of the insurer by law or the Superintendent is a warranty or guarantee of the financial standing of the insurer or of its ability to provide for the payment of its contracts at maturity is guilty of an offence. R.S.O. 1990, c. I.8, s. 106.
Powers of insurer to hold real estate
107.(1)A licensed insurer, and, subject to its constitution and rules, a licensed fraternal or any branch or lodge thereof, may acquire and hold absolutely for its own use and benefit such real estate or leaseholds,
(a) as are necessary for the transaction of its business; and
(b) as are mortgaged to it by way of security or are acquired by it by foreclosure or in satisfaction of a debt,
and may sell, mortgage, lease or otherwise dispose of the same, but real estate or leaseholds acquired by foreclosure or in satisfaction of a debt shall be sold or disposed of within seven years after they have been so acquired. R.S.O. 1990, c. I.8, s. 107 (1); 1997, c. 19, s. 10 (18).
Additional real estate
(2)Except in the case of a fraternal or any branch or lodge thereof, a licensed insurer may,
(a) acquire and hold real estate or leaseholds in addition to those provided for by subsections (1) and (6); and
(b) acquire or construct and hold a building larger than is required for the transaction of its business, and may lease any part of the building not so required. R.S.O. 1990, c. I.8, s. 107 (2); 1997, c. 19, s. 10 (19).
Powers of societies re office building
(3)A licensed fraternal or any branch or lodge thereof may, subject to its constitution or rules and when so authorized by the Superintendent, acquire or construct and hold a building larger than is required for the transaction of its business, and may lease any part of the building not so required. R.S.O. 1990, c. I.8, s. 107 (3); 1997, c. 19, s. 10 (20); 1997, c. 28, s. 104.
Forfeiture
(4)Any real estate or leaseholds acquired by foreclosure or in satisfaction of a debt that have been held by the insurer for a longer period than seven years without being disposed of shall, unless held pursuant to any other provision of this section, be forfeited to Her Majesty for the use of Ontario.
Idem
(5)No forfeiture under subsection (4) shall take effect until the expiration of at least six calendar months after notice in writing to the insurer by the Minister of the intention of Her Majesty to claim the forfeiture, but the insurer may, despite such notice, before the forfeiture is effected, sell or dispose of the property free from liability to forfeiture.
Investments in real estate
(6)A licensed insurer that has invested its funds in such real estate or leaseholds as are referred to in subsections 433 (1), (2), (4) and (6) may acquire and hold such property absolutely for its own use and benefit.
Rights under section are additional
(7)Except where otherwise provided, every right, power and authority granted by this section is in addition to any right, power and authority granted by a licence issued under any Act. R.S.O. 1990, c. I.8, s. 107 (4-7).
108. Repealed: 1997, c. 19, s. 10 (21).
Variable life insurance contracts based on segregated funds
109.(1)Any insurer incorporated and licensed under the laws of Ontario to transact the business of life insurance may,
(a) issue policies for which the reserves vary in amount with the market value of a specified group of assets; and
(b) retain for investment,
(i) policy dividends,
(ii) policy proceeds that become payable on surrender or maturity of the policy not less than five years from the date of its issue if the policyholder so directs, and
(iii) policy proceeds that become payable on the death of the policyholder if the policyholder or beneficiary so directs,
on the basis that the liability of the insurer in respect thereof varies in amount with the market value of a specified group of assets,
and the insurer shall maintain in respect of such policies, dividends and proceeds, as the case may be, one or more separate and distinct funds with separate assets for each such fund.
How fund created
(2)For the purpose of creating a separate and distinct fund under subsection (1), an insurer may, if duly authorized by by-law,
(a) make a transfer from the shareholders’ fund but the amounts so transferred shall not exceed the surplus in the shareholders’ fund; and
(b) make a transfer of assets from one or more life insurance funds, but,
(i) the maximum amount that may be transferred from any life insurance fund is the amount by which 25 per cent of the surplus in that fund exceeds the aggregate of all prior transfers from that fund to all such separate and distinct funds under this subsection and clause (3) (b) less the aggregate of all prior transfers to that fund pursuant to clause (5) (a), and
(ii) the maximum amount that may be transferred from all life insurance funds is the amount by which 10 per cent of the surplus in those funds or $2,000,000, whichever is the lesser, exceeds the aggregate of all prior transfers from those funds to all such separate and distinct funds pursuant to this subsection and clause (3) (b) less the aggregate of all prior transfers to all life insurance funds pursuant to clause (5) (a).
Transfers to fund
(3)For the purpose of maintaining a separate and distinct fund under subsection (1), an insurer may from time to time make transfers from a life insurance fund,
(a) to the extent that the assets of the separate and distinct fund are not sufficient to provide for any benefits guaranteed under the terms of the policies for which the separate fund is held; or
(b) in any case other than that mentioned in clause (a), if the insurer provides evidence satisfactory to the Superintendent that such transfers are necessary for the proper administration of the policies or deposits for which the separate fund is held.
Surplus
(4)Where for the purposes of subsection (2) the surplus in any fund is required to be determined, the surplus shall be taken as shown in the most recent annual statement filed with the Superintendent.
Segregation of assets for policies
(5)Where a separate and distinct fund is maintained under subsection (1), the assets of such fund shall, subject to subsection (3), be available only to meet the liabilities arising under the policies or deposits in respect of which such fund is maintained, except that,
(a) any amount representing the value of a transfer, or any part thereof, to such separate and distinct fund under subsection (2) or clause (3) (b), may, with the approval of the Superintendent, be transferred back to the fund or funds from which such transfer was made, and, where there is more than one such fund, the amount transferred back to each shall be that proportion of the whole amount that the amount transferred from that fund to the separate and distinct fund was to the total amount so transferred from all the funds; and
(b) any assets, other than assets in respect of a transfer to the separate and distinct fund under subsection (2) or clause (3) (b), remaining in the separate and distinct fund after the discharge of all the insurer’s liabilities in respect of the policies or deposits for which the fund is maintained, may be transferred to such other fund as the directors may determine.
Value of transfers
(6)For the purposes of clause (2) (b), the value of any assets transferred to or from a separate and distinct fund shall be taken as the value thereof at the time of transfer to that fund and, for all other purposes, the value from time to time of any assets that have been transferred to a separate and distinct fund maintained under subsection (1) shall be the market value of such assets.
Exception from investment limitations
(7)Where a separate and distinct fund is maintained under subsection (1), the percentage limits specified in clauses 435 (1) (e) and (f) do not apply to the investments and loans constituting the assets of the fund and in the application of those limits to the insurer as a whole the assets of any such separate fund shall not be taken into account, but clause 435 (1) (c) applies to each separate and distinct fund as if the total assets of each such fund were the total assets of the insurer. R.S.O. 1990, c. I.8, s. 109.
Variable life insurance contracts, forms and information folders
“variable insurance contract” means an annuity or life insurance contract for which the reserves or a part thereof vary in amount with the market value of a specified group of assets held in a separate and distinct fund and includes a provision in a life insurance contract under which policy dividends or policy proceeds may be retained for investment in such a fund.
Prohibition
(2)No insurer shall issue a variable insurance contract or offer to enter into a variable insurance contract that under this Act would be deemed to be made in Ontario until there has been filed with the Superintendent a specimen form of such variable insurance contract, an information folder pertaining thereto and such other material as may be required under the regulations and a receipt therefor has been obtained from the Superintendent.
Form of contract
(3)The forms of variable insurance contracts and information folders with respect thereto shall comply with the requirements of Part V of this Act and the regulations.
Form of information folder
(4)The information folder shall provide brief and plain disclosure of all material facts relating to the variable insurance contract and shall contain a certificate to that effect signed by the chief executive officer and the chief financial officer of the insurer or such other persons as the regulations may prescribe.
Delivery of information folder
(5)No application for a variable insurance contract shall be accepted by an insurer until the insurer has delivered to the applicant therefor a copy of the latest information folder relating thereto that is on file with the Superintendent.
New information folders
(6)So long as an insurer continues to issue a variable insurance contract in respect of which it has filed an information folder, it shall,
(a) forthwith after the occurrence of any material change in the contract or in any other facts set out in the latest information folder so filed; and
(b) within thirteen months after the date of filing of the latest information folder so filed, or such other period of time as may be provided by the regulations,
file with the Superintendent a new information folder in respect thereof. R.S.O. 1990, c. I.8, s. 110 (1-6).
Prohibition order
(7)Where it appears to the Superintendent that,
(a) an information folder or any other document filed with the Superintendent by an insurer with respect to a variable insurance contract,
(i) fails to comply in any substantial respect with the requirements of this Act or the regulations,
(ii) contains any promise, estimate, illustration or forecast that is misleading, false or deceptive, or
(iii) conceals or omits to state any material fact necessary in order to make any statement contained therein not misleading in the light of the circumstances in which it was made; or
(b) the financial condition of the insurer or its method of operation in connection with the issuance of its variable insurance contracts will not afford sufficient protection to prospective purchasers of such variable insurance contracts in Ontario,
the Superintendent may prohibit the insurer from continuing to issue such variable insurance contracts in Ontario. R.S.O. 1990, c. I.8, s. 110 (7); 1997, c. 28, s. 105 (1).
Appeal
(7.1)The insurer may appeal the decision of the Superintendent under subsection (7) to the Tribunal. 1997, c. 28, s. 105 (2).
Regulations
(8)The Lieutenant Governor in Council may make regulations,
(a) prescribing the form and content of variable insurance contracts;
(b) prescribing the form, content, time of filing and delivery of information folders and the persons to whom information folders shall be delivered;
(c) for the furnishing of information by an insurer or an agent thereof to prospective purchasers of variable insurance contracts;
(d) prescribing the documents, reports, statements, agreements and other information required to be filed, furnished or delivered under this section, and the form and content thereof. R.S.O. 1990, c. I.8, s. 110 (8).
Life insurers to separate business accounts
111.Every insurer licensed to transact life insurance shall keep separate and distinct accounts of participating and non-participating business. R.S.O. 1990, c. I.8, s. 111.
Life insurance, distribution of parts of profits to participating policyholders
112.(1)The directors of an insurer incorporated and licensed under the laws of Ontario to transact the business of life insurance as a joint stock insurance company may from time to time set apart such portion of the net profits as they consider safe and proper for distribution as dividends or bonuses to shareholders and holders of participating policies, ascertaining the part thereof that has been derived from participating policies and distinguishing that part from the profits derived from other sources.
Idem
(2)Despite anything to the contrary in any letters patent of incorporation or contract, the holders of participating policies are entitled to share in that portion of the profits that has been distinguished as having been derived from participating policies (including a share of the profits arising from the sale of securities in the proportion of the mean participating fund to the mean total funds) to the extent of at least 90 per cent thereof in any year.
Interest on unimpaired paid up capital stock
(3)In fixing or arriving at the amount of divisible profits, there may be included interest on the amount of the unimpaired paid up capital stock and on any other sum or sums from time to time standing to the credit of the shareholders after deducting any amounts expended in the establishment, prosecution or extension of the company’s business or applied to making good any impairment of capital, and such interest may be allowed or credited to the shareholders at the average net rate of interest earned in the preceding year or other period under consideration upon the mean total funds of the company, but the shareholders are to be charged with a fair proportion of all losses incurred upon investments or other losses of a similar character in the proportion of the mean shareholders’ funds to the mean total funds.
Rights of participating policyholders
(4)This section does not interfere with the rights of the participating policyholders of an insurer referred to in subsection (1) to share in the profits realized from the non-participating branch of its business in any case to which the policyholders are so entitled. R.S.O. 1990, c. I.8, s. 112.
Insurance with Unlicensed Insurers
Insurance with unlicensed insurers
113.Despite anything in this Act, any person may insure property situated in Ontario against fire with an unlicensed insurer, and any property insured or to be insured under this section may be inspected and any loss incurred in respect thereof adjusted, if such insurance is effected outside Ontario and without any solicitation whatsoever directly or indirectly on the part of the insurer. R.S.O. 1990, c. I.8, s. 113.
114. Repealed: 1999, c. 12, Sched. I, s. 4 (13).
Trafficking in life insurance policies prohibited
115.Any person, other than an insurer or its duly authorized agent, who advertises or holds himself, herself or itself out as a purchaser of life insurance policies or of benefits thereunder, or who trafficks or trades in life insurance policies for the purpose of procuring the sale, surrender, transfer, assignment, pledge or hypothecation thereof to himself, herself or itself or any other person, is guilty of an offence. R.S.O. 1990, c. I.8, s. 115.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 115 is repealed by the Statutes of Ontario, 2000, chapter 26, Schedule G, subsection 1 (1) and the following substituted:
Trafficking in life insurance policies prohibited
115. Any person who advertises or holds himself, herself or itself out as a purchaser of life insurance policies or of benefits thereunder, or who trafficks or trades in life insurance policies for the purpose of procuring the sale, surrender, transfer, assignment, pledge or hypothecation thereof to himself, herself or itself or any other person, is guilty of an offence.
See: 2000, c. 26, Sched. G, ss. 1 (1), 2.
Privileged information
116.Any information, document, record, statement or thing made or disclosed to the Commission concerning a person licensed or applying for licence under this Act is absolutely privileged and shall not be used as evidence in any action or proceeding in any court brought by or on behalf of such person. R.S.O. 1990, c. I.8, s. 116.
Form of insurance policy
117.(1)The Superintendent may require an insurer to file with him or her a copy of any form of policy or of the form of application for any policy issued or used by the insurer. R.S.O. 1990, c. I.8, s. 117 (1).
Prohibition of certain policies
(2)If an insurer issues a policy or uses an application that, in the opinion of the Superintendent, is unfair, fraudulent, or not in the public interest, the Superintendent may prohibit the insurer from issuing or using the form of policy or application.
Appeal
(2.1)The insurer may appeal the decision of the Superintendent under subsection (2) to the Tribunal. 1997, c. 28, s. 106.
Offence
(3)An insurer that, after being so prohibited, issues any such policy or uses any such application is guilty of an offence. R.S.O. 1990, c. I.8, s. 117 (3).
Violation of law, effect of, on claim for indemnity
118.Unless the contract otherwise provides, a contravention of any criminal or other law in force in Ontario or elsewhere does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage, but in the case of a contract of life insurance this section applies only to disability insurance undertaken as part of the contract. R.S.O. 1990, c. I.8, s. 118.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 118 is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (13) by striking out “in the case of a contract of life insurance this section applies only to disability insurance undertaken as part of the contract” at the end and substituting “in the case of a contract of life insurance this section applies only to insurance undertaken as part of the contract whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease”. See: 2002, c. 18, Sched. H, ss. 4 (13), 16 (2).
Reporting on applications to register
119.An insurer incorporated under the laws of Ontario shall notify the Superintendent fourteen days in advance of making application for registration under Part IX of the Canadian and British Insurance Companies Act (Canada) or any similar enactment or regulation of the Government of Canada. R.S.O. 1990, c. I.8, s. 119.
Agreements with Compensation Association
Authority of Minister
120.The Minister, with the approval of the Lieutenant Governor in Council, may enter into agreements with a compensation association related to the conduct of a plan to compensate policyholders and eligible claimants of insolvent insurers. R.S.O. 1990, c. I.8, s. 120.
Regulations
121.(1)The Lieutenant Governor in Council may make regulations,
1. Repealed: 1997, c. 19, s. 10 (22).
2. Repealed: 1997, c. 19, s. 10 (22).
2.1 Repealed: 1997, c. 28, s. 107 (1).
3. designating one or more bodies corporate or associations as compensation associations and designating any such body corporate or association as a compensation association for one or more classes of insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 3 is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (14) and the following substituted:
3. designating one or more bodies corporate or associations as compensation associations and designating any such body corporate or association as a compensation association for one or more classes of insurers specified by the regulations;
See: 2002, c. 18, Sched. H, ss. 4 (14), 16 (2).
4. designating classes of insurance for the purposes of clause 44 (1) (l);
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 4 is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (14). See: 2002, c. 18, Sched. H, ss. 4 (14), 16 (2).
5. designating insurers for the purposes of clause 44 (3) (a) and designating classes of insurers for the purposes of clause 44 (3) (e);
6. prescribing ratios, percentages, amounts and calculations for the purposes of subsection 102 (8) and any such regulation may prescribe different ratios, percentages, amounts and calculations for one or more classes of insurance and for insurers whose business is limited to that of reinsurance;
7. exempting any insurer or class of insurers from any regulation made under paragraph 6 subject to such terms and conditions as may be set out in the regulations;
7.1 prescribing an activity or failure to act for the purpose of paragraph 8 of subsection 65.1 (1);
8. prescribing a maximum proportion of risks that may be reinsured with insurers that are not licensed under this Act and such proportion may vary for different classes of insurance;
9. establishing benefits for the purposes of Part VI that must be provided under contracts evidenced by motor vehicle liability policies and establishing terms, conditions, provisions, exclusions and limits related to such benefits;
10. requiring insurers to offer optional benefits in excess of the benefits that must be provided under paragraph 9 prescribing the circumstances in which the optional benefits are to be offered and establishing terms, conditions, provisions, exclusions and limits related to such benefits;
10.1 prescribing coverages and endorsements in respect of contracts of automobile insurance that insurers or a class of insurers are required to offer, deeming the benefits provided by the coverages and endorsements not to be statutory accident benefits for the purpose of Part VI, and prescribing the circumstances in which the coverages and endorsements shall be offered;
10.2 prescribing rules for interpreting the regulations made under paragraphs 9 and 10 or any provision of those regulations;
10.3 prescribing functions to be performed by a committee appointed under section 7;
10.4 governing the procedure for determining who is liable to pay statutory accident benefits under section 268, including requiring insurers to resolve disputes about liability through an arbitration process established by the regulations and requiring the interim payment of benefits pending the determination of liability;
11. prescribing categories of insurers for the purpose of subsection 101 (1), requiring insurers to file a return under that subsection by category and prescribing the information that insurers may solicit from insured persons for purposes of such returns;
11.1 prescribing the information to be provided under section 101.1 and any conditions that apply to the provision of the information;
12. prescribing categories of insurers for the purpose of subsection 102 (1);
13. prescribing dates for the purpose of clause 102 (1) (a);
14. governing the preparation of financial statements required under this Act or the regulations;
14.1 for the purposes of Part VI or any provision of Part VI,
i. defining “automobile”,
ii. prescribing any vehicle or class of vehicles to be automobiles subject to any terms and conditions prescribed in the regulations,
iii. prescribing any vehicle or class of vehicles not to be automobiles, subject to any terms and conditions prescribed in the regulations;
15. prescribing the information to be given to applicants or to insured persons under subsection 229 (1) and the circumstances in which it is to be given;
15.0.1 governing the inspection of automobiles for the purpose of section 232.1;
15.1 for the purpose of section 234, prescribing statutory conditions and the types of contracts of automobile insurance to which the statutory conditions apply;
16. establishing requirements that must be met, in circumstances specified by the regulations, before an insurer declines to issue, terminates or refuses to renew a contract of automobile insurance or refuses to provide or continue any coverage or endorsement in respect of a contract of automobile insurance;
17. prescribing grounds for which an insurer cannot, in circumstances specified by the regulations, decline to issue, terminate or refuse to renew a contract of automobile insurance or refuse to provide or continue any coverage or endorsement in respect of a contract of automobile insurance;
18. prescribing coverages and endorsements for the purposes of section 237;
19. governing the payment of premiums for automobile insurance in instalments and setting maximum rates of interest in relation to instalment payments;
19.1 prescribing types of contracts and circumstances in which section 236 does not apply;
20. exempting any insurer, and exempting any insurer in respect of certain types of contracts of automobile insurance, from section 236;
20.1 prescribing information to be provided under clause 258.3 (1) (c) and the time period within which the information must be provided for the purpose of that clause;
20.2 prescribing procedures and time limits applicable to mediations required by section 258.6;
20.3 prescribing circumstances in which a contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof must contain a clause described in subsection 261 (1.1);
20.4 prescribing a minimum or maximum sum to be deducted under a clause described in clause 261 (1) (b) or subsection 261 (1.1);
21. prescribing rules for determining the degree of fault in various situations for loss or damage arising directly or indirectly from the use or operation of an automobile;
22. providing for and governing indemnification and subrogation where section 263 applies;
22.1 prescribing classes of contracts for the purpose of subsection 263 (5.1);
22.2 prescribing circumstances in which a contract belonging to a class prescribed under paragraph 22.1 must contain a provision described in subsection 263 (5.2.1);
22.3 prescribing the minimum or maximum amount of a reduction required by a provision described in clause 263 (5.1) (b) or subsection 263 (5.2.1);
23. prescribing any activity or failure to act that constitutes an unfair or deceptive act or practice under the definition of “unfair or deceptive acts or practices” in section 438, and prescribing requirements that, if not complied with, constitute an unfair or deceptive act or practice;
23.1 defining serious impairment of an important physical, mental or psychological function for the purpose of section 267.1 and defining permanent serious impairment of an important physical, mental or psychological function for the purpose of section 267.5;
23.2 respecting the evidence that must be adduced to prove that a person has sustained serious impairment of an important physical, mental or psychological function for the purposes of section 267.1 or permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5;
23.3 prescribing the method for determining net income loss and net loss of earning capacity for the purpose of paragraphs 2 and 3 of subsection 267.5 (1);
23.4 defining catastrophic impairment for the purpose of subsection 267.5 (4);
23.5 prescribing amounts for the purpose of sub-subparagraph B of subparagraph i of paragraph 3 of subsection 267.5 (7) and sub-subparagraph B of subparagraph ii of paragraph 3 of subsection 267.5 (7);
23.6 prescribing circumstances in which the court shall order that an award for damages be paid periodically under section 267.10;
23.6.1 for the purpose of this Act or any provision of this Act, deeming payments for income loss or loss of earning capacity under an income continuation benefit plan to include payments prescribed by the regulations;
23.7 prescribing the information to be provided under section 273.1 and the conditions governing the provision of the information;
24. prescribing classes of persons, classes of automobiles and terms, conditions, provisions, exclusions and limits for the purposes of subsection 275 (1);
25. prescribing rules of procedure and setting time limits in respect of mediation, arbitration, appeal and variation proceedings under sections 280 to 284 and in respect of evaluations under section 280.1;
25.1 governing agreements to settle claims and disputes in respect of statutory accident benefits under Part VI;
25.2 governing the assignment of statutory accident benefits under Part VI, including the application of sections 279 to 287 to persons to whom the benefits are assigned;
26. prescribing expenses that may be awarded to insured persons and insurers under subsections 282 (11) and (11.1), prescribing criteria governing the awarding of the expenses, and setting maximum amounts that may be awarded for the expenses;
26.1 prescribing such matters as are required or permitted to be prescribed under sections 381 to 386 with respect to reciprocal insurance exchanges;
27. permitting the Director to vary or revoke orders and prescribing rules of procedure and setting conditions and setting time-limits in respect thereof and permitting the Director to proceed by way of a hearing or by way of written submissions;
28. extending the provisions of this Act or any of them to a system or class of insurance not particularly mentioned in this Act;
28.1 exempting a person or class of persons from section 393 and sections 397 to 401, or from any provision of those sections, subject to such terms and conditions, including any limitations or restrictions, as may be specified in the regulations;
28.2 governing the sale and marketing of prescribed classes of insurance to members of a group, including prescribing and regulating qualifications for membership in groups;
28.3 for the purposes of section 284.1, specifying terms and conditions governing the representation of a party to a proceeding under sections 279 to 284;
28.4 prescribing persons or classes of persons for the purposes of subsection 398 (3) and prescribing terms and conditions governing persons engaged in an activity set out in subsection 398 (1);
29. governing group insurance contracts or schemes, or any class thereof including prescribing and regulating their terms and conditions, qualifications for membership in groups and regulating the marketing of group insurance contracts or schemes;
30. prescribing and defining the terms and conditions upon which an insurer licensed to transact the business of life insurance may invest its funds in fully paid shares of other corporations under the provisions of this Act;
31. prescribing classes of bodies corporate in whose fully paid shares a mutual insurance corporation that is a participant in the Fire Mutuals Guarantee Fund may invest its funds under subsection 433 (9) and setting out what constitutes control for the purpose of subsection 433 (9);
32. prescribing and defining the terms and conditions upon which an insurer may invest its funds in the fully paid voting shares of a dealer within the meaning of the Securities Act;
33. governing the advertising of insurance contracts or any class thereof including prescribing and regulating the form and content of advertisements and requiring their filing;
33.1 governing the collection, use and disclosure of personal information by insurers or a class of insurers and, for that purpose, defining personal information;
34. prescribing types of contracts of automobile insurance and types of endorsements to contracts of automobile insurance in respect of which sections 410 to 417 apply;
34.1 prescribing percentages, criteria and elements of risk classification systems for the purposes of subsection 411 (1);
34.2 prescribing circumstances in which the Tribunal is required to hold a hearing on an application under section 410 to which section 411 does not apply;
35. prescribing coverages and categories of automobile insurance that may be provided by insurers and prescribing coverages and categories of automobile insurance that insurers are prohibited from providing;
36. prescribing a risk classification system or elements of a risk classification system that must be used by insurers or a class of insurers in classifying risks for a coverage or category of automobile insurance;
36.1 prescribing elements of a risk classification system that insurers or a class of insurers are prohibited from using in classifying risks for a coverage or category of automobile insurance;
36.2 prescribing, for the purpose of section 413.1, maximum monetary amounts and percentages by which the rate for a class of risks in respect of a coverage or category of automobile insurance may increase or decrease as a result of the application of a regulation made under paragraph 36 or 36.1;
37. Repealed: 1997, c. 28, s. 107 (3).
37.0.1 prescribing amounts incurred by the Ministry of Health that may be subject to an assessment under section 14.1 and governing assessments under that section;
37.1 respecting the relations between insurers, agents or brokers and,
i. entities that undertake the business of financial services,
ii. financial services intermediaries, and
iii. customers of persons and entities referred to in subparagraphs i and ii;
37.2 respecting networking arrangements between insurers and other persons providing products or services to the insurer or its customers;
37.3 prohibiting or restricting networking arrangements;
37.4 governing the conduct of insurers, agents and brokers in networking arrangements;
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by the Statutes of Ontario, 2000, chapter 26, Schedule G, subsection 1 (2) by adding the following paragraph:
37.5 governing viatical settlements, including, without limiting the generality of the foregoing, defining “viatical settlement”, requiring a licence to carry on business in viatical settlements and governing those licences, governing the marketing and entering into of viatical settlements, requiring persons who solicit business for or otherwise assist persons who carry on business in viatical settlements to be licensed and governing those licences, governing the terms and conditions of viatical settlements, requiring the approval of a person or body specified by the regulations for any thing related to viatical settlements, declaring a viatical settlement to be void or voidable in circumstances prescribed by the regulations, and making any provision of this Act or the Financial Services Commission of Ontario Act, 1997 that applies to insurers applicable, with such modifications as may be specified by the regulations, to persons who carry on business in viatical settlements;
See: 2000, c. 26, Sched. G, ss. 1 (2), 2.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by the Statutes of Ontario, 2000, chapter 26, Schedule G, subsection 1 (2) by adding the following paragraph:
37.6 exempting any person from section 115, subject to such terms and conditions as may be set out in the regulations;
See: 2000, c. 26, Sched. G, ss. 1 (2), 2.
38. generally for the better administration of this Act. R.S.O. 1990, c. I.8, s. 121 (1); 1993, c. 10, s. 12 (1-13); 1994, c. 11, s. 338; 1996, c. 21, s. 14 (1-8); 1997, c. 19, s. 10 (22-24); 1997, c. 28, s. 107 (1-3); 1999, c. 12, Sched. I, s. 4 (14, 15); 2002, c. 22, s. 114.
Effective date of regulations
(2)A regulation made under paragraph 6 of subsection (1) does not come into force until the day thirty days after it is filed with the Registrar of Regulations or such later day as may be set out in the regulation. R.S.O. 1990, c. I.8, s. 121 (2).
General or particular
(2.1)A regulation made under subsection (1) may be general or particular. 1996, c. 21, s. 14 (9).
Adoption by reference
(2.2)A regulation made under subsection (1) may adopt by reference, in whole or in part, with such changes as the Lieutenant Governor in Council considers necessary, any code, standard or guideline, as it reads at the time the regulation is made or as amended from time to time, whether before or after the regulation is made. 1996, c. 21, s. 14 (9).
(3)Repealed: 1996, c. 21, s. 14 (10).
Same
(4)The regulations made under paragraphs 9 and 10 of subsection (1),
(a) may establish procedures applicable to benefits;
(b) may prescribe the burden of proof and standard of proof applicable in court proceedings related to benefits and in arbitrations under section 282;
(c) may require that a person be examined or assessed,
(i) by an assessment centre designated by a committee appointed under section 7, in accordance with procedures, standards and guidelines established by that committee or by the Minister, or
(ii) by any other person specified by the regulations;
(d) Repealed: 1996, c. 21, s. 14 (12).
(e) Repealed: 1996, c. 21, s. 14 (12).
Note: Clauses 121 (4) (c), (d) and (e), as they read immediately before November 1, 1996, continue to apply to regulations made under paragraphs 9 and 10 of subsection 121 (1) in respect of benefits arising from the use or operation, after December 31, 1993 and before November 1, 1996, of an automobile. See: 1996, c. 21, s. 14 (14), 52.
(f) may authorize the payment of a benefit directly to a minor for the purpose of subsection 271 (1.4);
(g) may provide for the use of forms prescribed by the regulations or approved by the Superintendent; and
(h) may designate jurisdictions for the purpose of any provision of this or any other Act that refers to jurisdictions designated in the Statutory Accident Benefits Schedule. 1993, c. 10, s. 12 (14); 1996, c. 21, s. 14 (11-14); 1997, c. 28, s. 107 (4).
Fees
121.1The Minister may establish fees in relation to any matter under this Act, including any services provided by or through the Ministry of Finance or the Commission. 1997, c. 19, s. 10 (25).
Forms
121.2(1)The Superintendent may approve forms for any purpose of this Act and the forms may provide for such information to be furnished as the Superintendent may require. 1997, c. 19, s. 10 (25); 1997, c. 28, c. 108 (2).
Electronic forms
(2)The Superintendent may approve electronic forms for any purposes under this Act. 1997, c. 19, s. 10 (25); 1997, c. 28, s. 108 (2).
PART II.1
ACTUARY OF THE INSURER
Definition
“insurer” means an insurer incorporated and licensed under the laws of Ontario. 2002, c. 18, Sched. H, s. 4 (15).
Appointment of actuary
121.4 (1) The directors of an insurer shall appoint an actuary of the insurer. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) An insurer that is incorporated and licensed on the day this Part comes into force shall appoint an actuary of the insurer forthwith after that day. 2002, c. 18, Sched. H, s. 4 (15).
Notice of appointment
121.5 An insurer shall notify the Superintendent in writing of the appointment forthwith after the appointment of the actuary of the insurer. 2002, c. 18, Sched. H, s. 4 (15).
When officers not to be actuary
121.6 (1) Neither the chief executive officer, the chief operating officer nor a person performing similar functions for an insurer shall be appointed as or hold the position of actuary of the insurer without the Superintendent’s written authorization. 2002, c. 18, Sched. H, s. 4 (15).
Duration of authorization
(2) An authorization under subsection (1) expires on the earlier of the day specified in the authorization and the day that is six months after the authorization is issued. 2002, c. 18, Sched. H, s. 4 (15).
Chief financial officer
121.7 (1) Neither the chief financial officer of an insurer nor a person performing similar functions for an insurer shall be appointed as or hold the position of actuary of the insurer unless,
(a) the Superintendent receives a written statement from the audit committee of the insurer indicating that it is satisfied that the duties of both positions will be adequately performed and that the actuarial duties will be performed in an independent manner; and
(b) the Superintendent authorizes the appointment or the holding of the position with or without conditions. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) The conditions may limit the period of time that the officer or person may be the actuary of the insurer. 2002, c. 18, Sched. H, s. 4 (15).
Revocation of appointment
121.8 (1) The directors of an insurer may revoke the appointment of the actuary of the insurer. 2002, c. 18, Sched. H, s. 4 (15).
Notice of revocation
(2) An insurer shall give the Superintendent written notice of the revocation of an appointment forthwith after the revocation. 2002, c. 18, Sched. H, s. 4 (15).
Ceasing to hold office
121.9 (1) A person shall cease to be the actuary of the insurer when,
(a) the person resigns as actuary of the insurer;
(b) the person ceases to be an actuary; or
(c) the directors of the insurer revoke the appointment. 2002, c. 18, Sched. H, s. 4 (15).
Effective date of resignation
(2) The resignation of an actuary of the insurer takes effect on the later of the day that the insurer receives written notice of the resignation and the day specified in that notice. 2002, c. 18, Sched. H, s. 4 (15).
Filling vacancy
121.10 If the office of actuary of the insurer becomes vacant, the directors of the insurer shall immediately appoint a new actuary of the insurer and notify the Superintendent of the vacancy and the new appointment. 2002, c. 18, Sched. H, s. 4 (15).
Statement of actuary
121.11 If an actuary of the insurer resigns or his or her appointment is revoked, the actuary shall submit a written statement to the directors of the insurer and the Superintendent stating the circumstances and reasons why the actuary resigned or why, in the actuary’s opinion, the appointment was revoked. 2002, c. 18, Sched. H, s. 4 (15).
Duty of replacement actuary
121.12 If an actuary of the insurer resigns or the appointment of the actuary of the insurer is revoked, no person shall accept an appointment or consent to be appointed as the actuary of the insurer unless,
(a) the person has received the statement referred to in section 121.11; or
(b) the person has asked the former actuary for a copy of that statement and has not received a copy of it within 15 days after asking for it. 2002, c. 18, Sched. H, s. 4 (15).
Actuary’s valuation
121.13 (1) An actuary of the insurer shall value,
(a) the actuarial and other policy liabilities of the insurer as at the end of a year covered by the annual statement required under subsection 102 (1); and
(b) any other matters the Superintendent directs. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) The actuary’s valuation shall be in accordance with generally accepted actuarial practice with such changes as may be determined by the Superintendent and any additional directions that may be made by the Superintendent. 2002, c. 18, Sched. H, s. 4 (15).
Same
(3) The insurer shall submit the actuary’s valuation report to the Superintendent with the statements required under subsection 102 (1). 2002, c. 18, Sched. H, s. 4 (15).
Superintendent may appoint actuary
121.14 (1) The Superintendent may appoint an actuary to,
(a) conduct a review of the valuation of the actuary of the insurer completed under section 121.13; or
(b) conduct an independent valuation of matters referred to in section 121.13. 2002, c. 18, Sched. H, s. 4 (15).
Expenses payable by insurer
(2) The expenses incurred in carrying out a review or a valuation under subsection (1) are payable by the insurer on being approved in writing by the Superintendent. 2002, c. 18, Sched. H, s. 4 (15).
Right to information
121.15 (1) The actuary of the insurer may request information, explanations or access to any records of the insurer as are necessary to perform his or her duties. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) The present or former directors, officers, employees or representatives of an insurer shall permit access to records and provide information or explanations requested by the actuary of the insurer, to the extent they are reasonably able to do so. 2002, c. 18, Sched. H, s. 4 (15).
No civil liability
(3) A person who acts in good faith under subsection (2) shall not be liable in any civil proceeding arising from that action. 2002, c. 18, Sched. H, s. 4 (15).
Actuary’s report
121.16 (1) An actuary of the insurer shall submit a report in a form approved by the Superintendent to shareholders and policyholders of the insurer on the valuation made under section 121.13 and on any other matter required by the Superintendent, at least 21 days before the date of the annual meeting. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) The report shall include a statement by the actuary of the insurer as to whether, in the actuary’s opinion, the annual statement required under subsection 102 (1) presents fairly the results of the valuation made under section 121.13. 2002, c. 18, Sched. H, s. 4 (15).
Report to directors
121.17 (1) An actuary of the insurer shall meet with the directors of the insurer or, if the directors so choose, with the audit committee of the insurer at least once during each fiscal year. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) At the meeting referred to in subsection (1), the actuary of the insurer shall report, in accordance with generally accepted actuarial practice and any direction made by the Superintendent, on the financial position of the insurer and, if specified in a direction of the Superintendent, the expected future financial condition of the insurer. 2002, c. 18, Sched. H, s. 4 (15).
Report to officers
121.18 (1) An actuary of the insurer shall report in writing to the chief executive officer and chief financial officer of the insurer any matters that have come to the actuary’s attention in the course of carrying out the actuary’s duties if, in the actuary’s opinion, they have material adverse effects on the financial condition of the insurer and those matters require rectification. 2002, c. 18, Sched. H, s. 4 (15).
Submission of report
(2) An actuary of the insurer shall also provide a copy of the report referred to in subsection (1) to the directors of the insurer immediately after making it. 2002, c. 18, Sched. H, s. 4 (15).
Failure to take action
(3) If, in the opinion of the actuary of the insurer, suitable action is not being taken to rectify the matters referred to in subsection (1), the actuary shall immediately send a copy of the report to the Superintendent and advise the directors of the insurer that he or she has done so. 2002, c. 18, Sched. H, s. 4 (15).
Qualified privilege
121.19 (1) An oral or written statement or report made under this Act by an actuary or former actuary of the insurer has qualified privilege. 2002, c. 18, Sched. H, s. 4 (15).
Same
(2) An actuary or former actuary of the insurer who in good faith makes an oral or written statement or report under section 121.11 or 121.18 is not liable in any civil proceeding seeking indemnification for damages attributable to the actuary or former actuary of the insurer having made the statement or report. 2002, c. 18, Sched. H, s. 4 (15).
Non-application of this Part
121.20 This Part does not apply to a mutual insurance corporation that is a member of the Fire Mutuals Guarantee Fund. 2002, c. 18, Sched. H, s. 4 (15).
Non-application of s. 121.17
121.21 Section 121.17 does not apply to reciprocal insurance exchanges. 2002, c. 18, Sched. H, s. 4 (15).
Exemptions
121.22 On written application by an insurer, the Superintendent may in special circumstances approve the exemption of the insurer from section 121.13 or 121.17, or both, on such terms and conditions as may be specified in the approval. 2002, c. 18, Sched. H, s. 4 (15).
PART III
INSURANCE CONTRACTS IN ONTARIO
Application of Part
122.Except where otherwise provided and where not inconsistent with other provisions of this Act, this Part applies to every contract of insurance made in Ontario, other than contracts of,
(a) accident and sickness insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, the French version of clause (a) is re-enacted by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (16). See: 2002, c. 18, Sched. H, ss. 4 (16), 16 (2).
(b) life insurance; and
(c) marine insurance. R.S.O. 1990, c. I.8, s. 122.
Contracts deemed made in Ontario
123.Where the subject-matter of a contract of insurance is property in Ontario or an insurable interest of a person resident in Ontario, the contract of insurance, if signed, countersigned, issued or delivered in Ontario or committed to the post office or to any carrier, messenger or agent to be delivered or handed over to the insured or the insured’s assign or agent in Ontario shall be deemed to evidence a contract made therein, and the contract shall be construed according to the law thereof, and all money payable under the contract shall be paid at the office of the chief officer or agent in Ontario of the insurer in lawful money of Canada. R.S.O. 1990, c. I.8, s. 123.
Requirement for all terms to be set out in policy; relevance of proposal, etc.
Terms, etc., of contracts invalid unless set out in full
124.(1)All the terms and conditions of the contract of insurance shall be set out in full in the policy or by writing securely attached to it when issued, and, unless so set out, no term of the contract or condition, stipulation, warranty or proviso modifying or impairing its effect is valid or admissible in evidence to the prejudice of the insured or beneficiary.
Exception
(2)Subsection (1) does not apply to an alteration or modification of the contract agreed upon in writing by the insurer and the insured after the issue of the policy.
Contents of renewal receipt
(3)Whether the contract does or does not provide for its renewal, but it is renewed by a renewal receipt, it is a sufficient compliance with subsection (1) if the terms and conditions of the contract are set out as provided by that subsection and the renewal receipt refers to the contract by its number or date.
What regard to be given to proposal
(4)The proposal or application of the insured shall not as against the insured be deemed a part of or be considered with the contract of insurance except in so far as the court determines that it contains a material misrepresentation by which the insurer was induced to enter into the contract.
Contract not to be invalidated by erroneous statement in application unless material
(5)No contract of insurance shall contain or have endorsed upon it, or be made subject to, any term, condition, stipulation, warranty or proviso providing that such contract shall be avoided by reason of any statement in the application therefor, or inducing the entering into of the contract by the insurer, unless such term, condition, stipulation, warranty or proviso is and is expressed to be limited to cases in which such statement is material to the contract, and no contract shall be avoided by reason of the inaccuracy of any such statement unless it is material to the contract.
Materiality, how decided
(6)The question of materiality in a contract of insurance is a question of fact for the jury, or for the court if there is no jury, and no admission, term, condition, stipulation, warranty or proviso to the contrary contained in the application or proposal for insurance, or in the instrument of contract, or in any agreement or document relating thereto, has any force or validity.
Application
(7)This section does not apply to contracts of fire or automobile insurance. R.S.O. 1990, c. I.8, s. 124.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (7) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (17) and the following substituted:
Application
(7) This section does not apply to,
(a) contracts of automobile insurance; or
(b) contracts of insurance to which Part IV applies.
See: 2002, c. 18, Sched. H, ss. 4 (17), 16 (2).
Copy of proposal to be furnished to insured
125.An insurer shall upon request furnish to the insured a true copy of the insured’s application or proposal for insurance. R.S.O. 1990, c. I.8, s. 125.
No contract shall be inconsistent with Act
126.(1)No insurer shall make a contract of insurance inconsistent with this Act.
Rights of insured
(2)An act or omission of the insurer resulting in imperfect compliance with any of the provisions of this Act does not render a contract invalid as against the insured. R.S.O. 1990, c. I.8, s. 126.
Contents of policy
127.(1)Every policy shall contain the name of the insurer, the name of the insured, the name of the person or persons to whom the insurance money is payable, the amount, or the method of determining the amount, of the premium for the insurance, the subject-matter of the insurance, the indemnity for which the insurer may become liable, the event on the happening of which the liability is to accrue, the date upon which the insurance takes effect and the date it terminates or the method by which the latter is fixed or to be fixed.
Application of section
(2)This section does not apply to contracts of guarantee insurance. R.S.O. 1990, c. I.8, s. 127.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (2) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (18) by striking out “guarantee insurance” and substituting “surety insurance”. See: 2002, c. 18, Sched. H, ss. 4 (18), 16 (2).
Contracts providing for appraisals
128.(1)This section applies to a contract containing a condition, statutory or otherwise, providing for an appraisal to determine specified matters in the event of a disagreement between the insured and the insurer.
Appraisers, appointment
(2)The insured and the insurer shall each appoint an appraiser, and the two appraisers so appointed shall appoint an umpire.
Appraisers, duties
(3)The appraisers shall determine the matters in disagreement and, if they fail to agree, they shall submit their differences to the umpire, and the finding in writing of any two determines the matters.
Costs
(4)Each party to the appraisal shall pay the appraiser appointed by the party and shall bear equally the expense of the appraisal and the umpire.
Appointment by judge
(5)Where,
(a) a party fails to appoint an appraiser within seven clear days after being served with written notice to do so;
(b) the appraisers fail to agree upon an umpire within fifteen days after their appointment; or
(c) an appraiser or umpire refuses to act or is incapable of acting or dies,
a judge of the Ontario Court (General Division) may appoint an appraiser or umpire, as the case may be, upon the application of the insured or of the insurer. R.S.O. 1990, c. I.8, s. 128.
Relief from forfeiture
129.Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just. R.S.O. 1990, c. I.8, s. 129.
How policy payable
130.Insurance money is payable in Ontario in lawful money of Canada. R.S.O. 1990, c. I.8, s. 130.
Waiver of term or condition
131.(1)No term or condition of a contract shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by a person authorized for that purpose by the insurer.
Idem
(2)Neither the insurer nor the insured shall be deemed to have waived any term or condition of a contract by any act relating to the appraisal of the amount of loss or to the delivery and completion of proofs or to the investigation or adjustment of any claim under the contract. R.S.O. 1990, c. I.8, s. 131.
Right of claimant against insurer where execution against insured returned unsatisfied
132.(1)Where a person incurs a liability for injury or damage to the person or property of another, and is insured against such liability, and fails to satisfy a judgment awarding damages against the person in respect of the person’s liability, and an execution against the person in respect thereof is returned unsatisfied, the person entitled to the damages may recover by action against the insurer the amount of the judgment up to the face value of the policy, but subject to the same equities as the insurer would have if the judgment had been satisfied.
Exception
(2)This section does not apply to motor vehicle liability policies. R.S.O. 1990, c. I.8, s. 132.
Court actions for recovery of insurance money, special rules
Consolidation of actions
133.(1)Where several actions are brought for the recovery of money payable under a contract or contracts of insurance, the court may consolidate or otherwise deal therewith so that there is but one action for and in respect of all the claims made in such actions.
Where minors are entitled to insurance money
(2)Where an action is brought to recover the share of one or more minors, all the other minors entitled, or the trustees, executors or guardians entitled to receive payment of the shares of such other minors, shall be made parties to the action, and the rights of all the minors shall be determined in one action.
Apportionment of sums directed to be paid
(3)In all actions where several persons are interested in the insurance money, the court or judge may apportion among the persons entitled any sum directed to be paid, and may give all necessary directions and relief.
When payee is domiciled or resident abroad
(4)Where the person entitled to receive money due and payable under a contract of insurance, except insurance of the person, is domiciled or resides in a foreign jurisdiction and payment, valid according to the law of such jurisdiction, is made to such person, such payment is valid and effectual for all purposes. R.S.O. 1990, c. I.8, s. 133.
Non-payment of premium
Effect of delivery of policy
134.(1)Where the policy has been delivered, the contract is as binding on the insurer as if the premium had been paid, although it has not in fact been paid, and although delivered by an officer or agent of the insurer who had not authority to deliver it.
Right of insurer in respect of unpaid premium
(2)The insurer may sue for the unpaid premium and may deduct the amount thereof from the amount for which the insurer is liable under the contract of insurance.
Where note or cheque for premium not honoured
(3)Where a cheque, bill of exchange or promissory note is given, whether originally or by way of renewal, for the whole or part of any premium and the cheque, bill of exchange or promissory note is not honoured according to its tenor, the insurer may terminate the contract forthwith by giving written notice by registered mail. R.S.O. 1990, c. I.8, s. 134.
Insurer to furnish forms for proof of loss
135.(1)An insurer, immediately upon receipt of a request, and in any event not later than sixty days after receipt of notice of loss, shall furnish to the insured or person to whom the insurance money is payable forms upon which to make the proof of loss required under the contract.
Offence
(2)An insurer who neglects or refuses to comply with subsection (1) is guilty of an offence, and in addition section 136 is not available to the insurer as a defence to an action brought, after such neglect or refusal, for the recovery of money alleged to be payable under the contract of insurance.
Furnishing of forms not an admission
(3)The furnishing by an insurer of forms to make proof of loss shall not be taken to constitute an admission by the insurer that a valid contract is in force or that the loss in question falls within the insurance provided by the contract. R.S.O. 1990, c. I.8, s. 135.
When action may be brought under contract
136.No action shall be brought for the recovery of money payable under a contract of insurance until the expiration of sixty days after proof, in accordance with the provisions of the contract,
(a) of the loss; or
(b) of the happening of the event upon which the insurance money is to become payable,
or of such shorter period as is fixed by the contract of insurance. R.S.O. 1990, c. I.8, s. 136.
Insurance as Collateral Security
Mortgagee not to receive commission from insurer
137.(1)A mortgagee shall not accept or be entitled to receive either directly or through an agent or employee, and no officer or employee of such mortgagee shall accept or receive, any commission or other remuneration or benefit in consideration of effecting a contract of insurance or renewal thereof under which contract loss, if any, is payable to the mortgagee as mortgagee.
Payment of commission prohibited
(2)No insurer or agent or broker shall pay, allow or give any commission or other remuneration or benefit to a mortgagee or to any person in the mortgagee’s employ or on the mortgagee’s behalf in consideration of effecting a contract of insurance or renewal thereof under which contract loss, if any, is payable to the mortgagee as mortgagee.
Offence
(3)Any insurer or other person who contravenes this section is guilty of an offence. R.S.O. 1990, c. I.8, s. 137.
Right to refund of premium on termination of contract
138.(1)Where an insured assigns the right to refund of premium that may accrue by reason of the cancellation or termination of a contract of insurance under the terms thereof and notice of the assignment is given by the assignee to the insurer, the insurer shall pay any such refund to the assignee despite any condition in the contract, whether prescribed under this Act or not, requiring the refund to be paid to the insured or to accompany any notice of cancellation or termination to the insured.
Idem
(2)Where the condition in the contract dealing with cancellation or termination by the insurer provides that the refund shall accompany the notice of cancellation or termination, the insurer shall include in the notice a statement that in lieu of payment of the refund in accordance with the condition the refund is being paid to the assignee under this section. R.S.O. 1990, c. I.8, s. 138.
Contracts of Guarantee Insurance
Contracts of title insurance
139.(1)Every contract of title insurance shall be in writing, and, in addition to the other requirements prescribed by this Act, shall expressly limit the liability of the insurer to a sum stated in the contract.
Questions as to validity of title
(2)If a question arises as to the validity of the title insured, or as to the liability of the insurer, the insurer or the insured or any person entitled to proceed in right of either may by application have such question determined as provided in the Vendors and Purchasers Act in the case of vendors and purchasers. R.S.O. 1990, c. I.8, s. 139.
No racial or religious discrimination permissible
140.Any licensed insurer that discriminates unfairly between risks in Ontario because of the race or religion of the insured is guilty of an offence. R.S.O. 1990, c. I.8, s. 140.
Payment into court
141.(1)Where an insurer cannot obtain a sufficient discharge for insurance money for which it admits liability, the insurer may apply to the court without notice for an order for the payment thereof into court, and the court may order the payment into court to be made upon such terms as to costs and otherwise as the court may direct, and may provide to what fund or name the amount shall be credited.
Discharge to insurer
(2)The receipt of the registrar or other proper officer of the court is sufficient discharge to the insurer for the insurance money so paid into court, and the insurance money shall be dealt with according to the orders of the court. R.S.O. 1990, c. I.8, s. 141.
Meaning of “agricultural property”, Part IV
142.In this Part, unless the context otherwise requires,
“agricultural property” includes dwelling-houses, stables, barns, sheds and outbuildings and their contents, wagons, carriages, and other vehicles, saddles and harness, agricultural engines, implements, tools, instruments, appliances and machinery, household goods, wearing apparel, provisions, musical instruments, libraries, livestock, growing crops, and crops severed from the land, fruit and ornamental trees, shrubs and plants, and live or standing timber, being upon farms as farm property, and owned by members of the insurer in which the property is insured. R.S.O. 1990, c. I.8, s. 142.
Application of Part
143.(1)This Part applies to insurance against loss of or damage to property arising from the peril of fire in any contract made in Ontario except,
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (19) by striking out the portion before clause (a) and substituting the following:
Application of Part
(1) This Part applies to insurance against loss of or damage to property arising from the peril of fire in any contract made in Ontario except,
See: 2002, c. 18, Sched. H, ss. 4 (19), 16 (2).
(a) insurance falling within the classes of aircraft, automobile, boiler and machinery, inland transportation, marine, plate glass, sprinkler leakage and theft insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (19) and the following substituted:
(a) insurance within the class of aircraft insurance;
(a.1) insurance within the class of automobile insurance;
(a.2) insurance within the class of boiler and machinery insurance;
(a.3) insurance (other than marine insurance) against loss of or damage to property,
(i) while in transit or during delay incidental to transit, or
(ii) where, in the opinion of the Superintendent, the risk is substantially a transit risk;
(a.4) insurance within the class of marine insurance;
(a.5) insurance against loss of or damage to plate, sheet or window glass, whether in place or in transit;
(a.6) insurance against loss of or damage to property through the breakage or leakage of sprinkler equipment or other fire protection system, or of pumps, water pipes or plumbing and its fixtures;
(a.7) insurance against loss or damage through theft, wrongful conversion, burglary, house-breaking, robbery or forgery;
See: 2002, c. 18, Sched. H, ss. 4 (19), 16 (2).
(b) where the subject-matter of the insurance is rents, charges or loss of profits;
(c) where the peril of fire is an incidental peril to the coverage provided; or
(d) where the subject-matter of the insurance is property that is insured by an insurer or group of insurers primarily as a nuclear risk under a policy covering against loss of or damage to the property resulting from nuclear reaction or nuclear radiation and from other perils.
Automobiles
(2)Despite subsection (1), this Part applies to insurance of an automobile as provided in subsection 47 (2). R.S.O. 1990, c. I.8, s. 143.
Extent of coverage by contract
144.(1)Subject to subsection (4) of this section and to clause 151 (a), in any contract to which this Part applies the contract shall be deemed to cover the insured property,
(a) against fire (whether resulting from explosion or otherwise) not occasioned by or happening through,
(i) in the case of goods, their undergoing any process involving the application of heat,
(ii) riot, civil commotion, war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military power;
(b) against lightning, but excluding destruction or loss to electrical devices or appliances caused by lightning or other electrical currents unless fire originates outside the article itself and only for such destruction or damage as occurs from such fire;
(c) against explosion (not occasioned by or happening through any of the perils specified in subclause (a) (ii)) of natural, coal or manufactured gas in a building not forming part of a gas works, whether fire ensues therefrom or not.
Radioactive contamination
(2)Unless a contract to which this Part applies otherwise specifically provides, it does not cover the insured property against loss or damage caused by contamination by radio-active material directly or indirectly resulting from fire, lightning or explosion within the meaning of subsection (1).
Coverage where property removed
(3)Where property insured under a contract covering it at a specified location is necessarily removed to prevent loss or damage or further loss or damage thereto, that part of the insurance under the contract that exceeds the amount of the insurer’s liability for any loss incurred covers, for seven days only or for the unexpired term of the contract if less than seven days, the property removed and any property remaining in the original location in the proportions that the value of the property in each of the respective locations bears to the value of the property in them all.
Extended insurance
(4)Nothing in subsection (1) precludes an insurer giving more extended insurance against the perils mentioned therein, but in that case this Part does not apply to the extended insurance.
Power to extend meaning of “lightning” in livestock contracts
(5)An insurer licensed to carry on fire insurance may include in its insurance contracts a clause or endorsement providing that, in the case of livestock insured against death or injury caused by fire or lightning, the word “lightning” is deemed to include other electrical currents. R.S.O. 1990, c. I.8, s. 144.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (5) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (20) by striking out “licensed to carry on fire insurance” and substituting “licensed to carry on property insurance”. See: 2002, c. 18, Sched. H, ss. 4 (20), 16 (2).
Renewal of contract
145.A contract may be renewed by the delivery of a renewal receipt identifying the policy by number, date or otherwise. R.S.O. 1990, c. I.8, s. 145; 1999, c. 12, Sched. I, s. 4 (16).
Form of contract
146.After an application for insurance is made, if it is in writing, any policy sent to the insured shall be deemed to be intended to be in accordance with the terms of the application, unless the insurer points out in writing the particulars wherein it differs from the application, in which case the insured may, within two weeks from the receipt of the notification, reject the policy. R.S.O. 1990, c. I.8, s. 146.
Mortgagees and other payees
147.(1)Where the loss, if any, under a contract has, with the consent of the insurer, been made payable to a person other than the insured, the insurer shall not cancel or alter the policy to the prejudice of that person without notice to that person. R.S.O. 1990, c. I.8, s. 147 (1).
Form of notice
(2)Subject to subsection (3), the length of and manner of giving the notice under subsection (1) is the same as notice of cancellation to the insured under the statutory conditions in the contract. R.S.O. 1990, c. I.8, s. 147 (2); 1997, c. 19, s. 10 (26).
Alternate notice
(3)If the loss under a contract has, with the consent of the insurer, been made payable to a person other than the insured, the insurer and the person may enter into a written agreement to provide for alternate notice. 1997, c. 19, s. 10 (27).
Statutory conditions
148.(1)The conditions set forth in this section shall be deemed to be part of every contract in force in Ontario and shall be printed in English or French in every policy with the heading “Statutory Conditions” or “Conditions légales”, as may be appropriate, and no variation or omission of or addition to any statutory condition is binding on the insured.
Definition
(2)In this section,
“policy” does not include interim receipts or binders.
STATUTORY CONDITIONS
Misrepresentation
1.If a person applying for insurance falsely describes the property to the prejudice of the insurer, or misrepresents or fraudulently omits to communicate any circumstance that is material to be made known to the insurer in order to enable it to judge of the risk to be undertaken, the contract is void as to any property in relation to which the misrepresentation or omission is material.
Property of Others
2.Unless otherwise specifically stated in the contract, the insurer is not liable for loss or damage to property owned by any person other than the insured, unless the interest of the insured therein is stated in the contract.
Change of Interest
3.The insurer is liable for loss or damage occurring after an authorized assignment under the Bankruptcy Act (Canada) or change of title by succession, by operation of law, or by death.
Material Change
4.Any change material to the risk and within the control and knowledge of the insured avoids the contract as to the part affected thereby, unless the change is promptly notified in writing to the insurer or its local agent, and the insurer when so notified may return the unearned portion, if any, of the premium paid and cancel the contract, or may notify the insured in writing that, if the insured desires the contract to continue in force, the insured must, within fifteen days of the receipt of the notice, pay to the insurer an additional premium, and in default of such payment the contract is no longer in force and the insurer shall return the unearned portion, if any, of the premium paid.
Termination
5.(1)This contract may be terminated,
(a) by the insurer giving to the insured fifteen days’ notice of termination by registered mail or five days’ written notice of termination personally delivered;
(b) by the insured at any time on request.
(2)Where this contract is terminated by the insurer,
(a) the insurer shall refund the excess of premium actually paid by the insured over the proportionate premium for the expired time, but, in no event, shall the proportionate premium for the expired time be deemed to be less than any minimum retained premium specified; and
(b) the refund shall accompany the notice unless the premium is subject to adjustment or determination as to amount, in which case the refund shall be made as soon as practicable.
(3)Where this contract is terminated by the insured, the insurer shall refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time, but in no event shall the short rate premium for the expired time be deemed to be less than any minimum retained premium specified.
(4)The refund may be made by money, postal or express company money order or cheque payable at par.
(5)The fifteen days mentioned in clause (1) (a) of this condition commences to run on the day following the receipt of the registered letter at the post office to which it is addressed.
Requirements After Loss
6.(1)Upon the occurrence of any loss of or damage to the insured property, the insured shall, if the loss or damage is covered by the contract, in addition to observing the requirements of conditions 9, 10 and 11,
(a) forthwith give notice thereof in writing to the insurer;
(b) deliver as soon as practicable to the insurer a proof of loss verified by a statutory declaration,
(i) giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed,
(ii) stating when and how the loss occurred, and if caused by fire or explosion due to ignition, how the fire or explosion originated, so far as the insured knows or believes,
(iii) stating that the loss did not occur through any wilful act or neglect or the procurement, means or connivance of the insured,
(iv) showing the amount of other insurances and the names of other insurers,
(v) showing the interest of the insured and of all others in the property with particulars of all liens, encumbrances and other charges upon the property,
(vi) showing any changes in title, use, occupation, location, possession or exposures of the property since the issue of the contract,
(vii) showing the place where the property insured was at the time of loss;
(c) if required, give a complete inventory of undamaged property and showing in detail quantities, cost, actual cash value;
(d) if required and if practicable, produce books of account, warehouse receipts and stock lists, and furnish invoices and other vouchers verified by statutory declaration, and furnish a copy of the written portion of any other contract.
(2)The evidence furnished under clauses (1) (c) and (d) of this condition shall not be considered proofs of loss within the meaning of conditions 12 and 13.
Fraud
7.Any fraud or wilfully false statement in a statutory declaration in relation to any of the above particulars, vitiates the claim of the person making the declaration.
Who may give notice and proof
8.Notice of loss may be given and proof of loss may be made by the agent of the insured named in the contract in case of absence or inability of the insured to give the notice or make the proof, and absence or inability being satisfactorily accounted for, or in the like case, or if the insured refuses to do so, by a person to whom any part of the insurance money is payable.
Salvage
9.(1)The insured, in the event of any loss or damage to any property insured under the contract, shall take all reasonable steps to prevent further damage to such property so damaged and to prevent damage to other property insured hereunder including, if necessary, its removal to prevent damage or further damage thereto.
(2)The insurer shall contribute proportionately towards any reasonable and proper expenses in connection with steps taken by the insured and required under subcondition (1) of this condition according to the respective interests of the parties.
Entry, Control, Abandonment
10.After loss or damage to insured property, the insurer has an immediate right of access and entry by accredited agents sufficient to enable them to survey and examine the property, and to make an estimate of the loss or damage, and, after the insured has secured the property, a further right of access and entry sufficient to enable them to make appraisement or particular estimate of the loss or damage, but the insurer is not entitled to the control or possession of the insured property, and without the consent of the insurer there can be no abandonment to it of insured property.
Appraisal
11.In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.
When Loss Payable
12.The loss is payable within sixty days after completion of the proof of loss, unless the contract provides for a shorter period.
Replacement
13.(1)The insurer, instead of making payment, may repair, rebuild, or replace the property damaged or lost, giving written notice of its intention so to do within thirty days after receipt of the proofs of loss.
(2)In that event the insurer shall commence to so repair, rebuild, or replace the property within forty-five days after receipt of the proofs of loss, and shall thereafter proceed with all due diligence to the completion thereof.
Action
14.Every action or proceeding against the insurer for the recovery of a claim under or by virtue of this contract is absolutely barred unless commenced within one year next after the loss or damage occurs.
Notice
15.Any written notice to the insurer may be delivered at, or sent by registered mail to, the chief agency or head office of the insurer in the Province. Written notice may be given to the insured named in the contract by letter personally delivered to the insured or by registered mail addressed to the insured at the insured’s latest post office address as notified to the insurer. In this condition, the expression “registered” means registered in or outside Canada.
R.S.O. 1990, c. I.8, s. 148.
Limitation of liability clause
(a) a deductible clause;
(b) a co-insurance, average or similar clause; or
(c) a clause limiting recovery by the insured to a specified percentage of the value of any property insured at the time of loss, whether or not that clause is conditional or unconditional,
shall have printed or stamped upon its face in red ink or bold type the words “The policy contains a clause that may limit the amount payable”, or the French equivalent failing which the clause is not binding upon the insured. R.S.O. 1990, c. I.8, s. 149; 1997, c. 19, s. 10 (28).
Rateable contribution
150.(1)Where on the happening of any loss or damage to property insured there is in force more than one contract covering the same interest, each of the insurers under the respective contracts is liable to the insured for its rateable proportion of the loss, unless it is otherwise expressly agreed in writing between the insurers.
Effect of policy may not be postponed
(2)For the purpose of subsection (1), a contract shall be deemed to be in force despite any term thereof that the policy will not cover, come into force, attach or become insurance with respect to the property until after full or partial payment of any loss under any other policy.
Certain restrictions valid
(3)Nothing in subsection (1) affects the validity of any divisions of the sum insured into separate items, or any limits of insurance on specified property, or any clause referred to in section 149 or any contract condition limiting or prohibiting the having or placing of other insurance.
Ascertainment of rateable proportions
(4)Nothing in subsection (1) affects the operation of any deductible clause and,
(a) where one contract contains a deductible, the proportion of the insurer under that contract shall be first ascertained without regard to the clause and then the clause shall be applied only to affect the amount of recovery under that contract; and
(b) where more than one contract contains a deductible, the proportions of the insurers under those contracts shall be first ascertained without regard to the deductible clauses and then the highest deductible shall be pro rated among the insurers with deductibles and these pro rated amounts shall affect the amount of recovery under those contracts.
Idem
(5)Nothing in subsection (4) shall be construed to have the effect of increasing the proportional contribution of an insurer under a contract that is not subject to a deductible clause.
Insurance on identified articles
(6)Despite subsection (1), insurance on identified articles is a first loss insurance as against all other insurance. R.S.O. 1990, c. I.8, s. 150.
Special stipulations
(a) excludes any loss that would otherwise fall within the coverage prescribed by section 144; or
(b) contains any stipulation, condition or warranty that is or may be material to the risk including, but not restricted to, a provision in respect to the use, condition, location or maintenance of the insured property,
the exclusion, stipulation, condition or warranty is not binding upon the insured, if it is held to be unjust or unreasonable by the court before which a question relating thereto is tried. R.S.O. 1990, c. I.8, s. 151.
Subrogation
152.(1)The insurer, upon making a payment or assuming liability therefor under a contract of fire insurance, is subrogated to all rights of recovery of the insured against any person, and may bring action in the name of the insured to enforce such rights.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (21) by striking out “a contract of fire insurance” and substituting “a contract to which this Part applies”. See: 2002, c. 18, Sched. H, ss. 4 (21), 16 (2).
Where amount recovered is not sufficient to indemnify
(2)Where the net amount recovered, after deducting the costs of recovery, is not sufficient to provide a complete indemnity for the loss or damage suffered, that amount shall be divided between the insurer and the insured in the proportions in which the loss or damage has been borne by them respectively. R.S.O. 1990, c. I.8, s. 152.
General reinsurance agreement
153.An insurer that is a member of the Fire Mutuals Guarantee Fund shall enter into and remain a party to a general reinsurance agreement with a mutual insurance corporation incorporated under subsection 148 (3) of the Corporations Act. 1999, c. 12, Sched. I, s. 4 (17).
154.-168. Repealed: 1999, c. 12, Sched. I, s. 4 (17).
Fire Mutuals Guarantee Fund
169.(1)The agreement establishing the Fire Mutuals Guarantee Fund is continued and may be amended with the approval of the Superintendent.
Members
(2)The following persons may be members of the Fund, with the approval of the Superintendent:
1. Mutual insurance corporations including those that are incorporated under subsection 148 (3) of the Corporations Act.
2. Joint stock insurance companies, all the shares of which are owned by one or more mutual insurance corporations that are members of the Fund.
Purposes
(3)The Fund has the following purposes, and such additional purposes as may be set out in the agreement:
1. To pay the insurance claims and repay the unearned premiums of policyholders who are members of the Fund, if a member is unable to meet its obligations.
2. To pay the insurance claims of third parties against policyholders who are members of the Fund, if a member is unable to meet its obligations.
Same
(3.1)With the approval of the Superintendent, the assets of the Fund may be used for the purposes of the Fund.
Powers
(3.2)If the Fund is authorized to do so by the agreement, the Fund may,
(a) assess its members in respect of any payments that the Fund has authorized in respect of a member who is unable to meet its obligations; and
(b) until the assessments are paid, borrow money or establish lines of credit for the purposes of making payments in respect of the member who is unable to meet its obligations.
Administration
(3.3)The assets of the Fund shall be held in trust by a trust corporation registered under the Loan and Trust Corporations Act. 1999, c. 12, Sched. I, s. 4 (18).
Assets of Fund
(4)The assets of the Fund shall,
(a) be maintained at no less than a book value of $1,000,000 including the value of any assessments made to restore the book value of $1,000,000, or such further amount as may be specified from time to time by the Superintendent;
(b) be maintained or increased by assessments on parties to the agreement on the basis set out in the agreement referred to in subsection (1);
(c) be an authorized investment for the purposes of this Act and the value to be included by each licensed insurer shall be proportional to its contribution to the trust and shall be subject to examination by the Superintendent in the same manner as the other assets and property of licensed insurers;
(d) be invested and valued in the same manner and be subject to the same restrictions as the assets of a member of the Fund. R.S.O. 1990, c. I.8, s. 169 (4); 1999, c. 12, Sched. I, s. 4 (19).
Relief from assessment
(5)No assessment referred to in clause (3.2) (a) or (4) (b) shall be paid by an insurer if its effect would be to reduce the surplus of that insurer below the minimum amount specified by the Superintendent, and such a waiver of an assessment shall not be cause for the insurer’s expulsion from the Fund. R.S.O. 1990, c. I.8, s. 169 (5); 1999, c. 12, Sched. I, s. 4 (20).
Interest of Superintendent in Fund
(6)The Superintendent shall be deemed to have an interest in the Fund as representative of all persons who may be claimants against insurers that are parties to the agreement and the trustees shall from time to time furnish the Superintendent with such information and accounts with respect to the Fund as the Superintendent may require. R.S.O. 1990, c. I.8, s. 169 (6).
Cessation of membership
(7)The Superintendent may permit an insurer to cease to be a member of the Fund and may impose such terms and conditions respecting the cessation as the Superintendent considers appropriate.
Withdrawal of approval
(7.1)The Superintendent may withdraw his or her approval under subsection (2) when an insurer is in default of payment of its assessment under the agreement.
Ceasing to issue contracts on premium note plan
(8)An insurer who becomes a member of the Fund shall cease to undertake contracts of insurance or to renew existing contracts of insurance on the premium note plan. 1999, c. 12, Sched. I, s. 4 (21).
Application of Act
(9)All parties to the agreement and their officers and directors shall be deemed to be persons engaged in the business of insurance for the purposes of this Act and the regulations and any contravention of the trust agreement constitutes an offence.
Passing of accounts
(10)An account filed with the Superintendent under subsection (6), except so far as mistake or fraud is shown, is binding and conclusive upon all interested persons as to all matters shown in the account and the trustees’ administration thereof, unless the Superintendent, within six months of the date upon which the account is filed with him or her, requires in writing that such account be filed and passed before a judge of the Ontario Court (General Division).
Idem
(11)The provisions of the Estates Act and the rules made thereunder and of the Trustee Act with respect to the passing of accounts of the trustees apply, with necessary modifications, to the passing of accounts under subsection (10). R.S.O. 1990, c. I.8, s. 169 (9-11).
170. Repealed: 1999, c. 12, Sched. I, s. 4 (22).
Definitions, Part V
“application” means an application for insurance or for the reinstatement of insurance; (“proposition”)
“beneficiary” means a person, other than the insured or the insured’s personal representative, to whom or for whose benefit insurance money is made payable in a contract or by a declaration; (“bénéficiaire”)
“contract” means a contract of life insurance; (“contrat”)
“court” means the Ontario Court (General Division) or a judge thereof; (“tribunal”)
“creditor’s group insurance” means insurance effected by a creditor in respect of the lives of the creditor’s debtors whereby the lives of the debtors are insured severally under a single contract; (“assurance collective de créancier”)
“declaration” means an instrument signed by the insured,
(a) with respect to which an endorsement is made on the policy,
(b) that identifies the contract, or
(c) that describes the insurance or insurance fund or a part thereof,
in which the insured designates, or alters or revokes the designation of, the insured’s personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable; (“déclaration”)
“family insurance” means insurance whereby the lives of the insured and one or more persons related to the insured by blood, marriage or adoption are insured under a single contract between an insurer and the insured; (“assurance familiale”)
“group insurance” means insurance, other than creditor’s group insurance and family insurance, whereby the lives of a number of persons are insured severally under a single contract between an insurer and an employer or other person; (“assurance collective”)
“group life insured” means a person whose life is insured by a contract of group insurance but does not include a person whose life is insured under the contract as a person dependent upon, or related to, him or her; (“personne assurée par une assurance-vie collective”)
“instrument” includes a will; (“acte”)
“insurance” means life insurance; (“assurance”)
“insured”,
(a) in the case of group insurance, means, in the provisions of this Part relating to the designation of beneficiaries and the rights and status of beneficiaries, the group life insured, and
(b) in all other cases, means the person who makes a contract with an insurer; (“assuré”)
“will” includes a codicil. (“testament”) R.S.O. 1990, c. I.8, s. 171.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 171 is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (22) by adding the following subsection:
Annuity deemed life insurance
(2) For the purposes of this Part, an undertaking entered into by an insurer to provide an annuity, or what would be an annuity except that the periodic payments may be unequal in amount, shall be deemed to be and always to have been life insurance whether the annuity is for,
(a) a term certain; or
(b) a term dependent solely or partly on the happening of an event not related to a human life.
See: 2002, c. 18, Sched. H, ss. 4 (22), 16 (2).
Application of Part
172.(1)Despite any agreement, condition or stipulation to the contrary, this Part applies to a contract made in Ontario on or after the 1st day of July, 1962, and, subject to subsections (2) and (3), applies to a contract made in Ontario before that day.
Beneficiary for value
(2)The rights and interests of a beneficiary for value under a contract that was in force immediately before the 1st day of July, 1962 are those provided in Part V of The Insurance Act, being chapter 190 of the Revised Statutes of Ontario, 1960, as it existed immediately before that day.
Preferred beneficiary
(3)Where the person who would have been entitled to the payment of insurance money, if the money had become payable immediately before the 1st day of July, 1962, was a preferred beneficiary within the meaning of Part V of The Insurance Act, being chapter 190 of the Revised Statutes of Ontario, 1960, as it existed immediately before that day, the insured may not, except in accordance with that Part,
(a) alter or revoke the designation of a beneficiary; or
(b) assign, exercise rights under or in respect of, surrender or otherwise deal with the contract,
but this subsection does not apply after a time at which the insurance money, if it were then payable, would be payable wholly to a person other than a preferred beneficiary within the meaning of that Part. R.S.O. 1990, c. I.8, s. 172.
Group insurance
173.In the case of a contract of group insurance made with an insurer authorized to transact insurance in Ontario at the time the contract was made, this Part applies in determining,
(a) the rights and status of beneficiaries if the group life insured was resident in Ontario at the time he or she became insured; and
(b) the rights and obligations of the group life insured if he or she was resident in Ontario at the time he or she became insured. R.S.O. 1990, c. I.8, s. 173.
Issuance of Policy and Contents Thereof
Insurer to issue policy
174.(1)An insurer entering into a contract shall issue a policy.
Documents forming contract
(2)Subject to subsection (3), the provisions in,
(a) the application;
(b) the policy;
(c) any document attached to the policy when issued; and
(d) any amendment to the contract agreed upon in writing after the policy is issued,
constitute the entire contract.
Contract of fraternal society
(3)In the case of a contract made by a fraternal society, the policy, the Act or instrument of incorporation of the society, its constitution, by-laws and rules, and the amendments made from time to time to any of them, the application for the contract and the medical statement of the applicant constitute the entire contract.
Copy of application
(4)An insurer shall, upon request, furnish to the insured or to a claimant under the contract a copy of the application. R.S.O. 1990, c. I.8, s. 174.
Contents of policy
175.(1)This section does not apply to,
(a) a contract of group insurance;
(b) a contract of creditor’s group insurance; or
(c) a contract made by a fraternal society.
Same
(2)An insurer shall set forth the following particulars in the policy:
1. The name or a sufficient description of the insured and of the person whose life is insured.
2. The amount, or the method of determining the amount, of the insurance money payable, and the conditions under which it becomes payable.
3. The amount, or the method of determining the amount, of the premium and the period of grace, if any, within which it may be paid.
4. Whether the contract provides for participation in a distribution of surplus or profits that may be declared by the insurer.
5. The conditions upon which the contract may be reinstated if it lapses.
6. The options, if any,
(a) of surrendering the contract for cash;
(b) of obtaining a loan or an advance payment of the insurance money; and
(c) of obtaining paid-up or extended insurance. R.S.O. 1990, c. I.8, s. 175.
Contents of group policy
176.In the case of a contract of group insurance or of creditor’s group insurance, an insurer shall set forth the following particulars in the policy:
1. The name or a sufficient description of the insured.
2. The method of determining the persons whose lives are insured.
3. The amount, or the method of determining the amount, of the insurance money payable, and the conditions under which it becomes payable.
4. The period of grace, if any, within which the premium may be paid.
5. Whether the contract provides for participation in a distribution of surplus or profits that may be declared by the insurer. R.S.O. 1990, c. I.8, s. 176.
Contents of group certificate
177.In the case of a contract of group insurance, an insurer shall issue, for delivery by the insured to each group life insured, a certificate or other document in which are set forth the following particulars:
1. The name of the insurer and an identification of the contract.
2. The amount, or the method of determining the amount, of insurance on the group life insured and on any person whose life is insured under the contract as a person dependent upon, or related to, him or her.
3. The circumstances in which the insurance terminates and the rights, if any, upon such termination, of the group life insured or of any person whose life is insured under the contract as a person dependent upon, or related to, him or her. R.S.O. 1990, c. I.8, s. 177.
Conditions Governing Formation of Contract
Insurable interest required
178.(1)Subject to subsection (2), where at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.
Exceptions
(2)A contract is not void for lack of insurable interest,
(a) if it is a contract of group insurance; or
(b) if the person whose life is insured has consented in writing to the insurance being placed on his or her life.
Consent of minor
(3)Where the person whose life is insured is under the age of sixteen years, consent to insurance being placed on the person’s life may be given by one of his or her parents or by a person standing in the role of parent to him or her. R.S.O. 1990, c. I.8, s. 178.
Insurable interest, defined
179.Without restricting the meaning of the expression “insurable interest”, a person has an insurable interest in the person’s own life and in the life of,
(a) the person’s child or grandchild;
(b) the person’s spouse or same-sex partner;
(c) any person upon whom the person is wholly or in part dependent, for, or from whom the person is receiving, support or education;
(d) an employee of the person; and
(e) any person in the duration of whose life the person has a pecuniary interest. R.S.O. 1990, c. I.8, s. 179; 1999, c. 6, s. 31 (2).
Contract taking effect
180.(1)Subject to any provision to the contrary in the application or the policy, a contract does not take effect unless,
(a) the policy is delivered to an insured, the insured’s assign or agent, or to a beneficiary;
(b) payment of the first premium is made to the insurer or its authorized agent; and
(c) no change has taken place in the insurability of the life to be insured between the time the application was completed and the time the policy was delivered.
Delivery to agent
(2)Where a policy is issued on the terms applied for and is delivered to an agent of the insurer for unconditional delivery to a person referred to in clause (1) (a), it shall be deemed, but not to the prejudice of the insured, to have been delivered to the insured. R.S.O. 1990, c. I.8, s. 180.
Default in paying premium
181.(1)Where a cheque or other bill of exchange, or a promissory note or other written promise to pay, is given for the whole or part of a premium and payment is not made according to its tenor, the premium or part thereof shall be deemed not to have been paid.
Payment by registered letter
(2)Where a remittance for or on account of a premium is sent in a registered letter to an insurer and is received by it, the remittance shall be deemed to have been received at the time of the registration of the letter. R.S.O. 1990, c. I.8, s. 181.
Payment of premium
Who may pay premium
182.(1)Except in the case of group insurance, an assignee of a contract, a beneficiary or a person acting on behalf of one of them or of the insured may pay any premium that the insured is entitled to pay.
Period of grace
(2)Where a premium, other than the initial premium, is not paid at the time it is due, the premium may be paid within a period of grace of,
(a) thirty days or, in the case of an industrial contract, twenty-eight days from and excluding the day on which the premium is due; or
(b) the number of days, if any, specified in the contract for payment of an overdue premium,
whichever is the longer period.
Contract in force during grace period
(3)Where the happening of the event upon which the insurance money becomes payable occurs during the period of grace and before the overdue premium is paid, the contract shall be deemed to be in effect as if the premium had been paid at the time it was due, but the amount of the premium, together with interest at the rate specified in the contract, but not exceeding 6 per cent per year, and the balance, if any, of the current year’s premium, may be deducted from the insurance money. R.S.O. 1990, c. I.8, s. 182.
Duty to disclose
183.(1)An applicant for insurance and a person whose life is to be insured shall each disclose to the insurer in the application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within the person’s knowledge that is material to the insurance and is not so disclosed by the other.
Failure to disclose
(2)Subject to section 184, a failure to disclose, or a misrepresentation of, such a fact renders the contract voidable by the insurer. R.S.O. 1990, c. I.8, s. 183.
Incontestability
184.(1)This section does not apply to a misstatement of age or to disability insurance.
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (23) and the following substituted:
Exceptions
(1) This section does not apply to,
(a) a misstatement of age; or
(b) insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease.
See: 2002, c. 18, Sched. H, ss. 4 (23), 16 (2).
Incontestability, general
(2)Subject to subsection (3), where a contract has been in effect for two years during the lifetime of the person whose life is insured, a failure to disclose or a misrepresentation of a fact required to be disclosed by section 183 does not, in the absence of fraud, render the contract voidable.
Incontestability in group insurance
(3)In the case of a contract of group insurance, a failure to disclose or a misrepresentation of such a fact in respect of a person whose life is insured under the contract does not render the contract voidable, but, if evidence of insurability is specifically requested by the insurer, the insurance in respect of that person is voidable by the insurer unless it has been in effect for two years during the lifetime of that person, in which event it is not, in the absence of fraud, voidable. R.S.O. 1990, c. I.8, s. 184.
Non-disclosure by insurer
185.Where an insurer fails to disclose or misrepresents a fact material to the insurance, the contract is voidable by the insured, but, in the absence of fraud, the contract is not by reason of such failure or misrepresentation voidable after the contract has been in effect for two years. R.S.O. 1990, c. I.8, s. 185.
Insurable age
186.(1)This section does not apply to a contract of group insurance or of creditor’s group insurance.
Misstatement of age
(2)Subject to subsection (3), where the age of a person whose life is insured is misstated to the insurer, the insurance money provided by the contract shall be increased or decreased to the amount that would have been provided for the same premium at the correct age.
Limitation of insurable age
(3)Where a contract limits the insurable age and the correct age of the person whose life is insured at the date of the application exceeds the age so limited, the contract is, during the lifetime of that person but not later than five years from the date the contract takes effect, voidable by the insurer within sixty days after it discovers the error. R.S.O. 1990, c. I.8, s. 186.
Misstatement of age in group insurance
187.In the case of a contract of group insurance or of creditor’s group insurance, a misstatement to the insurer of the age of a person whose life is insured does not of itself render the contract voidable, and the provisions, if any, of the contract with respect to age or misstatement of age apply. R.S.O. 1990, c. I.8, s. 187.
Effect of suicide
188.(1)Where a contract contains an undertaking, express or implied, that insurance money will be paid if a person whose life is insured commits suicide, the undertaking is lawful and enforceable.
Suicide and reinstatement
(2)Where a contract provides that in case a person whose life is insured commits suicide within a certain period of time the contract is void or the amount payable under it is reduced, if the contract lapses and is subsequently reinstated on one or more occasions, the period of time commences to run from the date of the latest reinstatement. R.S.O. 1990, c. I.8, s. 188.
Reinstatement
189.(1)This section does not apply to a contract of group insurance or to a contract made by a fraternal society.
Reinstatement following up to 2 years lapse
(2)Where a contract lapses and the insured within two years applies for reinstatement of the contract, if within that time the insured,
(a) pays the overdue premiums and other indebtedness under the contract to the insurer, together with interest at the rate specified in the contract, but not exceeding 6 per cent per year, compounded annually; and
(b) produces,
(i) evidence satisfactory to the insurer of the good health, and
(ii) other evidence satisfactory to the insurer of the insurability,
of the person whose life was insured,
the insurer shall reinstate the contract.
Exceptions
(3)Subsection (2) does not apply where the cash surrender value has been paid or an option of taking paid-up or extended insurance has been exercised.
Application of other sections
(4)Sections 183 and 184 apply with necessary modifications to reinstatement of a contract. R.S.O. 1990, c. I.8, s. 189.
Designation of beneficiary
190.(1)An insured may in a contract or by a declaration designate the insured’s personal representative or a beneficiary to receive insurance money.
Change in designation
(2)Subject to section 191, the insured may from time to time alter or revoke the designation by a declaration.
Meaning of “heirs”, etc.
(3)A designation in favour of the “heirs”, “next of kin” or “estate” of the insured, or the use of words of like import in a designation, shall be deemed to be a designation of the personal representative of the insured. R.S.O. 1990, c. I.8, s. 190.
Designation of beneficiary irrevocably
191.(1)An insured may in a contract, or by a declaration other than a declaration that is part of a will, filed with the insurer at its head or principal office in Canada during the lifetime of the person whose life is insured, designate a beneficiary irrevocably, and in that event the insured, while the beneficiary is living, may not alter or revoke the designation without the consent of the beneficiary and the insurance money is not subject to the control of the insured or of the insured’s creditors and does not form part of the insured’s estate.
Attempted designation
(2)Where the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as provided in subsection (1), the designation has the same effect as if the insured had not purported to make it irrevocable. R.S.O. 1990, c. I.8, s. 191.
Designation in will, etc.
Designation in invalid will
192.(1)A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will or that the designation is invalid as a bequest under the will.
Priorities
(2)Despite the Succession Law Reform Act, a designation in a will is of no effect against a designation made later than the making of the will.
Revocation
(3)Where a designation is contained in a will, if subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
Idem
(4)Where a designation is contained in an instrument that purports to be a will, if subsequently the instrument if valid as a will would be revoked by operation of law or otherwise, the designation is thereby revoked. R.S.O. 1990, c. I.8, s. 192.
Trustee for beneficiary
193.(1)An insured may in a contract or by a declaration appoint a trustee for a beneficiary and may alter or revoke the appointment by a declaration.
Payment to trustee
(2)A payment made by an insurer to a trustee for a beneficiary discharges the insurer to the extent of the payment. R.S.O. 1990, c. I.8, s. 193.
Beneficiary’s share of insurance money
Beneficiary predeceasing life insured
194.(1)Where a beneficiary predeceases the person whose life is insured, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by a declaration, the share is payable,
(a) to the surviving beneficiary; or
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or
(c) if there is no surviving beneficiary, to the insured or the insured’s personal representative.
Several beneficiaries
(2)Where two or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is made, the insurance money is payable to them in equal shares. R.S.O. 1990, c. I.8, s. 194.
Right to sue
195.A beneficiary may enforce for the beneficiary’s own benefit, and a trustee appointed pursuant to section 193 may enforce as trustee, the payment of insurance money made payable to him, her or it in the contract or by a declaration and in accordance with the provisions thereof, but the insurer may set up any defence that it could have set up against the insured or the insured’s personal representative. R.S.O. 1990, c. I.8, s. 195.
Insurance money free from other claims, etc.
Claims by creditors
196.(1)Where a beneficiary is designated, the insurance money, from the time of the happening of the event upon which the insurance money becomes payable, is not part of the estate of the insured and is not subject to the claims of the creditors of the insured. R.S.O. 1990, c. I.8, s. 196 (1).
Contract exempt from seizure
(2)While a designation in favour of a spouse, same-sex partner, child, grandchild or parent of a person whose life is insured, or any of them, is in effect, the rights and interests of the insured in the insurance money and in the contract are exempt from execution or seizure. R.S.O. 1990, c. I.8, s. 196 (2); 1999, c. 6, s. 31 (3).
Dealings with Contract During Lifetime of Insured
Insured dealing with contract
(a) is not designated irrevocably; or
(b) is designated irrevocably but has attained the age of eighteen years and consents,
the insured may assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as provided therein or in this Part or as may be agreed upon with the insurer. R.S.O. 1990, c. I.8, s. 197.
Insured entitled to dividends
198.(1)Despite the designation of a beneficiary irrevocably, the insured is entitled while living to the dividends or bonuses declared on a contract, unless the contract otherwise provides.
Insurer may use dividends
(2)Unless the insured otherwise directs, the insurer may apply the dividends or bonuses declared on the contract for the purpose of keeping the contract in force. R.S.O. 1990, c. I.8, s. 198.
Transfer of ownership
199.(1)Despite the Succession Law Reform Act, where in a contract or in an agreement in writing between an insurer and an insured it is provided that a person named in the contract or in the agreement has, upon the death of the insured, the rights and interests of the insured in the contract,
(a) the rights and interests of the insured in the contract do not, upon the death of the insured, form part of his or her estate; and
(b) upon the death of the insured, the person named in the contract or in the agreement has the rights and interests given to the insured by the contract and by this Part and shall be deemed to be the insured.
Successive owners
(2)Where the contract or agreement provides that two or more persons named in the contract or in the agreement shall, upon the death of the insured, have successively, on the death of each of them, the rights and interests of the insured in the contract, this section applies successively, with necessary modifications, to each of such persons and to his or her rights and interests in the contract.
Saving
(3)Despite any nomination made pursuant to this section, the insured may, prior to his or her death, assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as if the nomination had not been made, and may alter or revoke the nomination by agreement in writing with the insurer. R.S.O. 1990, c. I.8, s. 199.
Effect of assignment
Interest of assignee
200.(1)Where an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada, the assignee has priority of interest as against,
(a) any assignee other than one who gave notice earlier in like manner; and
(b) a beneficiary other than one designated irrevocably as provided in section 191 prior to the time the assignee gave notice to the insurer of the assignment in the manner prescribed in this subsection.
Effect on beneficiary’s rights
(2)Where a contract is assigned as security, the rights of a beneficiary under the contract are affected only to the extent necessary to give effect to the rights and interests of the assignee.
Assignee deemed to be insured
(3)Where a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given to the insured by the contract and by this Part and shall be deemed to be the insured.
Prohibition against assignment
(4)A provision in a contract to the effect that the rights or interests of the insured, or, in the case of group insurance, the group life insured, are not assignable is valid. R.S.O. 1990, c. I.8, s. 200.
Group life insured, enforcing rights
201.A group life insured may in his or her own name enforce a right given to him or her under a contract, subject to any defence available to the insurer against him or her or against the insured. R.S.O. 1990, c. I.8, s. 201.
Capacity of minors
202.Except in respect of his or her rights as beneficiary, a minor who has attained the age of sixteen years has the capacity of a person of the age of eighteen years,
(a) to make an enforceable contract; and
(b) in respect of a contract. R.S.O. 1990, c. I.8, s. 202.
Proof of claim
203. (1) Where an insurer receives sufficient evidence of,
(a) the happening of the event upon which insurance money becomes payable;
(b) the age of the person whose life is insured;
(c) the right of the claimant to receive payment; and
(d) the name and age of the beneficiary, if there is a beneficiary,
it shall, within thirty days after receiving the evidence, pay the insurance money to the person entitled thereto. R.S.O. 1990, c. I.8, s. 203.
Order under Declarations of Death Act, 2002
(2) Despite sections 208 and 209, an order made under the Declarations of Death Act, 2002 that declares that an individual has died is sufficient evidence of death for the purpose of clause (1) (a) if the insurer had notice of the application. 2002, c. 14, Sched., s. 10.
Exception
(3) Subsection (2) does not apply if the order is limited, under subsection 2 (6) of the Declarations of Death Act, 2002, to specified purposes other than the payment of insurance money. 2002, c. 14, Sched., s. 10.
Payment of insurance money
Place of payment
204.(1)Subject to subsection (4), insurance money is payable in Ontario.
Dollars
(2)Unless a contract otherwise provides, a reference therein to dollars means Canadian dollars.
Payment outside Ontario
(3)Where a person entitled to receive insurance money is not domiciled in Ontario, the insurer may pay the insurance money to that person or to any other person who is entitled to receive it on that person’s behalf by the law of the domicile of the payee.
Exception for group insurance
(4)In the case of a contract of group insurance, insurance money is payable in the province or territory of Canada in which the group life insured was resident at the time he or she became insured. R.S.O. 1990, c. I.8, s. 204.
Action in Ontario
205.Despite where a contract was made, an action on it may be brought in a court by a resident of Ontario if the insurer was authorized to transact insurance in Ontario at the time the contract was made or at the time the action is brought. R.S.O. 1990, c. I.8, s. 205.
206. Repealed: 2002, c. 24, Sched. B, s. 39 (1).
Documents affecting right to insurance money
207.(1)Until an insurer receives at its head or principal office in Canada an instrument or an order of a court affecting the right to receive insurance money, or a notarial copy, or a copy verified by statutory declaration, of any such instrument or order, it may make payment of the insurance money and shall be as fully discharged to the extent of the amount paid as if there were no such instrument or order.
Saving
(2)Subsection (1) does not affect the rights or interests of any person other than the insurer. R.S.O. 1990, c. I.8, s. 207.
Declaration as to sufficiency of proof
208.Where an insurer admits the validity of the insurance but does not admit the sufficiency of the evidence required by section 203 and there is no other question in issue except a question under section 209, the insurer or the claimant may, before or after action is brought and upon at least thirty days notice, apply to the court for a declaration as to the sufficiency of the evidence furnished, and the court may make the declaration or may direct what further evidence shall be furnished and on the furnishing thereof may make the declaration or, in special circumstances, may dispense with further evidence. R.S.O. 1990, c. I.8, s. 208.
Declaration as to presumption of death
209.Where a claimant alleges that the person whose life is insured should be presumed to be dead by reason of his or her not having been heard of for seven years and there is no other question in issue except a question under section 208, the insurer or the claimant may, before or after action is brought and upon at least thirty days notice, apply to the court for a declaration as to presumption of the death and the court may make the declaration. R.S.O. 1990, c. I.8, s. 209.
Court orders, application under s. 208 or 209
210.(1)Upon making a declaration under section 208 or 209, the court may make such order respecting the payment of the insurance money and respecting costs as it deems just and, subject to section 212, a declaration or direction or order made under this subsection is binding upon the applicant and upon all persons to whom notice of the application has been given.
Payment under order
(2)A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 210.
Stay of proceedings
211.Unless the court otherwise orders, an application made under section 208 or 209 operates as a stay of any pending action with respect to the insurance money. R.S.O. 1990, c. I.8, s. 211.
Appeal, ss. 208 to 210
212.An appeal lies to the Divisional Court from any declaration, direction or order made under section 208, section 209 or subsection 210 (1). R.S.O. 1990, c. I.8, s. 212.
Court orders, insufficient evidence, etc.
213.Where the court finds that the evidence furnished under section 203 is not sufficient or that a presumption of death is not established, it may order that the matters in issue be decided in an action brought or to be brought, or may make such other order as it considers just respecting further evidence to be furnished by the claimant, publication of advertisements, further inquiry or any other matter or respecting costs. R.S.O. 1990, c. I.8, s. 213.
Payment into court
214.Where an insurer admits liability for insurance money and it appears to the insurer that,
(a) there are adverse claimants;
(b) the whereabouts of a person entitled is unknown; or
(c) there is no person capable of giving and authorized to give a valid discharge therefor, who is willing to do so,
the insurer may, at any time after thirty days from the date of the happening of the event upon which the insurance money becomes payable, apply to the court without notice for an order for payment of the money into court, and the court may upon such notice, if any, as it thinks necessary make an order accordingly. R.S.O. 1990, c. I.8, s. 214.
Simultaneous deaths
215.Unless a contract or a declaration otherwise provides, where the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable in accordance with subsection 194 (1) as if the beneficiary had predeceased the person whose life is insured. R.S.O. 1990, c. I.8, s. 215.
Insurance money payable in instalments
216.(1)Subject to subsections (2) and (3), where insurance money is payable in instalments and a contract, or an instrument signed by the insured and delivered to the insurer, provides that a beneficiary has not the right to commute the instalments or to alienate or assign the beneficiary’s interest therein, the insurer shall not, unless the insured subsequently directs otherwise in writing, commute the instalments or pay them to any person other than the beneficiary, and the instalments are not, in the hands of the insurer, subject to any legal process except an action to recover the value of necessaries supplied to the beneficiary or the beneficiary’s children who are minors.
Commutation by beneficiary
(2)A court may, upon the application of a beneficiary and upon at least ten days notice, declare that in view of special circumstances,
(a) the insurer may, with the consent of the beneficiary, commute instalments of insurance money; or
(b) the beneficiary may alienate or assign the beneficiary’s interest in the insurance money.
Commutation after death of beneficiary
(3)After the death of the beneficiary, his or her personal representative may, with the consent of the insurer, commute any instalments of insurance money payable to the beneficiary.
Definition
(4)In this section,
“instalments” includes insurance money held by the insurer under section 217. R.S.O. 1990, c. I.8, s. 216.
Insurer holding insurance money
217.(1)An insurer may hold insurance money,
(a) subject to the order of an insured or a beneficiary; or
(b) upon trusts or other agreements for the benefit of the insured or the beneficiary,
as provided in the contract, by an agreement in writing to which it is a party, or by a declaration, with interest at a rate agreed upon therein or, where no rate is agreed upon, at the rate declared from time to time by the insurer in respect of insurance money so held by it.
Exception
(2)The insurer is not bound to hold insurance money as provided in subsection (1) under the terms of a declaration to which it has not agreed in writing. R.S.O. 1990, c. I.8, s. 217.
Court may order payment
218.Where an insurer does not within thirty days after receipt of the evidence required by section 203 pay the insurance money to some person competent to receive it or into court, the court may, upon application of any person, order that the insurance money or any part thereof be paid into court, or may make such other order as to the distribution of the money as it deems just, and payment made in accordance with the order discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 218.
Costs, s. 214 or 218
219.The court may fix without assessment the costs incurred in connection with an application or order made under section 214 or 218, and may order them to be paid out of the insurance money or by the insurer or the applicant or otherwise as it considers just. R.S.O. 1990, c. I.8, s. 219.
Minors
220.(1)If an insurer admits liability for insurance money payable to a minor, the insurer shall pay the money and any applicable interest, less the applicable costs mentioned in subsection (2), into court to the credit of the minor. 1993, c. 10, s. 13 (1).
Costs
(2)The insurer may retain out of the insurance money for costs incurred upon payment into court under subsection (1) the sum of $10 where the amount does not exceed $1,000, and the sum of $15 in other cases, and payment of the remainder of the money into court discharges the insurer. R.S.O. 1990, c. I.8, s. 220 (2).
Procedure
(3)No order is necessary for payment into court under subsection (1), but the accountant or other proper officer shall receive the money upon the insurer filing with him or her an affidavit showing the amount payable and the name, date of birth and residence of the minor, and, upon such payment being made, the insurer shall forthwith notify the Children’s Lawyer and deliver to him or her a copy of the affidavit. R.S.O. 1990, c. I.8, s. 220 (3); 1994, c. 27, s. 43 (2).
Authorized payments
(4)An insurer may, despite subsection (1), pay insurance money and applicable interest payable to a minor to,
(a) the guardian of the property of the minor, appointed under section 47 of the Children’s Law Reform Act; or
(b) a person referred to in subsection 51 (1) of the Children’s Law Reform Act, if the payment does not exceed the amount set out in that subsection. 1993, c. 10, s. 13 (2).
Beneficiary under disability
221.Where it appears that a representative of a beneficiary who is under disability may under the law of the domicile of the beneficiary accept payments on behalf of the beneficiary, the insurer may make payment to the representative and any such payment discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 221.
Presumption against agency
222.No officer, agent or employee of an insurer and no person soliciting insurance, whether or not the person is an agent of the insurer, shall, to the prejudice of the insured, be deemed to be the agent of the insured in respect of any question arising out of a contract. R.S.O. 1990, c. I.8, s. 222.
Insurer giving information
223.An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received and that affects the insurance money. R.S.O. 1990, c. I.8, s. 223.
Interpretation, Part VI
“automobile” includes,
(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and
(b) a vehicle prescribed by regulation to be an automobile; (“automobile”)
“contract” means a contract of automobile insurance that,
(a) is undertaken by an insurer that is licensed to undertake automobile insurance in Ontario, or
(b) is evidenced by a policy issued in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule by an insurer that has filed an undertaking under section 226.1; (“contrat”)
“excluded driver” means a person named as an excluded driver in an endorsement under section 249; (“conducteur exclu”)
“fault determination rules” means the rules prescribed under paragraph 21 of subsection 121 (1); (“règles de détermination de la responsabilité”)
“health care” includes all goods and services for which payment is provided by the medical, rehabilitation and attendant care benefits provided for in the Statutory Accident Benefits Schedule; (“soins de santé”)
“insured” means a person insured by a contract whether named or not and includes every person who is entitled to statutory accident benefits under the contract whether or not described therein as an insured person; (“assuré”)
“occupant”, in respect of an automobile, means,
(a) the driver,
(b) a passenger, whether being carried in or on the automobile,
(c) a person getting into or on or getting out of or off the automobile; (“personne transportée”)
“same-sex partner” means either of two persons of the same sex who have cohabited continuously for a period of not less than three years, or have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child; (“partenaire de même sexe”)
“spouse” means either of a man and a woman who,
(a) are married to each other,
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act, or
(c) are not married to each other and have cohabited continuously for a period of not less than three years, or have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child; (“conjoint”)
“statutory accident benefits” means the benefits set out in the regulations made under paragraphs 9 and 10 of subsection 121 (1); (“indemnités d’accident légales”)
“Statutory Accident Benefits Schedule” means the regulations made under paragraphs 9 and 10 of subsection 121 (1). (“Annexe sur les indemnités d’accident légales”) R.S.O. 1990, c. I.8, s. 224 (1); 1993, c. 10, s. 1; 1996, c. 21, s. 15; 1999, c. 6, s. 31 (4); 2002, c. 22, s. 115.
Transition
(2)A reference to Schedule C in any other Act or in any regulation, contract or other instrument shall, in respect of events occurring after the 21st day of June, 1990, be deemed to be a reference to the Statutory Accident Benefits Schedule and a reference to benefits under Schedule C shall be deemed to be a reference to statutory accident benefits. R.S.O. 1990, c. I.8, s. 224 (2); 1993, c. 10, s. 1.
Idem
(3)Every contract to which subsection 268 (1) applies shall be deemed to have been amended on the 22nd day of June, 1990, to include statutory accident benefits in accordance with the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 224 (3); 1993, c. 10, s. 1.
Idem
(4)The benefits of a person who, before the 22nd day of June, 1990, was entitled to benefits under Schedule C shall be determined in accordance with the Insurance Act, being chapter 218 of the Revised Statutes of Ontario, 1980, as that Act read immediately before the 22nd day of June, 1990. R.S.O. 1990, c. I.8, s. 224 (4).
Idem
(5)For the purposes of subsections (2) and (4),
“Schedule C” means Schedule C to the Insurance Act, being chapter 218 of the Revised Statutes of Ontario, 1980, as that Act read before the 22nd day of June, 1990. R.S.O. 1990, c. I.8, s. 224 (5).
Additional benefits
(6)An insurer, with the approval of the Superintendent, may offer optional benefits in excess of the benefits that must be provided under the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 224 (6); 1993, c. 10, s. 1; 1997, c. 28, s. 109.
(7)Optional benefits offered under subsection (6) shall be deemed to be statutory accident benefits and the Statutory Accident Benefits Schedule applies to them with necessary modifications. R.S.O. 1990, c. I.8, s. 224 (7); 1993, c. 10, s. 1.
Exception re insured
225.Except as provided in the Statutory Accident Benefits Schedule, the insured under a contract shall be deemed not to include any person who sustains loss or damage while any automobile insured under the contract is being used or operated by an excluded driver. R.S.O. 1990, c. I.8, s. 225; 1993, c. 10, s. 1.
Application of Part
226.(1)This Part does not apply to contracts insuring only against,
(a) loss of or damage to an automobile while in or on described premises;
(b) loss of or damage to property carried in or upon an automobile; or
(c) liability for loss of or damage to property carried in or upon an automobile.
Idem
(2)This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part.
Idem
(3)This Part does not apply to a contract insuring solely the interest of a person who has a lien upon, or has as security legal title to, an automobile and who does not have possession of the automobile. R.S.O. 1990, c. I.8, s. 226.
Out-of-province insurers
226.1An insurer that issues motor vehicle liability policies in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule may file an undertaking with the Superintendent, in the form provided by the Superintendent, providing that the insurer’s motor vehicle liability policies will provide at least the coverage described in sections 251, 265 and 268 when the insured automobiles are operated in Ontario. 1996, c. 21, s. 16; 1997, c. 28, s. 110.
Approval of forms
227.(1)An insurer shall not use a form of any of the following documents in respect of automobile insurance unless the form has been approved by the Superintendent:
1. An application for insurance.
2. A policy, endorsement or renewal.
3. A claims form.
4. A continuation certificate. 1996, c. 21, s. 17; 1997, c. 28, s. 111.
Application for insurance
(1.1)Paragraph 1 of subsection (1) does not apply if, in accordance with the regulations, the insurer uses a form of application for insurance that is prescribed by the regulations. 1996, c. 21, s. 17.
Approval of policies in special cases
(2)Where, in the opinion of the Superintendent, any provision of this Part, including any statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he or she may approve a form of policy, or part thereof, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be insured, and the contract evidenced by the policy or endorsement in the form so approved is effective and binding according to its terms even if those terms are inconsistent with, vary, omit or add to any provision or condition of this Part. R.S.O. 1990, c. I.8, s. 227 (2); 1997, c. 28, s. 111.
Approval of extensions
(3)The Superintendent may, if he or she considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement thereto that extends the insurance beyond that prescribed in this Part. R.S.O. 1990, c. I.8, s. 227 (3); 1997, c. 28, s. 111.
Conditions of approval of extension
(4)The Superintendent, in granting an approval under subsection (3), may require the insurer to charge an additional premium for the extension and to state that fact in the policy or in any endorsement. R.S.O. 1990, c. I.8, s. 227 (4); 1997, c. 28, s. 111.
Standard policies
(5)The Superintendent may approve the form of standard policies containing insuring agreements and provisions in conformity with this Part for use by insurers in general. 1993, c. 10, s. 14; 1997, c. 28, s. 111.
Publication
(6)If the Superintendent approves a form of standard policy, the Superintendent shall cause a copy of the form to be published in The Ontario Gazette, but it is not necessary to publish endorsement forms approved for use with the standard policy. 1993, c. 10, s. 14; 1997, c. 28, s. 111.
Revocation of approval
(7)The Superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, no insurer shall thereafter use or deliver a form that contravenes the notification. R.S.O. 1990, c. I.8, s. 227 (7); 1997, c. 28, s. 111.
Reason for decision
(8)The Superintendent shall, on request of any interested insurer, specify in writing his or her reasons for granting, refusing or revoking an approval of a form. R.S.O. 1990, c. I.8, s. 227 (8); 1997, c. 28, s. 111.
Application form
228.Where so required by the regulations, no insurer shall use a form of application other than a prescribed form. R.S.O. 1990, c. I.8, s. 228.
Information for applicants, etc.
229.(1)An insurer or broker shall supply at such times as may be prescribed such information as may be prescribed to applicants for automobile insurance and to named insureds under contracts. R.S.O. 1990, c. I.8, s. 229 (1); 1993, c. 10, s. 15 (1).
Information deemed to be part of application
(2)Information supplied under subsection (1) by an insurer or by a broker on behalf of an insurer to an applicant for automobile insurance shall be deemed to be a part of the application. R.S.O. 1990, c. I.8, s. 229 (2); 1993, c. 10, s. 15 (2).
Information from brokers
230.(1)A broker shall provide to an applicant for insurance the names of all the insurers with whom the broker has an agency contract relating to automobile insurance and all information obtained by the broker relating to quotations on automobile insurance for the applicant. 1996, c. 21, s. 18.
Information from agents
(2) An agent shall inform an applicant for automobile insurance of the insurer or the insurers within an affiliated group of insurers that the agent represents. 2002, c. 22, s. 116.
Request for written information
(3) The broker or agent shall provide the information referred to in subsection (1) or (2) in writing if the applicant so requests. 2002, c. 22, s. 116.
Persons forbidden to act as agent
231.No person carrying on the business of financing the sale or purchase of automobiles and no automobile dealer, insurance agent or broker and no officer or employee of such a person, dealer, agent or broker shall act as the agent of an applicant for the purpose of signing an application for automobile insurance. R.S.O. 1990, c. I.8, s. 231.
Policy, formal requirements
Copy of application in policy
232.(1)A copy of the written application, signed by the insured or the insured’s agent, or, if no signed application is made, a copy of the purported application, or a copy of such part of the application or purported application as is material to the contract, shall be embodied in, endorsed upon or attached to the policy when issued by the insurer.
Policy issued where no signed application
(2)If no signed written application is received by the insurer prior to the issue of the policy, the insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, a form of application to be completed and signed by the insured and returned to the insurer.
Insured entitled to copy
(3)Subject to subsection (5), the insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, the policy or a true copy thereof and every endorsement or other amendment to the contract.
Form of policy
(4)Where a written application signed by the insured or the insured’s agent is made for a contract, the policy evidencing the contract shall be deemed to be in accordance with the application unless the insurer points out in writing to the insured named in the policy in what respect the policy differs from the application, and, in that event, the insured shall be deemed to have accepted the policy unless within one week from the receipt of the notification the insured informs the insurer in writing that the insured rejects the policy. R.S.O. 1990, c. I.8, s. 232 (1-4).
Certificate of policy
(5)If an insurer adopts a standard policy approved under subsection 227 (5), it may, instead of issuing the policy, issue a certificate in a form approved by the Superintendent. 1993, c. 10, s. 16 (1); 1997, c. 28, s. 111.
Effect of certificate
(5.1)A certificate issued under subsection (5) is of the same force and effect as if it were the standard policy, subject to the limits and coverages shown by the insurer on the certificate and any endorsements issued with or subsequent to the certificate. 1993, c. 10, s. 16 (1).
Copy of policy
(5.2)At the request of an insured to whom a certificate has been issued under subsection (5), the insurer shall provide a copy of the standard policy approved by the Superintendent. 1993, c. 10, s. 16 (1); 1997, c. 28, s. 111.
Application
(6)Where a certificate is issued under subsection (5), subsection (8) of this section and subsections 261 (2) and 263 (5.3) apply with necessary modifications. R.S.O. 1990, c. I.8, s. 232 (6); 1993, c. 10, s. 16 (2).
Proof of terms of policy
(7)Where an insurer issues a certificate under subsection (5), proof of the terms of the policy may be given by production of a copy of The Ontario Gazette containing the form of standard policy approved by the Superintendent. R.S.O. 1990, c. I.8, s. 232 (7); 1993, c. 10, s. 16 (3); 1997, c. 28, s. 111.
Endorsement on forms
(8)Upon every application form and policy, there shall be printed or stamped in conspicuous type a copy of subsection 233 (1). R.S.O. 1990, c. I.8, s. 232 (8).
Inspection requirements
232.1Before issuing a policy in respect of an automobile, an insurer shall comply with the inspection requirements prescribed by the regulations. 1996, c. 21, s. 19.
Misrepresentation or violation of conditions renders claim invalid
(a) an applicant for a contract,
(i) gives false particulars of the described automobile to be insured to the prejudice of the insurer, or
(ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein;
(b) the insured contravenes a term of the contract or commits a fraud; or
(c) the insured wilfully makes a false statement in respect of a claim under the contract,
a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited. R.S.O. 1990, c. I.8, s. 233 (1).
Statutory accident benefits protected
(2)Subsection (1) does not invalidate such statutory accident benefits as are set out in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 233 (2); 1993, c. 10, s. 1.
Use of application as defence
(3)No statement of the applicant shall be used in defence of a claim under the contract unless it is contained in the signed written application therefor or, where no signed written application is made, in the purported application, or part thereof, that is embodied in, endorsed upon or attached to the policy.
Idem
(4)No statement contained in a purported copy of the application, or part thereof, other than a statement describing the risk and the extent of the insurance, shall be used in defence of a claim under the contract unless the insurer proves that the applicant made the statement attributed to the applicant in the purported application, or part thereof. R.S.O. 1990, c. I.8, s. 233 (3, 4).
Statutory conditions
234.(1)The conditions prescribed by the regulations made under paragraph 15.1 of subsection 121 (1) are statutory conditions and shall be deemed to be part of every contract to which they apply and shall be printed in English or French in every policy to which they apply with the heading “Statutory Conditions” or “Conditions légales”, as may be appropriate.
Variation
(2)No variation or omission of or addition to a statutory condition is binding on the insured.
Exceptions
(3)Except as otherwise provided in the contract, the statutory conditions referred to in subsection (1) do not apply to the insurance required by section 265 or 268.
Definition
(4)In subsection (1),
“policy” does not include an interim receipt or binder. 1993, c. 10, s. 17.
235. Repealed: 1993, c. 10, s. 18.
Notice of expiry or variation
236.(1)If an insurer does not intend to renew a contract or if an insurer proposes to renew a contract on varied terms, the insurer shall,
(a) give the named insured not less than thirty days notice in writing of the insurer’s intention or proposal; or
(b) give the broker, if any, through whom the contract was placed forty-five days notice in writing of the insurer’s intention or proposal. R.S.O. 1990, c. I.8, s. 236 (1).
Idem
(2)Subject to subsection (4), a broker to whom an insurer has given notice under clause (1) (b) shall give the named insured under the contract not less than thirty days notice in writing of the insurer’s intention or proposal. R.S.O. 1990, c. I.8, s. 236 (2).
Reasons
(3)Notices given under subsections (1) and (2) shall set out the reasons for the insurer’s intention or proposal. R.S.O. 1990, c. I.8, s. 236 (3).
Exception
(4)Where, before a broker is required to have given notice to a named insured under subsection (2), the broker places with another insurer a replacement contract containing substantially similar terms as the expiring contract, the broker is exempted from giving notice under subsection (2). R.S.O. 1990, c. I.8, s. 236 (4).
Effect of failure to comply
(5)A contract of insurance is in force until there is compliance with subsections (1), (2) and (3). R.S.O. 1990, c. I.8, s. 236 (5).
Exception
(6) This section does not apply to prescribed types of contracts in prescribed circumstances. 2002, c. 22, s. 117.
237.(1)If so required by the regulations and unless the insurer has complied therewith, an insurer shall not decline to issue or terminate or refuse to renew a contract in respect of such coverages and endorsements as may be set out in the regulations or decline to issue, terminate or refuse to renew any contract or refuse to provide or continue any coverage or endorsement on any ground set out in the regulations. R.S.O. 1990, c. I.8, s. 237 (1).
Information
(2)The Superintendent may require insurers, agents and brokers to provide such information, material and evidence as the Superintendent considers necessary to determine compliance with subsection (1). R.S.O. 1990, c. I.8, s. 237 (2); 1997, c. 28, s. 111.
Exemption
(3)An insurer may apply to the Superintendent for an exemption from subsection (1). R.S.O. 1990, c. I.8, s. 237 (3); 1997, c. 28, s. 111.
Idem
(4)An application for an exemption from compliance with subsection (1) shall be in a form approved by the Superintendent and shall be filed together with such information, materials and evidence as the Superintendent considers necessary. R.S.O. 1990, c. I.8, s. 237 (4); 1997, c. 28, s. 111.
Idem
(5)The Superintendent may exempt an insurer in whole or in part from compliance with subsection (1) if, in the opinion of the Superintendent, compliance with the regulations would impair the solvency of the insurer or would cause the insurer to be in contravention of this Act or the regulations. R.S.O. 1990, c. I.8, s. 237 (5); 1997, c. 28, s. 111.
Non-application
(6)Subsection (1) does not apply in respect of a contract if any payment in respect of premiums payable under the contract or under any ancillary agreement is overdue or if,
(a) the insured has given false particulars of the described automobile to the prejudice of the insurer;
(b) the insured has knowingly misrepresented or failed to disclose in an application for insurance any fact required to be stated therein. R.S.O. 1990, c. I.8, s. 237 (6).
Grounds to terminate
238.(1)An insurer shall not decline to issue, terminate or refuse to renew a contract or refuse to provide or continue a coverage or endorsement, except on a ground filed with the Superintendent under this section. 1993, c. 10, s. 19; 1997, c. 28, s. 111.
Filing of grounds
(2)An insurer shall file with the Superintendent the grounds on which the insurer intends to decline to issue, terminate or refuse to renew a contract or refuse to provide or continue a coverage or endorsement. 1993, c. 10, s. 19; 1997, c. 28, s. 111.
Material to be furnished
(3)The grounds shall be filed in a form approved by the Superintendent and shall be filed together with such information, material and evidence as the Superintendent may specify. 1993, c. 10, s. 19; 1997, c. 28, s. 111.
Effective date
(4)An insurer may use a ground filed under subsection (2) fifteen days after it is filed unless the Superintendent within that fifteen-day period notifies the insurer orally or otherwise that the insurer is prohibited from using the ground because the Superintendent is of the opinion that the ground,
(a) is subjective;
(b) is arbitrary;
(c) bears little or no relationship to the risk to be borne by the insurer in respect of an insured; or
(d) is contrary to public policy. 1993, c. 10, s. 19; 1997, c. 28, s. 111.
Notice
(5)If the Superintendent notifies an insurer orally that the insurer is prohibited from using a ground, the Superintendent shall promptly mail a written notice to the insurer confirming that fact. 1993, c. 10, s. 19; 1997, c. 28, s. 111.
Appeal to Tribunal
(6)If the Superintendent notifies an insurer that the insurer is prohibited from using a ground, the insurer may within 15 days appeal the decision to the Tribunal.
Prohibition by Tribunal
(7)After the hearing, the Tribunal shall prohibit the insurer from using the ground if the Tribunal finds that the ground comes within any of clauses (4) (a), (b), (c) and (d).
Reconsideration
(8)The Superintendent may, at any time, give notice in writing to an insurer that,
(a) he or she is of the opinion that a ground that has been filed under this section or the manner in which it is applied comes within any of clauses (4) (a), (b), (c) and (d); and
(b) he or she intends to prohibit the use of the ground or to prohibit the use of the ground in a specified manner.
Request for hearing
(9)Within 15 days after receiving the notice, the insurer may request in writing that the Tribunal hold a hearing before the Superintendent takes any action described in the notice.
Hearing
(10)If, within the time period allowed, the insurer requests a hearing, the Tribunal shall hold a hearing.
No request for hearing
(11)If, within the time period allowed, the insurer does not request a hearing, the Superintendent may take any action described in the notice.
Powers of Tribunal
(12)At a hearing, if the Tribunal finds that the ground or the manner in which it applies comes within any of clauses (4) (a), (b), (c) and (d), the Tribunal shall prohibit the insurer from using the ground or from using it in a specified manner.
Information to provide
(13)The Superintendent or the Tribunal may require insurers, agents and brokers to provide the information, material and evidence that the Superintendent or Tribunal, as the case requires, considers necessary for the purposes of this section. 1997, c. 28, s. 112.
Motor Vehicle Liability Policies
Policy coverage
Coverage of owner’s policy, specific automobile
239.(1)Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,
(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and
(b) resulting from bodily injury to or the death of any person and damage to property. R.S.O. 1990, c. I.8, s. 239 (1).
Saving, statutory accident benefits
(2)A lack of consent does not invalidate such statutory accident benefits as are set out in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 239 (2); 1993, c. 10, s. 1.
Coverage of owner’s policy, other automobiles
(3)Where the contract evidenced by an owner’s policy also provides insurance against liability in respect of an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to such persons as are specified in the contract. R.S.O. 1990, c. I.8, s. 239 (3).
Death of person named in owner’s policy
(4)Where the insured named in an owner’s policy dies, the following persons shall be deemed to be the insured under the policy:
1. The spouse or same-sex partner of the deceased insured.
2. In respect of the described automobile, a newly-acquired automobile that was acquired by the deceased insured prior to his or her death and a temporary substitute automobile, all as defined by the policy,
i. any person having proper temporary custody thereof until grant of probate or administration to the personal representative of the deceased insured,
ii. the personal representative of the deceased insured. R.S.O. 1990, c. I.8, s. 239 (4); 1999, c. 6, s. 31 (5).
Insurer not liable re excluded driver
240.If a contract evidenced by a motor vehicle liability policy names an excluded driver, the insurer is not liable to any person under the contract or under this Act or the regulations for any loss or damage that occurs while the excluded driver is driving an automobile insured under the contract, except as provided in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 240; 1993, c. 10, s. 1.
Coverage of non-owner’s policy
241.Every contract evidenced by a non-owner’s policy insures the person named therein and such other person, if any, as is specified in the policy against liability imposed by law upon the insured named in the contract or that other person for loss or damage,
(a) arising directly or indirectly from the use or operation of an automobile within the definition thereof in the policy, other than an automobile owned by him, her or it or registered in his, her or its name; and
(b) resulting from bodily injury to or the death of any person, and damage to property. R.S.O. 1990, c. I.8, s. 241.
Persons deemed not owners
242.For the purposes of this Part, a person shall not be deemed to be the owner of an automobile for the reason only that the person has a lien on the automobile or has legal title to the automobile as security. R.S.O. 1990, c. I.8, s. 242.
Territorial limits
243.(1)Insurance under sections 239 and 241 applies to the ownership, use or operation of the insured automobile in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel plying between ports of Canada, the United States of America or a designated jurisdiction. 1996, c. 21, s. 20.
Same
(1.1) Payment provided for under subsection 265 (1) applies to loss or damage resulting from an accident involving an uninsured or unidentified automobile in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel plying between ports of Canada, the United States of America or a designated jurisdiction. 2002, c. 22, s. 118.
Same
(2)Statutory accident benefits provided under section 268 apply to the use or operation of any automobile in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel plying between ports of Canada, the United States of America or a designated jurisdiction. 1996, c. 21, s. 20.
Rights of unnamed insured
244.Any person insured by but not named in a contract to which section 239 or 241 applies may recover indemnity in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor. R.S.O. 1990, c. I.8, s. 244.
Additional agreements
245. Every contract evidenced by a motor vehicle liability policy shall provide that, where a person insured by the contract is involved in an accident resulting from the ownership, or directly or indirectly from the use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall,
(a) upon receipt of notice of loss or damage caused to persons or property, make such investigations, conduct such negotiations with the claimant and effect such settlement of any resulting claims as are deemed expedient by the insurer;
(b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on account of loss or damage to persons or property;
(c) pay all costs assessed against the insured in any civil action defended by the insurer and any interest accruing after entry of judgment upon that part of the judgment that is within the limits of the insurer’s liability; and
(d) where the injury is to a person, reimburse the insured for outlay for such medical aid as is immediately necessary at the time. R.S.O. 1990, c. I.8, s. 245.
Liability for contamination
246.Liability arising from contamination of property carried in an automobile shall not be deemed to be liability arising from the ownership, use or operation of such automobile. R.S.O. 1990, c. I.8, s. 246.
Other liability, possible exclusions
247.The insurer may provide under a contract evidenced by a motor vehicle liability policy, in either or both of the following cases, that it shall not be liable,
(a) to indemnify any person engaged in the business of selling, repairing, maintaining, servicing, storing or parking automobiles for any loss or damage sustained while engaged in the use or operation of or while working upon the automobile in the course of that business unless the person is the owner of the automobile or is an employee of the owner of the automobile;
(b) for loss of or damage to property carried in or upon the automobile or to any property owned or rented by or in the care, custody or control of the insured. R.S.O. 1990, c. I.8, s. 247.
Liability for damage caused by machinery, etc.
248.Subject to the limitations and exclusions of the endorsement, the insurer may provide by endorsement to a contract evidenced by a motor vehicle liability policy that it shall not be liable for loss or damage resulting from the ownership, use or operation of any machinery or apparatus, including its equipment, mounted on or attached to the automobile while such automobile is at the site of the use or operation of that machinery or apparatus. R.S.O. 1990, c. I.8, s. 248.
Excluded driver endorsement
249.A named insured may stipulate by endorsement to a contract evidenced by a motor vehicle liability policy that any person named in the endorsement is an excluded driver under the contract. R.S.O. 1990, c. I.8, s. 249.
Liability, possible exclusions for other uses
250.(1)The insurer may provide under a contract evidenced by a motor vehicle liability policy, in one or more of the following cases, that, except as provided in the Statutory Accident Benefits Schedule, it shall not be liable while,
(a) the automobile is rented or leased to another person;
(b) the automobile is used to carry explosives or to carry radio-active material for research, education, development or industrial purposes or for purposes incidental thereto;
(c) the automobile is used as a taxicab, public omnibus, livery, jitney or sightseeing conveyance or for carrying passengers for compensation or hire;
(d) where the insured vehicle is an automobile, other than a trailer, it is used for towing a trailer owned by the insured unless like indemnity is also provided by the insurer in respect of the trailer;
(e) where the insured vehicle is a trailer, it is towed by an automobile owned by the insured unless like indemnity is also provided by the insurer in respect of the automobile. R.S.O. 1990, c. I.8, s. 250 (1); 1993, c. 10, s. 1.
Definition
(2)In clause (1) (b),
“radio-active material” means,
(a) spent nuclear fuel rods that have been exposed to radiation in a nuclear reactor,
(b) radio-active waste material,
(c) unused enriched nuclear fuel rods, or
(d) any other radio-active material of such quantity and quality as to be harmful to persons or property if its container were destroyed or damaged.
Exception
(3)Clause (1) (a) does not include the use by an employee of his or her automobile on the business of the employee’s employer and for which the employee is paid. R.S.O. 1990, c. I.8, s. 250 (2, 3).
Certain rules excepted
(4)Clause (1) (c) does not include,
(a) the use by a person of the person’s automobile for the carriage of another person in return for the former’s carriage in the automobile of the latter;
(b) the occasional and infrequent use by a person of the person’s automobile for the carriage of another person who shares the cost of the trip;
(c) the use by a person of the person’s automobile for the carriage of a temporary or permanent domestic servant of the insured or his or her spouse or same-sex partner;
(d) the use by a person of the person’s automobile for the carriage of a client or customer or a prospective client or customer; or
(e) the occasional and infrequent use by the insured of the insured’s automobile for the transportation of children to or from school or school activities conducted within the educational program. R.S.O. 1990, c. I.8, s. 250 (4); 1999, c. 6, s. 31 (6).
Minimum liability under policy
251.(1)Every contract evidenced by a motor vehicle liability policy insures, in respect of any one accident, to the limit of at least $200,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and loss of or damage to property.
Priorities
(2)The contract shall be interpreted to mean that where, by reason of any one accident, liability results from bodily injury or death and from loss of or damage to property,
(a) claims against the insured arising out of bodily injury or death have priority to the extent of $190,000 over claims arising out of loss of or damage to property; and
(b) claims against the insured arising out of loss of or damage to property have priority to the extent of $10,000 over claims arising out of bodily injury or death.
Minimum limits where separate limits designated
(3)The insurer may, instead of specifying a limit in the policy for an inclusive amount, specify a limit of liability of at least $200,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and a limit of liability of at least $200,000, exclusive of interest and costs, against liability for loss of or damage to property.
Variation of limits
(4)Nothing in this Part precludes an insurer, with respect to a limit or limits in excess of those specified in subsection (1) or (3), from increasing or reducing the limit or limits specified in the contract with respect to the use or operation of the automobile by a named person, but no reduction is effective for a limit less than that required under subsection (1) or (3). R.S.O. 1990, c. I.8, s. 251.
Liability arising from use, etc., outside Ontario
252.(1)Every motor vehicle liability policy issued in Ontario shall provide that, in the case of liability arising out of the ownership or, directly or indirectly, out of the use or operation of the automobile in any province or territory of Canada, in a jurisdiction of the United States of America or in any other jurisdiction designated in the Statutory Accident Benefits Schedule,
(a) the insurer is liable up to the minimum limits prescribed for that province, territory or jurisdiction if those limits are higher than the limits prescribed by the policy;
(b) the insurer will not set up a defence to a claim that could not be set up if the policy were a motor vehicle liability policy issued in that province, territory or jurisdiction; and
(c) the insured, by acceptance of the policy, constitutes and appoints the insurer as the insured’s irrevocable attorney to appear and defend in any province or territory of Canada, any jurisdiction of the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule in which an action is brought against the insured arising out of the ownership, use or operation of the automobile. 1996, c. 21, s. 21.
Power of attorney binding
(2)A provision in a motor vehicle liability policy in accordance with clause (1) (c) is binding on the insured. R.S.O. 1990, c. I.8, s. 252 (2).
Excess insurance
253.(1)Nothing in this Part precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided by another designated contract evidenced by a motor vehicle liability policy, whether the designated contract is a first loss insurance or an excess insurance.
Termination of excess insurance
(2)Where the contract designated in the excess contract terminates or is terminated, the excess contract is also automatically terminated. R.S.O. 1990, c. I.8, s. 253.
Agreement for partial payment of claim by insured
254.Nothing in this Part precludes an insurer from entering into an agreement with its insured under a contract evidenced by a motor vehicle liability policy providing that the insured will reimburse the insurer in an agreed amount in respect of any claim by or judgment in favour of a third party against the insured, and the agreement may be enforced against the insured according to its tenor. R.S.O. 1990, c. I.8, s. 254.
Liability for nuclear energy hazard
“nuclear energy hazard” means the radio-active, toxic, explosive or other hazardous properties of prescribed substances under the Atomic Energy Control Act (Canada).
Liability when nuclear energy contract also in force
(2)Where an insured is covered, whether named therein or not, under a contract evidenced by a motor vehicle liability policy for loss or damage resulting from bodily injury to or the death of any person or damage to property arising directly or indirectly out of a nuclear energy hazard and is also covered, whether named therein or not, against such loss or damage under a contract evidenced by a policy of nuclear energy hazard liability insurance issued by a group of insurers and in force at the time of the event giving rise to the loss or damage,
(a) the motor vehicle liability insurance is excess to the nuclear energy hazard liability insurance, and the insurer under the contract of motor vehicle liability insurance is not liable to pay beyond the minimum limits prescribed by section 251; and
(b) the unnamed insured under the contract of nuclear energy liability insurance may, in respect of such loss or damage, recover indemnity under that contract in the same manner and to the same extent as if named therein as the insured, and for that purpose the unnamed insured shall be deemed to be a party to the contract and to have given consideration therefor.
When contract deemed in force
(3)For the purpose of this section, a contract of nuclear energy hazard liability insurance shall be deemed to be in force at the time of the event giving rise to the loss or damage, even if the limits of liability thereunder have been exhausted. R.S.O. 1990, c. I.8, s. 255.
Advance payments and release by claimant
256.(1)Where an insurer makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person who is or claims to be entitled to recover from the insured covered by the policy, the payment constitutes, to the extent of the payment, a release by the person or the person’s personal representative of any claim that the person or the person’s personal representative or any person claiming through or under him or by virtue of Part V of the Family Law Act may have against the insured and the insurer.
Idem
(2)Nothing in this section precludes the insurer making the payment from demanding, as a condition precedent to such payment, a release from the person or the person’s personal representative or any other person to the extent of such payment.
Payment to be taken into account
(3)Where the person commences an action, the court shall adjudicate upon the matter first without reference to the payment but in giving judgment the payment shall be taken into account and the person shall only be entitled to judgment for the net amount, if any.
Intention
(4)The intention of this section is to permit payments to a claimant without prejudice to the defendant or the defendant’s insurer, either as an admission of liability or otherwise, and the fact of any payment shall not be disclosed to the judge or jury until after judgment but before formal entry thereof. R.S.O. 1990, c. I.8, s. 256.
Defence where more than one contract
257.(1)Where a person is insured under more than one contract evidenced by a motor vehicle liability policy, whether the insurance is first loss insurance or excess, and a question arises under clause 245 (b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the Ontario Court (General Division), and the court shall give such directions as may appear proper with respect to the performance of the obligation.
Hearing
(2)On an application under subsection (1), the only parties entitled to notice thereof and to be heard thereon are the insured and the insured’s insurers, and no material or evidence used or taken upon such an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided.
Order
(3)An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies.
Contribution
(4)Where indemnity is provided to the insured under two or more contracts and one or more of them are excess insurance, the insurers shall, as between themselves, contribute to the payment of expenses, costs and reimbursement for which provision is made in section 245 in accordance with their respective liabilities for damages awarded against the insured. R.S.O. 1990, c. I.8, s. 257.
Application of insurance money, 3rd party claims, etc.
258.(1)Any person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, even if such person is not a party to the contract, may, upon recovering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of the person’s judgment and of any other judgments or claims against the insured covered by the contract and may, on the person’s own behalf and on behalf of all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied. R.S.O. 1990, c. I.8, s. 258 (1).
(2)Repealed: 2002, c. 24, Sched. B, s. 39 (2).
Other creditors excluded
(3)A creditor of the insured is not entitled to share in the insurance money payable under any contract unless the creditor’s claim is one for which indemnity is provided for by that contract. R.S.O. 1990, c. I.8, s. 258 (3).
Insurer absolutely liable
(4)The right of a person who is entitled under subsection (1) to have insurance money applied upon the person’s judgment or claim is not prejudiced by,
(a) an assignment, waiver, surrender, cancellation or discharge of the contract, or of any interest therein or of the proceeds thereof, made by the insured after the happening of the event giving rise to a claim under the contract;
(b) any act or default of the insured before or after that event in contravention of this Part or of the terms of the contract; or
(c) any contravention of the Criminal Code (Canada) or a statute of any province or territory of Canada or of any state or the District of Columbia of the United States of America by the owner or driver of the automobile,
and nothing mentioned in clause (a), (b) or (c) is available to the insurer as a defence in an action brought under subsection (1). R.S.O. 1990, c. I.8, s. 258 (4).
Section applicable to purported policy
(5)It is not a defence to an action under this section that an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be such a policy is not a motor vehicle liability policy, and this section applies with necessary modifications to the instrument. R.S.O. 1990, c. I.8, s. 258 (5).
Contribution among insurers
(6)The insurer may require any other insurers liable to indemnify the insured in whole or in part in respect of judgments or claims to which reference is made in subsection (1) to be made parties to the action and contribute according to their respective liabilities, whether the contribution is rateably or by way of first loss or excess insurance, as the case may be, and the insured shall on demand furnish the insurer with particulars of all other insurance covering the subject-matter of the contract. R.S.O. 1990, c. I.8, s. 258 (6).
Payment into court
(7)Where any person has recovered a judgment against the insured and is entitled to bring action under subsection (1), and the insurer admits liability to pay the insurance money under the contract and the insurer considers that,
(a) there are or may be other claimants; or
(b) there is no person capable of giving and authorized to give a valid discharge for payment who is willing to do so,
the insurer may apply to the court without notice for an order for payment of the money into court, and the court may, upon such notice, if any, as it thinks necessary, make an order accordingly. R.S.O. 1990, c. I.8, s. 258 (7).
Effect of order
(8)The receipt of the proper officer of the court is sufficient discharge to the insurer for the insurance money paid into court under subsection (7), and the insurance money shall be dealt with as the court may order upon application of any person interested therein. R.S.O. 1990, c. I.8, s. 258 (8).
Defence to excess limits claim relating to s. 250 coverage
(9)Despite anything contained therein to the contrary, every contract evidenced by a motor vehicle liability policy shall, for the purposes of this section, be deemed to provide all the types of coverage mentioned in section 250, but the insurer is not liable to a claimant with respect to such coverage in excess of the limits mentioned in section 251. R.S.O. 1990, c. I.8, s. 258 (9).
Defence where coverage under s. 247 or 248
(10)Where one or more contracts provide for coverage of a type mentioned in section 247 or 248, except as provided in subsection (12), the insurer may,
(a) with respect to that type of coverage; and
(b) as against a claimant,
avail itself of any defence that it is entitled to set up against the insured, despite subsection (4). R.S.O. 1990, c. I.8, s. 258 (10).
Defence where excess limits
(11)Where one or more contracts provide for coverage in excess of the limits mentioned in section 251, except as provided in subsection (12), the insurer may,
(a) with respect to the coverage in excess of those limits; and
(b) as against a claimant,
avail itself of any defence that it is entitled to set up against the insured, despite subsection (4). R.S.O. 1990, c. I.8, s. 258 (11).
Defence where vehicle used in business of carrying passengers
(12)Where a contract provides coverage of the type mentioned in clause 216 (a) of The Insurance Act, being chapter 224 of the Revised Statutes of Ontario, 1970, in respect of an automobile operated in the business of carrying passengers for compensation or hire and insured for that purpose, the insurer may,
(a) with respect to that type of coverage; and
(b) as against a claimant,
only avail itself of a defence that it is entitled to set up against the insured in respect of that part of the coverage, if any, that exceeds,
(c) the limits mentioned in section 251; or
(d) the minimum limits required for that type of coverage by or under any other Act,
whichever is the greater. R.S.O. 1990, c. I.8, s. 258 (12).
Insured’s liability to reimburse insurer
(13)The insured shall reimburse the insurer upon demand in the amount that the insurer has paid by reason of this section and that it would not otherwise be liable to pay. R.S.O. 1990, c. I.8, s. 258 (13).
Insurer may be made third party
(14)Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court, be made a third party in any action to which the insured is a party and in which a claim is made against the insured by any party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action. R.S.O. 1990, c. I.8, s. 258 (14).
Rights of insurer
(15)Upon being made a third party, the insurer may,
(a) contest the liability of the insured to any party claiming against the insured;
(b) contest the amount of any claim made against the insured;
(c) deliver any pleadings in respect of the claim of any party claiming against the insured;
(d) have production and discovery from any party adverse in interest; and
(e) examine and cross-examine witnesses at the trial,
to the same extent as if it were a defendant in the action. R.S.O. 1990, c. I.8, s. 258 (15).
Idem
(16)An insurer may avail itself of subsection (15) even if another insurer is defending in the name and on behalf of the insured an action to which its insured is a party. R.S.O. 1990, c. I.8, s. 258 (16).
Notice of accident
258.1(1)If an automobile insured under a contract is involved in an incident that is required to be reported to the police under the Highway Traffic Act or in respect of which the insured intends to make a claim under the contract, the insured shall give the insurer written notice of the incident, with all available particulars.
Same
(2)Subject to subsection (3), the notice required by subsection (1) shall be given to the insurer within seven days of the incident.
Same
(3)If the insured is unable because of incapacity to comply with subsection (1) within seven days of the incident, the insured shall comply as soon as possible thereafter. 1996, c. 21, s. 22.
Application of ss. 258.3 to 258.6
258.2Sections 258.3 to 258.6 apply only in respect of a claim for loss or damage from bodily injury or death arising from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule. 1996, c. 21, s. 22.
Notice and disclosure before action
258.3(1)An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,
(a) the plaintiff has applied for statutory accident benefits;
(b) the plaintiff served written notice of the intention to commence the action on the defendant within 120 days after the incident or within such longer period as a court in which the action may be commenced may authorize, on motion made before or after the expiry of the 120-day period;
(c) the plaintiff provided the defendant with the information prescribed by the regulations within the time period prescribed by the regulations;
(d) the plaintiff has, at the defendant’s expense, undergone examinations by one or more persons selected by the defendant who are members of Colleges as defined in the Regulated Health Professions Act, 1991, if the defendant requests the examinations within 90 days after receiving the notice under clause (b);
(e) the plaintiff has provided the defendant with a statutory declaration describing the circumstances surrounding the incident and the nature of the claim being made, if the statutory declaration is requested by the defendant; and
(f) the plaintiff has provided the defendant with evidence of the plaintiff’s identity, if evidence of the plaintiff’s identity is requested by the defendant.
Notice to insurer
(2)An insured who receives a notice under clause (1) (b) shall give a copy of the notice to the insurer within seven days of receiving the notice.
Same
(3)If the insured is unable because of incapacity to comply with subsection (2) within seven days of receiving the notice, the insured shall comply as soon as possible thereafter.
Contents of notice
(4)The notice under clause (1) (b) shall inform the person to whom it is given of the obligation under subsection (2).
Limits on examination
(5)An examination under clause (1) (d) shall not be unnecessarily repetitious and shall not involve a procedure that is unreasonable or dangerous.
Examiner may ask questions
(6)A person examined under clause (1) (d) shall answer the questions of the examiner relevant to the examination.
Copy of report
(7)If a person who performs an examination under clause (1) (d) gives a report on the examination to the defendant, the defendant shall ensure that the plaintiff receives a copy of the report within 60 days after the defendant receives the report.
Prejudgment interest
(8)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, no prejudgment interest shall be awarded under section 128 of the Courts of Justice Act for any period of time before the plaintiff served the notice under clause (1) (b).
Failure to comply
(9)Despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the non-compliance in awarding costs.
Service
(10)Section 33 applies, with necessary modifications, to the service of a notice under clause (1) (b). 1996, c. 21, s. 22.
Duty to disclose limits
258.4An insurer that receives a notice under clause 258.3 (1) (b) shall promptly inform the plaintiff whether there is a motor vehicle liability policy issued by the insurer to the defendant and, if so,
(a) the liability limits under the policy; and
(b) whether the insurer will respond under the policy to the claim. 1996, c. 21, s. 22.
Duty of insurer re settlement of claim
258.5(1)An insurer that is defending an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile on behalf of an insured or that receives a notice under clause 258.3 (1) (b) from an insured shall attempt to settle the claim as expeditiously as possible.
Advance payment
(2)If the insurer admits liability in respect of all or part of a claim for income loss, the insurer shall make payments to the person making the claim pending the determination of the amount owing.
Amount of payments
(3)The amount of the payments under subsection (2) shall be based on the insurer’s estimate of the amount owing in respect of the claim for income loss, having regard to any information provided to the insurer by the person making the claim.
Application of subss. 256 (1-3)
(4)Subsections 256 (1), (2) and (3) apply, with necessary modifications, to advance payments made under this section.
Failure to comply
(5)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, an insurer’s failure to comply with this section shall be considered by the court in awarding costs. 1996, c. 21, s. 22.
Mediation
258.6(1)A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect of the claim on behalf of an insured or that receives a notice under clause 258.3 (1) (b) in respect of the claim shall, on the request of either of them, participate in a mediation of the claim in accordance with the procedures prescribed by the regulations.
Failure to comply
(2)In an action in respect of the claim, a person’s failure to comply with this section shall be considered by the court in awarding costs. 1996, c. 21, s. 22.
Notice of action and judgment against insured
Insured to give notice of action
259.(1)Every insured against whom an action is commenced for damages occasioned by an automobile shall give notice thereof in writing to the insurer within five days after service of every notice or process in the action.
Insured to disclose insurance
(2)Every insured against whom an action is commenced for damages occasioned by an automobile shall, upon recovery of a judgment against the insured, disclose to a judgment creditor entitled to the benefit of any motor vehicle liability policy particulars of such contract within ten days after written demand therefor. R.S.O. 1990, c. I.8, s. 259.
Limitation period
259.1 A proceeding against an insurer under a contract in respect of loss or damage to an automobile or its contents shall be commenced within one year after the happening of the loss or damage. 2002, c. 24, Sched. B, s. 39 (3).
Physical damage cover, limitations and exclusions
260.Subject to subsection 227 (1), the insurer may provide in a contract such exclusions and limitations, in respect of loss of or damage to or the loss of use of the automobile, as it considers necessary. R.S.O. 1990, c. I.8, s. 260.
Partial payment of loss clause
261.(1)A contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof may contain a clause to the effect that, in the event of loss, the insurer shall pay only,
(a) an agreed portion of any loss that may be sustained; or
(b) the amount of the loss after deduction of a sum specified in the policy,
and in either case not exceeding the amount of the insurance. R.S.O. 1990, c. I.8, s. 261 (1).
Mandatory deductible
(1.1)Despite subsection (1), in the circumstances prescribed by the regulations, a contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof shall contain a clause to the effect that, in the event of loss, the insurer shall pay only the amount of the loss after deduction of a sum specified in the policy not exceeding the amount of the insurance. 1996, c. 21, s. 23 (1).
Stamping required
(2)Where a clause is inserted in accordance with subsection (1) or (1.1), there shall be printed or stamped upon the face of the policy in conspicuous type the words “This policy contains a partial payment of loss clause” or the French equivalent. R.S.O. 1990, c. I.8, s. 261 (2); 1996, c. 21, s. 23 (2).
Claims under other contracts to be adjusted
262.(1)Where a claim is made under any contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, despite any agreement, adjust the amount of the claim with the insured named in the contract as well as with any person having an interest indicated in the contract. R.S.O. 1990, c. I.8, s. 262 (1).
Exception
(2)Despite subsection (1), if notice of a claim is given or proof of loss is made by a person having an interest indicated in the contract, and no notice is given and no proof of loss is made by the insured within sixty days after the day the notice or proof is required under the contract, the insurer may adjust and pay the claim to the other person having an interest indicated in the contract. 1993, c. 10, s. 20.
Direct Compensation — Property Damage
Accidents involving two or more insured automobiles
263.(1)This section applies if,
(a) an automobile or its contents, or both, suffers damage arising directly or indirectly from the use or operation in Ontario of one or more other automobiles;
(b) the automobile that suffers the damage or in respect of which the contents suffer damage is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Superintendent, in the form provided by the Superintendent, an undertaking to be bound by this section; and
(c) at least one other automobile involved in the accident is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Superintendent, in the form provided by the Superintendent, an undertaking to be bound by this section. 1993, c. 10, s. 21 (1); 1997, c. 28, s. 113.
Exempt automobiles, undertaking to be bound
(1.1)This section applies, with necessary modifications, in respect of an automobile the owner, operator or lessee of which is exempt from the requirement to be insured under the Compulsory Automobile Insurance Act, if the organization that is financially responsible for the damages resulting from the accident involving the automobile files with the Superintendent an undertaking to be bound by this section. 1997, c. 19, s. 10 (29); 1997, c. 28, s. 114 (2).
Damage recovery from insured’s insurer
(2)If this section applies, an insured is entitled to recover for the damages to the insured’s automobile and its contents and for loss of use from the insured’s insurer under the coverage described in subsection 239 (1) as though the insured were a third party.
Fault-based recovery
(3)Recovery under subsection (2) shall be based on the degree of fault of the insurer’s insured as determined under the fault determination rules.
Dispute resolution
(4)An insured may bring an action against the insurer if the insured is not satisfied that the degree of fault established under the fault determination rules accurately reflects the actual degree of fault or the insured is not satisfied with a proposed settlement and the matters in issue shall be determined in accordance with the ordinary rules of law. R.S.O. 1990, c. I.8, s. 263 (2-4).
Restrictions on other recovery
(5)If this section applies,
(a) an insured has no right of action against any person involved in the incident other than the insured’s insurer for damages to the insured’s automobile or its contents or for loss of use;
(a.1) an insured has no right of action against a person under an agreement, other than a contract of automobile insurance, in respect of damages to the insured’s automobile or its contents or loss of use, except to the extent that the person is at fault or negligent in respect of those damages or that loss;
(b) an insurer, except as permitted by the regulations, has no right of indemnification from or subrogation against any person for payments made to its insured under this section. R.S.O. 1990, c. I.8, s. 263 (5); 1996, c. 21, s. 24 (1).
Agreement for partial payment
(5.1)Nothing in this Part precludes an insurer, in a contract belonging to a class prescribed by the regulations, from agreeing with an insured that, in the event that a claim is made by the insured under this section, the insurer shall pay only,
(a) an agreed portion of the amount that the insured would otherwise be entitled to recover; or
(b) the amount that the insured would otherwise be entitled to recover, reduced by a sum specified in the agreement.
Application of subs. (5.1)
(5.2)Subsection (5.1) does not apply unless, before the insurer enters into the contract referred to in that subsection, the insurer offers to enter into another contract with the prospective insured that does not contain the agreement referred to in that subsection but is identical to the contract referred to in subsection (5.1) in all other respects except for the amount of the premium. 1993, c. 10, s. 21 (2).
Mandatory deductible
(5.2.1)In the circumstances prescribed by the regulations, a contract belonging to a class prescribed for the purpose of subsection (5.1) shall provide that, in the event that a claim is made by the insured under this section, the insurer shall pay only the amount that the insured would otherwise be entitled to recover, reduced by a sum specified in the contract.
Application of subs. (5.2)
(5.2.2)Subsection (5.2) does not apply to a contract that contains a provision required by subsection (5.2.1). 1996, c. 21, s. 24 (2).
Stamping required
(5.3)If a contract contains an agreement referred to in subsection (5.1) or a provision required by subsection (5.2.1), the policy shall have printed or stamped on its face in conspicuous type the words “This policy contains a partial payment of recovery clause for property damage” in English or “La présente police comporte une clause de recouvrement partiel en cas de dommages matériels” in French, as may be appropriate. 1993, c. 10, s. 21 (2); 1996, c. 21, s. 24 (3).
Other coverages not affected
(6)This section does not affect an insured’s right to recover in respect of any physical damage coverage in respect of the insured automobile.
Non-application
(7)This section does not apply to damages to those contents of an automobile that are being carried for reward.
Idem
(8)This section does not apply if the damage occurred before the 22nd day of June, 1990.
Idem
(9)This section does not apply if both automobiles are owned by the same person.
Idem
(10)This section does not apply to damage to an automobile owned by the insured or to its contents if the damage is caused by the insured while driving another automobile. R.S.O. 1990, c. I.8, s. 263 (6-10).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 2002, chapter 31, section 10 by adding the following section:
Payment for collision repair
263.1 (1) An insured who is entitled to payment from an insurer for the repair of damage to an automobile as a result of a collision is entitled to have the repair performed at any certified collision repair shop within the meaning of the Collision Repair Standards Act, 2002, subject to any rules that may be made in regulations under subsection (3).
Cooling-off period
(2) Despite the terms of any policy, an insurer is not required to make a payment for the repair of damage to an automobile due to a collision where the automobile was towed to a collision repair shop or a collision reporting centre, and the automobile was not released for repair with the consent of both the insurer and the insured.
Regulations
(3) The Lieutenant Governor in Council may make regulations setting out rules for the purposes of subsection (1).
Definition
(4) In this section,
“collision” includes,
(a) collision with another vehicle,
(b) collision with the roadway or any object on the roadway,
(c) an act of theft or attempted theft,
(d) fire, or
(e) vandalism.
See: 2002, c. 31, ss. 10, 11.
264. Repealed: 1996, c. 21, s. 25.
Uninsured automobile coverage
265.(1)Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that,
(a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile;
(b) any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile; and
(c) a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,
subject to the terms, conditions, provisions, exclusions and limits as are prescribed by the regulations. R.S.O. 1990, c. I.8, s. 265 (1).
Definitions
(2)For the purposes of this section,
“insured automobile” means the automobile as defined or described under the contract; (“automobile assurée”)
“person insured under the contract” means,
(a) in respect of a claim for damage to the insured automobile, the owner of the automobile,
(b) in respect of a claim for damage to the contents of the insured automobile, the owner of the contents,
(c) in respect of a claim for bodily injuries or death,
(i) any person while an occupant of the insured automobile,
(ii) the insured and his or her spouse or same-sex partner and any dependent relative of either,
(A) while an occupant of an uninsured automobile, or
(B) while not the occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile,
(iii) if the insured is a corporation, unincorporated association or partnership, any director, officer, employee or partner of the insured for whose regular use the insured automobile is furnished, and his or her spouse or same-sex partner and any dependent relative of the person or the spouse or same-sex partner,
(A) while an occupant of an uninsured automobile, or
(B) while not the occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile,
where such director, officer, employee or partner or his or her spouse or same-sex partner is not the owner of an automobile insured under a contract; (“personne assurée aux termes du contrat”)
“unidentified automobile” means an automobile with respect to which the identity of either the owner or driver cannot be ascertained; (“automobile non identifiée”)
“uninsured automobile” means an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse or same-sex partner. (“automobile non assurée”) R.S.O. 1990, c. I.8, s. 265 (2); 1999, c. 6, s. 31 (7, 8).
Exclusion from coverage
(3)Despite the definition of “person insured under the contract” in subsection (2), a person who sustains loss or damage while the insured automobile is being used or operated by an excluded driver shall be deemed not to be a person insured under the contract in which the excluded driver is named, except as provided in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 265 (3); 1993, c. 10, s. 1.
Idem
(4)Where a dependent relative referred to in clause (c) of the definition of “person insured under the contract” in subsection (2),
(a) is the owner of an automobile insured under a contract; or
(b) sustains bodily injuries or dies as the result of accident while the occupant of his or her own uninsured automobile,
such relative shall be deemed not to be a dependent relative for the purposes of this section.
Regulations
(5)The Lieutenant Governor in Council may make regulations,
(a) prescribing, amending or altering the terms, conditions, provisions, exclusions and limits with respect to payments under subsection (1);
(b) deeming any term, condition, provision, exclusion or limit as prescribed, amended or altered by a regulation made under clause (a) to be included in any motor vehicle liability policy made or renewed on or after the effective date of the regulation and in any motor vehicle liability policy that is subsisting on the effective date of the regulation;
(c) requiring that terms, conditions, provisions, exclusions and limits, as prescribed, amended or altered by a regulation made under clause (a), be attached to or included in every motor vehicle liability policy as a schedule in or to the policy.
Subrogation
(6)Where an amount is paid under subsection (1), the insurer is subrogated to the rights of the person to whom such amount is paid and the insurer may maintain an action in its name or in the name of such person against any other person or persons responsible for the use or operation of the uninsured or unidentified automobile.
Restriction on recovery
(7)No person has a right of action against any other person in respect of damage to an uninsured automobile or its contents arising directly or indirectly from the use or operation of an automobile if at the time of the damage the uninsured automobile was required by any Act to be insured under a contract evidenced by a motor vehicle liability policy.
Release
(8)A release under section 274 does not enure to the benefit of any person against whom the insurer may subrogate under subsection (6).
Application
(9)This section applies to all contracts evidenced by motor vehicle liability policies made or renewed on or after the 1st day of March, 1980, and all contracts evidenced by motor vehicle liability policies that were subsisting on the 1st day of March, 1980, shall be deemed to provide for the payments referred to in subsection (1) in respect of an accident arising out of the use or operation of an automobile occurring on or after that date. R.S.O. 1990, c. I.8, s. 265 (4-9).
Statutory accident principle established, automobile use, June 22, 1990 – Dec. 31, 1993
266.(1)In respect of loss or damage arising directly or indirectly from the use or operation, after the 21st day of June, 1990, of an automobile and despite any other Act, none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liable in an action in Ontario for loss or damage from bodily injury arising from such use or operation in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature. R.S.O. 1990, c. I.8, s. 266 (1); 1993, c. 10, s. 1.
Idem
(2)Subsection (1) does not relieve any person from liability other than the owner of the automobile, occupants of the automobile and persons present at the incident.
Judicial determination
(3)In an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before or at trial, determine if the injured person has, as a result of the accident, died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.
Idem
(4)Even though a defence motion under subsection (3) is denied, the defendant may, at trial, in the absence of the jury, and following the hearing of evidence, raise the defence provided in subsection (1).
Joint and several liability, joint tortfeasors
(5)In a proceeding involving a plaintiff who cannot recover against the owner of an automobile, the occupant of an automobile or a person present at the incident because of the operation of subsection (1), a defendant is not liable for damages caused by any person who is excluded from liability because of the operation of subsection (1) and is not liable to contribute or indemnify in respect of such damages.
Idem
(6)For the purposes of subsection (5), the proportion of liability of all persons involved in the incident from which the proceeding arose shall be determined as though all persons wholly or partly responsible for the loss or damage were parties to the proceeding even though any such person is not actually a party.
Definition
(7)For the purposes of this section,
“owner” includes an operator as defined in subsection 16 (1) of the Highway Traffic Act. R.S.O. 1990, c. I.8, s. 266 (2-7).
Application
(8)This section does not apply to an action for loss or damage arising from the use or operation, after December 31, 1993, of an automobile. 1996, c. 21, s. 26.
Collateral source rule not to apply, automobile use, Oct. 24, 1989 – Dec. 31, 1993
267.(1)The damages awarded to a person in a proceeding for loss or damage arising directly or indirectly from the use or operation of an automobile shall be reduced by,
(a) all payments that the person has received or that were or are available for statutory accident benefits and by the present value of any statutory accident benefits to which the person is entitled;
(b) all payments that the person has received under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law and by the present value of such payments to which the person is entitled;
(c) all payments that the person has received or that were or are available for loss of income under the laws of any jurisdiction or under an income continuation benefit plan and by the present value of any such payments to which the person is entitled; and
(d) all payments that the person has received under a sick leave plan arising by reason of the person’s occupation or employment. R.S.O. 1990, c. I.8, s. 267 (1); 1993, c. 10, s. 1.
Exception
(2)Payments or benefits received or that were, are or may become available to a person under the insurance plan established under the Workplace Safety and Insurance Act, 1997 shall not be applied under subsection (1) to reduce the damages awarded. R.S.O. 1990, c. I.8, s. 267 (2); 1997, c. 16, s. 9 (1).
Idem
(3)A reduction made under subsection (1) does not apply for the purpose of determining a person’s entitlement to benefits under subsection 30 (14) of the Workplace Safety and Insurance Act, 1997. R.S.O. 1990, c. I.8, s. 267 (3); 1997, c. 16, s. 9 (2).
Limitation on subrogation
(4)A person who has made a payment or who has a liability to pay a benefit described in clause (1) (a), (b), (c) or (d) is not subrogated to a right of recovery of the insured against another person in respect of that payment or benefit. R.S.O. 1990, c. I.8, s. 267 (4).
Idem
(5)The Workplace Safety and Insurance Board is not subrogated to a right of recovery of the insured against another person in respect of a payment or benefit paid by the Workplace Safety and Insurance Board to the insured or in respect of a liability to make such payment or benefit. R.S.O. 1990, c. I.8, s. 267 (5); 1997, c. 16, s. 9 (3).
Application
(6)This section applies to damages awarded for loss or damage arising directly or indirectly from the use or operation, after the 23rd day of October, 1989 and before January 1, 1994, of an automobile. R.S.O. 1990, c. I.8, s. 267 (6); 1993, c. 10, s. 24; 1996, c. 21, s. 27.
Protection from liability, automobile use, Jan. 1, 1994 - Oct. 31, 1996
267.1(1)Despite any other Act and subject to subsections (2) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in a proceeding in Ontario for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile in Canada, the United States of America or any other country designated in the Statutory Accident Benefits Schedule.
Non-pecuniary loss
(2)Subsection (1) does not relieve a person from liability for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, if as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) serious disfigurement; or
(b) serious impairment of an important physical, mental or psychological function.
Motion to determine if non-pecuniary loss threshold met
(3)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine if, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) serious disfigurement; or
(b) serious impairment of an important physical, mental or psychological function.
Determination binding
(4)The determination of a judge on a motion under subsection (3) is binding on the parties at the trial.
Determination at trial
(5)If no motion is made under subsection (3), the trial judge shall determine if, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) serious disfigurement; or
(b) serious impairment of an important physical, mental or psychological function.
Liability of other persons
(6)Subsection (1) does not relieve any person from liability other than the owner of the automobile, the occupants of the automobile and the persons present at the incident.
Joint and several liability, pecuniary loss
(7)If, in the absence of subsection (1), the owner of an automobile, an occupant of an automobile or a person present at the incident would have been jointly and severally liable for damages for pecuniary loss with one or more other persons who are not relieved of liability by subsection (1), the other persons are liable for those damages only to the extent that they are at fault or negligent in respect of those damages.
Non-pecuniary loss, amount of damages
(8)Subject to subsections (2) to (5), in a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against the owner of the automobile, an occupant of the automobile or a person present at the incident in accordance with the following rules:
1. The court shall first determine the amount of damages for non-pecuniary loss for which the owner of the automobile, the occupant of the automobile or the person present at the incident would be liable without regard to this Part.
2. The determination under paragraph 1 shall be made in the same manner as a determination of the amount of damages for non-pecuniary loss in a proceeding to which this section does not apply and, in particular, without regard to,
i. the statutory accident benefits provided for under subsection 268 (1),
ii. the provisions of this section that protect the owner of the automobile, the occupants of the automobile and the persons present at the incident from liability for damages for pecuniary loss, and
iii. the provisions of paragraph 3.
3. The amount of damages for non-pecuniary loss to be awarded against the owner of the automobile, the occupant of the automobile or the person present at the incident shall be determined by reducing the amount determined under paragraph 1 by,
i. in the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act,
A. $10,000, if the award of damages is made in 1993 or 1994, or
B. the non-pecuniary loss deductible published under clause 267.2 (1) (a) for the year in which the court makes the award of damages, if the award of damages is made in a year after 1994, and
ii. in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act,
A. $5,000, if the award of damages is made in 1993 or 1994, or
B. the Family Law Act deductible published under clause 267.2 (1) (b) for the year in which the court makes the award of damages, if the award of damages is made in a year after 1994.
Same
(9)Subsection (8) applies in respect of each person who is entitled to damages for non-pecuniary loss.
Non-pecuniary loss, other tortfeasors
(10)If, in a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, one or more persons other than the owner of the automobile, the occupants of the automobile and the persons present at the incident are found to be liable for damages for non-pecuniary loss,
(a) the other persons,
(i) are jointly and severally liable with the owner, occupants and persons present at the incident for the damages for which the owner, occupants and persons present at the incident are liable under subsection (8), and
(ii) are solely liable for any amount by which the amount mentioned in subclause (i) is less than the amount that the other persons would have been liable to make contribution and indemnify the owner, occupants and persons present at the incident in respect of non-pecuniary loss in the absence of this section;
(b) the other persons are liable to make contribution and indemnify the owner, occupants and persons present at the incident in respect of non-pecuniary loss to the same extent as if this section did not apply, up to the amount for which the owner, occupants and persons present at the incident are liable under subsection (8); and
(c) the owner, occupants and persons present at the incident are liable to make contribution and indemnify the other persons for the amount that the owner, occupants and persons present at the incident are liable under subsection (8), reduced by the amount that the other persons are liable to make contribution and indemnify the owner, occupants and persons present at the incident under clause (b).
Determination of liability
(11)For the purposes of subsections (7) to (10), the liability of all persons involved in the incident from which the proceeding arose shall be determined as though all persons wholly or partly responsible for the damages were parties to the proceeding even though any of those persons is not actually a party.
Costs
(12)In a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (8) on the amount of damages, if any, awarded for non-pecuniary loss. 1993, c. 10, s. 25.
(13)Repealed: 1996, c. 21, s. 28 (1).
Definition
(14)For the purposes of this section,
“owner” includes an operator as defined in subsection 16 (1) of the Highway Traffic Act. 1993, c. 10, s. 25.
Application
(15)This section applies only to a proceeding for loss or damage arising from the use or operation, after December 31, 1993 and before section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile. 1996, c. 21, s. 28 (2).
Publication of deductible amounts
267.2 (1) Before the 1st day of January in each year after 1994, the Superintendent shall determine in accordance with this section and publish in The Ontario Gazette,
(a) the non-pecuniary loss deductible to be used under subparagraph i of paragraph 3 of subsection 267.1 (8) in respect of awards of damages made in the year that begins on the 1st day of January; and
(b) the Family Law Act deductible to be used under subparagraph ii of paragraph 3 of subsection 267.1 (8) in respect of awards of damages made in the year that begins on the 1st day of January. 1993, c. 10, s. 25; 1997, c. 28, s. 115.
Rules for determination
(2)The following rules apply to the determination of the non-pecuniary loss deductible and the Family Law Act deductible:
1. The non-pecuniary loss deductible for 1993 and 1994 is $10,000.
2. The Family Law Act deductible for 1993 and 1994 is $5,000.
3. The non-pecuniary loss deductible and the Family Law Act deductible for a year after 1994 shall be determined by adjusting the deductible for the previous year by the percentage change in the Consumer Price Index for Canada (All Items), as published by Statistics Canada under the authority of the Statistics Act (Canada), for the period from September in the year immediately preceding the previous year to September of the previous year.
4. Despite paragraph 3, if the Consumer Price Index information required by paragraph 3 to determine the deductibles for a year is not available by the 1st day of November in the previous year, or if in the Superintendent’s opinion the information published by Statistics Canada does not provide a reasonable reflection of changes in consumer prices, the Superintendent may determine the deductibles in a manner that the Superintendent considers will provide a reasonable reflection of changes in consumer prices. 1993, c. 10, s. 25; 1997, c. 28, s. 115.
Court Proceedings for Accidents on or after November 1, 1996
Definitions, ss. 267.4 to 267.11
267.3In sections 267.4 to 267.11,
“owner” includes an operator as defined in subsection 16 (1) of the Highway Traffic Act; (“propriétaire”)
“protected defendant” means a person who is protected from liability by subsections 267.5 (1), (3) and (5). (“défendeur exclu”) 1996, c. 21, s. 29.
Application of ss. 267.5 to 267.11, automobile use on or after Nov. 1, 1996
267.4 (1) Sections 267.5 to 267.11 apply only to proceedings for loss or damage from bodily injury or death arising from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule. 1996, c. 21, s. 29.
Effect of amendments
(2) Subsection (1) shall not be interpreted as requiring an amendment made to sections 267.5 to 267.11 to apply in respect of the use or operation, before the amendment came into force, of an automobile. 2002, c. 22, s. 119.
Protection from liability
Income loss and loss of earning capacity
267.5(1)Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile:
1. Damages for income loss suffered in the seven days after the incident.
2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of 80 per cent of the net income loss, as determined in accordance with the regulations, suffered during that period.
3. Damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 80 per cent of the net loss of earning capacity, as determined in accordance with the regulations, suffered during that period. 1996, c. 21, s. 29.
Application
(2)Subsection (1) applies to all actions, including actions under subsection 61 (1) of the Family Law Act. 1996, c. 21, s. 29.
Protection from liability; health care expenses
(3) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function. 2002, c. 22, s. 120 (1).
(4) Repealed: 2002, c. 22, s. 120 (2).
(5)Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29.
Application of subss. (1), (3) and (5)
(6)Subsections (1), (3) and (5) do not protect a person from liability if the person is defended in the action by an insurer that is not licensed to undertake automobile insurance in Ontario unless the insurer has filed an undertaking under section 226.1. 1996, c. 21, s. 29.
Amount of damages for non-pecuniary loss
(7)Subject to subsections (5), (12), (13) and (15), in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against a protected defendant in accordance with the following rules:
1. The court shall first determine the amount of damages for non-pecuniary loss for which the protected defendant would be liable without regard to this Part.
2. The determination under paragraph 1 shall be made in the same manner as a determination of the amount of damages for non-pecuniary loss in an action to which this section does not apply and, in particular, without regard to,
i. the statutory accident benefits provided for under subsection 268 (1),
ii. the provisions of this section that protect protected defendants from liability for damages for pecuniary loss, and
iii. the provisions of paragraph 3.
3. Subject to subsections (8) and (8.1), the amount of damages for non-pecuniary loss to be awarded against the protected defendant shall be determined by reducing the amount determined under paragraph 1 by,
i. in the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of,
A. $15,000, and
B. the amount prescribed by the regulations, and
ii. in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of,
A. $7,500, and
B. the amount prescribed by the regulations.
4. If fault or negligence on the part of the person entitled to damages for non-pecuniary loss contributed to those damages, the award for damages shall be reduced under paragraph 3 before the damages are apportioned under section 3 of the Negligence Act. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (3).
Application of subpar. 3 i of subs. (7)
(8) Subparagraph 3 i of subsection (7) does not apply if the amount of damages for non-pecuniary loss, other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, would exceed $100,000 in the absence of that subparagraph. 2002, c. 22, s. 120 (4).
Application of subpar. 3 ii of subs. (7)
(8.1) Subparagraph 3 ii of subsection (7) does not apply if the amount of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act would exceed $50,000 in the absence of that subparagraph. 2002, c. 22, s. 120 (4).
Application of subss. (7)-(8.1)
(8.2) Subsections (7), (8) and (8.1) apply in respect of each person who is entitled to damages for non-pecuniary loss. 2002, c. 22, s. 120 (4).
Costs
(9)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss. 1996, c. 21, s. 29.
Liability of other persons
(10)Subsections (1), (3) and (5) do not relieve any person from liability other than a protected defendant. 1996, c. 21, s. 29.
Vicarious liability
(10.1) Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable. 2002, c. 22, s. 120 (5).
(11)Repealed: 2002, c. 22, s. 120 (6).
Motion to determine if threshold met; non-pecuniary loss
(12)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (7).
Determination binding
(13)The determination of a judge on a motion under subsection (12) is binding on the parties at the trial. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (8).
(14)Repealed: 2002, c. 22, s. 120 (9).
Determination at trial; non-pecuniary loss
(15)If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (10).
No action by uninsured owner or lessee
267.6(1)Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.
Prosecution not necessary
(2)Subsection (1) applies whether or not the person was prosecuted for or convicted of an offence under the Compulsory Automobile Insurance Act. 1996, c. 21, s. 29.
Joint and several liability with other tortfeasors
267.7(1)If, in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, one or more protected defendants and one or more other persons are found to be liable for damages,
(a) the other persons,
(i) are jointly and severally liable with the protected defendants for the damages for which the protected defendants are liable, having regard to section 267.5, and
(ii) are solely liable for any amount by which the amount mentioned in subclause (i) is less than the amount that the other persons would have been liable to make contribution and indemnify the protected defendants in respect of damages in the absence of section 267.5;
(b) the other persons are liable to make contribution and indemnify the protected defendants in respect of damages to the same extent as if section 267.5 did not apply, up to the amount for which the protected defendants are liable having regard to section 267.5; and
(c) the protected defendants are liable to make contribution and indemnify the other persons for the amount that the protected defendants are liable, having regard to section 267.5, reduced by the amount that the other persons are liable to make contribution and indemnify the protected defendants under clause (b).
Separate determinations
(2)Liability shall be determined under subsection (1) separately for each of the following categories of damages:
1. Damages for income loss and loss of earning capacity.
2. Damages for expenses that have been incurred or will be incurred for health care.
3. Damages for pecuniary loss, other than damages referred to in paragraphs 1 and 2.
4. Damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act.
Determination of liability
(3)For the purposes of subsection (1), the liability of all persons involved in the incident from which the action arose shall be determined as though all persons wholly or partly responsible for the damages were parties to the action even though any of those persons is not actually a party. 1996, c. 21, s. 29.
Collateral benefits
Income loss and loss of earning capacity
267.8(1)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.
2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.
Exception
(2)No reduction shall be made under subsection (1) for payments in respect of income loss if the payments are in respect of income loss suffered in the seven days after the incident.
Priority with other tortfeasors
(3)If persons other than protected defendants are liable for damages for income loss or loss of earning capacity, the reduction required by subsection (1) shall first be applied to the damages for which the protected defendants and the other persons are jointly and severally liable under subclause 267.7 (1) (a) (i), and any excess shall be applied to the amount for which the other persons are solely liable under subclause 267.7 (1) (a) (ii).
Health care expenses
(4)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts:
1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care.
2. All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
Exception
(5)Paragraph 2 of subsection (4) does not apply to a payment made by the Ministry of Health if the action is brought under section 30 of the Health Insurance Act.
Other pecuniary loss
(6)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for pecuniary loss, other than the damages for income loss or loss of earning capacity and the damages for expenses that have been incurred or will be incurred for health care, shall be reduced by all payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Non-pecuniary loss
(7)In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages in respect of non-pecuniary loss to which a plaintiff is entitled shall not be reduced because of any payments or benefits that the plaintiff has received or is entitled to receive.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 267.8 is amended by the Statutes of Ontario, 2002, chapter 22, section 121 by adding the following subsection:
Reduction re arbitration
(7.1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages described in subsections (1), (4) and (6) to which a plaintiff is otherwise entitled shall be further reduced by such amount as may be determined through arbitration under section 267.8.1.
See: 2002, c. 22, ss. 121, 133 (2).
Contributory negligence
(8)The reductions required by subsections (1), (4) and (6) shall be made after any apportionment of damages required by section 3 of the Negligence Act.
Future collateral benefits
(9)A plaintiff who recovers damages for income loss, loss of earning capacity, expenses that have been or will be incurred for health care, or other pecuniary loss in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall hold the following amounts in trust:
1. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of income loss or loss of earning capacity.
2. All payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
3. All payments in respect of the incident that the plaintiff receives after the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.
4. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of expenses for health care.
5. All payments in respect of the incident that the plaintiff receives after the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
6. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Payments from trust
(10)A plaintiff who holds money in trust under subsection (9) shall pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages.
Disputes
(11)Any dispute concerning a plaintiff’s liability to make payments under subsection (10) shall, on the request of a person who claims to be entitled to a payment under that subsection, be submitted to arbitration in accordance with the Arbitration Act, 1991.
Assignment of future collateral benefits
(12)The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just,
(a) the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action,
(i) for statutory accident benefits in respect of income loss or loss of earning capacity,
(ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan,
(iii) under a sick leave plan arising by reason of the plaintiff’s occupation or employment,
(iv) for statutory accident benefits in respect of expenses for health care,
(v) under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and
(vi) for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care; and
(b) the plaintiff who recovered damages in the action co-operate with the defendants or the defendants’ insurers in any claim or proceeding brought by the defendants or the defendants’ insurers in respect of a payment assigned pursuant to clause (a).
Application of subs. (9)
(13)Subsection (9) no longer applies if an order is made under subsection (12).
Pension Benefits Act
(14)Subsections (9) to (13) prevail over sections 65, 66 and 67 of the Pension Benefits Act in the event of a conflict. 1996, c. 21, s. 29.
Workplace Safety and Insurance Act, 1997
(15)Payments or benefits received or that were, are or may become available to a person under the Workplace Safety and Insurance Act, 1997 shall not be applied under subsection (1), (4) or (6) to reduce the damages awarded. 1996, c. 21, s. 29; 1997, c. 16, s. 9 (4).
(16)Repealed: 1997, c. 16, s. 9 (5).
Limitation on subrogation
(17)A person who has made a payment described in subsection (1), (4) or (6) is not subrogated to a right of recovery of the insured against another person in respect of that payment.
Exception
(18)Subsection (17) does not apply if,
(a) the Ministry of Health made the payment; and
(b) the right of recovery is against a person other than a person insured under a motor vehicle liability policy issued in Ontario. 1996, c. 21, s. 29.
Workplace Safety and Insurance Board
(19)The Workplace Safety and Insurance Board is not subrogated to a right of recovery of the insured against another person in respect of a payment or benefit paid by the Workplace Safety and Insurance Board to the insured or in respect of a liability to make such payment or benefit. 1996, c. 21, s. 29; 1997, c. 16, s. 9 (6).
Determination of liability
(20)For the purposes of subsections (1), (3), (4) and (6), the damages payable by a person who is a party to the action shall be determined as though all persons wholly or partly responsible for the damages were parties to the action even though any of those persons is not actually a party.
Interpretation
(21)For the purpose of subsection (1), (4) or (6), a payment shall be deemed not to be available to a plaintiff if the plaintiff made an application for the payment and the application was denied.
Same
(22)Subsection (21) does not apply if the court is satisfied that the plaintiff impaired his or her entitlement to the payment by,
(a) failing to give any notice required by law of the application for the payment;
(b) failing to make himself or herself reasonably available for any examination that was requested by the person to whom the application was made and that was required by law; or
(c) settling in bad faith his or her entitlement to the payment to the detriment of a person found liable for damages in the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile. 1996, c. 21, s. 29.
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 2002, chapter 22, section 122 by adding the following section:
Mandatory arbitration re certain collateral benefits
267.8.1 (1) This section applies with respect to an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile.
Same
(2) The plaintiff or a defendant who meets the prescribed criteria may require any of the following persons to submit to arbitration under the Arbitration Act, 1991 with respect to the matters described in subsection (3):
1. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action for statutory accident benefits in respect of income loss or loss of earning capacity.
2. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
3. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.
4. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action for statutory accident benefits in respect of expenses for health care.
5. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
6. A person liable to make a payment in respect of the incident that the plaintiff may receive after the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Scope of arbitration
(3) The arbitrator may determine, or decline to determine, such matters as may be prescribed by regulation.
See: 2002, c. 22, ss. 122, 133 (2).
Proceedings by action
267.9A proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall be brought only by way of an action. 1996, c. 21, s. 29.
Structured judgments
267.10In the circumstances prescribed by the regulations, the court shall order that an award for damages in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall be paid periodically on such terms as the court considers just. 1996, c. 21, s. 29.
No gross-up for income tax
267.11 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, an award against a protected defendant shall not include any amount to offset liability for income tax payable on income from investment of the award with respect to,
(a) damages for income loss or loss of earning capacity;
(b) damages that are payable periodically pursuant to an order of a court under section 267.10;
(c) any component of an award, other than an award for damages mentioned in clause (b), that the plaintiff and defendant agree the defendant shall pay on a periodic basis. 2002, c. 22, s. 123.
Application
(2) Clause (1) (a) does not apply to an award for income loss or loss of earning capacity under subsection 61 (1) of the Family Law Act. 2002, c. 22, s. 123.
268.(1)Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. 1993, c. 10, s. 26 (1).
(1.1)Repealed: 1996, c. 21, s. 30 (1).
(1.2)Repealed: 1996, c. 21, s. 30 (1).
(1.3)Repealed: 1996, c. 21, s. 30 (1).
Indexation
(1.4)Subject to subsection (1.5) and to the terms, conditions, provisions, exclusions and limits established by the Statutory Accident Benefits Schedule, the Schedule shall provide that, in respect of incidents involving the use or operation, after December 31, 1993 and before section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile,
(a) every continuing periodic amount payable by an insurer as an income replacement benefit, education disability benefit, caregiver benefit or loss of earning capacity benefit in accordance with the Schedule shall be revised, effective the 1st day of January in every year after 1994, using the indexation percentage published under subsection 268.1 (1); and
(b) every monetary amount set out in the Schedule shall be revised, effective the 1st day of January in every year after 1994, by adjusting the amount by the indexation percentage published under subsection 268.1 (1). 1993, c. 10, s. 26 (1); 1996, c. 21, s. 30 (2).
No decrease in payments
(1.5)A continuing periodic amount payable by an insurer in accordance with the Statutory Accident Benefits Schedule shall not be reduced by the operation of the indexation percentage referred to in subsection (1.4). 1993, c. 10, s. 26 (1).
Liability to pay
(2)The following rules apply for determining who is liable to pay statutory accident benefits:
1. In respect of an occupant of an automobile,
i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,
iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.
2. In respect of non-occupants,
i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund. R.S.O. 1990, c. I.8, s. 268 (2); 1993, c. 10, s. 1; 1996, c. 21, s. 30 (3, 4).
Liability
(3)An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits. R.S.O. 1990, c. I.8, s. 268 (3); 1993, c. 10, s. 1.
Choice of insurer
(4)If, under subparagraph i or iii of paragraph 1 or subparagraph i or iii of paragraph 2 of subsection (2), a person has recourse against more than one insurer for the payment of statutory accident benefits, the person, in his or her absolute discretion, may decide the insurer from which he or she will claim the benefits. R.S.O. 1990, c. I.8, s. 268 (4); 1993, c. 10, s. 1.
Same
(5)Despite subsection (4), if a person is a named insured under a contract evidenced by a motor vehicle liability policy or the person is the spouse or same-sex partner or a dependant, as defined in the Statutory Accident Benefits Schedule, of a named insured, the person shall claim statutory accident benefits against the insurer under that policy. 1993, c. 10, s. 26 (2); 1999, c. 6, s. 31 (9).
Same
(5.1)Subject to subsection (5.2), if there is more than one insurer against which a person may claim benefits under subsection (5), the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits. 1993, c. 10, s. 26 (2).
Same
(5.2)If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or same-sex partner or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant. 1993, c. 10, s. 26 (2); 1999, c. 6, s. 31 (10).
Excess insurance
(6)The insurance mentioned in subsection (1) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses.
Idem
(7)The insurance mentioned in subsection (1) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses. R.S.O. 1990, c. I.8, s. 268 (6, 7).
Payments pending dispute resolution
(8)Where the Statutory Accident Benefits Schedule provides that the insurer will pay a particular statutory accident benefit pending resolution of any dispute between the insurer and an insured, the insurer shall pay the benefit until the dispute is resolved. R.S.O. 1990, c. I.8, s. 268 (8); 1993, c. 10, s. 1.
Winding-up orders
268.0.1 (1) The making of a winding-up order in respect of an insurer under the Winding-up and Restructuring Act (Canada) shall not be taken into account in determining under section 268 whether the insurer is liable to pay statutory accident benefits. 2002, c. 22, s. 124.
Motor Vehicle Accident Claims Fund
(2) If an insurer in respect of which a winding-up order has been made under the Winding-up and Restructuring Act (Canada) is liable to pay statutory accident benefits, the benefits, including any benefits that were outstanding at the time the order was made, shall be paid out of the Motor Vehicle Accident Claims Fund. 2002, c. 22, s. 124.
Application
(3) This section applies to winding-up orders made after this section comes into force. 2002, c. 22, s. 124.
Publication of indexation percentage
268.1(1)Before the 1st day of January in each year after 1994, the Superintendent shall determine in accordance with this section and publish in The Ontario Gazette the indexation percentage to be used effective the 1st day of January under subsection 268 (1.4). 1993, c. 10, s. 27; 1997, c. 28, s. 115.
Rules for determination
(2)The following rules apply to the determination of the indexation percentage to be used under subsection 268 (1.4) effective the 1st day of January in a year:
1. The indexation percentage shall be the percentage change in the Consumer Price Index for Canada (All Items), as published by Statistics Canada under the authority of the Statistics Act (Canada), for the period from September in the year immediately preceding the previous year to September of the previous year.
2. Despite paragraph 1, if the Consumer Price Index information required by paragraph 1 to determine the indexation percentage is not available by the 1st day of November in the previous year, or if in the Superintendent’s opinion the information published by Statistics Canada does not provide a reasonable reflection of changes in consumer prices, the Superintendent may determine the indexation percentage in a manner that the Superintendent considers will provide a reasonable reflection of changes in consumer prices. 1993, c. 10, s. 27; 1997, c. 28, s. 115.
Publication of monetary amounts in Schedule
(3)At the time an indexation percentage is published under subsection (1), the Superintendent shall publish in The Ontario Gazette the amounts to which the monetary amounts set out in the Statutory Accident Benefits Schedule shall be revised, effective the 1st day of January, in accordance with clause 268 (1.4) (b). 1993, c. 10, s. 27; 1997, c. 28, s. 115.
Rules of interpretation, Statutory Accident Benefits Schedule
268.2The Statutory Accident Benefits Schedule shall be interpreted in accordance with the rules made under paragraph 10.2 of subsection 121 (1). 1993, c. 10, s. 27; 1996, c. 21, s. 31.
Guidelines, Statutory Accident Benefits Schedule
268.3(1)The Superintendent may issue guidelines on the interpretation and operation of the Statutory Accident Benefits Schedule or any provision of that Schedule. 1993, c. 10, s. 27; 1997, c. 28, s. 116.
Same
(1.1) The Superintendent may issue guidelines setting out the treatment, services, measures or goods applicable in respect of types of impairments for the purposes of payment of a medical or rehabilitation benefit provided under the Statutory Accident Benefits Schedule, and such guidelines may include conditions, restrictions and limits with respect to such treatment, services, measures or goods. 2002, c. 22, s. 125.
Effect of guideline
(2)Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule. 1993, c. 10, s. 27.
Effective date
(3)A guideline takes effect on the day it is published in The Ontario Gazette. 1993, c. 10, s. 27.
Immunity
268.4 No action or other proceeding for damages may be commenced against any person for an act done or omitted in good faith in conducting an assessment by a designated assessment centre under the Statutory Accident Benefits Schedule. 2002, c. 22, s. 126.
269.(1)A person who is entitled to statutory accident benefits or his or her personal representative is entitled to particulars as to whether the owner or operator of any automobile against whom the person may have a claim has insurance that provides for statutory accident benefits and the name of the insurer, if any. R.S.O. 1990, c. I.8, s. 269 (1); 1993, c. 10, s. 1.
Demand for particulars
(2)The person or his or her personal representative may demand the particulars described in subsection (1) by registered mail from the owner or operator of the automobile or the insurer, if any, of either of them.
Reply
(3)Every owner, operator and insurer shall comply with a demand under subsection (2) within ten days of receiving the demand. R.S.O. 1990, c. I.8, s. 269 (2, 3).
Rights of unnamed insured
270.Any person insured by but not named in a contract to which section 265 or 268 applies may recover under the contract in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor. R.S.O. 1990, c. I.8, s. 270.
Payment into court
271.(1)Where an insurer admits liability for insurance money payable under section 265 or 268 and it appears that,
(a) there are adverse claimants;
(b) the whereabouts of an insured person entitled is unknown; or
(c) subject to subsections (1.1) and (1.2), there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so,
the insurer may, at any time after thirty days after the date upon which the insurance money becomes payable, apply to the court without notice for an order for payment of the money into the Ontario Court (General Division), and the court may upon such notice, if any, as it thinks necessary make an order accordingly. R.S.O. 1990, c. I.8, s. 271 (1); 1993, c. 10, s. 28 (1).
Minors
(1.1)If an insurer admits liability for insurance money payable to a minor under section 265 or 268, the insurer shall pay the money and any applicable interest into the Ontario Court (General Division) to the credit of the minor.
Same, affidavit
(1.2)No order is necessary for payment into the Ontario Court (General Division) under subsection (1.1), but the proper officer of the court shall receive the money if the insurer files with the court an affidavit showing the amount payable and the name, date of birth and residence of the minor.
Same, notice to Official Guardian
(1.3)The insurer shall promptly give the Official Guardian notice of a payment into court under subsection (1.2) and a copy of the affidavit filed under that subsection.
Same, authorized payments
(1.4)An insurer may, despite subsection (1.1), pay insurance money and applicable interest payable to a minor under section 265 or 268 to,
(a) the guardian of the property of the minor, appointed under section 47 of the Children’s Law Reform Act;
(b) a person referred to in subsection 51 (1) of the Children’s Law Reform Act, if the payment does not exceed the amount set out in that subsection; or
(c) the minor, if payment directly to the minor is authorized by the regulations. 1993, c. 10, s. 28 (2).
Discharge of insurer
(2)The receipt of the proper officer of the court is sufficient discharge to the insurer for the insurance money paid into the Ontario Court (General Division), and the insurance money shall be dealt with as the court orders. R.S.O. 1990, c. I.8, s. 271 (2).
272. Repealed: 2002, c. 24, Sched. B, s. 39 (4).
Claimant’s obligation to inform
273.(1)Where any person makes a claim for damages in respect of bodily injury or death sustained by the person or any other person while driving or being carried in or upon or entering or getting onto or alighting from or as a result of being struck by an automobile, the claimant shall furnish the person against whom the claim is made full particulars of all insurance available to the claimant under contracts falling within the scope of section 268. R.S.O. 1990, c. I.8, s. 273.
Claim for statutory accident benefits
(2)If a person makes a claim for statutory accident benefits, the person shall furnish the person against whom the claim is made with full particulars of,
(a) all insurance available to the person under contracts to which subsection 268 (1) applies;
(b) any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan under which benefits are available to the person;
(c) any income continuation benefit plan that provides benefits for loss of income under which benefits are available to the person;
(d) any law of a jurisdiction outside Canada under which benefits are available to the person; and
(e) any claim made by the person under a sick leave plan arising by reason of the person’s occupation or employment. 1993, c. 10, s. 29.
Information to Ministry of Community and Social Services, etc.
273.1 (1) Every insurer shall provide the Ministry of Community and Social Services, a municipality, a board established under the District Social Services Administration Boards Act, a band approved under section 15 of the General Welfare Assistance Act or a delivery agent under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, with such information as may be prescribed by the regulations, including personal information, subject to such conditions as may be prescribed by the regulations. 1997, c. 25, Sched. E, s. 5.
Definition
(2) In this section,
“insurer” includes the Facility Association. 1997, c. 25, Sched. E, s. 5; 2002, c. 17, Sched. F, Table.
Release
274.(1)Payments made or available to a person under the Statutory Accident Benefits Schedule constitute, to the extent of the payments, a release by the person, the person’s personal representatives, the person’s insurer and anyone claiming through or under the person or by virtue of Part V of the Family Law Act,
(a) of any claim under subsection 265 (1) or 268 (1), if the claim arises directly or indirectly from the use or operation, before January 1, 1994, of an automobile; and
(b) of any claim under subsection 268 (1), if the claim arises directly or indirectly from the use or operation, on or after January 1, 1994, of an automobile. 1993, c. 10, s. 30; 1996, c. 21, s. 33 (1, 2).
Same; accidents on or after Nov. 1, 1996
(2)Payments made or available to a person under the Statutory Accident Benefits Schedule in respect of a claim arising directly or indirectly from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile constitute, to the extent of the payments, a release by the person, the person’s personal representatives, the person’s insurer and anyone claiming through or under the person or by virtue of Part V of the Family Law Act,
(a) of any claim under subsection 268 (1); and
(b) to the extent that the payments are made in respect of lost income, of any claim under subsection 265 (1). 1996, c. 21, s. 33 (3).
Indemnification in certain cases
275.(1)The insurer responsible under subsection 268 (2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose. R.S.O. 1990, c. I.8, s. 275 (1); 1993, c. 10, s. 1.
Idem
(2)Indemnification under subsection (1) shall be made according to the respective degree of fault of each insurer’s insured as determined under the fault determination rules. R.S.O. 1990, c. I.8, s. 275 (2).
Deductible
(3)No indemnity is available under subsection (2) in respect of the first $2,000 of statutory accident benefits paid in respect of a person described in that subsection. R.S.O. 1990, c. I.8, s. 275 (3); 1993, c. 10, s. 1.
Arbitration
(4)If the insurers are unable to agree with respect to indemnification under this section, the dispute shall be resolved through arbitration under the Arbitrations Act. R.S.O. 1990, c. I.8, s. 275 (4).
Stay of arbitration
(5)No arbitration hearing shall be held with respect to indemnification under this section if, in respect of the incident for which indemnification is sought, any of the insurers and an insured are parties to a mediation under section 280, an arbitration under section 282, an appeal under section 283 or a proceeding in a court in respect of statutory accident benefits. 1993, c. 10, s. 31.
Terms of certain insurances, insurance under s. 265
276.Subject to subsection 227 (1), an insurer may in a policy,
(a) provide insurance that is less extensive in scope than the insurance mentioned in section 265; and
(b) provide the terms of the contract that relate to the insurance mentioned in section 265. R.S.O. 1990, c. I.8, s. 276.
Other insurance
277.(1)Subject to section 255, insurance under a contract evidenced by a valid owner’s policy of the kind mentioned in the definition of “owner’s policy” in section 1 is, in respect of liability arising from or occurring in connection with the ownership, or directly or indirectly with the use or operation of an automobile owned by the insured named in the contract and within the description or definition thereof in the policy, a first loss insurance, and insurance attaching under any other valid motor vehicle liability policy is excess insurance only.
Idem
(2)Subject to sections 255 and 268 and to subsection (1) of this section, if the insured named in a contract has or places any other valid insurance, whether against liability for the ownership, use or operation of or against loss of or damage to an automobile or otherwise, of the insured’s interest in the subject-matter of the contract or any part thereof, the insurer is liable only for its rateable proportion of any liability, expense, loss or damage.
Rateable proportion defined
(3) “Rateable proportion” as used in subsection (2) means,
(a) if there are two insurers liable and each has the same policy limits, each of the insurers shall share equally in any liability, expense, loss or damage;
(b) if there are two insurers liable with different policy limits, the insurers shall share equally up to the limit of the smaller policy limit;
(c) if there are more than two insurers liable, clauses (a) and (b) apply with necessary modifications. R.S.O. 1990, c. I.8, s. 277.
Subrogation
278.(1)An insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights.
Pro-rating recovery
(2)Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the recovery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the proportion in which the loss or damage has been borne by them.
Action when s. 261 applies
(3)Where the interest of an insured in any recovery is limited to the amount provided under a clause in the contract to which section 261 applies, the insurer shall have control of the action.
Application to court
(4)Where the interest of an insured in any recovery exceeds that referred to in subsection (3) and the insured and the insurer cannot agree as to,
(a) the solicitors to be instructed to bring the action in the name of the insured;
(b) the conduct and carriage of the action or any matters pertaining thereto;
(c) any offer of settlement or the apportionment thereof, whether action has been commenced or not;
(d) the acceptance of any money paid into court or the apportionment thereof;
(e) the apportionment of costs; or
(f) the launching or prosecution of an appeal,
either party may apply to the Ontario Court (General Division) for the determination of the matters in question, and the court shall make such order as it considers reasonable having regard to the interests of the insured and the insurer in any recovery in the action or proposed action or in any offer of settlement.
Idem
(5)On an application under subsection (4), the only parties entitled to notice and to be heard thereon are the insured and the insurer, and no material or evidence used or taken upon the application is admissible upon the trial of an action brought by or against the insured or the insurer.
Concurrence in settlement or release
(6)A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer, as the case may be, unless they have concurred therein. R.S.O. 1990, c. I.8, s. 278.
Dispute Resolution — Statutory Accident Benefits
Dispute resolution
279.(1)Disputes in respect of any insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 279 (1); 1993, c. 10, s. 1.
Opting out
(2)Any restriction on a party’s right to mediate, litigate, appeal or apply to vary an order as provided in sections 280 to 284, or on a party’s right to arbitrate under section 282, is void except as provided in the regulations. 1996, c. 21, s. 34 (1).
Meaning of “insured person”, ss. 279 to 284
(3)For the purposes of this section and sections 280 to 284,
“insured person” includes a person who is claiming funeral expenses or a death benefit under the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 279 (3); 1993, c. 10, s. 1.
Orders
(4)The Director and every arbitrator appointed by the Director shall determine issues before them by order and may make an order subject to such conditions as are set out in the order. R.S.O. 1990, c. I.8, s. 279 (4); 1996, c. 21, s. 34 (2).
Interim orders
(4.1)The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator. 1993, c. 10, s. 32 (2); 1996, c. 21, s. 34 (3).
Power to bind parties
(5)If an insurer or an insured is represented in a mediation under section 280, an evaluation under section 280.1, an arbitration under section 282, an appeal under section 283 or a variation proceeding under section 284, the mediator, person performing the evaluation, arbitrator or Director, as the case may be, may adjourn the proceeding, with or without conditions, if the representative is not authorized to bind the party he or she represents. 1996, c. 21, s. 34 (4).
Mediation
280.(1)Either the insured person or the insurer may refer to a mediator any issue in dispute in respect of the insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which the insured person is entitled. R.S.O. 1990, c. I.8, s. 280 (1); 1993, c. 10, s. 1; 1996, c. 21, s. 35 (1).
Starting the process
(2)The party seeking mediation shall file an application for the appointment of a mediator with the Commission.
Mediator’s appointment
(3)The Director shall ensure that a mediator is appointed promptly.
Mediation
(4)The mediator shall enquire into the issues in dispute and attempt to effect a settlement of as many of the issues as possible within the time prescribed in the regulations for the settlement of the type of dispute in question.
Extension of time
(5)The parties may by agreement extend the time for the completion of the mediation process, even if the time for completion has expired.
Notice of failure
(6)If at any time before a settlement is effected the mediator is of the opinion that mediation will fail, he or she shall forthwith notify the parties.
Idem
(7)Mediation has failed when the mediator has given notice to the parties that in his or her opinion mediation will fail, or when the prescribed or agreed time for mediation has expired and no settlement has been reached. R.S.O. 1990, c. I.8, s. 280 (2-7).
Report
(8)If mediation fails, the mediator, in addition to any notice required to be given, shall prepare and give to the parties a report,
(a) setting out the insurer’s last offer and the mediator’s description of the issues that remain in dispute;
(b) containing a list of materials requested by the parties that have not been produced and that, in the opinion of the mediator, were required for the purpose of discussing a settlement of the issues; and
(c) containing a recommendation as to whether or not the issues in dispute should be referred for an evaluation under section 280.1.
Same
(9)The mediator may give his or her report to a person performing an evaluation under section 280.1 or an arbitrator conducting an arbitration under section 282. 1996, c. 21, s. 35 (2).
Neutral evaluation
280.1(1)If mediation fails, the parties jointly or the mediator who conducted the mediation may, for the purpose of assisting in the resolution of the issues in dispute, refer the issues in dispute to a person appointed by the Director for an evaluation of the probable outcome of a proceeding in court or an arbitration under section 282.
Evaluator’s appointment
(2)The Director shall ensure that a person is appointed promptly to perform the evaluation.
Information
(3)The insurer and the insured person shall provide the person performing the evaluation with any information that he or she requests.
Opinion and report
(4)The person performing the evaluation shall give the parties,
(a) an oral opinion on the probable outcome of a proceeding in court or an arbitration under section 282; and
(b) a written report,
(i) stating that the issues in dispute were evaluated by the person,
(ii) identifying the issues that were evaluated,
(iii) identifying the issues that remain in dispute,
(iv) setting out the insurer’s last offer, and
(v) containing a list of materials requested by the person performing the evaluation that were not provided by the parties.
Same
(5)The person who performed the evaluation may give his or her written report to an arbitrator conducting an arbitration under section 282. 1996, c. 21, s. 36.
Litigation or arbitration
281. (1) Subject to subsection (2),
(a) the insured person may bring a proceeding in a court of competent jurisdiction;
(b) the insured person may refer the issues in dispute to an arbitrator under section 282; or
(c) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991. 1996, c. 21, s. 37.
Limitation
(2) No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282 or agree to submit an issue for arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties. 1996, c. 21, s. 37.
Payment pending dispute resolution
(3) Subject to subsection (4), if mediation fails, the insurer shall pay statutory accident benefits in accordance with the last offer of settlement that it had made before the failure until otherwise agreed by the parties or until otherwise ordered by a court, by an arbitrator acting under this Act or the Arbitration Act, 1991, or by the Director. 1996, c. 21, s. 37.
Same
(4) If a dispute involves a statutory accident benefit that the insurer is required to pay under subsection 268 (8) and no step authorized by subsection (1) has been taken within 45 days after the day mediation failed, the insurer shall pay the insured in accordance with the last offer made by the insurer before the failure until otherwise agreed by the parties or until otherwise ordered by a court, by an arbitrator acting under this Act or the Arbitrations Act, 1991, or by the Director. 1996, c. 21, s. 37.
(5) Repealed: 2002, c. 24, Sched. B, s. 39 (5).
Limitation period
281.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed. 2002, c. 24, Sched. B, s. 39 (6).
Exception
(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,
(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);
(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280 (8). 2002, c. 24, Sched. B, s. 39 (6).
Arbitration
282. (1) An insured person seeking arbitration under this section shall file an application for the appointment of an arbitrator with the Commission. R.S.O. 1990, c. I.8, s. 282 (1); 1996, c. 21, s. 38 (1).
Arbitrator’s appointment
(2) The Director shall ensure that an arbitrator is appointed promptly. R.S.O. 1990, c. I.8, s. 282 (2).
Determination of issues
(3) The arbitrator shall determine all issues in dispute, whether the issues are raised by the insured person or the insurer. 1996, c. 21, s. 38 (2).
Procedures
(4) The arbitration shall be conducted in accordance with the procedures and within the time-limits set out in the regulations. R.S.O. 1990, c. I.8, s. 282 (4).
(5) Repealed: 1996, c. 21, s. 38 (3).
(6) Repealed: 1996, c. 21, s. 38 (3).
(7) Repealed: 1996, c. 21, s. 38 (3).
(8) Repealed: 1996, c. 21, s. 38 (3).
(9) Repealed: 1996, c. 21, s. 38 (3).
Special award
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.
Expenses
(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. 1996, c. 21, s. 38 (4).
Interim award of expenses
(11.1) The arbitrator may at any time during an arbitration proceeding make an interim award of expenses, subject to such terms and conditions as may be established by the arbitrator. 1993, c. 10, s. 33.
Liability of representative for costs
(11.2) An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that,
(a) in respect of a representative of an insured person, the representative commenced or conducted the proceeding without authority from the insured person or did not advise the insured person that he or she could be liable to pay all or part of the expenses of the proceeding;
(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person; or
(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default. 2002, c. 22, s. 127.
Non-application to solicitors
(11.3) Clause (11.2) (a) does not apply to a barrister or solicitor acting in the usual course of the practice of law. 2002, c. 22, s. 127.
Opportunity to make representations
(11.4) An order under subsection (11.2) shall not be made unless the representative is given a reasonable opportunity to make representations to the arbitrator. 2002, c. 22, s. 127.
Bias
(12) A party may apply to the Director for the appointment of a new arbitrator if the party believes that the arbitrator is biased and the Director shall determine the issue. R.S.O. 1990, c. I.8, s. 282 (12).
Copies of decision
(13) The arbitrator, forthwith upon making a decision in an arbitration, shall deliver a copy of his or her order together with a copy of the arbitrator’s written reasons, if any, to the insured person, the insurer and the Director. R.S.O. 1990, c. I.8, s. 282 (13); 1996, c. 21, s. 38 (5).
(14) Repealed: 1996, c. 21, s. 38 (6).
(15) Repealed: 1996, c. 21, s. 38 (6).
Non-application of the Arbitration Act, 1991
(16) The Arbitration Act, 1991 does not apply to arbitrations under this section. 2002, c. 18, Sched. H, s. 4 (24).
Appeal against arbitration order
283.(1)A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law. 1996, c. 21, s. 39 (1).
Notice of appeal
(2)A notice of appeal shall be in writing and shall be delivered to the Commission within thirty days after the date of the arbitrator’s order and the appellant shall serve the notice on the respondent. R.S.O. 1990, c. I.8, s. 283 (2).
Extension of time for appeal
(3)The Director may extend the time for requesting an appeal, before or after the time for requesting the appeal has expired, if the Director is satisfied that there are reasonable grounds for granting the extension, and the Director may give such directions as he or she considers proper as a condition of granting the extension.
Nature of appeal
(4)The Director may determine the appeal on the record or in such other manner as the Director may decide, with or without a hearing. 1996, c. 21, s. 39 (2).
Power of the Director
(5)The Director may confirm, vary or rescind the order appealed from or substitute his or her order for that of the arbitrator. R.S.O. 1990, c. I.8, s. 283 (5); 1996, c. 21, s. 39 (3).
Order not stayed
(6)An appeal does not stay the order of the arbitrator unless the Director decides otherwise. R.S.O. 1990, c. I.8, s. 283 (6).
Medical reports, special awards, expenses
(7)Subsections 282 (10) to (11.2) apply with necessary modifications to appeals before the Director. R.S.O. 1990, c. I.8, s. 283 (7); 1993, c. 10, s. 34; 1996, c. 21, s. 39 (4).
Interventions
(8)The Director may permit persons who are not parties to the appeal to make submissions on issues of law arising in an appeal. R.S.O. 1990, c. I.8, s. 283 (8).
(9)Repealed: 1996, c. 21, s. 39 (5).
(10)Repealed: 1996, c. 21, s. 39 (5).
Application for variation, Director’s or arbitrator’s order
284.(1)Either the insured person or the insurer may apply to the Director to vary or revoke an order made by the Director or an arbitrator appointed by the Director. R.S.O. 1990, c. I.8, s. 284 (1); 1996, c. 21, s. 40 (1).
Idem
(2)If an application is made to vary or revoke an arbitrator’s order, the Director may decide the matter or he or she may appoint the same arbitrator or some other arbitrator to determine it.
Powers on variation
(3)If the arbitrator or Director is satisfied that there has been a material change in the circumstances of the insured or that evidence not available on the arbitration or appeal has become available or that there is an error in the order, the arbitrator or Director may vary or revoke the order and may make a new order if he or she considers it advisable to do so.
Idem
(4)An order made, varied or revoked under subsection (3) may be prospective or retroactive. R.S.O. 1990, c. I.8, s. 284 (2-4).
Application of subss. 282 (11 to 11.2)
(5)Subsections 282 (11) to (11.2) apply with necessary modifications to an application under this section. 1996, c. 21, s. 40 (2).
Restrictions on who may represent
284.1 (1) Despite section 10 of the Statutory Powers Procedure Act and subject to subsection (2), a party to a proceeding under sections 279 to 284 may not be represented by another person for compensation except in accordance with the regulations and subject to such terms and conditions as may be specified in the regulations. 2002, c. 22, s. 128.
Non-application to solicitors
(2) This section does not apply to a barrister or solicitor acting in the usual course of the practice of law. 2002, c. 22, s. 128.
Stated case by Director
285.(1)The Director may state a case in writing for the opinion of the Divisional Court upon any question that, in his or her opinion, is a question of law.
Idem
(2)The Divisional Court shall hear and determine the stated case. R.S.O. 1990, c. I.8, s. 285.
When arbitrator cannot act
286.An arbitrator appointed by the Director cannot vary or revoke an order made by him or her and cannot make a new order to replace an order made by him or her if the order is under appeal. R.S.O. 1990, c. I.8, s. 286; 1996, c. 21, s. 41.
Protection of benefits
287.An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284. R.S.O. 1990, c. I.8, s. 287; 1996, c. 21, s. 42.
Finding of possible unfair or deceptive business practice
288.The Director shall review arbitration orders and may recommend to the Superintendent that the Superintendent investigate the business practices of an insurer if the Director is of the opinion that any one or more arbitrations or appeals from arbitrations reveal unfair or deceptive business practices. R.S.O. 1990, c. I.8, s. 288; 1996, c. 21, s. 43.
Changes to Statutory Accident Benefits Schedule
Reports to the Assembly
289.At least once every two years, the Minister shall table a report before the Assembly in respect of the adequacy of statutory accident benefits and setting out changes made to the Statutory Accident Benefits Schedule since the last report and changes that are proposed to the Statutory Accident Benefits Schedule at the time of the report. R.S.O. 1990, c. I.8, s. 289; 1993, c. 10, s. 1.
Review of this Part
289.1 The Superintendent shall undertake a review of this Part and any regulations made under this Part at least every five years or more often at the request of the Minister and shall recommend any amendments that the Superintendent believes will improve the effectiveness and administration of this Part and the regulations. 2002, c. 22, s. 129.
PART VII
ACCIDENT AND SICKNESS INSURANCE
Definitions, Part VII
“application” means a written application for insurance or for the reinstatement of insurance; (“proposition”)
“beneficiary” means a person designated or appointed in a contract or by a declaration, other than the insured or the insured’s personal representative, to whom or for whose benefit insurance money payable in the event of death by accident is to be paid; (“bénéficiaire”)
“blanket insurance” means that class of group insurance that covers loss arising from specific hazards incident to or defined by reference to a particular activity or activities; (“assurance globale”)
“contract” means a contract of insurance; (“contrat”)
“court” means the Ontario Court (General Division) or a judge thereof; (“tribunal”)
“creditor’s group insurance” means insurance effected by a creditor whereby the lives or well-being, or the lives and well-being, of a number of the creditor’s debtors are insured severally under a single contract; (“assurance collective de créancier”)
“declaration” means an instrument signed by the insured,
(a) with respect to which an endorsement is made on the policy, or
(b) that identifies the contract, or
(c) that describes the insurance or insurance fund or a part thereof,
in which the insured designates or alters or revokes the designation of the insured’s personal representative or a beneficiary as one to whom or for whose benefit shall be paid the insurance money that is payable in the event of death by accident; (“déclaration”)
“family insurance” means insurance whereby the lives or well-being, or the lives and well-being, of the insured and one or more persons related to the insured by blood, marriage or adoption are insured under a single contract between an insurer and the insured; (“assurance familiale”)
“group insurance” means insurance other than creditor’s group insurance and family insurance, whereby the lives or well-being, or the lives and well-being, of a number of persons are insured severally under a single contract between an insurer and an employer or other person; (“assurance collective”)
“group person insured” means a person who is insured under a contract of group insurance and upon whom a right is conferred by the contract, but does not include a person who is insured thereunder as a person dependent upon or related to him or her; (“personne couverte par une assurance collective”)
“instrument” includes a will; (“acte”)
“insurance” means accident insurance, sickness insurance, or accident insurance and sickness insurance; (“assurance”)
Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “insurance” is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (25) and the following substituted:
“insurance” means accident and sickness insurance; (“assurance”)
See: 2002, c. 18, Sched. H, ss. 4 (25), 16 (2).
“insured”,
(a) in the case of group insurance means, in the provisions of this Part relating to the designation of beneficiaries or of personal representatives as recipients of insurance money and their rights and status, the group person insured, and
(b) in all other cases means the person who makes a contract with an insurer; (“assuré”)
“person insured” means a person in respect of an accident to whom, or in respect of whose sickness, insurance money is payable under a contract, but does not include a group person insured; (“personne assurée”)
“will” includes a codicil. (“testament”) R.S.O. 1990, c. I.8, s. 290.
Application of Part
291.(1)Despite any agreement, condition or stipulation to the contrary, this Part applies to contracts made in Ontario on or after the 1st day of October, 1970.
Idem
(2)In the case of contracts made before and in effect on that day,
(a) this section and sections 290, 292, 293, 302, 305, 306, 307 and 311, and sections 313 to 329 of this Part apply; and
(b) sections 230, 231, 232, 233, 235, 242 and 245 of The Insurance Act, being chapter 190 of the Revised Statutes of Ontario, 1960, as it existed immediately before the 1st day of October, 1970, continue to apply.
Exceptions
(3)This Part does not apply to,
(a) accidental death insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (26) and the following substituted:
(a) insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay an additional amount of insurance money in the event of the death by accident of the person whose life is insured;
See: 2002, c. 18, Sched. H, ss. 4 (26), 16 (2).
(b) creditor’s group insurance;
(c) disability insurance; or
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (27) and the following substituted:
(c) insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease; or
See: 2002, c. 18, Sched. H, ss. 4 (27), 16 (2).
(d) insurance provided under section 265 or 268. R.S.O. 1990, c. I.8, s. 291.
Group insurance
292.In the case of a contract of group insurance made with an insurer authorized to transact insurance in Ontario at the time the contract was made, this Part applies in determining,
(a) the rights and status of beneficiaries and personal representatives as recipients of insurance money, if the group person insured was resident in Ontario at the time he or she became insured; and
(b) the rights and obligations of the group person insured if the person was resident in Ontario at the time he or she became insured. R.S.O. 1990, c. I.8, s. 292.
Issue of policy
293.An insurer entering into a contract shall issue a policy. R.S.O. 1990, c. I.8, s. 293.
Contents of policy
294.(1)This section does not apply to,
(a) a contract of group insurance; or
(b) a contract made by a fraternal society.
Same
(2)An insurer shall set forth the following particulars in the policy:
1. The name or a sufficient description of the insured and of the person insured.
2. The amount or the method of determining the amount of the insurance money payable and the conditions under which it becomes payable.
3. The amount or the method of determining the amount of the premium and the period of grace, if any, within which it may be paid.
4. The conditions upon which the contract may be reinstated if it lapses.
5. The term of the insurance or the method of determining the day upon which the insurance commences and terminates. R.S.O. 1990, c. I.8, s. 294.
Confinement clauses void
295.Where a contract of accident insurance or sickness insurance issued after the 2nd day of November, 1973 includes a provision that a benefit is payable to an insured on account of his or her disability and the provision is conditional on the confinement of the insured, the condition does not bind the insured. R.S.O. 1990, c. I.8, s. 295.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 295 is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (28) and the following substituted:
Confinement clauses void
295. Where a contract of accident and sickness insurance issued after November 2, 1973 includes a provision that a benefit is payable to an insured on account of his or her disability and the provision is conditional on the confinement of the insured, the condition does not bind the insured.
See: 2002, c. 18, Sched. H, ss. 4 (28), 16 (2).
Contents of group policy
296.In the case of a contract of group insurance, an insurer shall set forth the following particulars in the policy:
1. The name or a sufficient description of the insured.
2. The method of determining the group persons insured and persons insured.
3. The amount or the method of determining the amount of the insurance money payable and the conditions under which it becomes payable.
4. The period of grace, if any, within which the premium may be paid.
5. The term of the insurance or the method of determining the day upon which the insurance commences and terminates. R.S.O. 1990, c. I.8, s. 296.
Continuation of accident and sickness insurance where contract terminated
297.(1)Where a contract of group accident and sickness insurance, or a benefit provision therein, is terminated, the insurer continues to be liable to pay to or in respect of any group person insured under the contract benefits under the contract relating to,
(a) loss of income because of disability;
(b) death; or
(c) dismemberment,
arising from an accident or sickness that occurred before the termination of the contract or benefit provision as though the contract or benefit provision had remained in full force and effect; but the insurer is not liable to pay a benefit for loss of income because of disability in respect of the recurrence of disability arising from an accident or sickness that occurred before the termination of the contract or benefit provision if the recurrence occurs after the termination of the contract or benefit provision and after a period of ninety days, or such longer period as is provided in the contract, during which the group person insured was not disabled.
Preservation of rights where contract replaced
(2)Where a contract of group accident and sickness insurance (herein referred to as the “replacing contract”) is entered into within thirty-one days of the termination of another contract of group accident and sickness insurance (herein referred to as the “other contract”) and insures the same group or a part of the group insured under the other contract,
(a) the replacing contract shall provide or shall be deemed to provide that any person who was insured under the other contract at the time of its termination is insured under the replacing contract from and after the termination of the other contract if,
(i) the insurance on that person under the other contract terminated solely by reason of the termination of the other contract, and
(ii) the person is a member of a class eligible for insurance under the replacing contract;
(b) every person who was insured under the other contract and who is insured under the replacing contract is entitled to receive credit for satisfaction of any deductible earned before the effective date of the replacing contract; and
(c) no person who was insured under the other contract shall be excluded from eligibility under the replacing contract solely because of not being actively at work on the effective date of the replacing contract. R.S.O. 1990, c. I.8, s. 297.
Contents of group certificate
298.(1)Except as provided in subsection (2), in the case of a contract of group insurance an insurer shall issue for delivery by the insured to each group person insured a certificate or other document in which are set forth the following particulars:
1. The name of the insurer and a sufficient identification of the contract.
2. The amount or the method of determining the amount of insurance on the group person insured and on any person insured.
3. The circumstances under which the insurance terminates, and the rights, if any, upon such termination of the group person insured and of any person insured.
Exception
(2)This section does not apply to a contract of blanket insurance or to a contract of group insurance of a non-renewable type issued for a term of six months or less. R.S.O. 1990, c. I.8, s. 298.
Exceptions or reduction
299. (1)Subject to section 300 and except as otherwise provided in this section, the insurer shall set forth in the policy every exception or reduction affecting the amount payable under the contract, either in the provision affected by the exception or reduction, or under a heading such as “Exceptions” or “Reductions”.
Idem
(2)Where the exception or reduction affects only one provision in the policy it shall be set forth in that provision.
Idem
(3)Where the exception or reduction is contained in an endorsement, insertion or rider, the endorsement, insertion or rider shall, unless it affects all amounts payable under the contract, make reference to the provisions in the policy affected by the exception or reduction.
Idem
(4)The exception or reduction mentioned in section 312 need not be set forth in the policy.
Idem
(5)This section does not apply to a contract made by a fraternal society. R.S.O. 1990, c. I.8, s. 299.
Statutory conditions
300.Subject to section 301, the conditions set forth in this section shall be deemed to be part of every contract other than a contract of group insurance, and shall be printed in English or French in or attached to the policy forming part of such contract with the heading “Statutory Conditions” or “Conditions légales”, as may be appropriate.
STATUTORY CONDITIONS
1.(1)The application, this policy, any document attached to this policy when issued, and any amendment to the contract agreed upon in writing after the policy is issued, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.
Waiver
(2)The insurer shall be deemed not to have waived any condition of this contract, either in whole or in part, unless the waiver is clearly expressed in writing signed by the insurer.
Copy of Application
(3)The insurer shall, upon request, furnish to the insured or to a claimant under the contract a copy of the application.
Material Facts
2.No statement made by the insured or person insured at the time of application for this contract shall be used in defence of a claim under or to avoid this contract unless it is contained in the application or any other written statements or answers furnished as evidence of insurability.
Changes in Occupation
3.(1)If after the contract is issued the person insured engages for compensation in an occupation that is classified by the insurer as more hazardous than that stated in this contract, the liability under this contract is limited to the amount that the premium paid would have purchased for the more hazardous occupation according to the limits, classification of risks and premium rates in use by the insurer at the time the person insured engaged in the more hazardous occupation.
(2)If the person insured changes his or her occupation from that stated in this contract to an occupation classified by the insurer as less hazardous and the insurer is so advised in writing, the insurer shall either,
(a) reduce the premium rate; or
(b) issue a policy for the unexpired term of this contract at the lower rate of premium applicable to the less hazardous occupation,
according to the limits, classification of risks, and premium rates used by the insurer at the date of receipt of advice of the change in occupation, and shall refund to the insured the amount by which the unearned premium on this contract exceeds the premium at the lower rate for the unexpired term.
Relation of Earnings to Insurance
4.Where the benefits for loss of time payable hereunder, either alone or together with benefits for loss of time under another contract, including a contract of group accident insurance or group sickness insurance or of both and a life insurance contract providing disability insurance, exceed the money value of the time of the person insured, the insurer is liable only for that proportion of the benefits for loss of time stated in this policy that the money value of the time of the person insured bears to the aggregate of the benefits for loss of time payable under all such contracts and the excess premium, if any, paid by the insured shall be returned to the insured by the insurer.
Note: On a day to be named by proclamation of the Lieutenant Governor, statutory condition 4 is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (29) and the following substituted:
Relation of Earnings to Insurance
4. (1) Where the benefits for loss of time payable hereunder, either alone or together with benefits for loss of time under another contract, exceed the money value of the time of the person insured, the insurer is liable only for that proportion of the benefits for loss of time stated in this policy that the money value of the time of the person insured bears to the aggregate of the benefits for loss of time payable under all such contracts and the excess premium, if any, paid by the insured shall be returned to the insured by the insurer.
(2) The other contract referred to in subcondition (1) may include,
(a) a contract of group accident and sickness insurance; or
(b) a life insurance contract whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease.
See: 2002, c. 18, Sched. H, ss. 4 (29), 16 (2).
Termination by Insured
5.The insured may terminate this contract at any time by giving written notice of termination to the insurer by registered mail to its head office or chief agency in the Province, or by delivery thereof to an authorized agent of the insurer in the Province, and the insurer shall upon surrender of this policy refund the amount of premium paid in excess of the short rate premium calculated to the date of receipt of such notice according to the table in use by the insurer at the time of termination.
Termination by Insurer
6.(1)The insurer may terminate this contract at any time by giving written notice of termination to the insured and by refunding concurrently with the giving of notice the amount of premium paid in excess of the proportional premium for the expired time.
(2)The notice of termination may be delivered to the insured, or it may be sent by registered mail to the latest address of the insured on the records of the insurer.
(3)Where the notice of termination is delivered to the insured, five days notice of termination shall be given; where it is mailed to the insured, ten days notice of termination shall be given, and the ten days shall begin on the day following the date of mailing of notice.
Notice and Proof of Claim
7.(1)The insured or a person insured, or a beneficiary entitled to make a claim, or the agent of any of them, shall,
(a) give written notice of claim to the insurer,
(i) by delivery thereof, or by sending it by registered mail to the head office or chief agency of the insurer in the Province, or
(ii) by delivery thereof to an authorized agent of the insurer in the Province,
not later than thirty days from the date a claim arises under the contract on account of an accident, sickness or disability;
(b) within ninety days from the date a claim arises under the contract on account of an accident, sickness or disability, furnish to the insurer such proof as is reasonably possible in the circumstances of the happening of the accident or the commencement of the sickness or disability, and the loss occasioned thereby, the right of the claimant to receive payment, his or her age, and the age of the beneficiary if relevant; and
(c) if so required by the insurer, furnish a satisfactory certificate as to the cause or nature of the accident, sickness or disability for which claim may be made under the contract and as to the duration of such disability.
Failure to Give Notice or Proof
(2)Failure to give notice of claim or furnish proof of claim within the time prescribed by this statutory condition does not invalidate the claim if the notice or proof is given or furnished as soon as reasonably possible, and in no event later than one year from the date of the accident or the date a claim arises under the contract on account of sickness or disability if it is shown that it was not reasonably possible to give notice or furnish proof within the time so prescribed.
Insurer to Furnish Forms for Proof of Claim
8.The insurer shall furnish forms for proof of claim within fifteen days after receiving notice of claim, but where the claimant has not received the forms within that time the claimant may submit his or her proof of claim in the form of a written statement of the cause or nature of the accident, sickness or disability giving rise to the claim and of the extent of the loss.
Rights of Examination
9.As a condition precedent to recovery of insurance money under this contract,
(a) the claimant shall afford to the insurer an opportunity to examine the person of the person insured when and so often as it reasonably requires while the claim hereunder is pending; and
(b) in the case of death of the person insured, the insurer may require an autopsy subject to any law of the applicable jurisdiction relating to autopsies.
When Money Payable Other Than for Loss of Time
10.All money payable under this contract, other than benefits for loss of time, shall be paid by the insurer within sixty days after it has received proof of claim.
When Loss of Time Benefits Payable
11.The initial benefits for loss of time shall be paid by the insurer within thirty days after it has received proof of claim, and payment shall be made thereafter in accordance with the terms of the contract but not less frequently than once in each succeeding sixty days while the insurer remains liable for the payments if the person insured when required to do so furnishes before payment proof of continuing disability.
12.Repealed: 2002, c. 24, Sched. B, s. 39 (7).
R.S.O. 1990, c. I.8, s. 300; 2002, c. 24, Sched. B, s. 39 (7).
Omission or variation of statutory conditions
301.(1)Where a statutory condition is not applicable to the benefits provided by the contract it may be omitted from the policy or varied so that it will be applicable. R.S.O. 1990, c. I.8, s. 301 (1).
Idem
(2)Statutory conditions 3, 4 and 9 may be omitted from the policy if the contract does not contain any provisions respecting the matters dealt with therein. R.S.O. 1990, c. I.8, s. 301 (2).
Idem
(3)Statutory conditions 5 and 6 shall be omitted from the policy if the contract does not provide that it may be terminated by the insurer prior to the expiry of any period for which a premium has been accepted. R.S.O. 1990, c. I.8, s. 301 (3).
Idem
(4)Statutory conditions 3, 4, 5, 6 and 9, and subject to the restriction in subsection (5), statutory condition 7, may be varied but, if by reason of the variation the contract is less favourable to the insured, a person insured or a beneficiary than it would be if the condition had not been varied, the condition shall be deemed to be included in the policy in the form in which it appears in section 300. R.S.O. 1990, c. I.8, s. 301 (4).
Idem
(5)Clauses (a) and (b) of subcondition 7 (1) may not be varied in policies providing benefits for loss of time. R.S.O. 1990, c. I.8, s. 301 (5).
Idem
(6)Statutory conditions 10 and 11 may be varied by shortening the periods of time prescribed therein. R.S.O. 1990, c. I.8, s. 301 (6); 2002, c. 24, Sched. B, s. 39 (8).
Idem
(7)The title of a statutory condition shall be reproduced in the policy along with the statutory condition, but the number of a statutory condition may be omitted. R.S.O. 1990, c. I.8, s. 301 (7).
Contract by fraternal society
(8)In the case of a contract made by a fraternal society,
(a) the following provision shall be printed on every policy in substitution for subcondition 1 (1):
1. (1) This policy, the Act or instrument of incorporation of the society, its constitution, by-laws and rules, and the amendments made from time to time to any of them, the application for the contract and the medical statement of the applicant, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.
and
(b) statutory condition 5 shall not be printed on the policy. R.S.O. 1990, c. I.8, s. 301 (8).
Notice of statutory conditions
302.In the case of a policy of accident insurance of a non-renewable type issued for a term of six months or less or in relation to a ticket of travel, the statutory conditions need not be printed on or attached to the policy if the policy contains a notice to the following effect, printed in conspicuous type:
Despite any other provision of this contract, this contract is subject to the statutory conditions in the Insurance Act respecting contracts of accident insurance.
R.S.O. 1990, c. I.8, s. 302.
Note: On a day to be named by proclamation of the Lieutenant Governor, section 302 is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (30) by striking out “accident insurance” wherever it appears and substituting in each case “accident and sickness insurance”. See: 2002, c. 18, Sched. H, ss. 4 (30), 16 (2).
Termination for non-payment of initial or renewal premium
303.(1)Where a policy evidencing a contract or a certificate evidencing the renewal of a contract is delivered to the insured and the initial premium or in the case of a renewal certificate the renewal premium therefor has not been fully paid,
(a) the contract or the renewal thereof evidenced by the certificate is as binding on the insurer as if such premium had been paid although delivered by an officer or an agent of the insurer who did not have authority to deliver it; and
(b) the contract may be terminated for the non-payment of the premium by the insurer upon ten days notice of termination given in writing to the insured and mailed postage prepaid and registered to the latest address of the insured on the records of the insurer and the ten days shall begin on the day following the date of mailing such notice.
Exception
(2)This section does not apply to a contract of group insurance or to a contract made by a fraternal society. R.S.O. 1990, c. I.8, s. 303.
Right where premium unpaid
(a) deduct unpaid premiums from an amount that it is liable to pay under a contract; or
(b) sue the insured for unpaid premiums.
Where cheque or note for premium not paid
(2)Where a cheque or other bill of exchange or a promissory note or other written promise to pay is given for the whole or part of a premium and payment is not made according to its tenor, the premium or part thereof shall be deemed never to have been paid.
Exception
(3)Clause (1) (a) does not apply to a contract of group insurance.
Idem
(4)This section does not apply to a contract made by a fraternal society. R.S.O. 1990, c. I.8, s. 304.
Insurable interest, defined
305.Without restricting the meaning of the expression “insurable interest”, a person has an insurable interest in the person’s own life and well-being and in the life and well-being of,
(a) the person’s child or grandchild;
(b) the person’s spouse or same-sex partner;
(c) any person upon whom the person is wholly or in part dependent for, or from whom the person is receiving, support or education;
(d) an officer or employee of the person; and
(e) any person in whom the person has a pecuniary interest. R.S.O. 1990, c. I.8, s. 305; 1999, c. 6, s. 31 (11).
Insurable interest required
306.(1)Subject to subsection (2), where at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.
Exceptions
(2)A contract is not void for lack of insurable interest,
(a) if it is a contract of group insurance; or
(b) if the person insured has consented in writing to the insurance.
Consent of minors
(3)Where the person insured is under the age of sixteen years, consent to the insurance may be given by one of the person’s parents or by a person standing in the role of parent to the person. R.S.O. 1990, c. I.8, s. 306.
Capacity of minors
307.Except in respect of his or her rights as beneficiary, a minor who has attained the age of sixteen years has the capacity of a person of the age of eighteen years,
(a) to make an enforceable contract; and
(b) in respect of a contract. R.S.O. 1990, c. I.8, s. 307.
Misrepresentation and Non-Disclosure
Duty to disclose
308.(1)An applicant for insurance on the person’s own behalf and on behalf of each person to be insured, and each person to be insured, shall disclose to the insurer in any application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within the person’s knowledge that is material to the insurance and is not so disclosed by the other.
Failure to disclose, general
(2)Subject to sections 309 and 312, a failure to disclose or a misrepresentation of such a fact renders a contract voidable by the insurer.
Group insurance, failure to disclose
(3)In the case of a contract of group insurance, a failure to disclose or a misrepresentation of such a fact with respect to a group person insured or a person insured under the contract does not render the contract voidable, but if evidence of insurability is specifically requested by the insurer, the insurance in respect of such a person is, subject to section 309, voidable by the insurer. R.S.O. 1990, c. I.8, s. 308.
Incontestability
309.(1)Subject to section 312 and except as provided in subsection (2),
(a) where a contract, including renewals thereof, except a contract of group insurance, has been in effect continuously for two years with respect to a person insured, a failure to disclose or a misrepresentation of a fact with respect to that person required by section 308 to be disclosed does not, except in the case of fraud, render the contract voidable;
(b) where a contract of group insurance, including renewals thereof, has been in effect continuously for two years with respect to a group person insured or a person insured, a failure to disclose or a misrepresentation of a fact with respect to that group person insured or person insured required by section 308 to be disclosed does not, except in the case of fraud, render the contract voidable with respect to that group person insured or person insured.
Exception
(2)Where a claim arises from a loss incurred or a disability beginning before a contract, including renewals thereof, has been in force for two years with respect to the person in respect of whom the claim is made, subsection (1) does not apply to that claim. R.S.O. 1990, c. I.8, s. 309.
Application of incontestability to reinstatement
310.Sections 308 and 309 apply with necessary modifications to a failure at the time of reinstatement of a contract to disclose or a misrepresentation at that time, and the period of two years to which reference is made in section 309 commences to run in respect of a reinstatement from the date of reinstatement. R.S.O. 1990, c. I.8, s. 310.
Pre-existing conditions
311.Where a contract contains a general exception or reduction with respect to pre-existing disease or physical conditions and the person insured or group person insured suffers or has suffered from a disease or physical condition that existed before the date the contract came into force with respect to that person and the disease or physical condition is not by name or specific description excluded from the insurance respecting that person,
(a) the prior existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part for a loss incurred or a disability beginning after the contract, including renewals thereof, has been in force continuously for two years immediately prior to the date of loss incurred or commencement of disability with respect to that person; and
(b) the existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part if the disease or physical condition was disclosed in the application for the contract. R.S.O. 1990, c. I.8, s. 311.
Misstatement of age
312.(1)Subject to subsections (2) and (3), if the age of the person insured has been misstated to the insurer then, at the option of the insurer, either,
(a) the benefits payable under the contract shall be increased or decreased to the amount that would have been provided for the same premium at the correct age; or
(b) the premium may be adjusted in accordance with the correct age as of the date the person insured became insured.
Misstatement of age in group insurance
(2)In the case of a contract of group insurance, if there is a misstatement to the insurer of the age of a group person insured, or person insured, the provisions, if any, of the contract with respect to age or misstatement of age shall apply.
True age governs
(3)Where the age of a person affects the commencement or termination of the insurance, the true age governs. R.S.O. 1990, c. I.8, s. 312.
Designation of beneficiary
313.(1)Unless otherwise provided in the policy, an insured may in a contract or by a declaration designate the insured’s personal representative or a beneficiary to receive insurance money payable in the event of death by accident, and may from time to time alter or revoke the designation by declaration.
Designation in invalid will
(2)A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will or that the designation is invalid as a bequest under the will.
Priorities
(3)A designation in a will is of no effect against a designation made later than the making of the will.
Revocation
(4)If a designation is contained in a will and subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
Idem
(5)If a designation is contained in an instrument that purports to be a will and subsequently the instrument, if it had been valid as a will, would have been revoked by operation of law or otherwise, the designation is thereby revoked. R.S.O. 1990, c. I.8, s. 313.
Death of beneficiary or insured, etc.
Meaning of “heirs”, etc.
314.(1)A designation in favour of the “heirs”, “next of kin” or “estate”, or the use of words of like import in a designation shall be deemed to be a designation of the personal representative.
Death of beneficiary before insured
(2)Where a beneficiary predeceases the person insured or group person insured, as the case may be, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by declaration, the share is payable,
(a) to the surviving beneficiary; or
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or
(c) if there is no surviving beneficiary, to the insured or group person insured, as the case may be, or his or her personal representative.
Death of insured before beneficiary, right to sue
(3)A beneficiary designated under section 313 may upon the death by accident of the person insured or group person insured enforce for the beneficiary’s own benefit, and a trustee appointed under section 315 may enforce as trustee, the payment of insurance money payable to him, her or it, and the payment to the beneficiary or trustee discharges the insurer to the extent of the amount paid, but the insurer may set up any defence that it could have set up against the insured or the insured’s personal representative. R.S.O. 1990, c. I.8, s. 314.
Trustee for beneficiary
315.An insured may in a contract or by a declaration appoint a trustee for a beneficiary, and may alter or revoke the appointment by a declaration. R.S.O. 1990, c. I.8, s. 315.
Documents affecting title and assignment of contracts
Documents affecting right to insurance money
316.(1)Until an insurer receives at its head or principal office in Canada an instrument or an order of any court of competent jurisdiction affecting the right to receive insurance money, or a notarial copy or a copy verified by statutory declaration of any such instrument or order, it may make payment of the insurance money and shall be as fully discharged to the extent of the amount paid as if there were no such instrument or order.
Saving
(2)Subsection (1) does not affect the rights or interests of any person other than the insurer.
Interest of assignee
(3)Where an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada the assignee has priority of interest as against,
(a) any assignee other than one who gave notice earlier in like manner; and
(b) a beneficiary.
Assignee deemed to be insured
(4)Where a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given by the contract and by this Part to the insured, and shall be deemed to be the insured.
Prohibition against assignment
(5)A provision in a contract to the effect that the rights or interests of the insured, or in the case of a contract of group insurance the group person insured, are not assignable is valid. R.S.O. 1990, c. I.8, s. 316.
Insurance money free from other claims, etc.
Claims by creditors
317.(1)Where a beneficiary is designated, any insurance money payable to the beneficiary is not, from the time of the happening of the event upon which it becomes payable, part of the estate of the insured and is not subject to the claims of the creditors of the insured. R.S.O. 1990, c. I.8, s. 317 (1).
Contract exempt from seizure
(2)While there is in effect a designation of beneficiary in favour of any one or more of a spouse, same-sex partner, child, grandchild or parent of the person insured or group person insured, the rights and interests of the insured in the insurance money and in the contract so far as either relate to accidental death benefits are exempt from execution or seizure. R.S.O. 1990, c. I.8, s. 317 (2); 1999, c. 6, s. 31 (12).
Group person insured enforcing rights
318.A group person insured may, in his or her own name, enforce a right given by a contract to him or her, or to a person insured thereunder as a person dependent upon or related to him or her, subject to any defence available to the insurer against him or her or such person insured or against the insured. R.S.O. 1990, c. I.8, s. 318.
Simultaneous deaths
319.Unless a contract or a declaration otherwise provides, where a person insured or group person insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable in accordance with subsection 314 (2) as if the beneficiary had predeceased the person insured or group person insured. R.S.O. 1990, c. I.8, s. 319.
Payment into court
320.(1)Where the insurer admits liability for the insurance money or any part thereof and it appears to the insurer that,
(a) there are adverse claimants;
(b) the whereabouts of the person entitled is unknown; or
(c) there is no person capable of giving or authorized to give a valid discharge therefor who is willing to do so,
the insurer may apply without notice to the court for an order for payment of money into court, and the court may upon such notice, if any, as it deems necessary, make an order accordingly.
Costs of proceedings
(2)The court may fix without assessment the costs incurred upon or in connection with any application or order made under subsection (1), and may order the costs to be paid out of the insurance money or by the insurer or otherwise as it considers just.
Discharge of insurer
(3)A payment made pursuant to an order under subsection (1) discharges the insurer to the extent of the payment. R.S.O. 1990, c. I.8, s. 320.
Where beneficiary a minor
321.(1)Where an insurer admits liability for insurance money payable to a minor and there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so, the insurer may at any time after thirty days from the date of the happening of the event upon which the insurance money becomes payable, pay the money less the applicable costs mentioned in subsection (2) into court to the credit of the minor.
Costs
(2)The insurer may retain, out of the insurance money for costs incurred upon payment into court under subsection (1), the sum of $10 where the amount does not exceed $1,000, and the sum of $15 in other cases, and payment of the remainder of the money into court discharges the insurer. R.S.O. 1990, c. I.8, s. 321 (1, 2).
Procedure
(3)No order is necessary for payment into court under subsection (1), but the accountant or other proper officer shall receive the money upon the insurer filing with him or her an affidavit showing the amount payable and the name, date of birth and residence of the minor, and upon such payment being made the insurer shall forthwith notify the Children’s Lawyer and deliver to him or her a copy of the affidavit. R.S.O. 1990, c. I.8, s. 321 (3); 1994, c. 27, s. 43 (2).
Beneficiary under disability
322.Where it appears that a representative of a beneficiary who is under disability may under the law of the domicile of the beneficiary accept payments on behalf of the beneficiary, the insurer may make payment to the representative and any such payment discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 322.
Payments not exceeding $2,000
323.Even though insurance money is payable to a person, the insurer may if the contract so provides, but subject always to the rights of an assignee, pay an amount not exceeding $2,000 to,
(a) a relative by blood or connection by marriage of a person insured or the group person insured; or
(b) any person appearing to the insurer to be equitably entitled thereto by reason of having incurred expense for the maintenance, medical attendance or burial of a person insured or the group person insured, or to have a claim against the estate of a person insured or the group person insured in relation thereto,
and any such payment discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 323.
Payment of insurance money
Place of payment
324.(1)Subject to subsection (2), insurance money is payable in Ontario.
Exception for group insurance
(2)In the case of a contract of group insurance, money is payable in the province or territory of Canada in which the group person insured was resident at the time he or she became insured.
Dollars
(3)Unless a contract otherwise provides, a reference therein to dollars means Canadian dollars whether the contract by its terms provides for payment in Canada or elsewhere.
Payment outside Ontario
(4)Where a person entitled to receive insurance money is not domiciled in Ontario, the insurer may pay the insurance money to that person or to any person who is entitled to receive it on that person’s behalf by the law of the domicile of the payee and any such payment discharges the insurer to the extent of the amount paid.
Payment to personal representative
(5)Where insurance money is by the contract payable to a person who has died or to his or her personal representative and such deceased person was not at the date of his or her death domiciled in Ontario, the insurer may pay the insurance money to the personal representative of such person appointed under the law of his or her domicile, and any such payment discharges the insurer to the extent of the amount paid. R.S.O. 1990, c. I.8, s. 324.
Action in Ontario
325.Regardless of the place where a contract was made, a claimant who is a resident of Ontario may bring an action in Ontario if the insurer was authorized to transact insurance in Ontario at the time the contract was made or at the time the action is brought. R.S.O. 1990, c. I.8, s. 325.
Insurer giving information
326.An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received and that affects the insurance money. R.S.O. 1990, c. I.8, s. 326.
Undue prominence
327.The insurer shall not in the policy give undue prominence to any provision or statutory condition as compared to other provisions or statutory conditions, unless the effect of that provision or statutory condition is to increase the premium or decrease the benefits otherwise provided for in the policy. R.S.O. 1990, c. I.8, s. 327.
Relief from forfeiture
328.Where there has been imperfect compliance with a statutory condition as to any matter or thing to be done or omitted by the insured, person insured or claimant with respect to the loss insured against and a consequent forfeiture or avoidance of the insurance in whole or in part, and any court before which a question relating thereto is tried deems it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it deems just. R.S.O. 1990, c. I.8, s. 328.
Presumption against agency
329.No officer, agent, employee or servant of the insurer, and no person soliciting insurance, whether or not the person is an agent of the insurer shall, to the prejudice of the insured, person insured or group person insured, be deemed to be the agent of the insured or of the person insured or group person insured in respect of any question arising out of the contract. R.S.O. 1990, c. I.8, s. 329.
PART VIII (ss. 330-333) Repealed: 1999, c. 12, Sched. I, s. 4 (23).
PART IX (ss. 334-338) Repealed: 1999, c. 12, Sched. I, s. 4 (23).
Definitions, Part X
“rates of contribution” means the regular net premiums, dues, rates or contributions receivable from the members for the purpose of the payment at maturity of the society’s certificates or contracts of insurance; (“taux de contribution”)
“society” means a fraternal society. (“société”) R.S.O. 1990, c. I.8, s. 339.
Application of Part
340.(1)Subject to subsections (2) and (3), this Part applies only to fraternal societies incorporated under the laws of Ontario.
Application of ss. 341 to 344, s. 371
(2)Sections 341 to 344 and section 371 apply to all fraternal societies carrying on the business of insurance in Ontario.
Application of s. 345 (2)
(3)Subsection 345 (2) applies only to fraternal societies incorporated elsewhere than in Ontario. 1999, c. 12, Sched. I, s. 4 (24).
What fraternal societies required to be licensed
341.Fraternal societies required to be licensed under this Act include,
(a) a company, society, association or organization incorporated before the 10th day of March, 1890, under chapter 172 of The Revised Statutes of Ontario, 1887, or a predecessor thereof;
(b) a society incorporated under chapter 183 of The Revised Statutes of Ontario, 1914, or a predecessor thereof, that undertakes insurance against death;
(c) an association of the civil servants or employees of Canada incorporated by or under the authority of an Act of the Parliament of Canada;
(d) a fraternal society incorporated after the 1st day of January, 1924, under the Corporations Act or a predecessor thereof. R.S.O. 1990, c. I.8, s. 341.
Cases in which societies not to be licensed
342.No fraternal society shall be licensed,
(a) if it undertakes insurance contracts with persons other than its own members and their spouses, same-sex partners and children;
(b) if it engages in or carries on any business other than life insurance, accident insurance or sickness insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (b) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (31) by striking out “life insurance, accident insurance or sickness insurance” at the end and substituting “life insurance or accident and sickness insurance”. See: 2002, c. 18, Sched. H, ss. 4 (31), 16 (2).
(c) if it has upon its books fewer than 75 members in good standing; or
(d) if it is in effect the property of its officers or collectors, or of any other person for the person’s own benefit, or is conducted as a mercantile or business enterprise, or for the purpose of mercantile profit, or if its funds are under the control of persons or officers appointed for life and not under that of the insured. 1999, c. 12, Sched. I, s. 4 (25, 26).
Societies deemed not to be fraternal societies
343.The following shall be deemed not to be fraternal societies within the meaning of this Part and shall not be required or entitled to be licensed as such:
1. Societies known as mutual benefit societies as defined in section 1.
2. Pension fund societies incorporated under the Corporations Act or a predecessor thereof.
3. A corporation not otherwise provided for in this Act that has by or under the authority of an Act of the Parliament of Canada created a fund for paying a gratuity on the happening of death, sickness, infirmity, casualty, accident, disability or any change of physical or mental condition.
4. A corporation not otherwise provided for in this Act that has by or under the authority of an Act of the Parliament of Canada an insurance and provident society or association, or an insurance or guarantee fund in connection with the corporation.
5. A corporation that undertakes or offers to undertake contracts of insurance prohibited by section 342.
6. A corporation in which the insurance fund is used for the purposes of a mercantile or business enterprise, or for mercantile profit, or a society formed on the lodge system, whose insurance fund is held other than as a trust fund for the members insured.
7. A society in which the persons insured do not exercise, either directly or through representatives elected for a term not exceeding four years, effective control over the insurance fund of the society, or in which the officers or other persons having the disposition, control or possession of the insurance fund are elected or appointed for a longer period than four years.
8. Any corporation that undertakes contracts of insurance but is not formed exclusively for that purpose and that does not for the purposes of such contracts keep distinct and separate funds, securities, books and vouchers. R.S.O. 1990, c. I.8, s. 343; 1997, c. 19, s. 10 (30).
Guarantee and endowment insurance, exception to s. 342 (b)
344.Clause 342 (b) does not apply to contracts guaranteeing the fidelity of officers, servants or employees of the branches or subdivisions of a corporation. R.S.O. 1990, c. I.8, s. 344.
Central body for Ontario or representative may be dealt with
345.(1)Where two or more lodges or branches of a society, though separately incorporated, are under the financial or administrative control of a central governing body in Ontario or a duly authorized provincial representative of the society, such governing body, if incorporated, or such provincial representative of the society may, if the Superintendent thinks proper, be dealt with as the society.
When central body for Ontario incorporated
(2)In the case of a fraternal society incorporated elsewhere than in Ontario, the central governing or controlling body in Ontario, if incorporated by virtue of the law of Ontario, may, if the Superintendent thinks proper, be dealt with as the society. R.S.O. 1990, c. I.8, s. 345.
By-laws and rules
To be filed with Superintendent
346.(1)Every fraternal society shall, with its application for licence, file in the office of the Superintendent duly certified copies in duplicate of those articles or provisions of the subsisting constitution, by-laws or rules that contain material terms not set out in the instrument of contract adopted by the society, and shall, from time to time, file in the office of the Superintendent duly certified copies in duplicate of every amendment, revision or consolidation of such articles or provisions of the constitution, by-laws and rules within thirty days after the passing or adoption of the amendment, revision or consolidation. R.S.O. 1990, c. I.8, s. 346 (1).
Binding when passed by society
(2)The constitution, by-laws or rules and any amendment, revision or consolidation of them passed by the society shall, despite the declaration or other instrument filed under any general or special Act, be deemed to be the rules in force on and after the date of passing by the society until a subsequent amendment, revision or consolidation is in like manner passed and so on from time to time, and are binding and obligatory upon all members of the society and upon all their beneficiaries and legal representatives and upon everyone entitled to any benefit under any certificate of the society, but the passing of any rule of the society or of any amendment or revision of a rule does not make valid any provision of such rule that is inconsistent with this Act. 1999, c. 12, Sched. I, s. 4 (27).
(3) Repealed: 1999, c. 12, Sched. I, s. 4 (27).
(4) Repealed: 1999, c. 12, Sched. I, s. 4 (27).
(5) Repealed: 1999, c. 12, Sched. I, s. 4 (27).
(6) Repealed: 1999, c. 12, Sched. I, s. 4 (27).
Amendment of rules, Superintendent’s direction
347.Where because of a provision in any of its rules a society otherwise entitled to be licensed ought not, in the opinion of the Superintendent, to be licensed, it is not entitled to a licence until it has repealed or amended such rules in accordance with the direction of the Superintendent. R.S.O. 1990, c. I.8, s. 347.
Rules deliverable on demand
348.(1)A copy of all rules of a society relating to its insurance contracts and to the management and application of its insurance funds shall be delivered by the society to any member requesting it on payment of a reasonable fee. R.S.O. 1990, c. I.8, s. 348 (1); 1999, c. 12, Sched. I, s. 4 (28).
Fraudulent delivery
(2)An officer or agent of a society who, with intent to mislead or defraud, gives a person a copy of rules other than the rules then in force on the pretence that they are the rules then in force is guilty of an offence. R.S.O. 1990, c. I.8, s. 348 (2).
349.Repealed: 1999, c. 12, Sched. I, s. 4 (29).
Limitation of member’s liability in fraternal society
350.(1)The liabilities of a member under the member’s contract at any date is limited to the assessments, fees and dues that became payable within the preceding twelve months and of which at such date notice had been given in accordance with the constitution and rules of the society. R.S.O. 1990, c. I.8, s. 350 (1).
Withdrawal of member
(2)A member may at any time withdraw from the society by delivering or sending by ordinary mail to the society notice in writing of the intention to withdraw and paying or tendering the assessments, fees and dues mentioned in subsection (1). R.S.O. 1990, c. I.8, s. 350 (2); 1999, c. 12, Sched. I, s. 4 (30).
Release from liability
(3)After such withdrawal, the member becomes thereby released from all further liability under the member’s contract and continues to be entitled to any insurance benefits paid for under the contract. R.S.O. 1990, c. I.8, s. 350 (3); 1999, c. 12, Sched. I, s. 4 (31).
Exception
(4)This section is subject to any rules to the contrary passed by the society. 1999, c. 12, Sched. I, s. 4 (32).
351.Repealed: 1999, c. 12, Sched. I, s. 4 (33).
Conditions of forfeiture restricted
352.(1)Where it is stipulated that the benefit of the contract will be suspended or reduced or forfeited for any other reason than for non-payment of money, such condition is not valid unless it is held to be just and reasonable under the circumstances of the case.
Condition as to abstinence
(2)In any contract of which total abstinence from intoxicating liquors is made an express condition, such condition shall be deemed to be just and reasonable. R.S.O. 1990, c. I.8, s. 352.
How notice may be given to members
353.(1)Subject to subsection (2), a notice required to be given to a member for any purpose of this Act or of the rules of the society may be effectually given if written or printed notice is delivered, or is sent by registered mail to the member, or is left at the member’s last known place of residence or of business or by publication in the official paper of the society. R.S.O. 1990, c. I.8, s. 353 (1).
Notice of reduction of benefit or increase in premium
(2)A notice of the reduction of any benefit payable under a contract of insurance or of the increase of the premium rate for any benefit under a contract of insurance shall be delivered to the member by a method which has been approved by the Superintendent. 1999, c. 12, Sched. I, s. 4 (34).
Head offices of Ontario societies
354.A society incorporated under any Act of the Legislature is not entitled to a licence unless its head office is located and maintained in Ontario. R.S.O. 1990, c. I.8, s. 354.
Actuary’s report
355.In addition to the annual statement required to be filed under this Act, each society shall file with the Superintendent, not later than four months after the end of each fiscal year, a report of the society’s actuary certifying whether the society’s rates of benefit are reasonable, and whether the amounts of insurance or annuity to be issued by the society are reasonable, having regard to,
(a) the conditions and circumstances for the issuance of policies by the society;
(b) the sufficiency of the rates of contribution to provide for those benefits and those amounts of insurance; and
(c) the reasonableness of the loan values, cash values, and other equities that may be provided under the policies. 1999, c. 12, Sched. I, s. 4 (35).
Where assets of society insufficient
356.(1)If it appears to the Superintendent from the statement and reports filed with him or her or from an examination or valuation made under this Act that the assets of a licensed fraternal society applicable to the payment of its insurance contracts are insufficient to provide for the payment of its contracts of insurance at maturity without deduction or abatement and without increase in its existing rates of contribution, the Superintendent shall require the society to make, within the specified time but not exceeding four years, such increase in its rates of contribution or such reduction in the benefits payable under its contracts of insurance or otherwise as will enable the society to provide for the payment of its contracts of insurance at maturity. R.S.O. 1990, c. I.8, s. 356 (1); 1997, c. 28, s. 117 (1).
(2)Repealed: 1997, c. 28, s. 117 (2).
Society to act upon request
(3)On receipt of such request, the society shall take the steps prescribed by its laws or constitution for putting into effect such changes as may be approved by the actuary appointed by the society for the purpose aforesaid. R.S.O. 1990, c. I.8, s. 356 (3).
Special meeting to consider request of Superintendent
(4)Where in the opinion of the governing executive authority of the society a special meeting of the society is desirable for the purpose of considering the request of the Superintendent, the authority may call a special meeting of the supreme legislative body of the society upon such notice as the authority considers reasonable and as the Superintendent may approve, and such meeting so called shall be deemed to have been regularly constituted despite anything in its constitution and laws. R.S.O. 1990, c. I.8, s. 356 (4); 1997, c. 28, s. 117 (3).
Reduction of benefits, or increase of rates
357.A fraternal society incorporated under the laws of Ontario may by amendment of its constitution and laws reduce the benefits payable under its contracts of insurance or some of them, or increase the rates of contribution payable by its members as a whole or some class or classes thereof, or make such other changes as are necessary to comply with the aforesaid request of the Superintendent and such amendments when adopted by a majority of the votes duly cast by the members of the supreme legislative body of the society at a regular or special meeting of the supreme legislative body of the society duly called are binding upon the members of the society and upon their beneficiaries or legal representatives and upon all persons deriving legal rights from any member or beneficiary, despite anything in its constitution and laws before such amendments or in its Act or instrument of incorporation, or in any contract, policy or certificate of insurance heretofore or hereafter issued by the society. R.S.O. 1990, c. I.8, s. 357; 1997, c. 28, s. 118.
Default of society in complying with request of Superintendent
358.(1)Where a society does not within the time allowed comply with the request of the Superintendent as prescribed by subsection 356 (2), the Superintendent shall thereupon appoint a readjustment committee of three persons of whom at least one must be an actuary who shall at as early a date as practicable investigate the assets, liabilities, rates of contribution and plans of insurance of the society and prepare a report containing such amendments to the society’s constitution and laws reducing the benefits payable under its contracts of insurance or some of them or increasing the rates of contribution payable by its members as a whole or some class or classes thereof, or such other amendments as the readjustment committee considers necessary in order to provide for the payment of all the contracts of insurance of the society as they mature in accordance with the amendments. R.S.O. 1990, c. I.8, s. 358 (1); 1997, c. 28, s. 119.
Amendments in report of committee to be part of society’s constitution
(2)The readjustment committee shall file such report in the office of the Superintendent and deliver to the society a certified copy thereof and, immediately upon such report being filed with the Superintendent, the amendments contained therein become part of the constitution and laws of the society and are valid and binding upon all its members and upon their beneficiaries or personal representatives and upon all persons deriving legal rights from any member or beneficiary despite anything in its constitution and laws before such amendments or in its Act or instrument of incorporation or in any policy or certificate of insurance issued by it.
Date to be fixed in report
(3)The readjustment committee shall in the amendments fix a date not more than six months after the date of filing of the report when the reduction of benefits or increase in the rate of contribution provided for by such amendments will be in full force and effect.
Expenses
(4)The society shall bear the expense of the investigation and report and shall furnish the readjustment committee with required information. R.S.O. 1990, c. I.8, s. 358 (2-4).
Separate accounts for each class of insurance
359.A society shall maintain a separate account in respect of each class of insurance for which it is authorized to insure risks. 1999, c. 12, Sched. I, s. 4 (36).
360.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
Epidemic or unforeseen contingency
361.In the event of an epidemic or other unforeseen contingency impairing the funds of a society, the governing executive authority of the society may impose a special assessment or special assessments upon the members of the society or upon such class or classes thereof and with such incidence as in the opinion of the governing executive authority is necessary and equitable, and such special assessment or assessments are binding on the members of the society despite anything to the contrary in its Act or instrument of incorporation or its constitution and laws, or in any certificate of insurance heretofore or hereafter issued by the society. R.S.O. 1990, c. I.8, s. 361.
General or expense fund
362.The governing executive authority of a society may make such additional levies from time to time upon all members of the society as are necessary, in the opinion of the governing executive authority, to properly carry on the work of the society and prevent any deficit in its general or expense fund, and such additional levies are binding on its members despite anything to the contrary in its Act or instrument of incorporation, or in its constitution or laws, or in any certificate of insurance heretofore or hereafter issued by it. R.S.O. 1990, c. I.8, s. 362.
363.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
364.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
365.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
366.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
367.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
368.Repealed: 1999, c. 12, Sched. I, s. 4 (37).
369.Repealed: 1999, c. 12, Sched. I, s. 4 (38).
Exception as to annual statement
370.Where the constitution, by-laws or rules of a fraternal society provide for a fiscal year other than the calendar year, the Superintendent may, in his or her discretion, accept statements from it showing its affairs as at the end of the fiscal year instead of as at the end of the calendar year. R.S.O. 1990, c. I.8, s. 370.
Policy disclosures
371.A fraternal society shall make policy disclosures to members on the matters, at the times and in the form established by the Superintendent. 1999, c. 12, Sched. I, s. 4 (39).
PART XI (ss. 372-374) Repealed: 1997, c. 19, s. 10 (31).
PART XII (ss. 375-376) Repealed: 1997, c. 19, s. 10 (31).
PART XIII
RECIPROCAL INSURANCE EXCHANGES
Definitions, Part XIII
377. In this Part, unless the context otherwise requires,
“attorney” means a person authorized to act for subscribers as provided in section 380; (“fondé de pouvoir”)
“subscribers” means the persons exchanging with each other reciprocal contracts of indemnity or insurance as provided in section 378. (“souscripteurs”) R.S.O. 1990, c. I.8, s. 377; 1999, c. 12, Sched. I, s. 4 (41).
Authority for exchange of reciprocal contracts of insurance
378. (1) It is lawful for a person to exchange with other persons in Ontario and elsewhere reciprocal contracts of indemnity or insurance for any class of insurance for which an insurance company may be licensed under this Act, except life insurance, accident insurance, sickness insurance and surety insurance. R.S.O. 1990, c. I.8, s. 378; 1993, c. 10, s. 36 (1); 1999, c. 12, Sched. I, s. 4 (42).
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (32) by striking out “except life insurance, accident insurance, sickness insurance and surety insurance” at the end and substituting “except life insurance, accident and sickness insurance, and surety insurance”. See: 2002, c. 18, Sched. H, ss. 4 (32), 16 (2).
Definition
(2) In subsection (1),
“surety insurance” means insurance, other than credit insurance or insurance against loss caused by default on the part of a borrower under a loan secured by a mortgage upon real property, a hypothec upon immovable property or an interest in real or immovable property, whereby an insurer undertakes to guarantee,
(a) the due performance of a contract or undertaking, or
(b) the payment of a penalty or indemnity for any default. 1993, c. 10, s. 36 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (2) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (33). See: 2002, c. 18, Sched. H, ss. 4 (33), 16 (2).
Subscriber not to be deemed an insurer
379. No person shall be deemed to be an insurer within the meaning of this Act by reason of exchanging with other persons reciprocal contracts of indemnity or insurance under this Act. R.S.O. 1990, c. I.8, s. 379; 1999, c. 12, Sched. I, s. 4 (43).
Contract executed on behalf of subscribers
Execution of contract
380. (1) Reciprocal contracts of indemnity or insurance may be executed on behalf of subscribers by any other person acting as attorney under a power of attorney, a copy of which has been duly filed as hereinafter provided. R.S.O. 1990, c. I.8, s. 380 (1); 1999, c. 12, Sched. I, s. 4 (44).
Who may maintain action in contract
(2) Despite any condition or stipulation of any such power of attorney or of any such contract of indemnity or insurance, any action or proceeding in respect of any such contract may be maintained in any court of competent jurisdiction in Ontario. R.S.O. 1990, c. I.8, s. 380 (2); 1999, c. 12, Sched. I, s. 4 (45).
Filing by members of exchange
381. (1) Before the licence for a reciprocal insurance exchange is issued, the persons constituting the exchange shall, through their attorney, file with the Superintendent such information, documents and declarations, to be verified by oath, as may be prescribed by regulation. 1999, c. 12, Sched. I, s. 4 (46).
Same
(2) At such times as the Superintendent may require, an exchange shall file with the Superintendent such information, documents and declarations, to be verified by oath, as may be prescribed by regulation. 1999, c. 12, Sched. I, s. 4 (46).
Licence for exchange, approval of change
Issuance of licence
382. (1) Upon an exchange complying with this Part, the Superintendent may issue a licence to the exchange if he or she is satisfied that the exchange meets such requirements and criteria as may be prescribed by regulation. 1999, c. 12, Sched. I, s. 4 (47).
Change to agreement requires approval
(2) A change to the agreement between subscribers governing the exchange of contracts of indemnity or insurance shall not be effective unless it is approved by the Superintendent. 1999, c. 12, Sched. I, s. 4 (47).
Appeal
(3) A decision of the Superintendent under subsection (1) or (2) may be appealed to the Tribunal. 1999, c. 12, Sched. I, s. 4 (47).
383. Repealed: 1999, c. 12, Sched. I, s. 4 (48).
Service of process
384.Where the office from which such contracts are to be issued is not in Ontario, service upon the Superintendent of notice or process in any action or proceeding in Ontario in respect of a contract of indemnity or insurance effected by the exchange shall be deemed service upon the subscribers who are members of the exchange at the time of the service. R.S.O. 1990, c. I.8, s. 384; 1999, c. 12, Sched. I, s. 4 (49).
385. Repealed: 1999, c. 12, Sched. I, s. 4 (50).
Reserves to be held by exchange
Amount of cash or approved securities
386. (1) There shall at all times be maintained a sum in cash or approved securities amounting to not less than such amount as may be prescribed by regulation or such amount as may be determined in the prescribed manner. 1999, c. 12, Sched. I, s. 4 (51).
Amount of surplus
(2) There shall at all times be maintained a surplus of assets in excess of all liabilities, amounting to not less than such amount as may be prescribed by regulation or such amount as may be determined in the prescribed manner. 1999, c. 12, Sched. I, s. 4 (51).
(3) Repealed: 1999, c. 12, Sched. I, s. 4 (51).
(4) Repealed: 1999, c. 12, Sched. I, s. 4 (51).
Deficiency
(5)If at any time the amounts on hand are less than the foregoing requirements, the subscribers or the attorney shall forthwith make up the deficiency. R.S.O. 1990, c. I.8, s. 386 (5).
Use of funds supplied to make up deficiency
(6)Where funds, other than those that accrued from premiums or deposits of subscribers, are supplied to make up a deficiency as herein provided for, such funds shall be deposited and held for the benefit of subscribers under such terms and conditions as the Superintendent may require so long as a deficiency exists, and may thereafter be returned to the depositor. R.S.O. 1990, c. I.8, s. 386 (6).
Definition
(7)In this section,
“approved securities” means securities that are authorized for investment by section 387. R.S.O. 1990, c. I.8, s. 386 (7).
Investment of funds
387. If the principal office of the exchange is in Ontario, the funds of the exchange shall be invested in the class of securities authorized by Part XVII for the investment of the funds of a joint stock insurance company. 1999, c. 12, Sched. I, s. 4 (52).
Other insurance or reinsurance
Contracts for subscribers only
388. (1) No exchange shall undertake any liability on a contract of indemnity or insurance except on behalf of a subscriber. R.S.O. 1990, c. I.8, s. 388 (1); 1999, c. 12, Sched. I, s. 4 (53).
Reinsurance in another exchange
(2) No attorney or exchange shall effect reinsurance of any risks undertaken by the exchange in any licensed reciprocal insurance exchange unless such exchange operates on the same underwriting standards. R.S.O. 1990, c. I.8, s. 388 (2); 1999, c. 12, Sched. I, s. 4 (54).
Attorney not to act until licence granted
389. (1) No person shall act as attorney, or for or on behalf of an attorney, in the exchange of reciprocal contracts of indemnity or insurance, or in acts or transactions in connection therewith, until a licence has been issued and is in force. R.S.O. 1990, c. I.8, s. 389 (1); 1999, c. 12, Sched. I, s. 4 (55).
Offence
(2) Every person who, in contravention of subsection (1), undertakes or effects or agrees or offers to undertake or effect an exchange of reciprocal contracts of indemnity or insurance, or any act or transaction in connection therewith, is guilty of an offence and on conviction is liable to a fine of not less than $50 and not more than $500. R.S.O. 1990, c. I.8, s. 389 (2); 1999, c. 12, Sched. I, s. 4 (56).
Suspension or revocation of licence
390. (1) Upon examination, investigation or upon any other evidence, the Superintendent shall make a report if he or she finds a licensed exchange or attorney has contravened any provision of this Act. 1997, c. 28, s. 122.
Notice to exchange or attorney
(2) The Superintendent may give notice in writing, which shall include a copy of the report made under subsection (1), to the licensed exchange or attorney that the Superintendent intends to suspend or revoke the licence of the exchange. 1997, c. 28, s. 122.
Request for hearing
(3) Within 15 days after receiving the notice, the exchange or its attorney may request in writing that the Tribunal hold a hearing before the Superintendent takes any action described in the notice. 1997, c. 28, s. 122.
Hearing
(4) If, within the time period allowed, the exchange or its attorney requests a hearing, the Tribunal shall hold a hearing. 1997, c. 28, s. 122.
No request for hearing
(5) If, within the time period allowed, the exchange or its attorney does not request a hearing, the Superintendent may suspend or revoke the licence of the exchange. 1997, c. 28, s. 122.
Powers of Tribunal
(6) At a hearing, if the Tribunal agrees with the Superintendent’s report, it may suspend or revoke the licence of the exchange. 1997, c. 28, s. 122.
Effect of suspension or revocation
(7) The suspension or revocation of a licence of an exchange does not affect the validity of any reciprocal contracts of indemnity or insurance affected prior to that time or the rights and obligations of subscribers under such contracts. 1997, c. 28, s. 122; 1999, c. 12, Sched. I, s. 4 (57).
Notice
(8) The Superintendent shall give notice of a suspension or revocation in at least two successive issues of The Ontario Gazette as soon as reasonably may be after the suspension or revocation. 1997, c. 28, s. 122.
391. Repealed: 1997, c. 43, Sched. F, s. 5 (1).
Fire insurance in unlicensed exchanges may be effected outside Ontario
392.Despite anything in this Act, any person may insure against fire any property situated in Ontario in an exchange not licensed under this Act, and any property so insured or to be insured may be inspected and any loss incurred in respect thereof adjusted, if such insurance is effected outside Ontario and without any solicitation in Ontario directly or indirectly on the part of the insurer. R.S.O. 1990, c. I.8, s. 392.
PART XIV
AGENTS, BROKERS AND ADJUSTERS
Licensing of agents
393.(1)The Superintendent may issue to any person who has complied with this Act a licence authorizing such person to carry on business as an insurance agent subject to this Act, to the regulations and to the terms of the licence.
Classes of licences
(2)Licences so issued shall be of three classes, that is,
(a) licences for life insurance, or life and accident insurance, or life and accident and sickness insurance;
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (34) and the following substituted:
(a) licences for life insurance, or life insurance and accident and sickness insurance;
See: 2002, c. 18, Sched. H, ss. 4 (34), 16 (2).
(b) licences for accident and sickness insurance; and
(c) licences for all classes of insurance other than life insurance.
Issue of licence
(3)Upon written notice to the Superintendent that a licensed insurer has appointed a person to act as the insurer’s agent in Ontario and upon due application of the person and payment by the person of the prescribed fee, the Superintendent shall, if satisfied that the applicant is a suitable person to receive a licence and intends to hold himself, herself or itself out publicly and carry on business in good faith as an insurance agent, issue to the applicant a licence that shall state in substance that the holder is, during the term of the licence, authorized to carry on in Ontario the business of an insurance agent. R.S.O. 1990, c. I.8, s. 393 (1-3).
Notice under subs. (3)
(4)Notice under subsection (3) shall be given by the insurer in a form provided or approved by the Superintendent and shall be accompanied by a sworn statement by the applicant in a form provided or approved by the Superintendent. 1994, c. 11, s. 339 (1).
(5)Repealed: 1994, c. 11, s. 339 (2).
Notice of termination of agency
(6)Where the agency, upon notice of which a licence is issued, is terminated, notice in writing shall forthwith be given by the insurer to the Superintendent of the termination, with the reason therefor, and thereupon the licence is automatically suspended, but it may be revived subject to the approval of the Superintendent upon filing of notice of a new agency appointment and upon payment of the prescribed fee.
Failure to give notice
(7)An insurer who fails to notify the Superintendent within thirty days of the termination of an agency appointment as required by subsection (6) is guilty of an offence. R.S.O. 1990, c. I.8, s. 393 (6, 7).
Revocation
(8)The Superintendent may revoke or suspend a licence issued under this section if the agent has failed to comply with this Act or the regulations. 1997, c. 28, s. 123 (1).
Advisory board to hold hearing and report
(9)In determining the granting or refusal of an application for a licence or renewal of licence, or the revocation or suspension of an existing licence under this section, the Superintendent may, and shall when so requested in writing by the applicant or licensee, appoint an advisory board consisting of,
(a) a representative of insurers;
(b) a representative of agents; and
(c) a representative of the Superintendent,
which shall hold a hearing and make a report to the Superintendent with such recommendation as it considers fit. R.S.O. 1990, c. I.8, s. 393 (9); 1997, c. 28, c. 123 (2).
Chair of board
(10)The representative of the Superintendent on the advisory board shall act as chair of the board and, for the purposes of his or her duties in connection with the investigation and hearing,
(a) has the same power that the Ontario Court (General Division) has in the trial of civil actions to summon and enforce the attendance of witnesses and to compel them to give evidence on oath or otherwise and to produce documents, records and things; and
(b) may require or permit persons to give evidence before it by affidavit.
Statutory Powers Procedure Act applies
(10.1)The Statutory Powers Procedure Act applies to a hearing under subsection (9) and the Commission shall make rules governing the practice and procedure of a proceeding before an advisory board.
Appeal
(10.2)The applicant or licensee may appeal to the Tribunal the decision of the Superintendent to refuse to grant a licence, to refuse to renew an existing licence or to revoke or suspend an existing licence. 1997, c. 28, s. 123 (3).
Term and renewal of licence
(11)A licence issued hereunder expires at such time as the regulations provide unless automatically suspended by notice under subsection (6) or unless revoked or suspended by the Superintendent; but such licence may, in the discretion of the Superintendent, be renewed upon due application upon a form prescribed by the Superintendent giving such information as the Superintendent may require, accompanied by a certificate of agency appointment of a licensed insurer and payment of the prescribed fee, without requiring anew the detailed information hereinbefore specified. R.S.O. 1990, c. I.8, s. 393 (11); 1994, c. 11, s. 339 (3).
Authority of agent
(12)A licence referred to in clause (2) (b) or (c) authorizes an agent to act for one insurer only.
Same
(12.1)For purposes of subsection (12), the insurer must be specified in the licence and licensed for the classes of insurance referred to in clause (2) (b) or (c).
Representation restricted
(12.2)An agent holding a licence referred to in clause (2) (b) or (c) shall not make any representation to the public, by advertisement or otherwise, that the agent is an agent of any insurer other than the one specified in the licence for the purposes of selling the classes of insurance specified in the licence. 1994, c. 11, s. 339 (4).
Insurance groups
(13)Despite subsection (12), an agent may be licensed to act as agent for an affiliated group of insurers that, in the opinion of the Superintendent, are carrying on business as a common undertaking and such affiliated group of insurers shall be deemed to be an insurer for the purpose of determining the agent’s authority to act as an agent under this Act. R.S.O. 1990, c. I.8, s. 393 (13).
Same
(13.1)For the purpose of subsection (13), mutual insurance corporations that participate in the Fire Mutuals Guarantee Fund and insurers in whose fully paid shares a mutual insurance corporation has invested under subsection 433 (9) shall be deemed to be an affiliated group of insurers carrying on business as a common undertaking. 1994, c. 11, s. 339 (5).
Life insurance; recognition of organization
(14)The Superintendent may recognize an organization for the purposes of this Part if the Superintendent is satisfied that,
(a) the organization is composed of persons who reflect the composition of the life insurance industry and persons who represent the interests of purchasers of life insurance, and is organized for the purpose of regulating the operations and the standards of practice and business conduct of agents who hold licences within the class of licences referred to in clause (2) (a) with a view to promoting the protection of purchasers of life insurance and the public interest; and
(b) recognition of the organization would be in the public interest. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Terms and conditions
(15)A recognition under subsection (14) shall be made in writing and shall be subject to such terms and conditions as the Superintendent may impose. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Functions of recognized organization
(16)An organization recognized under subsection (14) shall, in accordance with this Act and the regulations,
(a) issue, renew, suspend and revoke licences within the class of licences referred to in clause (2) (a);
(b) receive and investigate complaints against agents who hold licences within the class of licences referred to in clause (2) (a);
(c) discipline agents who hold licences within the class of licences referred to in clause (2) (a);
(d) develop and establish examinations and educational programs for persons wishing to be licensed within the class of licences referred to in clause (2) (a) and for agents who hold those licences;
(e) institute and conduct prosecutions for offences under this Act against agents who hold licences within the class of licences referred to in clause (2) (a); and
(f) exercise such other powers and perform such other duties as are prescribed by the regulations.
Application of subss. (1), (3), (4) and (6) to (11)
(17)If an organization is recognized under subsection (14), subsections (1), (3), (4) and (6) to (11) do not apply in respect of licences within the class of licences referred to in clause (2) (a).
Approval of by-laws and resolutions
(18)No by-law or resolution of an organization recognized under subsection (14) and no amendment, revision or consolidation of the by-laws or resolutions of the organization shall come into effect unless it is approved by the Superintendent.
Limits on by-laws, resolutions
(19)No by-law or resolution of an organization recognized under subsection (14) shall contravene this Act or the regulations. 1994, c. 11, s. 339 (6).
Suspension or revocation of recognition
(20)The Superintendent may make an order suspending, revoking or imposing terms and conditions on the recognition of an organization recognized under subsection (14) if, in the Superintendent’s opinion, that action is in the public interest. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Opportunity to be heard
(20.1)Subject to subsection (20.2), no order shall be made under subsection (20) unless the organization has been given an opportunity to be heard by the Superintendent. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Temporary suspension order
(20.2)If the Superintendent is of the opinion that any delay could be prejudicial to the public interest, he or she may make a temporary order under subsection (20) suspending the recognition of the organization without providing an opportunity to be heard. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Period of temporary order
(20.3)The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Superintendent. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Extension of temporary order
(20.4)The Superintendent may extend a temporary suspension order until the hearing is concluded if a hearing is commenced within the fifteen-day period. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Voluntary surrender
(20.5)On application by an organization recognized under subsection (14), the Superintendent may accept, on such terms and conditions as he or she may impose, the voluntary surrender of the recognition of the organization if the Superintendent is satisfied that the surrender of the recognition would not be prejudicial to the public interest. 1994, c. 11, s. 339 (6); 1997, c. 28, s. 123 (4).
Immunity
(20.6)No action or other proceeding for damages shall be instituted against an organization recognized under subsection (14), a committee of an organization recognized under subsection (14), any member of the organization or committee, or any officer, servant, agent or appointee of the organization, for any act done in good faith in the performance or intended performance of any duty or in the exercise or the intended exercise of any power under this Act, a regulation or a by-law, or for any neglect or default in the performance or exercise in good faith of such duty or power.
Agreements with other regulators
(20.7)An organization recognized under subsection (14) may enter into agreements with regulators of life insurance agents outside Ontario with respect to the qualifications required to obtain a licence within the class of licences referred to in clause (2) (a).
Same
(20.8)An agreement under subsection (20.7) prevails over the regulations.
Exclusive jurisdiction
(20.9)If an organization is recognized under subsection (14) and a proceeding is conducted under this Act or the regulations before a member or committee of the organization, the member or committee has exclusive jurisdiction to exercise the powers conferred on the member or committee under this Act and the regulations and to determine all questions of fact or law that arise in the proceeding.
Certificates
(20.10)An organization recognized under subsection (14) may issue a certificate,
(a) stating that on a stated day a person was or was not licensed under this section, or that the licence was renewed, suspended or revoked on a stated day;
(b) stating that a copy of, or extract from, a document or thing in the custody of the organization is a true copy of, or extract from, the original; or
(c) stating whether a document or notification was received or issued by the organization under this Act.
Organization documents as evidence
(20.11)A certificate, licence, order, decision, direction, inquiry or notice under this Act that purports to be signed on behalf of an organization recognized under subsection (14) shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or the position of the person appearing to have signed it.
True copies as evidence
(20.12)A true copy certified by an organization under clause (20.10) (b) is admissible in evidence to the same extent as and has the same evidentiary value as the document or thing of which it is a copy.
Annual report of Superintendent
(20.13)The Superintendent shall make an annual examination of the affairs of an organization recognized under subsection (14) and shall report concerning the examination to the Minister. 1994, c. 11, s. 339 (6).
Regulations
(21)The Lieutenant Governor in Council may make regulations,
(a) prescribing requirements, qualifications and terms and conditions for the granting or renewal of licences;
(b) providing for the holding of examinations for applicants for licences or renewals of licences;
(c) classifying applicants for licences and restricting or prohibiting the licensing of any class of applicant;
(c.1) providing that subsections (3), (4) and (6) do not apply in circumstances specified in the regulations in respect of a licence within the class of licences referred to in clause (2) (a);
(d) prescribing the grounds upon which a licence may be revoked, suspended or not renewed;
(d.1) governing reports by insurers to the Superintendent or an organization recognized under subsection (14) on the suitability of an applicant or licensee to carry on business as an agent;
(d.2) requiring insurers that authorize agents to act on their behalf to establish and maintain a system to screen each agent and supervise activities of each agent;
(d.3) prescribing terms and conditions under which an organization may be recognized under subsection (14);
(d.4) prescribing powers and duties of an organization recognized under subsection (14);
(d.5) governing the maintenance of records by an organization recognized under subsection (14);
(d.6) governing reports by an organization recognized under subsection (14) to the Superintendent relating to the organization’s activities;
(d.7) providing that part or all of the fees paid to obtain or renew licences within the class of licences referred to in clause (2) (a) be paid to an organization recognized under subsection (14);
(d.8) authorizing and regulating the exchange of personal information within the meaning of the Freedom of Information and Protection of Privacy Act for the purposes of this Act between the Superintendent and an organization recognized under subsection (14);
(d.9) prescribing standards of practice and duties of agents who hold licences within the class of licences referred to in clause (2) (a), including prescribing a code of ethics;
(d.10) governing the receipt and investigation of complaints against agents who hold licences within the class of licences referred to in clause (2) (a) by an organization recognized under subsection (14);
(d.11) governing the discipline of agents who hold licences within the class of licences referred to in clause (2) (a), including authorizing an organization recognized under subsection (14) to impose fines, issue letters of reprimand and suspend or revoke agents’ licences;
(d.12) prescribing procedures to be followed by an organization recognized under subsection (14), including authorizing the awarding of costs in a hearing conducted by the organization or by a committee of the organization;
(e) regulating the method of handling premiums collected and requiring and regulating accounts and records to be maintained by agents;
(f) requiring agents to supply information and make returns to the Superintendent;
(f.1) requiring agents who hold licences within the class of licences referred to in clause (2) (a) to supply information and make returns to an organization recognized under subsection (14);
(g) requiring an agent to furnish a bond or other security and fixing the amount, form, requirements and terms thereof;
(g.1) requiring that agents who hold licences within the class of licences referred to in clause (2) (a) carry errors and omissions insurance, furnish a fidelity bond or belong to a compensation fund, and fixing the amount, form, requirements and terms thereof;
(g.2) regulating the replacement of an existing contract of life insurance by another contract of life insurance;
(g.3) prescribing the duties of insurers and agents in connection with the replacement of life insurance contracts;
(h) Repealed: 1997, c. 19, s. 10 (33).
(i) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this section. R.S.O. 1990, c. I.8, s. 393 (21); 1994, c. 11, s. 339 (7-9); 1997, c. 19, s. 10 (33).
General or particular
(21.1)A regulation under subsection (21) may be general or particular.
Powers of entry and search
(21.2)A regulation under clause (21) (d.4) may give an organization recognized under subsection (14) the power to conduct examinations and may make section 444 applicable, with necessary modifications, to an examination conducted by the organization. 1994, c. 11, s. 339 (10).
Scope of regulations
(22)Regulations made under subsection (21) are in addition to the provisions of this section, even if the regulations concern a matter provided for in this section.
Offence
(23)Every person who assumes to act as an agent without the licence required by this section, or while the person’s licence as such is suspended, is guilty of an offence. R.S.O. 1990, c. I.8, s. 393 (22, 23).
Provisions Relating to Agents and Brokers Generally
Agent or broker deemed to be insurer’s agent
394.(1)An agent or broker shall, for the purpose of receiving any premium for a contract of insurance, be deemed to be the agent of the insurer despite any conditions or stipulations to the contrary.
Exception
(2)This section does not apply to life insurance. R.S.O. 1990, c. I.8, s. 394.
Fraudulent representations
395.An agent or broker who knowingly procures, by fraudulent representations, payment or the obligation for payment of any premium on an insurance policy is guilty of an offence. R.S.O. 1990, c. I.8, s. 395.
Personal liability of agent for unlawful contracts
396.An agent or broker is personally liable to the insured on all contracts of insurance unlawfully made by or through the agent or broker directly or indirectly with any insurer not licensed to undertake insurance in Ontario in the same manner as if the agent or broker were the insurer. R.S.O. 1990, c. I.8, s. 396.
Licences of Insurance Adjusters
Licences of insurance adjusters
397.(1)The Superintendent may, upon the payment of the prescribed fee, issue to any suitable person a licence to act as an adjuster, but a person licensed as an insurance agent or broker under this Part shall not receive a licence to act as an insurance adjuster.
Application to be filed with Superintendent
(2)The applicant for such licence shall file with the Superintendent a written application under oath upon a form provided by the Superintendent in which the applicant shall state his or her name, age, residence and occupation for the five years next preceding the date of the application and such other information as the Superintendent may require, and the applicant shall furnish a statement as to his or her trustworthiness and competency signed by at least three reputable persons resident in Ontario.
Licence to be in force one year
(3)If the Superintendent is satisfied with the statements and information required, the Superintendent shall issue the licence, which expires on the 30th day of June in each year unless sooner revoked or suspended.
Renewal of licence
(4)A licence may, in the discretion of the Superintendent and upon payment of the prescribed fee, be renewed for each succeeding year without requiring anew the detailed information hereinbefore specified. R.S.O. 1990, c. I.8, s. 397 (1-4).
Revocation
(5)Subsections 393 (8), (9), (10), (10.1) and (10.2) apply with necessary modifications to applicants and licensees under this section, except that a representative of adjusters shall replace a representative of agents on the board. 1997, c. 28, s. 124.
(6)Repealed: 1997, c. 28, s. 124.
Offence
(7)A person who acts as an adjuster without such a licence or during a suspension of the person’s licence is guilty of an offence. R.S.O. 1990, c. I.8, s. 397 (7).
Prohibition against public adjusters of motor accident claims
398.(1)Subject to subsections (2) and (3), no person shall, on the person’s own behalf or on behalf of another person, directly or indirectly,
(a) solicit the right to negotiate, or negotiate or attempt to negotiate, for compensation, the settlement of a claim for loss or damage arising out of a motor vehicle accident resulting from bodily injury to or death of any person or damage to property on behalf of a claimant; or
(b) hold himself, herself or itself out as an adjuster, investigator, consultant or otherwise as an adviser, on behalf of any person having a claim against an insured or an insurer for which indemnity is provided by a motor vehicle liability policy, including a claim for Statutory Accident Benefits. R.S.O. 1990, c. I.8, s. 398 (1); 2002, c. 22, s. 130 (1, 2).
Exception
(2)This section does not apply to a barrister or solicitor acting in the usual course of the practice of law. R.S.O. 1990, c. I.8, s. 398 (2).
Non-application to prescribed persons
(3) Subsection (1) does not apply to a prescribed person or class of persons who comply with prescribed terms and conditions. 2002, c. 22, s. 130 (3).
Partnership Licences of Agents and Adjusters
Licences to partnerships
399.(1)Licences as agents or adjusters may be issued to partnerships on the conditions hereinbefore specified for the issue of such licences to individuals except as otherwise provided in this section.
Statement to be filed by each partner
(2)Each member of the partnership shall file the statement or application and pay the prescribed fee, including a written request that the licence be issued in the name of the partnership, and the licence may be revoked or suspended as to one or more members of the partnership. R.S.O. 1990, c. I.8, s. 399 (1, 2).
Termination of partnership
(3)If the partnership is terminated before the expiration of the licence, the partners shall forthwith give notice to the Superintendent or the organization recognized under subsection 393 (14), as the case may be.
Revocation
(3.1)If notice is given under subsection (3), the partnership’s licence shall be revoked. 1994, c. 11, s. 340.
Offence
(4)A member of a partnership licensed under this section who contravenes any of its provisions is guilty of an offence. R.S.O. 1990, c. I.8, s. 399 (4).
Corporation Licences of Agents and Adjusters
Licences to corporations
400. (1) Licences as agents or adjusters may be issued to any corporation that is incorporated expressly for the purpose of acting as an insurance agent or adjuster or for that and such other purposes as the Superintendent or the organization recognized under subsection 393 (14), as the case may be, expressly approves of and where the corporation has been incorporated under the Business Corporations Act, after the 30th day of June, 1971, the articles of incorporation shall have been approved by the Superintendent or the organization recognized under subsection 393 (14), as the case may be, prior to incorporation. R.S.O. 1990, c. I.8, s. 400 (1); 1994, c. 11, s. 341 (1).
When licences not to be issued
(2) Licences as agents shall not be issued to a corporation if it appears to the Superintendent or the organization recognized under subsection 393 (14), as the case may be, that the application is made for the purpose of acting as agent wholly or chiefly in the insurance of property owned by the corporation or by its shareholders or members, or in the placing of insurance for one person, firm, corporation, estate or family. 2001, c. 8, s. 43 (1).
(3) Repealed: 2001, c. 8, s. 43 (2).
(4) Repealed: 2001, c. 8, s. 43 (2).
(5) Repealed: 2001, c. 8, s. 43 (2).
Provisions as to licences
(6) Except as otherwise provided in this section, such licences, and the corporation and officers of the corporation named in the licence, are subject to the provisions of this Act with respect to agents and adjusters. R.S.O. 1990, c. I.8, s. 400 (6).
Officers who may act under licence
(7) The licence shall specify the officers who may act thereunder in the name and on behalf of the corporation and every such officer shall file a statement or application and pay the prescribed fee for individual agents, brokers or adjusters, but employees who do not receive commissions and who perform office duties only on behalf of the corporation may so act by authority of the corporation licence although not named therein. R.S.O. 1990, c. I.8, s. 400 (7).
Revocation of licence
(8) A licence may be revoked or suspended as to the corporation or as to any officers named therein. R.S.O. 1990, c. I.8, s. 400 (8).
Superintendent or organization may require information
(9) If the principal business of a corporation licensed under this section is not the business of an insurance agent or adjuster, the Superintendent or the organization recognized under subsection 393 (14), as the case may be, may require from such a corporation such information as he or she considers necessary in respect to the corporation, its officers and affairs and may make such examination of its books and affairs as he or she considers necessary for the purposes of this Act. R.S.O. 1990, c. I.8, s. 400 (9); 1994, c. 11, s. 341 (3).
Dissolution of corporation
(10) If a corporation licensed under this section is dissolved or its instrument of incorporation is revoked, the corporation shall forthwith give notice to the Superintendent or the organization recognized under subsection 393 (14), as the case may be. 1994, c. 11, s. 341 (4).
Revocation
(10.1) If notice is given under subsection (10), the corporation’s licence shall be revoked. 1994, c. 11, s. 341 (4).
Personal liability of officers
(11) An officer specified in the licence who contravenes any of the provisions of this section is guilty of an offence and is personally liable therefor, although such contravention is committed in the name and on behalf of the corporation, and the corporation is liable for any such contravention the responsibility for which cannot be placed upon any such officer. R.S.O. 1990, c. I.8, s. 400 (11).
Provisions Relating to Agents, Brokers and Adjusters Generally
Acting as agent or adjuster without authority
401.A person who, not being duly licensed as an agent or adjuster, represents or holds himself, herself or itself out to the public as being such an agent or adjuster, or as being engaged in the insurance business by means of advertisements, cards, circulars, letterheads, signs, or other methods, or, being duly licensed as such agent or adjuster, advertises as aforesaid or carries on such business in any other name than that stated in the licence, is guilty of an offence. R.S.O. 1990, c. I.8, s. 401.
Money held in trust by agent
Agent to be deemed to hold premium in trust for insurer
402.(1)An agent or broker who acts in negotiating, or renewing or continuing a contract of insurance, other than life insurance, with a licensed insurer, and who receives any money or substitute for money as a premium for such a contract from the insured, shall be deemed to hold such premium in trust for the insurer, and, if the agent or broker fails to pay the premium over to the insurer within fifteen days after written demand made upon the agent or broker therefor, less the commission of the agent or broker and any deductions to which, by the written consent of the company, the agent or broker is entitled, such failure is proof, in the absence of evidence to the contrary, that the agent or broker has used or applied the premium for a purpose other than paying it over to the insurer.
Agent to be deemed to hold money in trust for payee under policy
(2)An agent or broker who acts in negotiating or renewing or continuing a contract of insurance with a licensed insurer, and who receives any money or substitute for money for payment to a person in respect of the contract of insurance shall be deemed to hold such money in trust for the person entitled thereto, and, if the agent or broker fails to pay the money over to such person within fifteen days after written demand made upon the agent or broker therefor, less the commission of the agent or broker and any deductions to which the agent or broker is entitled, such failure is proof, in the absence of evidence to the contrary, that the agent or broker has used or applied the money for a purpose other than paying it over to the person entitled. R.S.O. 1990, c. I.8, s. 402.
No compensation to be paid by insurer not licensed
403.(1)No insurer, and no officer, employee or agent thereof, and no broker, shall directly or indirectly pay or allow, or agree to pay or allow, compensation or anything of value to any person for placing or negotiating insurance on lives, property or interests in Ontario, or negotiating the continuance or renewal thereof, or for attempting so to do, who, at the date thereof, is not an agent or broker and whoever contravenes this subsection is guilty of an offence. R.S.O. 1990, c. I.8, s. 403 (1); 1994, c. 11, s. 342.
(2)Repealed: 1999, c. 12, Sched. I, s. 4 (58).
Exceptions
(3)Nothing in this section affects any payment by way of dividend, bonus, profit or savings that is provided for by the policy, or shall be construed so as to prevent an insurer compensating a salaried employee of its head office or a branch office in respect of insurance issued by the employing insurer upon the life of such employee or upon the employee’s property or interests in Ontario or so as to require that such employee shall be licensed as an agent under this Act to affect such insurance. R.S.O. 1990, c. I.8, s. 403 (3).
404. Repealed: 1994, c. 11, s. 343.
405. Repealed: 1994, c. 11, s. 343.
406. Repealed: 1993, c. 10, s. 37.
Limited or conditional licence
407. A licence may be issued to an agent or adjuster subject to such limitations and conditions as the Superintendent or the organization recognized under subsection 393 (14), as the case may be, may prescribe. R.S.O. 1990, c. I.8, s. 407; 1994, c. 11, s. 344.
PART XV
RATES AND RATING BUREAUS
Meaning of “rating bureau”, Part XV
“rating bureau” means an association or body, incorporated or unincorporated, created or organized for the purpose of fixing or promulgating rates of premium payable upon contracts of insurance in Ontario, or the terms or conditions of such contracts, or for these and other purposes, or that assumes to fix or promulgate such rates, terms or conditions by agreement among the members thereof or otherwise. R.S.O. 1990, c. I.8, s. 408.
Duties of rating bureaus and insurers
Filing of constitution, by-laws, etc.
409.(1)A rating bureau shall, forthwith after adoption, file in the office of the Superintendent duly certified copies of its constitution, articles of association and by-laws, and a list of its members and their addresses, and thereafter shall file in the office of the Superintendent every amendment, revision or consolidation of its constitution, articles of association and by-laws, and notice of the admission of new members and the withdrawal of former members, within thirty days after the passing or adoption of such amendment, revision or consolidation, or after the admission or withdrawal of such members.
Return of rates
(2)A rating bureau and a licensed insurer shall make a return under oath to the Superintendent in such form and at such times as the Superintendent may require, showing every schedule of rates fixed, made or charged by them, together with such further or other information concerning such rates as the Superintendent may require.
Changes in rates
(3)A rating bureau and a licensed insurer shall give to the Superintendent at least ten days notice of any change in the schedules of rates or rules applicable thereto filed with the Superintendent under subsection (2), and shall file with the Superintendent amended schedules duly verified under oath showing particulars of all such changes before their effective date.
Offence for deviation from filed rate
(4)A rating bureau or licensed insurer that, having filed its schedules of rates under this section, fixes, makes or charges a rate or receives a premium that deviates from the schedules of rates fixed and filed with the Superintendent for, and the rules applicable to, any risk or class of risks is guilty of an offence. R.S.O. 1990, c. I.8, s. 409.
Application re risk classification system, rates
410.(1)Every insurer shall apply to the Superintendent for approval of,
(a) the risk classification system it intends to use in determining the rates for each coverage and category of automobile insurance; and
(b) the rates it intends to use for each coverage and category of automobile insurance. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Exception
(2)An insurer is not required to apply for approval of a risk classification system that the insurer is required to use under the regulations. 1996, c. 21, s. 44.
Material to be furnished
(3)An application for approval of a risk classification system or rates shall be in a form approved by the Superintendent and shall be filed together with such information, material and evidence as the Superintendent may specify. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Additional information
(4)The Superintendent may require an applicant to provide such information, material and evidence as the Superintendent considers necessary in addition to the information, material and evidence required to be provided in or with the application. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Definition
(5)In this section,
“insurer” includes the Facility Association. 1996, c. 21, s. 44.
Approval of expedited applications, s. 410
411.(1)An applicant under section 410 may choose to have this section apply to the application if the application meets the following criteria:
1. The average of the proposed rates for each coverage and category of automobile insurance does not exceed the average of the existing rates by more than a percentage prescribed by the regulations for that class of applicant, coverage and category, and the proposed rates meet such other criteria as are prescribed by the regulations for the purposes of this section.
2. The proposed risk classification system for each coverage and category of automobile insurance does not contain elements prescribed by the regulations for the purposes of this section. 1996, c. 21, s. 44.
Deemed approval after 30 days
(2)An application to which this section applies shall be deemed to have been approved by the Superintendent 30 days after it is filed, unless the Superintendent within that 30-day period advises the applicant orally or otherwise that the Superintendent has not approved the application. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Earlier approval
(3)The Superintendent may approve the application before the expiry of the 30-day period. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Notice of failure to approve
(4)If the Superintendent notifies an insurer orally that he or she has not approved the application, the Superintendent shall promptly mail a written notice to the applicant confirming that fact. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Effect of notice
(5)If the Superintendent notifies the insurer that he or she has not approved the application, the insurer may,
(a) submit a new application to the Superintendent; or
(b) resubmit the same application to the Superintendent, in which case section 412 applies to the application and this section does not apply. 1996, c. 21, s. 44; 1997, c. 28, s. 125.
Approval of other applications, s. 410
412.(1)An application under section 410 to which section 411 does not apply shall be deemed to have been approved by the Superintendent 60 days after it is filed, unless the Superintendent within that 60-day period advises the applicant orally or otherwise that the Superintendent has not approved the application. 1996, c. 21, s. 45; 1997, c. 28, s. 126 (1).
Same
(2)The Superintendent may approve the application before the expiry of the 60-day period. 1996, c. 21, s. 45; 2002, c. 22, s. 131.
(3)The Superintendent may extend the period for approval for a period not exceeding 60 days. 1996, c. 21, s. 45; 1997, c. 28, s. 126 (1).
Notice of failure to approve
(4)If the Superintendent notifies an applicant orally that he or she has not approved an application, the Superintendent shall promptly mail a written notice to the applicant confirming that fact. 1996, c. 21, s. 45; 1997, c. 28, s. 126 (1).
No approval
(5)The Superintendent shall not approve the application if a hearing is required by the regulations or if the Superintendent considers that it is in the public interest for the Tribunal to hold a hearing on the application. 1997, c. 28, s. 126 (2).
Refusal to approve
(6)The Superintendent shall refuse to approve an application under section 410 if he or she considers that,
(a) the proposed risk classification system or rates are not just and reasonable in the circumstances;
(b) the proposed risk classification system is not reasonably predictive of risk or does not distinguish fairly between risks; or
(c) the proposed rates would impair the solvency of the applicant or are excessive in relation to the financial circumstances of the insurer. 1997, c. 28, s. 126 (2).
Relevant information
(7)In deciding on an application under section 410, the Superintendent may take into account financial and other information and any other matters that directly or indirectly affect the applicant’s proposed rates or the applicant’s ability to underwrite insurance using the proposed risk classification system. 1997, c. 28, s. 126 (2).
Hearing
412.1(1)If the Superintendent notifies an applicant under section 412 that he or she has not approved the application, the applicant may, within 15 days after receiving the notification, appeal in writing the decision to the Tribunal.
Powers of Tribunal
(2)If the applicant appeals the Superintendent’s decision within the time period allowed, the Tribunal shall hold a hearing, at which the Tribunal may approve or refuse to approve the application or may vary the risk classification system or the rates, and the approval may be subject to the conditions or restrictions that the Tribunal considers appropriate in the circumstances.
Additional information
(3)The Tribunal may require the applicant to provide the information, material and evidence that the Tribunal considers necessary in addition to the information, material and evidence that the applicant is required to provide in or with the application.
Criteria and relevant information
(4)Subsections 412 (6) and (7) apply with necessary modifications to a hearing held by the Tribunal under this section. 1997, c. 28, s. 127.
Exemptions from approval process
413.(1)The Superintendent may exempt insurers, other than the Facility Association, from making an application under section 410 in respect of designated categories or coverages of automobile insurance. R.S.O. 1990, c. I.8, s. 413 (1); 1996, c. 21, s. 46 (1); 1997, c. 28, s. 128 (1).
Filing
(2)An insurer shall file the risk classification systems and rates it intends to use for the exempted categories or coverages of automobile insurance in a form approved by the Superintendent. R.S.O. 1990, c. I.8, s. 413 (2); 1993, c. 10, s. 40 (1); 1997, c. 28, s. 128 (1).
Effective date
(3)Subject to subsections (3.1) and (3.2), the insurer may use a risk classification system or rates filed under this section after the expiration of 30 days following the date they were filed, unless before the expiration of that period, the Superintendent advises the insurer orally or otherwise that the risk classification system or the rates filed by the insurer are not approved. 1997, c. 28, s. 128 (2).
Extension of period
(3.1)Before the expiration of the thirty-day period referred to in subsection (3), the Superintendent may extend the period for a further period specified by the Superintendent of not more than thirty days. 1993, c. 10, s. 40 (2); 1997, c. 28, s. 128 (3).
Abridgement of period
(3.2)The Superintendent may authorize the insurer to use a risk classification system or rates filed under this section before the expiration of the period referred to in subsection (3) or (3.1). 1993, c. 10, s. 40 (2); 1997, c. 28, s. 128 (3).
Notice of failure to approve
(3.3)If the Superintendent notifies an insurer orally that a risk classification system or rates filed by the insurer are not approved, the Superintendent shall promptly mail a written notice to the insurer confirming that fact. 1997, c. 28, s. 128 (4).
Appeal
(3.4)If the Superintendent notifies an insurer under subsection (3) or (3.3) that the risk classification system or rates are not approved, the insurer may, within 15 days after receiving the notification, appeal in writing the decision to the Tribunal. 1997, c. 28, s. 128 (4).
Hearing by Tribunal
(3.4.1) If an insurer appeals the Superintendent’s decision within the 15-day period, the Tribunal shall hold a hearing. 2002, c. 22, s. 132 (1).
Revocation of exemption
(4)If the Superintendent revokes an exemption, insurers are required to apply within thirty days after the revocation for approval under section 410 of the risk classification systems and rates it is using for the categories or coverages of automobile insurance affected by the revocation. R.S.O. 1990, c. I.8, s. 413 (4); 1993, c. 10, s. 40 (3); 1996, c. 21, s. 46 (3); 1997, c. 28, s. 128 (5).
Idem
(5)An insurer may continue to use the risk classification systems and rates filed before the Superintendent revoked the exemption until the insurer’s application under subsection (4) is determined. R.S.O. 1990, c. I.8, s. 413 (5); 1993, c. 10, s. 40 (4); 1997, c. 28, s. 128 (5).
Powers of the Superintendent, etc.
(6) For the purposes of this section, subsections 410 (4), 412 (6) and (7) and 412.1 (2), (3) and (4) apply, with necessary modifications, as if the insurer had made an application under section 410. 2002, c. 22, s. 132 (2).
Risk classification and rate determination regulations
413.1(1)No insurer shall, as a result of the application of a regulation made under paragraph 36 or 36.1 of subsection 121 (1), increase or decrease the rate for a class of risks in respect of a coverage or category of automobile insurance by more than the maximum monetary amount or percentage prescribed under paragraph 36.2 of subsection 121 (1). 1993, c. 10, s. 41.
Application for phase-in of regulations
(2)If a regulation made under paragraph 36 or 36.1 of subsection 121 (1) would require an insurer to increase or decrease the rate for a class of risks in respect of a coverage or category of automobile insurance by more than the maximum monetary amount or percentage prescribed under paragraph 36.2 of subsection 121 (1), the insurer shall apply to the Superintendent for approval of a plan that will phase in the increase or decrease over a period specified in the application by exempting the insurer, in whole or in part, from the regulations made under paragraphs 36 to 36.2 of subsection 121 (1) for the specified period. 1993, c. 10, s. 41; 1997, c. 28, s. 129 (1).
Material to be furnished
(3)The application shall be in a form approved by the Superintendent and shall be filed together with such information, material and evidence as the Superintendent may specify. 1993, c. 10, s. 41; 1997, c. 28, s. 129 (1).
Additional information
(4)The Superintendent may require the applicant to provide such information, material and evidence as the Superintendent considers necessary in addition to the information, material and evidence required to be provided in or with the application. 1993, c. 10, s. 41; 1997, c. 28, s. 129 (1).
Approval
(5)The application may be approved by the Superintendent only if, in the opinion of the Superintendent,
(a) the plan will permit the regulations under paragraphs 36 and 36.1 of subsection 121 (1) to apply to the applicant without any exemption at the end of the period specified in the application;
(b) the period of time during which an exemption will apply to the applicant is reasonable;
(c) the plan will cause a minimum of disruption in the automobile insurance market;
(d) the plan will not impair the solvency of the applicant; and
(e) the plan is in the public interest. 1993, c. 10, s. 41; 1997, c. 28, s. 129 (1).
Variation
(6)The Superintendent may, with the consent of the applicant or after receiving written submissions, approve an application under subsection (5) subject to the variations and subject to the terms and conditions that the Superintendent considers appropriate.
Reconsideration
(7)The Superintendent may notify the insurer at any time that he or she intends to make an order with respect to a plan approved under subsection (5) if the Superintendent is of the opinion that any of the criteria specified in clauses (5) (a) to (e) may not be satisfied.
Request for hearing
(7.1)The insurer may, within 15 days after receiving the notice in subsection (7), request in writing that the Tribunal hold a hearing before the Superintendent makes the order described in the notice.
Hearing
(7.2)If the insurer requests a hearing within the time period allowed, the Tribunal shall hold a hearing.
No request for hearing
(7.3)If the insurer does not request a hearing within the time period allowed, the Superintendent may make the order described in the notice.
Revocation or variation of approved plan
(8)Following a hearing under subsection (7.2) or section 412, the Tribunal may revoke the approval of a plan approved under subsection (5) or make the variations to the plan that the Tribunal considers appropriate. 1997, c. 28, s. 129 (2).
Definition
(9)In this section,
“insurer” includes the Facility Association. 1993, c. 10, s. 41.
Affiliated automobile insurers
Concurrent filing, applications under s. 410, 413 or 413.1
414.(1)The Superintendent may require that affiliated insurers who write automobile insurance in Ontario file their applications under section 410, 413 or 413.1 concurrently. R.S.O. 1990, c. I.8, s. 414 (1); 1993, c. 10, s. 42 (1); 1996, c. 21, s. 47; 1997, c. 28, s. 130.
Insurer’s application, consideration of affiliate’s systems and rates
(2)The Superintendent may consider the risk classification systems and the rates of the affiliates of an insurer when deciding upon the insurer’s application. R.S.O. 1990, c. I.8, s. 414 (2); 1993, c. 10, s. 42 (2); 1997, c. 28, s. 130.
New affiliates
(2.1)If two or more insurers become affiliated, they shall notify the Superintendent within thirty days in the form approved by the Superintendent and the Superintendent may require the insurers to provide such additional information, material and evidence as the Superintendent considers necessary. 1993, c. 10, s. 42 (3); 1997, c. 28, s. 130.
Interpretation
(3)For the purpose of this section, an insurer is considered to be affiliated with another insurer if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person. R.S.O. 1990, c. I.8, s. 414 (3).
Reconsideration, systems and rates
415.(1)Despite any approval or exemption under section 411, 412, 412.1 or 413, the Superintendent may notify the insurer at any time that he or she intends to make an order with respect to any risk classification system or rates for any coverage or category of automobile insurance of an insurer if the Superintendent is of the opinion that,
(a) the risk classification system or rates are not just and reasonable in the circumstances;
(b) the risk classification system is not reasonably predictive of risk or does not distinguish fairly between risks; or
(c) the rates would impair the solvency of the insurer or are excessive in relation to the financial circumstances of the insurer. 1993, c. 10, s. 43; 1996, c. 21, s. 48 (1); 1997, c. 28, s. 131 (1).
Request for hearing
(1.1)The insurer may, within 15 days after receiving the notice in subsection (1), request in writing that the Tribunal hold a hearing before the Superintendent takes any action described in the notice.
Hearing on request
(1.2)If the insurer requests a hearing within the time period allowed, the Tribunal shall hold a hearing.
No request for hearing
(1.3)If the insurer does not request a hearing within the time period allowed, the Superintendent may make the order described in the notice. 1997, c. 28, s. 131 (2).
Application under s. 410
(2)Instead of notifying the insurer under subsection (1), the Superintendent may require the insurer to make an application under section 410.
Application of s. 411
(2.1)Section 411 does not apply to an application that the Superintendent requires under subsection (2). 1997, c. 28, s. 131 (3).
Variation
(3)Following a hearing held under subsection (1.2), the Tribunal may vary the risk classification system that the insurer may use or the rates that it may charge. 1997, c. 28, s. 131 (4).
Deemed approval
(4)For the purposes of section 417, a risk classification system and rates varied under subsection (3) shall be deemed to be a risk classification system and rates approved by the Tribunal. 1993, c. 10, s. 43; 1997, c. 28, s. 131 (5).
Definition
(5)In this section,
“insurer” includes the Facility Association. 1993, c. 10, s. 43.
Ministerial policy, statements, systems and rates
416.(1)The Minister may issue policy statements on matters related to risk classification systems and automobile insurance rates. 1993, c. 10, s. 44.
When effective
(2)A policy statement takes effect on the day it is published in The Ontario Gazette. R.S.O. 1990, c. I.8, s. 416 (2).
Effect of statement
(3)The Superintendent and the Tribunal shall have regard to the policy statements issued under this section in making decisions under this Part. R.S.O. 1990, c. I.8, s. 416 (3); 1997, c. 28, s. 132.
Automobile insurance, systems and rates
Risk classification systems
417.(1)No insurer shall use a risk classification system in classifying risks for a coverage or category of automobile insurance unless the system,
(a) is approved by the Superintendent or Tribunal as the case may be;
(b) is authorized under section 413; or
(c) is required under the regulations. 1993, c. 10, s. 45; 1997, c. 28, s. 133 (1).
Rates
(2)No insurer shall use a rate for a coverage or category of automobile insurance that is not approved by the Superintendent or Tribunal as the case may be or authorized under section 413. R.S.O. 1990, c. I.8, s. 417 (2); 1997, c. 28, s. 133 (2).
Definition
(3)In this section,
“insurer” includes the Facility Association. R.S.O. 1990, c. I.8, s. 417 (3).
Risk classification systems, emergency vehicles
417.0.1 (1) No insurer shall use a risk classification system in classifying risks for a coverage or category of automobile insurance that permits an insurer to consider for purposes of a contract of automobile insurance, other than a contract covering the emergency vehicle, an accident arising out of a person’s use or operation of an emergency vehicle while on duty. 2004, c. 11, s. 1.
Meaning of emergency vehicle
(2) Subsection (1) applies to the following emergency vehicles:
1. A fire department vehicle.
2. A police vehicle while used by a person in the lawful performance of his or her duties as a police officer.
3. An emergency response vehicle. 2004, c. 11, s. 1.
Rates, accidents involving emergency vehicles
(3) No insurer shall use a rate for a coverage or category of automobile insurance that is contrary to subsection (1). 2004, c. 11, s. 1.
Limitation
(4) This section does not apply when a person is operating his or her personal automobile. 2004, c. 11, s. 1.
Definitions
(5) In this section,
“automobile” means an automobile within the meaning of Part VI; (“automobile”)
“contract of automobile insurance” means a contract of automobile insurance within the meaning of Part VI; (“contrat d’assurance-automobile”)
“emergency response vehicle” means a vehicle within the meaning of the Highway Traffic Act operated by an ambulance service, other than an ambulance, that is used to provide emergency response services, and that has been assigned an emergency response vehicle number by the Director of the Emergency Health Services Branch of the Ministry of Health and Long-Term Care; (“véhicule d’intervention en cas d’urgence”)
“fire department vehicle” includes an emergency crash extrication vehicle owned and operated by a rescue organization approved by the Minister in writing for the purposes of this Part and a vehicle designated in writing by the Fire Marshal of Ontario as a “fire department vehicle”; (“véhicule de pompiers”)
“insurer” includes the Facility Association; (“assureur”)
“Minister” means the Minister of Community Safety and Correctional Services or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act. (“ministre”) 2004, c. 11, s. 1.
Reports on risk classification and rate determination regulations
417.1(1)The Superintendent shall, at least once every three years, seek the views of interested persons on the operation of the regulations made under paragraphs 35 to 36.1 of subsection 121 (1) and submit to the Minister a report containing the Superintendent’s recommendations for amendments to the regulations. 1993, c. 10, s. 46; 1997, c. 28, s. 134.
Tabling of reports
(2)The Minister shall submit the reports of the Superintendent to the Lieutenant Governor in Council and shall lay them before the Legislative Assembly if it is in session or, if not, at the next session. 1993, c. 10, s. 46; 1997, c. 28, s. 134.
Inquiry
418.(1)The Superintendent may inquire into any question that an insurer, insured or a rating bureau may bring before him or her with regard to insurance rates fixed by a rating bureau or charged by an insurer and also with regard to any other question arising out of the relationship or proposed relationship of the parties with reference to the insurance in question.
Report
(2)The Superintendent shall not make an order pursuant to an inquiry under this section, but the result of the inquiry shall be reported in the Superintendent’s annual report. R.S.O. 1990, c. I.8, s. 418.
PART XVI
AMALGAMATIONS AND TRANSFERS
Meaning of “transfer”, Part XVI
“transfer” means an arrangement whereby contracts made in Ontario by a licensed insurer incorporated or organized under the laws of Ontario or any class or group of such contracts are undertaken by or transferred to another insurer either by novation, transfer or assignment or as a result of amalgamation of the insurers. 1997, c. 19, s. 10 (35).
Application
Reinsurance not affected
420.(1)Nothing in this Part affects reinsurance of individual risks made by insurers in the ordinary course of business. R.S.O. 1990, c. I.8, s. 420 (1); 1997, c. 19, s. 10 (36).
Amalgamation: compliance with law where incorporated
(2)In the case of the amalgamation of insurers, if one of the contracting insurers is an insurer not incorporated or organized under the law of Ontario, the Superintendent shall not approve the transfer until it has been established to his or her satisfaction that the insurers party to the transfer have fully complied with the requirements of the law of the legislative authority under which the insurer was incorporated or organized, but a certificate of the supervising insurance official appointed by such legislative authority that such insurer has fully complied with the requirements of the law of the authority is sufficient evidence to the Superintendent of that fact. R.S.O. 1990, c. I.8, s. 420 (2); 1997, c. 19, s. 10 (37).
Transfer agreements, requirements
421.(1)The details of the transfer shall be in writing setting out in full the terms and conditions of the transfer, but no transfer agreement shall be entered into without the prior permission of the Superintendent and the transfer is not binding or effective until approved by the Superintendent. 1997, c. 19, s. 10 (38).
Irregularity not to invalidate
(2)Upon the approval of the Superintendent, the transfer is valid and binding despite any irregularity in procedure or any failure to comply with the procedural provisions of this Part. R.S.O. 1990, c. I.8, s. 421 (2); 1997, c. 19, s. 10 (39).
Transfer agreements, application for approval
422.The insurers who enter into such a transfer agreement, within 30 days from the date of its execution or such longer period of time as the Superintendent may direct, shall apply to the Superintendent for approval of the transfer. 1997, c. 19, s. 10 (40).
423. Repealed: 1997, c. 19, s. 10 (41).
424. Repealed: 1997, c. 19, s. 10 (41).
Documents to be filed with Superintendent
425.Upon the filing of the application, the insurers party to the transfer shall deposit with the Superintendent,
(a) a certified copy of the transfer agreement;
(b) a statement of the nature and terms of the transfer;
(c) certified copies of the statements of assets and liabilities of the insurers party to the transfer agreement;
(d) certified copies of the actuarial or other reports upon which the transfer agreement is founded;
(e) a declaration under the hands of the president or principal officer and manager or secretary of each insurer that to the best of their knowledge and belief every payment made or to be made to any person whatsoever on account of the transfer is therein fully set forth and that no other payments beyond those set forth have been made or are to be made either in money, policies, bonds, valuable securities or other property by or with the knowledge of any of the parties to the transfer;
(f) evidence of the service of the notices required by section 426, if any;
(g) such other information and reports as the Superintendent may require. R.S.O. 1990, c. I.8, s. 425; 1997, c. 19, s. 10 (42).
Approval or rejection of transfer
426.(1)After receiving the application, the Superintendent may invite written submissions and, after considering all the submissions, approve or reject the transfer.
Notice
(2)Subject to subsection (3), the Superintendent shall determine what notice is adequate for the purposes of subsection (1) and shall direct who shall give the notice.
Notice, life insurance
(3)In the case of life insurance,
(a) the notice shall be served on the shareholders or members and on all policyholders in Ontario, other than industrial policyholders;
(b) the notice shall include,
(i) a statement of the nature and terms of the transfer,
(ii) an abstract containing the material facts embodied in the transfer agreement under which the transfer is proposed to be effected, and
(iii) copies of the actuarial or other reports upon which the transfer agreement is founded, including a report by an independent actuary; and
(c) the Superintendent may also direct that the transfer agreement be open to inspection by policyholders, shareholders or members at the principal offices of the insurers in Ontario for a period of time specified by the Superintendent.
Appeal
(4)The insurers or a person who has made written submissions under subsection (1) may appeal a decision of the Superintendent under that subsection to the Tribunal. 1997, c. 28, s. 141 (1).
427. Repealed: 1997, c. 19, s. 10 (44).
428. Repealed: 1997, c. 19, s. 10 (44).
429. Repealed: 1997, c. 19, s. 10 (44).
430. Repealed: 1997, c. 19, s. 10 (44).
Transfer of contracts where insurer leaves Ontario
431.Where under an agreement between an insurer, in this section called the “continuing insurer”, and another insurer, in this section called the “retiring insurer”, in anticipation of the retiring insurer ceasing to do business in Ontario, the continuing insurer assumes liability under contracts of insurance specified in the agreement issued by the retiring insurer and the retiring insurer ceases to carry on business in Ontario, an insured or other person entitled to rights under those contracts may enforce the rights as though those contracts had been issued by the continuing insurer. R.S.O. 1990, c. I.8, s. 431.
Meaning of “insurer”, Part XVII
“insurer” means an insurer incorporated or organized under the laws of Ontario and in section 433 includes only a joint stock insurance company, a fraternal society, a mutual insurance corporation that participates in the Fire Mutuals Guarantee Fund, a mutual insurance corporation licensed to write life insurance and a cash-mutual insurance corporation. R.S.O. 1990, c. I.8, s. 432.
Investment and lending powers
433. (1) An insurer may invest its funds or any portion thereof in,
Government bonds
(a) the bonds, debentures, stocks or other evidences of indebtedness issued or guaranteed by the government of,
(i) Canada, Australia, Sri Lanka, India, New Zealand, Pakistan, the Republic of South Africa, the United Kingdom, or any province or state thereof, or Zimbabwe or the Republic of Ireland,
(ii) a colony of the United Kingdom,
(iii) the United States of America or a state thereof,
(iv) a country in which the insurer is carrying on business, or a province or state thereof, or
(v) a colony, dependency, territory or possession of any country in which the insurer is carrying on business;
municipal, etc., securities
(b) the bonds, debentures or other evidences of indebtedness issued or guaranteed by a municipal corporation in Canada or elsewhere where the insurer is carrying on business, or by a school corporation in Canada or elsewhere where the insurer is carrying on business, or secured by rates or taxes levied under the authority of the government of a province of Canada on property situate in such province and collectable by the municipalities in which such property is situate;
bonds issued or guaranteed by the International Bank, etc.
(c) the bonds, debentures or other securities issued or guaranteed by the International Bank for Reconstruction and Development;
bonds issued or guaranteed by the Inter-American Development Bank
(d) the bonds, debentures or other securities issued or guaranteed by the Inter-American Development Bank or by the Asian Development Bank;
federal subsidy bonds
(e) the bonds or debentures issued by a corporation that are secured by the assignment to a trust corporation in Canada of an annual payment that the Government of Canada has agreed to make, if such annual payment is sufficient to meet the interest falling due on the bonds or debentures outstanding and the principal amount of the bonds or debentures maturing for payment in the year in which the annual payment is made;
bonds secured by provincial subsidy
(f) the bonds or debentures issued by a charitable, educational or philanthropic corporation that are secured by the payment, assignment or transfer to a trust corporation in Canada of subsidies, payable by or under the authority of a province of Canada, sufficient to meet the interest as it falls due on the bonds or debentures and the principal amount of the bonds or debentures on maturity;
debentures secured by statutory charge on real estate, plant or equipment
(g) the bonds, debentures or other evidences of indebtedness issued by a corporation that are fully secured by statutory charge upon real estate or upon the plant or equipment of the corporation used in the transaction of its business, if interest in full has been paid regularly for a period of at least ten years immediately preceding the date of investment in such bonds, debentures or other evidences of indebtedness upon the securities of that class of the corporation then outstanding;
revenue bonds
(h) the bonds, debentures or other evidences of indebtedness issued by an authority or other body without share capital established and empowered pursuant to the law of a country in which the insurer is carrying on business, or of a province or state thereof, or of a colony, dependency, territory or possession thereof in which the insurer is carrying on business, to administer, regulate the administration of, provide or operate port, harbour, airport, bridge, highway, tunnel, transportation, communication, sanitation, water, electricity or gas services or facilities and, for any of these purposes, to levy, impose or make taxes, rates, fees or other charges that,
(i) may be used only in carrying out the objects of the authority or other body and are sufficient to meet its operating, maintenance and debt service charges, or
(ii) in the case of an authority constituted by an Act of a national government, are fixed or authorized by law or subject to the approval of the government or a minister or ministry thereof or of a body responsible to the government or the minister or ministry;
bonds, etc., secured by mortgage
(i) the bonds, debentures or other evidences of indebtedness issued by a corporation that are fully secured by a mortgage, charge or hypothec to a trustee or to the insurer upon any, or upon any combination, of the following assets,
(i) real estate or leaseholds,
(ii) the plant or equipment of a corporation that is used in the transaction of its business, or
(iii) bonds, debentures or other evidences of indebtedness or shares, of a class authorized by this subsection as investments, or cash balances if such bonds, debentures or other evidences of indebtedness, shares or cash balances are held by a trustee,
and the inclusion, as additional security under the mortgage, charge or hypothec, of any other assets not of a class authorized by this Act as investments shall not render such bonds, debentures or other evidences of indebtedness ineligible as an investment;
equipment trust certificates
(j) obligations or certificates issued by a trustee to finance the purchase of transportation equipment for a corporation incorporated in Canada or the United States of America to be used on railways or public highways, if the obligations or certificates are fully secured by,
(i) an assignment of the transportation equipment to, or the ownership thereof by, the trustee, and
(ii) a lease or conditional sale thereof by the trustee to the corporation;
debentures
(k) the bonds, debentures or other evidences of indebtedness issued or guaranteed by,
(i) a corporation if, at the date of investment, the preferred shares or the common shares of the corporation are authorized as investments by clause (m) or (n), or
(ii) a corporation if its earnings in a period of five years ended less than one year before the date of investment have been equal in sum total to at least ten times and in each of any four of the five years have been equal to at least 1½ times the annual interest requirements at the date of investment on all indebtedness of or guaranteed by it, other than indebtedness classified as a current liability in its balance sheet, and, if the corporation at the date of investment owns directly or indirectly more than 50 per cent of the common shares of another corporation, the earnings of the corporations during the said period of five years may be consolidated with due allowance for minority interests, if any, and in that event the interest requirements of the corporation shall be consolidated and such consolidated earnings and consolidated interest requirements shall be taken as the earnings and interest requirements of the corporation, and, for the purpose of this subclause, “earnings” means earnings available to meet interest charges on indebtedness other than indebtedness classified as a current liability;
guaranteed investment certificates
(l) guaranteed investment certificates issued by a trust corporation incorporated in Canada if, at the date of investment, the preferred shares or the common shares of the trust corporation are authorized as investments by clause (m) or (n);
preferred shares
(m) the preferred shares of a corporation;
common shares
(n) the fully paid common shares of a corporation;
real estate mortgages
(o) ground rents, mortgages, charges or hypothecs on real estate or leaseholds in Canada or in any country in which the insurer is carrying on business, but the amount paid for the mortgage, charge or hypothec together with the amount of indebtedness under any mortgage, charge or hypothec on the real estate or leasehold ranking equally with or prior to the mortgage, charge or hypothec in which the investment is made shall not exceed three-quarters of the value of the real estate or leasehold covered thereby;
guaranteed or insured real estate mortgages
(p) mortgages, charges or hypothecs on real estate or leaseholds in Canada or in any country in which the insurer is carrying on business or bonds or notes secured by such mortgages, charges or hypothecs, even if the mortgage, charge or hypothec exceeds the amount that the insurer is otherwise authorized to invest, if the excess is guaranteed or insured by, or through an agency of, the government of the country in which the real estate or leasehold is situated or of a province or state of that country or is insured by a policy of mortgage insurance issued by an insurance company licensed under this Act, the Canadian and British Insurance Companies Act (Canada) or the Foreign Insurance Companies Act (Canada);
real estate for the production of income
(q) real estate or leaseholds for the production of income in Canada or in any country in which the insurer is carrying on business, either alone or jointly with any other insurance company transacting the business of insurance in Canada or with any loan corporation or trust corporation incorporated in Canada, if,
(i) a lease of the real estate or leasehold is made to, or guaranteed by,
(A) the government, or an agency of the government, of the country in which the real estate or leasehold is situated or of a province, state or municipality of that country, or
(B) a corporation, the preferred shares or common shares of which are, at the date of investment, authorized as investments by clause (m) or (n),
(ii) the lease provides for a net revenue sufficient to yield a reasonable interest return during the period of the lease and to repay at least 85 per cent of the amount invested in the real estate or leasehold within the period of the lease but not exceeding thirty years from the date of investment, and
(iii) the total investment of an insurer in any one parcel of real estate or in any one leasehold does not exceed 2 per cent of the book value of the total assets of the insurer,
and the insurer may hold, maintain, improve, lease, sell or otherwise deal with or dispose of the real estate or leasehold;
other real estate for the production of income
(r) real estate or leaseholds for the production of income in Canada or in any country in which the insurer is carrying on business, either alone or jointly with any other insurance company transacting the business of insurance in Canada or with any loan corporation or trust corporation incorporated in Canada, if,
(i) the real estate or leasehold has produced, in each of the three years immediately preceding the date of investment, net revenue in an amount that, if continued in future years, would be sufficient to yield a reasonable interest return on the amount invested in the real estate or leasehold and to repay at least 85 per cent of that amount within the remaining economic lifetime of the improvements to the real estate or leasehold but not exceeding forty years from the date of investment, and
(ii) the total investment of an insurer in any one parcel of real estate or in any one leasehold does not exceed 2 per cent of the book value of the total assets of the insurer,
and the company may hold, maintain, improve, lease, sell or otherwise deal with or dispose of the real estate or leasehold;
credit union term deposits
(s) term deposits accepted by a credit union as defined in the Credit Unions and Caisses Populaires Act;
mutual or pooled funds
(t) the assets of mutual or pooled funds, if the fund is established by a corporation that is duly authorized to operate a fund in which money from two or more depositors is accepted for investment and if shares allocated to each depositor serve to establish the proportionate interest at any time of each depositor. R.S.O. 1990, c. I.8, s. 433 (1); 1994, c. 11, s. 345 (1); 2001, c. 8, s. 44 (1, 2).
Compliance with guidelines
(1.1) An insurer who invests in shares described in clause (1) (m) or (n) or in the assets of mutual or pooled funds described in clause (1) (t) is required to comply with guidelines issued by the Superintendent. 2001, c. 8, s. 44 (3).
Lending funds
(2) An insurer may lend its funds or any portion thereof on the security of,
authorized securities
(a) any bonds, debentures or other evidences of indebtedness, shares or other securities in which the insurer may invest its funds under subsection (1) but the amount of the loan, together with the amount invested therein, if any, shall not exceed in the aggregate the amount that might be invested therein under this Part;
real estate mortgages
(b) real estate or leaseholds for a term of years or other estate or interest in real estate in Canada or in any country in which the insurer is carrying on business but the amount of the loan together with the amount of indebtedness under any mortgage, charge or hypothec on the real estate or interest therein ranking equally with or prior to the loan shall not exceed 75 per cent of the value of the real estate or interest therein, except that an insurer may accept as part payment for real estate sold by it a mortgage, charge or hypothec for more than 75 per cent of the sale price of the real estate; or
guaranteed or insured real estate mortgages
(c) real estate or leaseholds in Canada or in any country in which the insurer is carrying on business, even if the loan exceeds the amount that the insurer is otherwise authorized to lend, if, to the extent of the excess, the mortgage, charge or hypothec thereon securing the loan is guaranteed or insured by, or through an agency of, the government of the country in which the real estate or leasehold is situated or of a province or state of that country or is insured by a policy of mortgage insurance issued by an insurance company licensed under this Act, the Canadian and British Insurance Companies Act (Canada) or the Foreign Insurance Companies Act (Canada). R.S.O. 1990, c. I.8, s. 433 (2).
Securities received on reorganization, liquidation or amalgamation
(3) Where an insurer owns securities of a corporation and as a result of an arrangement in good faith for the reorganization or liquidation of the corporation or for the amalgamation of the corporation with another corporation, such securities are to be exchanged for bonds, debentures or other evidences of indebtedness or shares not authorized as investments by the foregoing provisions of this section, the insurer may accept such bonds, debentures or other evidences of indebtedness or shares and they shall be allowed as assets of the insurer in the annual report prepared by the Superintendent for the Minister, only for a period of five years after their acceptance, or such further period as the Lieutenant Governor in Council determines, unless it is shown to the satisfaction of the Lieutenant Governor in Council that such bonds, debentures or other evidences of indebtedness or shares are not inferior in status or value to the securities for which they have been substituted or unless they become eligible as investments under subsection (1). R.S.O. 1990, c. I.8, s. 433 (3).
Other assets
(4) An insurer may make investments or loans not hereinbefore authorized by this section subject to the following provisions,
real estate for the production of income
(a) investments in real estate or leaseholds under this subsection shall be made only for the production of income, and may be made by the insurer in Canada or in any country in which the insurer is carrying on business, either alone or jointly with any other insurance company transacting the business of insurance in Canada, and the insurer may hold, maintain, improve, develop, repair, lease, sell or otherwise deal with or dispose of such real estate or leaseholds, but the total investment of an insurer under this subsection in any one parcel of real estate or in any one leasehold shall not exceed 1 per cent of the book value of the total assets of the insurer;
exemption
(b) this subsection shall be deemed not to enlarge the authority conferred by subsections (1) and (2) to invest in mortgages, charges or hypothecs and to lend on the security of real estate or leaseholds; and
limitation
(c) the total book value of the investments and loans made under this subsection and held by the insurer, excluding those that are or at any time since acquisition have been authorized as investments apart from this subsection, shall not exceed 7 per cent of the book value of the total assets of the insurer. R.S.O. 1990, c. I.8, s. 433 (4); 1993, c. 10, s. 47.
Life insurance policies
(5) An insurer licensed to transact the business of life insurance may invest or lend its life insurance funds or any portion thereof in the purchase of, or on the security of, policies of life insurance issued by the insurer or by any other insurance company licensed to transact the business of life insurance in Canada. R.S.O. 1990, c. I.8, s. 433 (5).
National Housing Act (Canada)
(6) Despite anything in this Act or in any other Act, an insurer may,
(a) lend its funds or any portion thereof on the security of real estate pursuant to the National Housing Act (Canada), or any amendments thereto, or may make loans on the security of real estate or leaseholds or other estate or interest therein in excess of 75 per cent of the value of the real estate or interest therein that forms the security for such loan or in excess of the amount that may be loaned in accordance with that Act, or any amendments thereto, where the amount of the excess is guaranteed by the Lieutenant Governor in Council or by a municipality under the Housing Development Act;
(b) if it is licensed to transact the business of life insurance, cause to be formed, or may join with one or more insurance companies licensed to transact the business of life insurance in forming one or more institutional holding companies and one or more institutional housing corporations as defined in the National Housing Act (Canada), and may invest its funds in shares or debentures of such holding companies and in shares of such housing corporations to an aggregate amount that, when added to the aggregate amount invested by such insurer under clause (c), does not exceed 5 per cent of its total assets in Canada allowed by the Superintendent; and
(c) if it is licensed to transact the business of life insurance, invest its funds to an aggregate amount not exceeding 5 per cent of its total assets in Canada allowed by the Superintendent in any other classes or types of investment pursuant to the National Housing Act (Canada), or any amendments thereto, including the purchase of land, the improvement thereof, construction of buildings thereon, and the management and disposal of such land and buildings. R.S.O. 1990, c. I.8, s. 433 (6).
Guaranteed loans
(7) An insurer may make guaranteed loans under and in accordance with the provisions of the Canada Student Loans Act (Canada), the Farm Improvement Loans Act (Canada), the Fisheries Improvement Loans Act (Canada) or the Small Businesses Loans Act (Canada). R.S.O. 1990, c. I.8, s. 433 (7).
Power to invest in shares of certain corporations
(8) Despite anything in subsection (1) but subject to such terms and conditions as the Lieutenant Governor in Council may prescribe, an insurer licensed under the laws of Ontario to transact the business of life insurance may invest its funds in the fully paid shares of,
(a) any corporation incorporated outside Canada to undertake contracts of life insurance;
(b) any corporation incorporated to provide the insurer or a corporation mentioned in clause (a) with advisory, management or sales distribution services in respect of life insurance contracts or annuities the reserves for which vary in amount depending on the market value of a specified group of assets maintained in a separate and distinct fund;
(c) any corporation incorporated under the laws of Canada or any province thereof to undertake contracts of insurance other than contracts of life insurance;
(d) any corporation incorporated to acquire, hold, maintain, improve, lease or manage real estate or leaseholds;
(e) any corporation incorporated to offer public participation in an investment portfolio;
(f) any corporation incorporated to provide a corporation mentioned in clause (e) with advisory, management or sales distribution services; or
(g) with the prior approval of the Superintendent, any corporation incorporated to carry on any other business reasonably ancillary to the business of insurance. R.S.O. 1990, c. I.8, s. 433 (8); 1997, c. 28, s. 143.
Same
(9) Despite subsection (1) and section 435, a mutual insurance corporation that participates in the Fire Mutuals Guarantee Fund may, with the approval of the Superintendent and subject to any terms and conditions he or she may impose, invest in the fully paid shares of a body corporate of a prescribed class incorporated in Canada if, after the investment, one or more of the mutual insurance corporations that participate in the Fund controls, or as a result of the investment will acquire control of, the body corporate. 1994, c. 11, s. 345 (2); 1997, c. 28, s. 143.
Additional security may be taken
(10) An insurer may take any additional securities of any nature to further secure repayment to it of any loan or investment or to further secure the sufficiency of any of the securities in or upon which it is by this section authorized to invest or lend any of its funds. R.S.O. 1990, c. I.8, s. 433 (10).
By-laws to prevail
(11) Where the constitution, by-laws or rules of an insurer prescribe the securities in which its funds may be invested, nothing in this section enlarges the power of investment. R.S.O. 1990, c. I.8, s. 433 (11).
Disposal of unauthorized investments
(12) The Superintendent may direct an insurer to dispose of and realize any of its investments acquired after the 1st day of May, 1928, and not authorized by this Part, and such insurer shall within sixty days after receiving such direction absolutely dispose of and realize such investments, and, if the amount realized therefrom falls below the amount paid by such insurer for such investments, the directors of the insurer are jointly and severally liable for the payment to such insurer of the amount of the deficiency, but if any director present at the meeting at which such investment is authorized, forthwith, or if any director then absent, within twenty-four hours after he or she becomes aware of such investment and is able to do so, delivers or sends to the insurer by registered mail his or her protest against such investment, and, within eight days thereafter, sends a copy thereof by registered mail to the Superintendent, such director thereby and not otherwise exonerates himself or herself from such liability. R.S.O. 1990, c. I.8, s. 433 (12).
Investments of other insurers
434.An insurer who is not a joint stock insurance company, a fraternal society, a mutual insurance corporation that participates in the Fire Mutuals Guarantee Fund, a mutual insurance corporation licensed to write life insurance or a cash-mutual insurance corporation may invest its funds in securities described in clauses 433 (1) (a) to (l) and (o), (p) and (s) and may lend its funds on the security of any such securities. R.S.O. 1990, c. I.8, s. 434; 1994, c. 11, s. 346.
Restrictions and limitations, investment and lending
435.(1)The following restrictions, limitations and prohibitions apply to insurers in the exercise of the investment powers under sections 433 and 434,
(a) an insurer not licensed to transact the business of life insurance shall not invest in or lend its funds upon the security of its own shares or the shares of any corporation transacting the business of insurance except for investments in the shares of a syndicate that is a member of The Canadian Insurance Exchange;
(b) an insurer licensed to transact the business of life insurance shall not,
(i) invest in the shares of a corporation incorporated in Canada to undertake contracts of life insurance,
(ii) lend its funds upon the security of its own shares, or
(iii) except as provided in section 211 of the Corporations Act, invest in or purchase its own shares;
(c) except as to securities issued or guaranteed by the Government of Canada or the government of a province of Canada or a municipal corporation in Canada, an insurer shall not invest in any one security or make a total investment in any one corporation, either by the purchase of shares or other securities of such corporation or by lending to it on the security of its debentures or other assets or any part thereof, of more than 10 per cent of the book value of the total assets of the insurer;
(d) except as to investments made under subsection 433 (8) and as to securities guaranteed by the Government of Canada or the government of a province of Canada or by a municipal corporation in Canada, an insurer shall not make any investment the effect of which will be that it will hold more than 30 per cent of the common shares or 30 per cent of the total issued shares of any one corporation;
(e) the total book value of the investments of an insurer in common shares, other than its own common shares purchased under section 211 of the Corporations Act, shall not exceed 25 per cent of the book value of the total assets of the insurer;
(f) the total book value of the investments of an insurer in real estate or leaseholds for the production of income under clauses 433 (1) (q) and (r) and subsection 433 (4) shall not exceed 10 per cent of the book value of the total assets of the insurer;
(g) an insurer shall not invest any of its funds in bonds, debentures or other evidences of indebtedness on which the payment of principal or interest is in default; and
(h) an insurer shall not act as an underwriter in connection with the purchase or sale of any securities or other property of any kind.
Securities dealers
(2)Subject to such terms and conditions as may be prescribed by the Lieutenant Governor in Council, an insurer, with the approval of the Superintendent, may invest its funds in the fully paid voting shares of a dealer within the meaning of the Securities Act.
Non-application of clauses (1) (c, d)
(3)Clauses (1) (c) and (d) do not apply to an investment under subsection (2).
Definition
(4)For the purposes of this section and regulations made under paragraph 32 of subsection 121 (1),
“voting share” means a share of any class of shares of a corporation carrying voting rights under all circumstances and a share of any class of shares carrying voting rights by reason of the occurrence of any contingency that has occurred and is continuing. R.S.O. 1990, c. I.8, s. 435.
Prohibited loans and investments
436.(1)An insurer shall not knowingly make an investment, after the 13th day of November, 1970, other than a loan on the security of a policy of life insurance issued by it,
(a) by way of a loan to,
(i) a director or officer of the insurer, or a spouse, same-sex partner or child of such director or officer, or
(ii) an individual, his or her spouse or same-sex partner or any of his or her children under twenty-one years of age if either the individual or a group consisting of the individual, his or her spouse or same-sex partner and such children is a substantial shareholder of the insurer;
(b) in a corporation that is a substantial shareholder of the insurer; or
(c) in a corporation in which,
(i) an individual mentioned in subclause (a) (i),
(ii) an individual who is a substantial shareholder of the insurer,
(iii) another corporation that is a substantial shareholder of the insurer, or
(iv) a group consisting exclusively of individuals mentioned in subclause (a) (i),
has a significant interest. R.S.O. 1990, c. I.8, s. 436 (1); 1999, c. 6, s. 31 (13).
Retention
(2)An insurer shall not knowingly retain an investment mentioned in subsection (1).
Interpretation
(3)For the purpose of this section,
significant interest
(a) a person has a significant interest in a corporation, or a group of persons has a significant interest in a corporation if,
(i) in the case of a person, the person owns beneficially, either directly or indirectly, more than 10 per cent, or
(ii) in the case of a group of persons, they own beneficially, either individually or together and either directly or indirectly, more than 50 per cent,
of the shares of the corporation for the time being outstanding;
substantial shareholder
(b) a person is a substantial shareholder of a corporation or a group of persons is a substantial shareholder of a corporation if that person or group of persons owns beneficially, either individually or together and either directly or indirectly, equity shares to which are attached more than 10 per cent of the voting rights attached to all of the equity shares of the corporation for the time being outstanding; and in computing the percentage of voting rights attached to equity shares owned by an underwriter, there shall be excluded the voting rights attached to equity shares acquired by the underwriter as an underwriter during the course of distribution to the public by the underwriter of such shares.
Definitions
(4)In this section,
“equity share” means a share of any class to which are attached voting rights exercisable under all circumstances and a share of any class to which are attached voting rights by reason of the occurrence of any contingency that has occurred and is continuing; (“action participante”)
“investment” means,
(a) an investment in a corporation by way of purchase of bonds, debentures, notes or other evidences of indebtedness thereof or shares thereof, or
(b) a loan to a person or persons,
but does not include any normal working balance between an insurer and any other corporation transacting the business of insurance or any advance or loan that is merely ancillary to the main business of the insurer; (“placement”)
“officer”, despite its definition in section 1, means only the president, a vice-president, the secretary, the treasurer, the manager, the controller and the actuary of an insurer and any other person designated as an officer of the insurer by by-law or by resolution of the directors thereof. (“dirigeant”)
“Down-stream” investment
(5)For the purposes of this section, where a person or a group of persons owns beneficially, directly or indirectly, or is deemed by this subsection to own beneficially, shares of a corporation, that person or group of persons shall be deemed to own beneficially that proportion of the shares of any other corporation that is owned beneficially, directly or indirectly, by the first-mentioned corporation, that is equal to the proportion of the shares of the first-mentioned corporation that is owned beneficially, directly or indirectly, or is deemed by this subsection to be owned beneficially, by that person or group of persons.
Exception
(6)Despite subsection (5), an insurer is not prohibited from making an investment in a corporation only because a person or a group of persons that owns beneficially, directly or indirectly, or is deemed to own beneficially equity shares of the insurer is, by reason of that subsection, deemed to own beneficially equity shares of such corporation.
Exemption
(7)Where any person or group of persons is a substantial shareholder of an insurer and, as a consequence thereof and of the application of this section, certain investments are prohibited for the insurer, the Minister may, on the advice of the Superintendent, and on application by the insurer, exempt from such prohibition any particular investment or investments of any particular class if he or she is satisfied,
(a) that the decision of the insurer to make or hold any investment so exempted has not been and is not likely to be influenced in any significant way by that person or group, and does not involve in any significant way the interests of that person or group apart from their interests as a shareholder of the insurer; and
(b) that the investment is to be made under the power granted to the insurer under this Part.
Idem
(8)Any order of exemption made by the Minister under subsection (7) may contain any conditions or limitations considered by the Minister to be appropriate and may be revoked by the Minister at any time. R.S.O. 1990, c. I.8, s. 436 (2-8).
Gift or benefit prohibited
(9)No director or officer of an insurer and no member of a committee that has any authority in the investment or disposition of its funds shall accept or be the beneficiary of, either directly or indirectly, any fee, brokerage, commission, gift or other consideration for or on account of any loan, deposit, purchase, sale, payment or exchange made by or on behalf of the insurer, or be pecuniarily interested in any such purchase, sale or loan, as borrower, principal, co-principal, agent or beneficiary, except that, if the person is a policyholder, he or she is entitled to all the benefits accruing under the terms of his or her contract. 1997, c. 19, s. 10 (45).
Investments, value and formal requirements
Value of assets retained in Canada
437.(1)At all times, every insurer shall retain in Canada assets of a value capable of discharging all of its liabilities to its policyholders in Canada and all other outstanding obligations in Canada.
Records
(2)Every insurer shall maintain an up-to-date record identifying all investments held by the insurer and the location of the investments.
Procedures
(3)Every insurer shall also institute and record procedures to be followed in the handling and safeguarding of its investments and shall, at all times, ensure strict compliance with those procedures.
Safe-keeping
(4)Every insurer shall ensure that its investments are kept,
(a) securely and in a manner that prevents unauthorized access to them; and
(b) in the custody of the insurer or of an entity qualified to act as custodian of securities or as a depository or clearing agency for securities under guidelines issued by the Superintendent.
Same
(5)An insurer shall not place investments in the custody of an entity referred to in clause (4) (b) unless the insurer has entered into a written custodial agreement with the entity.
Report to Superintendent
(6)At the request of the Superintendent, an insurer shall report to the Superintendent on its compliance with subsections (1) to (5) and the Superintendent may, if not satisfied with the report, require a change which shall be complied with by the insurer, in the nature and content of the records kept, the location of the investments, the custodial arrangements or any other matter related to the safeguarding of the investments. 1997, c. 19, s. 10 (46).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Meaning of “cost of borrowing”, ss. 437.2 to 437.11
437.1In sections 437.2 to 437.11,
“cost of borrowing”, for a loan or advance on the security or against the cash surrender value of a policy made by an insurer, means,
(a) the interest or discount applicable to the loan or advance,
(b) any amount charged in connection with the loan or advance that is payable by the borrower to the insurer,
(c) any amount charged in connection with the loan or advance that is payable by the borrower to a person other than the insurer, where the amount is chargeable, directly or indirectly, by the person to the insurer, and
(d) any charge prescribed by the regulations as included in the cost of borrowing,
but does not include any charge prescribed by the regulations as excluded from the cost of borrowing.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Rebate of borrowing costs
437.2(1)This section applies where,
(a) an insurer makes a loan to a natural person;
(b) the loan is not secured by a mortgage on real property;
(c) the loan is required to be repaid either on a fixed future date or by instalments; and
(d) the loan is prepaid in full.
Same
(2)In the circumstances described in subsection (1), the insurer shall, in accordance with the regulations, rebate to the borrower a portion of the cost of borrowing for the loan.
Limitation
(3)For the purposes of subsection (2) and the regulations made under clause 437.11 (1) (b), the cost of borrowing for a loan does not include the interest or discount applicable to the loan.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Disclosure of cost of borrowing
437.3(1)An insurer shall not make a loan to a natural person unless the cost of borrowing and any other information prescribed for the purposes of this section by the regulations have been disclosed by the insurer to the person.
Same
(2)For the purposes of disclosure required by subsection (1), the cost of borrowing,
(a) shall be calculated on the basis that all obligations of the borrower are duly fulfilled;
(b) shall be calculated in accordance with the regulations;
(c) shall be expressed as a rate per annum; and
(d) where required by the regulations, shall be expressed as an amount in dollars and cents.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Additional disclosure — term loans
437.4Where an insurer makes a loan to a natural person and the loan is required to be repaid either on a fixed future date or by instalments, the insurer shall disclose the following to the borrower:
1. Whether the borrower has the right to repay the amount borrowed before the maturity of the loan.
2. Any terms and conditions relating to a right described in paragraph 1, including particulars of the circumstances in which the borrower may exercise the right.
3. Whether any portion of the cost of borrowing for the loan is to be rebated to the borrower or any charge or penalty is to be imposed on the borrower, if the borrower exercises a right described in paragraph 1.
4. The manner in which any rebate, charge or penalty referred to in paragraph 3 is to be calculated.
5. Particulars of any charges or penalties to be imposed on the borrower if the borrower fails to repay the amount of the loan at maturity or fails to pay an instalment on the day the instalment is due to be paid.
6. Particulars of any prescribed change relating to the loan agreement or the cost of borrowing for the loan.
7. Particulars of any rights or obligations of the borrower prescribed by the regulations for the purposes of this section.
8. Any other information prescribed by the regulations for the purposes of this section.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Disclosure in applications for credit cards, etc.
437.5 A form or other document used by an insurer for the purposes of an application for a credit card, payment card or charge card shall contain the information prescribed by the regulations for the purposes of this section or be accompanied by a document that contains that information.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Disclosure where credit cards, etc., issued
437.6Where an insurer issues a credit card, payment card or charge card to a natural person, the insurer shall disclose the following to the person:
1. Particulars of any charges or penalties to be imposed on the person if he or she fails to pay an amount in accordance with the agreement governing the card.
2. Particulars of any charges for which the person becomes responsible by accepting or using the card.
3. Particulars of any prescribed change relating to the loan agreement or the cost of borrowing for any loan obtained through the use of the card.
4. Particulars of any rights or obligations of the person prescribed by the regulations for the purposes of this section.
5. Any other information prescribed by the regulations for the purposes of this section.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Additional disclosure: loans to which ss. 437.4 and 437.6 do not apply
437.7(1)Where an insurer enters into an arrangement for the making of a loan to a natural person and neither section 437.4 nor section 437.6 apply in respect of the arrangement, the insurer shall disclose the following to the person:
1. Particulars of any charges or penalties to be imposed on the person if he or she fails to pay an amount in accordance with the arrangement.
2. Particulars of any charges for which the person becomes responsible by entering the arrangement.
3. Particulars of any prescribed change relating to the arrangement or the cost of borrowing under the arrangement.
4. Particulars of any rights or obligations of the person prescribed by the regulations for the purposes of this section.
5. Any other information prescribed by the regulations for the purposes of this section.
Interpretation
(2)For the purposes of subsection (1), an arrangement for the making of a loan includes an arrangement for a line of credit.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Statement re mortgage renewal
437.8Where an insurer makes a loan to a natural person and the loan is secured by a mortgage on real property, the insurer shall disclose to the person such information respecting renewal of the loan as is prescribed by the regulations.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Disclosure in advertising
437.9(1)This section applies to an advertisement that,
(a) relates to loans, credit cards, payment cards or charge cards that are offered by an insurer to a natural person or to arrangements to which section 437.7 applies that are offered by an insurer to a natural person; and
(b) purports to contain information relating to the cost of borrowing or any other prescribed matter.
Same
(2)No person shall authorize any advertisement described in subsection (1) unless the advertisement contains the information that may be required by the regulations and is in the form and manner that may be prescribed.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Disclosing borrowing costs — advances
437.10Where regulations have been made respecting the manner in which the cost of borrowing is to be disclosed in respect of an advance on the security or against the cash surrender value of a policy, an insurer shall not make such an advance unless the cost of borrowing, as calculated and expressed in accordance with the regulations, has, in the prescribed manner, been disclosed by the insurer, or otherwise as prescribed to the policyholder at or before the time when the advance is made.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 4 (59) by adding the following section:
Regulations re disclosure
437.11(1)The Lieutenant Governor in Council may make regulations,
(a) prescribing, for the purposes of section 437.1, charges that are included in the cost of borrowing and charges that are excluded from the cost of borrowing;
(b) governing rebates to be made under section 437.2;
(c) prescribing information other than the cost of borrowing that must be disclosed under section 437.3;
(d) prescribing the manner of calculating the cost of borrowing for the purposes of section 437.3;
(e) prescribing the circumstances in which the cost of borrowing must be expressed as an amount in dollars and cents for the purposes of section 437.3;
(f) prescribing the manner of calculating any rebate referred to in paragraph 4 of section 437.4;
(g) prescribing changes for the purposes of paragraph 6 of section 437.4, paragraph 3 of section 437.6 and paragraph 3 of subsection 437.7 (1);
(h) prescribing rights and obligations of borrowers for the purposes of paragraph 7 of section 437.4, paragraph 4 of section 437.6 and paragraph 4 of subsection 437.7 (1);
(i) prescribing information that must be disclosed under paragraph 8 of section 437.4, paragraph 5 of section 437.6 and paragraph 5 of subsection 437.7 (1);
(j) prescribing information for the purposes of section 437.5;
(k) prescribing information for the purposes of section 437.8;
(l) prescribing matters for the purposes of clause 437.9 (1) (b) and respecting the form, manner and content of advertisements for the purposes of subsection 437.9 (2);
(m) prescribing the time, manner and form of any disclosure required under sections 437.3 to 437.10;
(n) prescribing classes of loans in respect of which some or all of the requirements of sections 437.2 to 437.9 do not apply;
(o) requiring the disclosure of the cost of borrowing in respect of an advance on the security or against the cash surrender value of a policy and respecting the manner in which the cost of borrowing is to be disclosed;
(p) prescribing classes of advances that are not subject to section 437.10;
(q) prohibiting the imposition of any charge or penalty referred to in section 437.4, 437.6 or 437.7;
(r) governing the nature and amount of any charge or penalty referred to in section 437.4, 437.6 or 437.7 that may be imposed by an insurer, including but not limited to,
(i) regulations providing that such a charge or penalty shall not exceed an amount prescribed in the regulation, and
(ii) regulations respecting the costs of the insurer that may be included or must be excluded in the determination of the charge or penalty;
(s) respecting any other matter or thing that is necessary to carry out the purposes of sections 437.2 to 437.10.
Same
(2)A regulation made under clause (1) (a) may exclude charges described in clause (a), (b) or (c) of the definition of “cost of borrowing” in section 437.1.
Same
(3)A regulation made under subsection (1) may be general or particular in its application and may be restricted in its application to the class or classes of loans or advances set out in the regulation.
See: 1999, c. 12, Sched. I, ss. 4 (59), 8 (2).
PART XVIII
UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN THE BUSINESS OF INSURANCE
Definitions, Part XVIII
438.For the purposes of this Part,
“person” includes an individual, corporation, association, partnership, organization, reciprocal or insurance exchange, member of the society known as Lloyd’s, fraternal society, mutual benefit society or syndicate; (“personne”)
“unfair or deceptive acts or practices” means any activity or failure to act that is prescribed as an unfair or deceptive act or practice. (“actes ou pratiques malhonnêtes ou mensongers”) R.S.O. 1990, c. I.8, s. 438; 1993, c. 10, s. 48; 1999, c. 12, Sched. I, s. 4 (60, 61).
Unfair or deceptive acts, etc., prohibited
439.No person shall engage in any unfair or deceptive act or practice. R.S.O. 1990, c. I.8, s. 439.
Superintendent may investigate
440.The Superintendent may examine and investigate the affairs of every person engaged in the business of insurance in Ontario in order to determine whether such person has been, or is, engaged in any unfair or deceptive act or practice. R.S.O. 1990, c. I.8, s. 440.
Action on examination or investigation
Superintendent’s report
441.(1)Upon examination or investigation, or upon any other evidence, the Superintendent shall make a report if he or she is of the opinion that a person has committed or is committing any act, or has pursued or is pursuing any course of conduct, that is an unfair or deceptive act or practice or might reasonably be expected to result in a state of affairs that would constitute an unfair or deceptive act or practice.
Notice
(2)The Superintendent may give notice in writing, which shall include a copy of the report made under subsection (1), to the person that the Superintendent intends to order the person,
(a) to cease or refrain from doing any act or pursuing any course of conduct identified by the Superintendent;
(b) to cease engaging in the business of insurance or any aspect of the business of insurance specified by the Superintendent; or
(c) to perform the acts that, in the opinion of the Superintendent, are necessary to remedy the situation.
Request for hearing
(3)Within 15 days after receiving the notice, a person may request in writing that the Tribunal hold a hearing before the Superintendent takes any action described in the notice.
Interim order
(4)Despite subsection (3), if the Superintendent is of the opinion that the interests of the public may be prejudiced or adversely affected by any delay in the issuance of a permanent order, the Superintendent, without prior notice, may make an interim order as described in subsection (2) which shall take effect immediately on its making, and which shall become permanent on the 15th day after its making unless within that time the person requests a hearing before the Tribunal.
Hearing
(5)If, within the time period allowed, the person requests a hearing, the Tribunal shall hold a hearing.
Extension of order
(6)If, within the time period allowed, the person requests a hearing and the Superintendent has made an interim order under subsection (4), the Superintendent may extend the interim order until the hearing is concluded and the order is confirmed, varied or revoked.
No request for hearing
(7)If the person does not request a hearing within the time period allowed, the Superintendent may make an order in accordance with the notice given under subsection (2) which shall take effect on the date set out in the order.
Hearing
(8)At a hearing, if the Tribunal is of the opinion that an order described in subsection (2) should be made, the Tribunal may make an order which shall take effect on the date set out in the order.
Modification
(9)The Superintendent may modify any order made under this section after giving the person named in the order an opportunity to make written submissions.
Appeal
(10)The person named in an order modified by the Superintendent may appeal the order to the Tribunal.
Revocation
(11)The Superintendent may revoke any order made under this section. 1997, c. 28, s. 144.
PART XIX
EXAMINATION AND ENFORCEMENT
Meaning of “examination”, Part XIX
“examination” means examination, inquiry, appraisal, audit or inspection under this Act. R.S.O. 1990, c. I.8, s. 442.
Examinations, general
443.(1)It is a condition of the licensing of a person that the person facilitate examinations.
Material to be furnished
(2)For the purpose of an examination, the insurer, agent or adjuster shall prepare and submit to the person conducting the examination such statements or returns with respect to the insurer’s, agent’s or adjuster’s business, finances or other affairs, in addition to the statements or returns mentioned in this Act, as the Superintendent may require.
Duty of officers, etc.
(3)The officers, agents and employees of an insurer, agent or adjuster shall open the books for inspection and shall otherwise facilitate an examination under this Act so far as it is in their power. R.S.O. 1990, c. I.8, s. 443 (1-3).
Production of books
(4)In order to facilitate an examination of the books and records of an insurer, agent or adjuster, the Superintendent or a person designated by the Superintendent may require the insurer, agent or adjuster to produce the books and records at his, her or its principal place of business in Ontario, or at such other convenient place as the Superintendent may direct. R.S.O. 1990, c. I.8, s. 443 (4); 1997, c. 28, s. 145.
Expense of further examination
(5)On the direction of the Superintendent or a person designated by the Superintendent, if an examination of an insurer is made at an office situate outside Ontario, the insurer shall pay the costs and expenses of the examination. R.S.O. 1990, c. I.8, s. 443 (5); 1997, c. 28, s. 145.
Powers of examination, etc.
444.(1)A person conducting an examination, for the purpose of carrying out that person’s duties,
(a) may enter any place at any reasonable time;
(b) may require the production for inspection of documents or things that may be relevant to the carrying out of the duties;
(c) upon giving a receipt therefor, may remove from a place documents or things produced pursuant to a request under clause (b) for the purpose of making copies or extracts and shall return them within a reasonable time to the person who produced them; and
(d) may question a person on matters that are or may be relevant to the carrying out of the examination.
Entry to dwellings
(2)No person may exercise a power of entry conferred by this Act to enter a place that is being used as a dwelling without the consent of the occupier except under the authority of a warrant issued under this section.
Warrant for search
(3)Where a justice of the peace is satisfied on information upon oath that there are in a place documents or things that there are reasonable grounds to believe will afford evidence relevant to the carrying out of an examination under this Act, the justice of the peace may issue a warrant authorizing the person named in the warrant to search the place for any such documents or things and to remove them for the purposes of making copies or extracts and they shall be returned promptly to the place from which they were removed.
Warrant for entry
(4)Where a justice of the peace is satisfied on information upon oath that there are reasonable grounds to believe it is necessary that a place being used as a dwelling or to which entry has been denied be entered so that a person may carry out an examination, the justice of the peace may issue a warrant authorizing such entry by the person named in the warrant.
Execution and expiry of warrant
(5)A warrant issued under subsection (3) or (4),
(a) shall specify the hours and days during which it may be executed; and
(b) shall name a date on which it expires, which date shall not be later than fifteen days after its issue.
Obstruction
(6)No person shall hinder, obstruct or interfere with a person in the execution of a warrant or otherwise impede a person carrying out an examination.
Idem
(7)Subsection (6) is not contravened where a person refuses to produce documents or things, unless a warrant has been issued under subsection (3).
Admissibility of copies
(8)Copies of, or extracts from, documents and things removed from premises under this Act and certified by the person who made the copies as being true copies of, or extracts from, the originals are admissible in evidence to the same extent as, and have the same evidentiary value as, the documents or things of which they are copies or extracts. R.S.O. 1990, c. I.8, s. 444.
Reports
Auditor
445.(1)An auditor shall promptly report to the insurer and to the Superintendent any breach of this Act of which the auditor is aware or is made aware under subsection (2) and, if the insurer does not act to rectify the breach within thirty days, the auditor shall promptly report the failure to rectify to the Superintendent.
Others
(2)Any person undertaking professional services for an insurer who, in providing the professional services, becomes aware of a breach of this Act shall promptly report the breach to the insurer and the auditor of the insurer or, if there is no auditor, to the Superintendent.
Solicitor-client privilege
(3)Nothing in this section abrogates any privilege that may exist between a solicitor and the solicitor’s client. R.S.O. 1990, c. I.8, s. 445.
No liability
446.A person who in good faith makes an oral or written statement or disclosure to the Tribunal, the Superintendent, an employee of the Commission or any other person acting under the authority of this Act that is relevant to the duties of the person to whom the statement or disclosure is made shall not be liable in any civil action arising out of the making of the statement or disclosure. R.S.O. 1990, c. I.8, s. 446; 1997, c. 28, s. 146.
Offences, false information, etc.
Meaning of “person”, ss. 447 and 448
447. (1) In this section and in section 448,
“person” includes an individual, corporation, association, partnership, organization, reciprocal insurance exchange, member of the society known as Lloyd’s, fraternal society, mutual benefit society or syndicate. 1999, c. 12, Sched. I, s. 4 (62).
Offences
(2) Every person is guilty of an offence who,
(a) directly or indirectly furnishes false, misleading or incomplete information to the Commission or an organization recognized under subsection 393 (14), whether the information is required under this Act or is volunteered;
(a.1) knowingly makes a false or misleading statement or representation to an insurer in connection with the person’s entitlement to a benefit under a contract of insurance;
(a.2) wilfully fails to inform an insurer of a material change in circumstances in connection with the person’s entitlement to a benefit under a contract of insurance within 14 days of the material change;
(a.3) knowingly makes a false or misleading statement or representation to an insurer in order to obtain payment for goods or services provided to an insured, whether or not the insured received the goods or services;
(b) fails to comply with any requirement of, or any order or direction made under, this Act;
(c) fails to comply with any written undertaking given to the Tribunal or the Superintendent or to an organization recognized under subsection 393 (14);
(d) contravenes this Act or the regulations; or
(e) contravenes any term, condition or restriction imposed by a licence. R.S.O. 1990, c. I.8, s. 447 (2); 1994, c. 11, s. 347; 1996, c. 21, s. 49; 1997, c. 28, s. 146.
Penalty
(3) On conviction for an offence under this Act, the person convicted is liable on a first conviction to a fine of not more than $100,000 and on each subsequent conviction to a fine of not more than $200,000. R.S.O. 1990, c. I.8, s. 447 (3).
Derivative
(4) Every director, officer and chief agent of a corporation and every person acting in a similar capacity or performing similar functions in an unincorporated association who,
(a) caused, authorized, permitted or participated in the corporation or unincorporated association committing an offence referred to in subsection (2); or
(b) failed to take reasonable care to prevent the corporation or unincorporated association from committing an offence referred to in subsection (2),
is guilty of an offence and is liable on a first conviction to a fine of not more than $100,000 and on each subsequent conviction to a fine of not more than $200,000, whether or not the corporation or unincorporated association has been prosecuted for or convicted of the offence. R.S.O. 1990, c. I.8, s. 447 (4).
Restitution
(5) Where a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to make compensation or restitution in relation thereto. R.S.O. 1990, c. I.8, s. 447 (5).
Order for compliance
448.(1)If it appears to the Superintendent that any person has failed to comply with or is not complying with,
(a) any provision of this Act or the regulations;
(a.1) any order, decision, direction or inquiry made under this Act;
(b) any undertaking given; or
(c) any term, condition or restriction imposed on its licence, where applicable,
the Superintendent may, in addition to any other rights under this Act, apply to a judge of the Ontario Court (General Division) for an order directing the person to comply with or restraining the person from violating the provision, order, decision, direction, inquiry, undertaking, term, condition or restriction, and the judge may make such order as the judge considers appropriate. R.S.O. 1990, c. I.8, s. 448 (1); 1993, c. 10, s. 51.
Life insurance
(1.1)An application under subsection (1) may be made by an organization recognized under subsection 393 (14) in respect of a person who holds a licence within the class of licences referred to in clause 393 (2) (a). 1994, c. 11, s. 348.
Appeal
(2)An appeal lies to the Divisional Court from an order made under subsection (1). R.S.O. 1990, c. I.8, s. 448 (2).
Limitation period
449.No proceeding for an offence under this Act may be commenced more than two years after the earlier of the date on which the facts upon which the proceedings are based first came to the knowledge of the Superintendent. R.S.O. 1990, c. I.8, s. 449; 1997, c. 28, s. 147.
SCHEDULE A Repealed: 1999, c. 12, Sched. I, s. 4 (63).
SCHEDULE B Repealed: 1997, c. 19, s. 10 (47).
