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1st Session, 40th Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 27

THE INSURANCE AMENDMENT ACT


Explanatory Note Bilingual version (PDF)

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. I40 amended

1           The Insurance Act is amended by this Act.

2           The centred heading "INTRODUCTORY PROVISIONS" is added before section 1.

3           Section 1 is amended

(a) by adding the following definitions:

"accident and sickness insurance" means the class of accident and sickness insurance prescribed in the regulations; (« assurance-accidents corporels et maladie »)

"actuary" means a Fellow of the Canadian Institute of Actuaries; (« actuaire »)

"body corporate" means a body corporate with or without share capital, wherever or however formed; (« personne morale »)

"compensation association" means an association that operates or administers a plan to compensate claimants and policyholders of insolvent insurers; (« association d'indemnisation »)

"electronic" means electronic as defined in subsection 1(1) of The Electronic Commerce and Information Act; (« électronique »)

"entity" includes a body corporate, an unincorporated body, a trust, a partnership, a fund, the Crown in right of Canada or in right of a province or territory, an agency of the Crown, a foreign government and an agency of a foreign government, but does not include an individual; (« entité »)

"extra-provincial company" means an insurer that is incorporated in a province or territory other than Manitoba and that is authorized by that province or territory to carry on the business of insurance in that province or territory; (« compagnie extraprovinciale »)

"extra-provincial Crown insurer" means an insurer that

(a) is formed by or under the laws of a province or territory other than Manitoba,

(b) has an exclusive right to perform an insurance activity in that province or territory, and

(c) is beneficially owned or controlled by Her Majesty in right of that province or territory; (« assureur d'État extraprovincial »)

"federally authorized company" means an insurer that is a company, society or foreign company, as defined in the Insurance Companies Act (Canada), approved by order under that Act to carry on business or to insure risks in Canada; (« compagnie autorisée sous le régime d'une loi fédérale »)

"insurance money" means the amount payable by an insurer under a contract, and includes all benefits, surplus, profits, dividends, bonuses and annuities payable by an insurer under an insurance contract; (« sommes assurées »)

"person" includes an individual, entity or personal representative; (« personne »)

"property insurance" means the class of property insurance prescribed in the regulations; (« assurance de biens »)

"provincial company" means an insurer incorporated under The Corporations Act; (« compagnie provinciale »)

(b) by repealing the definitions "accident insurance", "accidental death insurance", "credit insurance", "disability insurance", "fire insurance", "guarantee plan", "insurance on the cash plan", "livestock insurance", "mutual benefit society", "sick and funeral benefits", "sickness insurance" and "weather insurance";

(c) by replacing the definitions "adjuster", "agent", "chief agency", "employees' mutual benefit society", "fraternal society", "minister", "motor vehicle liability policy", "mutual insurance company", "non-owner's policy" and "owner's policy" with the following:

"adjuster" means a person who

(a) for or on behalf of an insurer or an insured and for compensation, reward or the hope or expectation of compensation or reward,

(i) solicits the right to negotiate the settlement of or to investigate a loss or claim under a contract, or under a fidelity, surety or guaranty bond issued by an insurer, or

(ii) directly or indirectly negotiates, investigates, adjusts or settles such loss or claim, or

(b) holds himself or herself out as an adjuster, investigator, consultant or adviser with respect to the adjustment, negotiation or settlement of such losses or claims,

but does not include a member of The Law Society of Manitoba, entitled to practise as a solicitor in Manitoba, acting for or on behalf of a client in the course of and as part of that practice; (« expert » ou « expert en sinistres »)

"agent" means a person who for compensation

(a) solicits insurance on behalf of an insurer,

(b) transmits for a person other than the agent an application for or a policy of insurance to or from an insurer, or

(c) acts, or offers or assumes to act, in the negotiation of insurance or in negotiating the continuance or renewal of an insurance contract other than a life insurance contract; (« agent »)

"chief agency" means

(a) the head office of an insurer if the office is in Manitoba, or

(b) the registered office in Manitoba of a licensed insurer whose head office is outside Manitoba; (« agence principale »)

"employees' mutual benefit society" means a society

(a) that is incorporated or formed and carried on by the officers, or officers and employees, of an employer for the purpose of

(i) providing support and pensions for such of the officers or employees as become incapacitated or cease to be employed by the employer, or

(ii) paying pensions, annuities or gratuities to, or for the dependants of, such officers or employees, or funeral benefits upon the death of such officers or employees, and

(b) in which membership is restricted exclusively to bona fide employees of one employer; (« société mutuelle de salariés »)

"fraternal society" means a society, order or association incorporated for the purpose of making, with only its members, not-for-profit contracts of life insurance or accident and sickness insurance in accordance with this Act and the society's constitution, by-laws and rules, but does not include a friendly society, employees' mutual benefit society or trade union benefit society; (« société de secours mutuels »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« 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 of an automobile that is being used or operated by the person's employee or agent or another person on the 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 the automobile or its use or operation; (« police de responsabilité automobile »)

"mutual insurance company" means an insurer incorporated without share capital that is not a fraternal society, friendly society, employees' mutual benefit society or trade union benefit society; (« compagnie d'assurance mutuelle »)

"non-owner's policy" means a motor vehicle liability policy that insures a person solely in respect of the use or operation by or on behalf of the person of an automobile that the person does not own; (« police de conducteur »)

"owner's policy" means a motor vehicle liability policy insuring a person

(a) in respect of the ownership, use or operation of an automobile that is owned by the person and that is within the descriptions or definitions in the policy, and

(b) if the contract so provides, in respect of the use or operation of any other automobile; (« police de propriétaire »)

4           The following is added after section 1:

Definitions re uninsured income-replacement benefits

1.1(1)      In this section, "employee"

(a) includes a former employee, a director, a former director, an officer and a former officer; and

(b) in the case of a union, as defined in The Labour Relations Act, further includes a member of the union.

Disclosure about uninsured income-replacement benefits

1.1(2)      An employer that provides to its employees or their dependants benefits that

(a) provide income replacement due to disability, sickness or disease, but not death; and

(b) are not underwritten by an insurer regulated under this Act;

must disclose to the employees, before or at the time the benefits are offered, that the benefits are not underwritten by an insurer regulated under this Act but are an unsecured financial obligation of the employer.

Filing by electronic means

1.2(1)      Subject to subsection (2), a document or information that is required to be filed with or submitted to the superintendent or the minister under this Act or the regulations may be filed by electronic means if it is filed or submitted in a format approved by the recipient.

Express consent required

1.2(2)      Subsection (1) does not apply to a document or information, or a type of document or information, unless the recipient has expressly consented to the electronic filing or submission of the document or information or the type of document or information.

5           Sections 2 to 19 and the Part heading before section 2 are replaced with the following:

PART I

SUPERINTENDENT OF INSURANCE

Appointment of superintendent and deputy

2(1)        A Superintendent of Insurance and a Deputy Superintendent of Insurance may be appointed as provided in The Civil Service Act.

Functions and duties of the superintendent

2(2)        The superintendent has the following functions and duties:

(a) to supervise the business of insurance in Manitoba;

(b) to supervise and inspect insurers and to examine their financial affairs;

(c) to see that the laws relating to the business of insurance are enforced and obeyed;

(d) to examine and report to the minister from time to time upon all matters connected with the business of insurance;

(e) such other functions and duties as the minister may assign to the superintendent.

Duties of deputy

3           In the event of the superintendent's absence or incapacity or if the office of superintendent is vacant, the Deputy Superintendent of Insurance has the superintendent's powers and is to carry out the superintendent's duties and functions.

Delegation of powers, duties and functions

3.1         With or without conditions, the superintendent may, in writing, delegate to the Deputy Superintendent of Insurance or another employee in the office of the superintendent a power, duty or function conferred or imposed on the superintendent by this Act or the regulations.

Agreement with Canada re inspection of insurers

4(1)        Despite any other provision of this Act, the minister may, with the approval of the Lieutenant Governor in Council, enter into an agreement with the Government of Canada under which an employee of that government (referred to in this section as a "designated official") who is responsible for the supervision or examination of insurance companies performs the superintendent's duties respecting the supervision, inspection and financial examination of insurers.

Provision for payment to Canada

4(2)        Without restricting the generality of subsection (1), an agreement made under that subsection may provide for payment to the Government of Canada for the performance of the duties under the agreement by the designated official.

Designated official to ascertain inspection expenditure

4(3)        When an agreement has been entered into under this section, the designated official must annually, as soon as practicable after the close of the fiscal year of the Government of Manitoba, by such inquiry or investigation as the designated official considers necessary, ascertain and certify the total amount of the expenditure incurred for or in connection with the administration of the sections of this Act dealing with the financial inspection and supervision of insurers during the fiscal year. The amount of the expenditure certified by the designated official is final and conclusive for all purposes of this section.

Assessment

4(4)        In each year that an agreement made under subsection (1) is in force, the designated official must

(a) assess each insurer for the expenses incurred by the designated official for or in connection with performing duties under the agreement in respect of that insurer; and

(b) notify the superintendent of the amount of each assessment.

Payment of assessment

4(5)        Upon being notified of an assessment made against an insurer under subsection (4), the superintendent must notify the insurer in writing of the amount of the assessment. The amount of the assessment is a debt due by the insurer to the Crown, due and payable to the Minister of Finance 30 days after the day the insurer receives the notice of assessment.

Regulations for carrying agreement into effect

4(6)        The Lieutenant Governor in Council may make regulations respecting any matter that it considers necessary or advisable to allow an agreement under this section to be carried out.

Agreement with compensation associations

5(1)        With the approval of the Lieutenant Governor in Council, the minister may enter into an agreement with a corporation, incorporated to establish and administer a compensation plan, to compensate claimants and policyholders of insolvent insurers that become members of the plan under section 30.

Regulations

5(2)        The Lieutenant Governor in Council may make regulations

(a) respecting carrying out an agreement referred to in subsection (1);

(b) respecting enforcing the government's rights under an agreement referred to in subsection (1);

(c) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of this section.

Taking evidence

6(1)        In carrying out the superintendent's duties and in exercising the superintendent's powers under this Act or under any other Act relating to insurance, the superintendent

(a) may

(i) require, take and receive affidavits, statutory declarations and depositions, and

(ii) examine witnesses under oath; and

(b) has the same power to

(i) summon persons to attend as witnesses,

(ii) enforce their attendance, and

(iii) compel them to produce books, documents and things, and to give evidence,

as any court has in civil cases.

Oaths

6(2)        An oath required by this Act to be taken, may be administered by the superintendent or by another person authorized to administer oaths in Manitoba.

Conflict of interest

7           The following persons must not have a direct or indirect interest, other than as a policyholder, in an insurance company or intermediary carrying on insurance business in Manitoba:

(a) the superintendent;

(b) a person employed in the office of the superintendent.

Immunity of superintendent and others

8(1)        No action or proceeding may be brought against any of the following persons for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act or the regulations:

(a) the superintendent or a person employed in the office of the superintendent or acting under the superintendent's instructions;

(b) an insurance council established under section 396.1 or a member or employee of an insurance council.

Actions by superintendent

8(2)        The superintendent may bring actions and institute proceedings in the superintendent's name of office to enforce of a provision of this Act or the regulations or to recover fees or penalties payable under this Act or the regulations.

BOOKS AND RECORDS

Superintendent's records

9(1)        The superintendent must keep the following records:

(a) a register of all insurer licences issued under this Act, setting out for each insurer

(i) its name,

(ii) the address of its head office,

(iii) the address of its principal office in Canada,

(iv) the name and address of its principal general agent in Manitoba,

(v) the licence number,

(vi) particulars of the classes of insurance for which the insurer is licensed,

(vii) such other information as the superintendent considers necessary;

(b) a record of agents, brokers, adjusters and assistant adjusters licensed under this Act.

Public inspection of records

9(2)        The records that this section requires the superintendent to keep must be open to public inspection at such times and upon payment of such fees as are prescribed.

Form of records

9(3)        The superintendent may keep the records required by this section in any form that the superintendent considers appropriate so long as copies of the records can be made.

Notice of licence in Manitoba Gazette

10(1)       The superintendent must publish in The Manitoba Gazette a notice of

(a) the issuance of a licence to an insurer other than a renewal; and

(b) the suspension, cancellation, revocation or revival of the licence of an insurer.

Superintendent's certificate as evidence

10(2)       A certificate of the superintendent that

(a) on a stated day

(i) an insurer was or was not licensed under this Act,

(ii) an insurer was initially issued a licence, or

(iii) the licence of an insurer was renewed, suspended, revived, revoked, or cancelled; or

(b) a document was filed with the superintendent as required by this Act or with the comparable official under an Act governing insurance that preceded this Act;

is admissible as evidence in any civil, criminal or administrative action or proceeding without proof of the signature or official character of the person appearing to have signed it, and the certificate is proof, in the absence of evidence to the contrary, of the facts set out in it.

POWERS AND DUTIES RESPECTING INSURERS AND INSURERS' LICENCES

Superintendent to determine right to licence

11          Subject to the provisions of this Act on appeals and on suspending or cancelling a insurer's licence, the superintendent may determine the right of an insurer to be licensed.

Applications under Corporations Act for superintendent's approval

12(1)       When the superintendent receives an application for approval of a matter requiring the superintendent's approval under section 280 of The Corporations Act, the superintendent may give or withhold the approval, subject to the right of appeal set out in subsection (3).

Information to be provided to superintendent

12(2)       A person who applies for the superintendent's approval must provide the superintendent with any information that the superintendent requires to decide whether to give or withhold the approval.

Appeal

12(3)       If the superintendent withholds approval of the matter, the applicant may appeal from the superintendent's decision to the Lieutenant Governor in Council. The decision of the Lieutenant Governor in Council about the appeal is final.

Decision of superintendent

13(1)       A decision of the superintendent about an application for a licence must be in writing and prompt notice of the decision must be given to the insurer.

Certified copy of decision

13(2)       The insurer, or another person interested in the decision is entitled, upon payment of the prescribed fee, to a certified copy of the decision.

Recording evidence

13(3)       Oral evidence taken before the superintendent may be recorded by a stenographer or otherwise recorded. Copies of a transcript of the evidence must be provided to the parties to the proceeding on request and on the terms and for the same fees as are applicable to transcripts in proceedings in the court.

Appeal

14          An applicant for an insurer's licence may appeal to the Lieutenant Governor in Council if the superintendent refuses to issue the licence.

INSPECTION AND FINANCIAL EXAMINATION OF INSURERS

Superintendent may question insurer

15(1)       The superintendent may ask an insurer any question about the insurer's contracts or financial affairs.

Insurer must answer superintendent

15(2)       The insurer must promptly and fully answer the superintendent's question.

Access to books and records

16(1)       The superintendent or a person authorized by the superintendent must, at all reasonable times, have access to all the books, records, securities and other documents of an insurer, agent or adjuster that relate to contracts of insurance.

Access must be provided

16(2)       A person in charge, possession, custody or control of such books, records, securities or other documents must provide access to them when requested.

Insurer's duty to provide information on request

17(1)       An insurer and its directors, officers, adjusters and agents must provide the superintendent on request with full information

(a) about any contract issued by the insurer or to an insured and made or deemed to have been made in Manitoba;

(b) about any settlement or adjustment under a contract; and

(c) about any activities related to the insurer's insurance business.

Information to be provided by other licence holders

17(2)       Subsection (1) applies with necessary changes to a person who holds a licence under this Act and is otherwise not mentioned in that subsection.

Inspection and financial examination of insurers

18(1)       The superintendent must, at least annually,

(a) inspect or cause to be inspected the head office or chief agency in Manitoba of every licensed insurer, other than an insurer as to which the superintendent adopts the inspection of another government in Canada;

(b) make such inquiries and financial examination as are necessary to ascertain

(i) each licensed insurer's ability to provide for the payment of its contracts as they mature, and

(ii) whether an insurer has complied with all the provisions of this Act applicable to its transactions; and

(c) report to the minister as to all matters requiring the minister's attention and decision.

Less frequent inspections and financial examinations

18(2)       Despite clause (1)(a), if the superintendent considers that the circumstances of an insurer warrant less frequent inspections or financial examinations, the superintendent may make an inspection or financial examination required by this section, or may cause an inspection or financial examination required by this section to be made, less frequently than annually but not less frequently than once in every three years.

Inspection and financial examination at extra-provincial head office

18(3)       When the head office of an insurer is not in Manitoba the minister may instruct the superintendent to visit the head office to inspect the insurer and examine its financial affairs and to make such inquiries as the minister requires.

Duty of directors, officers and agents re inspections

18(4)       An insurer's directors, officers or agents must

(a) produce the insurer's books and records for inspection or financial examination by the superintendent or another person authorized by the superintendent; and

(b) otherwise facilitate the inspection or financial examination so far as is in their power.

Place of production of books

18(5)       In order to facilitate an inspection or financial examination, the superintendent, with the approval of the minister, may require the insurer to produce the books and records at the head office or chief agency of the insurer in Manitoba or at such other place as the superintendent directs.

Expenses of director or officer re inspection

18(6)       The insurer must pay a director or officer of the insurer who has custody of the books and records the actual expenses of attending with them at the head office, chief agency or other place of production for the purpose of subsection (5).

Certain powers of the superintendent re inspection and financial examination

18(7)       With the approval of the minister, the superintendent may

(a) cause abstracts to be prepared of an insurer's books and records; and

(b) cause a valuation to be made of the insurer's assets and liabilities.

Insurer liable to pay expenses

18(8)       The superintendent may issue a certificate stating the expenses incurred by the government in doing any of the things described in subsection (1). Without delay after receiving the certificate, the insurer must pay the superintendent the amount stated in the certificate.

Expenses of extra-provincial inspection or financial examination

18(9)       When the superintendent or a person authorized by the superintendent inspects or examines the financial affairs of an insurer outside the province, the superintendent may, with the minister's approval, issue a certificate stating the travelling and living expenses incurred in carrying out the inspection or financial examination. Without delay after receiving the certificate, the insurer must pay the superintendent the amount stated in the certificate.

Recovery of expenses

18(10)      The superintendent may recover, as a debt due to the Crown, an amount payable under subsection (8) or (9).

Assistants and their expenses

18(11)      The superintendent may employ persons to make inspections and financial examinations on the superintendent's behalf or to assist the superintendent in making them. The travelling and living expenses of persons so employed constitute expenses of the superintendent for the purpose of subsection (9).

Expenses that may be certified

18(12)      For the purpose of subsection (8), the following may be certified as expenses incurred by the government:

(a) the remuneration of government personnel for doing anything described in subsection (1), including an inspection or examination outside the province;

(b) the remuneration of persons authorized under subsection (9) or employed under subsection (11);

(c) the reasonable cost to the government of goods, services, supplies and equipment, including government equipment, used by government personnel for the purpose of this section;

(d) the cost of goods, services, supplies and equipment used for the purpose of this section by persons authorized under subsection (9) or employed under subsection (11).

Inspection or financial examination adopted

18(13)      With the minister's approval, the superintendent may, in whole or in part, adopt the inspection or financial examination of an insurer, together with any report about the inspection or financial examination,

(a) by another government in Canada; or

(b) by an entity under the authority of another government in Canada.

SERVICE OF PROCESS

Service of process on superintendent

19(1)       If the head office of a licensed insurer is not in Manitoba, service of notice or process in an action or proceeding may be effected upon the insurer by leaving three copies of the notice or process with the superintendent or with a person in the superintendent's office who is designated by the superintendent for that purpose.

Unlicensed insurer with outstanding contracts

19(2)       If a licensed insurer ceases to be licensed while a contract made in Manitoba by the insurer is still in force, the insurer is deemed to be a licensed insurer for the purpose of this section.

Insurer must notify superintendent about address

19(3)       A licensed insurer must

(a) file with the superintendent notice of

(i) a post office address, or

(ii) an address for non-postal notification that is acceptable to the superintendent;

to which the superintendent may forward any notice or process that the superintendent receives in respect of the insurer or to which the superintendent may send another form of notification about the notice or process; and

(b) without delay notify the superintendent of any change in the address.

Superintendent to forward process

19(4)       Without delay after receiving any notice or process in accordance with subsection (1), the superintendent must forward it to the insurer by registered mail addressed to the address provided by the insurer under subsection (3).

Record of actions and proceedings

19(5)       The superintendent must keep a record of actions and proceedings in relation to an insurer in respect of which notice or process has been served on the superintendent, including particulars of the day and hour of service.

Fee to be paid by insurer

19(6)       A licensed insurer must pay the annual fee prescribed in the regulations for the superintendent's services under this section.

No judgment by default unless service is proved

19(7)       When service of notice or process upon an insurer is effected under this section, judgment against the insurer must not be entered for default of appearance or defence unless the affidavit of the superintendent or a person authorized by the superintendent showing that the notice or process was forwarded to the insurer in accordance with this section is filed with the court.

6(1)        Subsections 20(1) to (4) are replaced with the following:

Annual report

20(1)       The superintendent must

(a) prepare for the minister an annual report showing the particulars of the business of each licensed insurer as ascertained from the insurer's statements and from inspections, financial examinations and inquiries under this Act; and

(b) publish the report within 30 days after completing it.

Only authorized investments to be recognized

20(2)       The superintendent's report must not recognize as an asset of the insurer an investment that is not authorized by this Act, its charter or another Act applicable to such investments.

Superintendent's correction of annual statements

20(3)       In the report, the superintendent may

(a) make any corrections regarding the insurer's annual statement that the superintendent considers necessary; and

(b) increase or diminish the stated values of the insurer's assets and liabilities to the amounts that the superintendent considers accurate, based on the financial examination of the insurer's affairs.

Appraisal of insurer's assets and collateral

20(4)       If, with respect to a provincial company, the superintendent considers that

(a) the value that the insurer places on any of its real property is too great;

(b) the amount secured by a mortgage to the insurer on any real property, together with interest due and accrued on the mortgage, is greater than the lending value of the real property; or

(c) the market value of any of the insurer's other assets is less than the amount shown in its books;

the superintendent may require the insurer to secure an appraisal of the real property or other asset by one or more competent valuators or may arrange for the appraisal at the insurer's expense.

Cooperation with appraisal

20(4.1)     If the superintendent arranges for the appraisal, the insurer must cooperate with and provide any assistance, documents or information required by the person performing the appraisal.

6(2)        Subsections 20(5) and (6) are repealed.

6(3)        Subsections 20(7) to (9) are replaced with the following:

Disposal of unauthorized investments

20(7)       The superintendent may require a provincial company to dispose of and realize an unauthorized investment that the superintendent does not recognize as an asset in the superintendent's annual report about the insurer. The insurer must, within 60 days after being notified about the superintendent's requirement, absolutely dispose of the investment.

Directors' liability for shortfall

20(7.1)     Subject to subsection (8), if the amount realized from the investment's disposition is less than the amount that the insurer paid for or invested in it, the insurer's directors are jointly and severally liable for the payment to the insurer of the amount of the deficiency.

Saving

20(8)       Subsection (7.1) does not apply to a director if

(a) in the case of a director who was present when the decision to make the unauthorized investment was made, the director without delay notified the superintendent about the investment and protested its making; or

(b) in the case of a director who was not present when the decision to make the unauthorized investment was made, the director notified the superintendent about the investment and protested its making within eight days after the director became aware that it was made.

Appeal

20(9)       An insurer affected by a decision or requirement of the superintendent under this section may appeal to the Lieutenant Governor in Council.

7           Section 21 is replaced with the following:

Appeal

21(1)       When a person is given an appeal to the Lieutenant Governor in Council under this Act in respect of a decision or requirement of the superintendent,

(a) the superintendent must, at the person's request, provide the person with a written decision or written description of the requirement and a written statement of the reasons for the decision or requirement; and

(b) the person must,

(i) within 10 days after receiving the items required by clause (a), give the superintendent notice of the person's intention to appeal and a statement of the grounds of the appeal,

(ii) within 10 days after giving that notice, file the appeal with the Lieutenant Governor in Council, and

(iii) prosecute the appeal with due diligence.

Stay of decision — loss of appeal right

21(2)       The superintendent's original decision or requirement is stayed until the Lieutenant Governor in Council decides the appeal. But the stay is terminated, and the decision or requirement is binding on the person, without further notice if the person does not comply with a requirement of clause (1)(b).

Information to be provided by superintendent

21(3)       The superintendent must provide the Lieutenant Governor in Council with

(a) a copy of the written decision or written description of the requirement and written reasons given to the person;

(b) copies of all documents that the superintendent has relating to the matter being appealed;

(c) any evidence taken by the superintendent about the matter; and

(d) any other information that the superintendent considers may assist the Lieutenant Governor in Council in deciding the appeal.

8           Sections 22 to 28 and the Part heading before section 22 are replaced with the following:

PART II

GENERAL PROVISIONS APPLICABLE

TO INSURERS CARRYING ON

BUSINESS IN MANITOBA

Undertaking insurance

22(1)       Any insurer undertaking a contract of insurance that, under this Act, is deemed to be made in Manitoba, whether the contract is original or a renewal — except the renewal from time to time of life insurance policies — is deemed to be undertaking insurance in Manitoba for the purposes of this Act.

Carrying on business

22(2)       An insurer is carrying on business in Manitoba for the purposes of this Act if the insurer

(a) undertakes or offers to undertake insurance in Manitoba;

(b) sets up or causes to be set up in Manitoba any sign containing the name of the insurer;

(c) maintains or operates in Manitoba either in its own name, or in the name of an agent or other representative, an office for the transaction of an insurance business whether that business is within Manitoba or outside it;

(d) distributes or publishes in Manitoba, or causes to be distributed or published in Manitoba, any proposal, circular, card advertisement, printed form or similar document;

(e) inserts, prints or publishes, its name, or permits or causes its name to be inserted, printed, or published, in a telephone directory or in another directory or list of names, with or without addresses, of the residents or occupants of premises in a municipality, locality, area or district in Manitoba, or in a building in Manitoba;

(f) makes or causes to be made in Manitoba a written or oral solicitation for insurance;

(g) issues or delivers in Manitoba a policy of insurance or interim receipt;

(h) collects or receives in Manitoba, or negotiates in Manitoba for, a premium for a contract of insurance, or causes any of those acts to be done;

(i) inspects a risk in Manitoba or adjusts a loss in Manitoba under a contract of insurance;

(j) prosecutes or maintains in Manitoba an action or proceeding in respect of a contract of insurance;

(k) represents or holds itself out in Manitoba to the public as being engaged in the insurance business; or

(l) has in force contracts of insurance on property situated in Manitoba or insuring persons resident in Manitoba.

Definition of "contingency levy"

23(1)       In this section, "contingency levy" means an assessment or levy made on members of a society, order, association or corporation on the occasion of the happening to any of those members of any one or more of certain contingencies upon the happening of which the member or the member's beneficiaries become entitled to receive the proceeds of the assessment or levy.

Certain organizations deemed to be insurers

23(2)       Every society, order, association or corporation that under its constitution and laws is empowered

(a) to pay to its members or their beneficiaries, as a benefit payable by the society, order, association or corporation, the proceeds of a contingency levy; or

(b) to pay sickness, accident, disability, unemployment, funeral, hospital, medical or dental benefits, or benefits payable on death or on the happening of any contingency dependent on human life, in an amount that is specified by the insurer's directors or by an executive or management committee of the insurer;

is, subject to subsection 24(4), deemed to be an insurer within the meaning of this Act.

LICENCES

Necessity of licence

24(1)       An insurer that carries on business in Manitoba must obtain from the superintendent and hold a licence under this Act.

Prohibition of unlicensed insurance

24(2)       An insurer that carries on business in Manitoba without having obtained a licence as required by this section is guilty of an offence.

Prohibition against person acting on behalf of unlicensed insurer

24(3)       A person is guilty of an offence if the person

(a) does or causes to be done in Manitoba any act or thing mentioned in section 22 on behalf of or as the agent of an insurer that is not licensed under this Act; or

(b) directly or indirectly receives any remuneration for doing anything mentioned in clause (a).

Exceptions

24(4)       The following are deemed not to be insurers within the meaning of this Act and are not required or entitled to be licensed as an insurer:

(a) an employees' mutual benefit society;

(b) a friendly society;

(c) a trade union benefit society;

(d) any other organization specified by the regulations.

Carrying on business in foreign jurisdiction without authority

24(5)       If the superintendent is satisfied that an insurer licensed under this Act is carrying on or soliciting business in a foreign jurisdiction without being first authorized to do it under the laws of that foreign jurisdiction, the Lieutenant Governor in Council may, upon the report of the superintendent, suspend or cancel the licence of the insurer.

Reinsurance with unlicensed insurer

25          Nothing in this Act prevents a licensed insurer that has lawfully effected a contract of insurance in Manitoba from reinsuring the risk or any portion of the risk with an insurer transacting business outside Manitoba and not licensed under this Act.

Types of insurers

26(1)       Only the following insurers are eligible for a licence under this Part:

(a) a provincial company;

(b) an extra-provincial company;

(c) an extra-provincial Crown insurer or an affiliate of an extra-provincial Crown insurer;

(d) a federally authorized company;

(e) an insurer made up of underwriters or syndicates of underwriters operating on the plan known as Lloyd's.

Applying for a licence

26(2)       An application for a licence to carry on the business of insurance must

(a) be made to the superintendent in the form required by the superintendent; and

(b) be accompanied by the information about the applicant and its business that the superintendent requires.

Issuing a licence

26(3)       The superintendent may issue a licence to an insurer to undertake insurance contracts and carry on business in Manitoba if the insurer

(a) has complied with this Act and The Corporations Act; and

(b) has paid the prescribed application fee.

Form of licence

26(4)       A licence is to be in the form that the superintendent considers appropriate.

Term and renewal of licences

26(5)       A licence expires on December 31 of the year that it is issued, but may be renewed from year to year if the insurer complies with the requirements of this Act for its renewal.

Effect of licence

26(6)       A licence issued under this Act authorizes the insurer to exercise in Manitoba all the rights and powers reasonably incidental to carrying on the business of the class of insurance specified in the licence that are not inconsistent with this Act or with the terms of the insurer's charter.

Classes of insurance

27(1)       A licence issued under this Act must specify the classes of insurance that the insurer is authorized to undertake.

Limited or conditional licence

27(2)       A licence may be issued subject to such limitations and conditions as the minister specifies.

Changes re licences

27(3)       Despite subsection (2), the minister may do one or more of the following at any time in respect of an insurer's licence:

(a) reduce the term for which the licence was issued or renewed;

(b) impose any condition or limitation relating to the carrying on of the insurer's business that the minister considers appropriate;

(c) vary, amend or revoke any condition or limitation to which the licence is then subject.

Insurer must be given an opportunity to be heard

27(4)       The minister may not exercise a power granted under subsection (3) unless the minister has given the insurer notice that the minister intends to exercise the power and has afforded the insurer a reasonable opportunity to be heard with respect to the matter.

Determination of contract's class of insurance by superintendent

27(5)       If a question arises as to the class of insurance into which any specific contract of insurance or form of policy falls, the superintendent may determine the question. The superintendent's determination is effective and final for the purposes of this Act.

Conditions of automobile insurance licence

27(6)       A licence to carry on automobile insurance in Manitoba is subject to the following conditions:

1.  In an action in Manitoba against the licensed insurer, or its insured, arising out of an automobile accident in Manitoba, the insurer must appear and may not set up a defence to a claim under a contract made outside Manitoba, including a 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 Manitoba.

2.  In an action in another province or territory of Canada against the licensed insurer, or its insured, arising out of an automobile accident in that province or territory, the insurer must appear and may not set up a defence to a claim under a contract evidenced by a motor vehicle liability policy issued in Manitoba, including a 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 other province or territory.

Cancelling licence for contravention of condition

27(7)       The superintendent may cancel the licence of an insurer that contravenes a condition set out in subsection (6).

Restriction on life insurance licence

28(1)       Subject to subsection (2), no licence may be issued that authorizes the insurer to undertake life insurance and any other class of insurance.

Exception

28(2)       A licence may be issued that authorizes the insurer to undertake life insurance and

(a) accident and sickness insurance; or

(b) another class of insurance that is prescribed by the regulations, subject to any conditions prescribed in the regulations.

9(1)        Subsection 29(1) is repealed.

9(2)        Subsection 29(2) is replaced with the following:

Property insurance in respect of automobiles

29(2)       An insurer licensed to carry on property insurance may insure an automobile against loss or damage under a property insurance policy, but only if the automobile is not registered under The Drivers and Vehicles Act.

10(1)       Subsection 30(1) is replaced with the following:

Restrictions on granting licence

30(1)       A licence must not be granted to a provincial or extra-provincial company that is not licensed as at October 1, 1997, unless the company provides evidence satisfactory to the superintendent that the company meets any financial standards for an insurer of its class that may be prescribed by regulation.

10(2)       Subsections 30(3) and (4) are repealed.

10(3)       Subsections 30(5) to (10) are replaced with the following:

Proof of compliance with Act and regulations required for licence

30(5)       A licence must not be granted to an insurer unless the insurer satisfies the superintendent that it is in compliance with the provisions of this Act and the regulations that apply to it.

Evidence by insurer whose head office outside of province

30(6)       If the head office of an applicant for a licence under this Act is outside Manitoba, a licence must not be granted unless the applicant satisfies the superintendent that it has the ability to pay its contracts at maturity. The superintendent may accept as sufficient evidence the fact that the applicant is licensed by any government in Canada.

Certain types of agreements requiring superintendent's approval

30(7)       A licence must not be granted to an insurer that

(a) is authorized under its constitution and laws

(i) to pay to its members or their beneficiaries, as a benefit payable by such insurer, the proceeds of a contingency levy, or

(ii) to pay sickness, accident, disability, unemployment, funeral, hospital, medical or dental benefits, or benefits payable on death or on the happening of any contingency dependent on human life, in an amount that is specified by the insurer's directors or by an executive or management committee of the insurer;

(b) has not, before the date of the application for the licence, been licensed; and

(c) has, after April 6, 1944, and before making the application,

(i) made with any of its shareholders, members or policyholders an agreement under which the terms of any former contract between the insurer and any shareholder, member or policyholder has been altered or modified, or

(ii) made any change with respect to any reserve fund or surplus moneys or assets;

unless the agreement or change mentioned in clause (c) is submitted to and approved by the minister.

Regulations designating members of compensation plan

30(8)       If an agreement respecting a compensation plan is entered into under section 5, the Lieutenant Governor in Council may make regulations

(a) designating insurers or classes of insurers as members of the compensation plan;

(b) exempting an insurer or class of insurers from membership in the compensation plan.

Agreement of compensation plan required for exemption

30(8.1)     The Lieutenant Governor in Council must not make a regulation under clause (8)(b) unless the administrator of the compensation plan agrees to the exemption.

Obligations of membership

30(9)       Any insurer that is designated as a member of a compensation plan is subject to the provisions of the plan and must observe any conditions or obligations of membership required by those provisions.

Failure to observe obligations

30(10)      The Lieutenant Governor in Council may cancel the licence of an insurer that fails to observe a condition or obligation of membership in contravention of subsection (9).

10(4)       Subsection 30(11) is repealed.

11          Section 31 is replaced with the following:

Publication of notice of application for licence

31          The superintendent may require an applicant for a licence to

(a) publish a notice of the application in The Manitoba Gazette and in any other medium that the superintendent considers appropriate; and

(b) state in the notice whatever information the superintendent specifies.

12(1)       Subsections 32(1) and (2) are repealed.

12(2)       Subsection 32(3) is replaced with the following:

Notification of certain changes

32(3)       If at any time a change is made in an insurer's charter or head office, or its chief agency or chief agent in Manitoba, the insurer must without delay notify the superintendent about the change and file with the superintendent such certified copies, notices or powers of attorney as the superintendent requires to verify the change.

13          Section 33 is replaced with the following:

Statement of expenses of organization

33(1)       An application by a provincial company for its first licence must

(a) set out the sums of money paid or to be paid by the company in connection with its incorporation and organization; and

(b) contain evidence satisfactory to the superintendent that the directors have performed their duties under section 99 of The Corporations Act.

Payment of expenses before licence is granted

33(2)       Until the licence is granted, the insurer must not make any payments out of the moneys paid in by shareholders except reasonable sums for payment of clerical assistance, legal services, office expenses, advertising and travel expenses.

Conditions precedent to issue of licence

33(3)       The superintendent must not issue the licence until the superintendent is satisfied that

(a) all requirements of this Act and of The Corporations Act as to stock subscriptions, payment of money by shareholders on account of stock subscriptions, election of directors and other preliminaries have been complied with;

(b) the expenses of incorporation and organization, including the commissions payable for the sale of the stock, are reasonable;

(c) the insurer's management and directors and persons who hold a significant interest in any class of insurer's shares are fit as to character; and

(d) the insurer's management and directors have the competence and experience suitable for involvement in the operation of a financial institution.

Compliance with market conduct laws

33.1        The superintendent may refuse to issue a licence to or renew a licence of an insurer if the superintendent is satisfied that the insurer is not complying with the laws respecting market conduct activities of other jurisdictions in which it is licensed.

14          Sections 34 and 35 are repealed.

15          Section 36 is replaced with the following:

Cancelling a licence for non-payment of claims

36(1)       The superintendent may cancel an insurer's licence if the superintendent receives written notice about and is satisfied that the insurer has

(a) for at least 60 days after payment is due, failed or neglected to pay an undisputed claim arising from a loss insured in Manitoba; or

(b) failed or neglected to pay a disputed claim after a final judgment has been made requiring payment and a valid discharge of judgment has been tendered to the insurer.

Revival of licence

36(2)       The superintendent may revive the licence and the insurer may again carry on business if the claim is paid within six months after the superintendent receives the notice described in subsection (1).

16          Section 37.1 is replaced with the following:

Suspending or cancelling a licence

37.1        With or without conditions, the minister may suspend or cancel the licence of an insurer if the insurer is convicted of an offence mentioned in subsection 410(1).

17          Sections 38 to 41 are replaced with the following:

Superintendent must report insufficiency to minister

38(1)       If, based upon the inspection or financial examination of an insurer, the insurer's annual statement or other evidence about it, the superintendent finds that

(a) the insurer's assets are insufficient to justify its continuance in business or to provide proper security to persons effecting insurance with it in Manitoba; or

(b) that the insurer has failed to comply with any provision of law or its instrument of incorporation;

the superintendent must report the finding to the minister.

Suspension or cancellation of licence

38(2)       If, after considering the superintendent's report, giving the insurer an opportunity to be heard and making any further investigation that he or she considers appropriate, the minister agrees with the superintendent's finding, the minister may report that fact to the Lieutenant Governor in Council, and the Lieutenant Governor in Council may suspend or cancel the insurer's licence.

Transacting business for insurer after licence cancellation

38(3)       After publication in The Manitoba Gazette of notice of the suspension or cancellation of an insurer's licence, a person who transacts business on behalf of the insurer, except for the purpose of winding it up, is guilty of an offence.

Limited licence

38(4)       When the superintendent has made a report under subsection (1), the minister or the Lieutenant Governor in Council may direct the issue of such modified, limited or conditional licence as is considered necessary for the protection of persons in Manitoba who have effected or may effect contracts of insurance with the insurer.

Failure to meet financial criteria

38(5)       If an insurer fails to meet any applicable financial standard or solvency test prescribed by the regulations, its assets are deemed to be insufficient for the purposes of subsection (1).

Suspension or cancellation elsewhere

39(1)       Upon the suspension or cancellation of the licence of an insurer by any government in Canada, the superintendent may suspend or cancel the licence of that insurer under this Act.

Licence restrictions elsewhere

39(2)       If the authority to insure a class of risks is deleted from the licence of an insurer by any government in Canada, the superintendent may delete the authority to insure that class of risks from the licence of that insurer under this Act.

Revival of licence

40          If an insurer's licence under this Act is suspended or cancelled, it may be revived if the insurer makes good the deficiency, or remedies its default, as the case may be, to the satisfaction of the minister.

Report of contraventions

41          The superintendent must report to the minister any contravention of a provision of this Act or the regulations by a licensed insurer. After receiving the report, the minister may suspend or cancel or refuse to renew the insurer's licence.

18          Subsection 41.18(2) is amended by adding "in person or by telephone or other communication facility" at the end.

19          Sections 77 and 78 are replaced with the following:

Books to be kept

77(1)       An insurer must keep

(a) such records of its contracts, premium income and claims paid; and

(b) such books of account;

as the superintendent requires.

Audit of records

77(2)       If at any time it appears to the superintendent that an insurer is not keeping records in a manner that shows correctly the experience of the insurer in Manitoba as required by subsection (1), the superintendent may nominate an accountant

(a) to audit the books and records of the insurer; and

(b) to give instructions that will enable the officers of the insurer to comply with that subsection.

Payment of accountant's expenses

77(3)       The reasonable remuneration and expenses of the accountant that are approved by the minister for an audit of an insurer under subsection (2) must be paid by the insurer.

Collection of accountant's expenses from insurer

77(4)       If the amount approved under subsection (3) is not paid by the insurer, the minister may pay the amount and then recover it from the insurer as a debt due to the Crown.

Inspection of registers by superintendent

78          An insurer that is incorporated in Manitoba must allow the superintendent to inspect its share register or register of members at any reasonable time and upon reasonable notice.

20          Sections 79 and 80 are repealed.

21          Section 81 is replaced with the following:

By-laws and by-law changes to be filed

81(1)       An insurer must provide the superintendent with a certified copy of any of the following within one month after its passage:

(a) the insurer's by-laws;

(b) any repeal or amendment of or addition to the by-laws.

Other information — licensed insurers

81(2)       Every licensed insurer, other than a provincial company, must provide the superintendent with a copy of

(a) any change to its instrument of incorporation within seven days of the change being made; and

(b) notice of its being subject to an arrangement in a jurisdiction in which it is licensed other than Manitoba that is in the nature of a compliance undertaking within seven days of the arrangement being made.

22          Section 82 is repealed.

23          Sections 83 to 87 are replaced with the following:

Report of auditor

83(1)       In the report required to be made to shareholders under subsection 149(1) of The Corporations Act, the auditor of an insurer must state whether the auditor believes that the insurer's annual financial statement presents fairly, in accordance with accounting principles referred to in section 84.1,

(a) the financial position of the insurer as at the end of the financial year to which the annual financial statement relates; and

(b) the results of the operations and changes in the financial position of the insurer for that financial year.

Auditor's remarks on certain issues required

83(2)       In each report referred to in subsection (1), the auditor must include such remarks as the auditor considers necessary when

(a) the auditor's examination conducted to report on the annual financial statement has not been made in accordance with the auditing standards referred to in section 84.1;

(b) the annual statement has not been prepared on a basis consistent with that of the preceding financial year; or

(c) the annual statement does not present fairly, in accordance with the accounting principles referred to in section 84.1, the financial position of the insurer as at the end of the financial year to which it relates or the results of the operations or changes in the financial position of the insurer for that financial year.

Meaning of "reinsurance"

84(1)       In this section, "reinsurance" means reinsurance of individual risks but does not include reinsurance as defined in Part XVI.

Annual statement

84(2)       A licensed insurer must prepare and deliver to the superintendent on or before the last day of February of each year an annual statement of the condition of affairs of the insurer as at the previous December 31.

Form and verification of statement

84(3)       The statement must

(a) be in the form and be verified in the manner that the superintendent requires;

(b) show

(i) the assets, liabilities, receipts and expenditures of the insurer for the year covered by the statement, and

(ii) particulars of the business done by the insurer in Manitoba during the year covered by the statement; and

(c) state such other information as the superintendent requires.

Annual statement — reinsurance

84(4)       If the superintendent is satisfied that the business of an insurer is that of reinsurance, the superintendent may allow the insurer in any year to deliver the statement required under subsection (2) on or before March 31 instead of the last day of February.

Answering superintendent's questions

84(5)       When required by the superintendent, the insurer must answer any question that the superintendent asks about the insurer's statement under this section or transactions in Manitoba.

Valuation of actuarial and other policy liabilities

84(6)       The liabilities of an insurer shown in its annual statement must include as a reserve the value of the actuarial and other policy liabilities and other matters determined under section 84.1.

Report of actuary on reserve

84(7)       The actuary of an insurer must make a report in a form determined by the superintendent on the reserve referred to in subsection (6), and the insurer must give the report to the superintendent with its statement under this section.

Standards of financial reporting

84.1        When an insurer provides its or its subsidiaries' audited financial statements to the superintendent, policyholders, shareholders or the public, it must ensure that the statements are prepared in accordance with the following:

(a) generally accepted accounting principles, including the accounting recommendations of the Canadian Institute of Chartered Accountants set out in the Handbook published by that Institute, as amended from time to time;

(b) generally accepted auditing standards, including the auditing recommendations of the Canadian Institute of Chartered Accountants set out in the Handbook published by that Institute, as amended from time to time;

(c) generally accepted actuarial practices described in the Standards of Practice, established by the Actuarial Standards Board of the Canadian Institute of Actuaries, as amended from time to time;

(d) any modification of those principles, standards or practices established by the superintendent or any additional requirements, principles, standards or practices established by the superintendent.

Waiver or variation of reporting requirements

84.2        By order, the superintendent may, in respect an insurer or class of insurers, waive or vary any requirement of section 77, 78, 81, 83, 84 or 84.1 and may make the order subject to such terms and conditions as the superintendent considers appropriate.

Non-application of Regulations Act

84.3        The Regulations Act does not apply

(a) to a modification, additional requirement, principle, standard or practice established by the superintendent under clause 84.1(d); or

(b) an order under section 84.2.

Publication of misleading or unauthorized statements

85          An insurer must not publish or circulate

(a) a statement that shows its financial condition as being different from that shown by the statement filed with the superintendent; or

(b) a balance sheet or other statement in a form differing from the form, if any, prescribed by the regulations.

Statements of financial standing

86          A person must not represent orally or in writing that

(a) the issue of a licence to an insurer;

(b) the printing or publication of an insurer's annual statement in a report or any other publication of the superintendent; or

(c) the supervision or regulation of the business of the insurer under this Act or the regulations or by the superintendent;

is a warranty or guarantee of the financial standing of the insurer or its ability to provide for the payment of its contracts at maturity.

Misleading statement by insurer prohibited

87          No insurer and no officer, director, employee or agent of an insurer shall, for the purpose of inducing a person to transact insurance with the insurer, make or use a statement that describes in an inaccurate or misleading manner the dividends, profits or surplus that have been paid or may be paid by the insurer in respect of any policy issued or to be issued by it.

Insurance compliance self-evaluative audit

87.1(1)     The following definitions apply in this section.

"insurance compliance self-evaluative audit" means an evaluation, review, assessment, audit, inspection or investigation conducted by or on behalf of a licensed insurer or fraternal society, either voluntarily or at the request of the minister or the superintendent, for the purpose of identifying or preventing non-compliance with, or promoting compliance with or adherence to, statutes, regulations, guidelines or industry, company or professional standards. (« autoévaluation du respect des règles des pratiques d'assurances »)

"insurance compliance self-evaluative audit document" means a document with recommendations or evaluative or analytical information prepared by or on behalf of a licensed insurer or fraternal society or the minister or the superintendent directly as a result of or in connection with an insurance compliance self-evaluative audit and includes any response to the findings of an insurance compliance self-evaluative audit, but does not include documents kept or prepared in the ordinary course of business of a licensed insurer or fraternal society. (« document d'autoévaluation du respect des règles des pratiques d'assurances »)

Audit document is privileged

87.1(2)     Subject to subsection (6), an insurance compliance self-evaluative audit document is privileged information and is not discoverable or admissible as evidence in any civil or administrative proceeding.

Evidence about audit is not compellable

87.1(3)     Subject to subsection (6), no person may be required to give or produce evidence relating to an insurance compliance self-evaluative audit or any insurance compliance self-evaluative audit document in any civil or administrative proceeding.

Privilege not waived by certain disclosures

87.1(4)     Disclosure of an insurance compliance self-evaluative audit document to a person reasonably requiring access to it, including to a person acting on behalf of a licensed insurer or fraternal society with respect to the insurance compliance self-evaluative audit, to the external auditor of the licensed insurer or fraternal society, to the board of directors of the licensed insurer or fraternal society or a committee of the licensed insurer or fraternal society or to the minister or the superintendent, whether voluntarily or pursuant to law, does not constitute a waiver of the privilege with respect to any other person.

When privilege may be waived

87.1(5)     A licensed insurer or fraternal society that prepares or causes to be prepared an insurance compliance self-evaluative audit document may expressly waive privilege in respect of all or part of the insurance compliance self-evaluative audit document.

When privilege does not apply

87.1(6)     The privileges set out in subsections (2) and (3) do not apply

(a) to a proceeding commenced against a licensed insurer or fraternal society by the minister or the superintendent in which an insurance compliance self-evaluative audit document has been disclosed;

(b) if the privilege is asserted for fraudulent purposes;

(c) in a proceeding in which a person who was involved in conducting an insurance compliance self-evaluative audit is a party seeking admission of the insurance compliance self-evaluative audit document in a dispute related to the person's participation in conducting the insurance compliance self-evaluative audit; or

(d) to information referred to in an insurance compliance self-evaluative audit document that was not prepared as a result of or in connection with an insurance compliance self-evaluative audit.

24(1)       Subsection 88(1) is replaced with the following:

Valuation of life insurance contracts — provincial companies

88(1)       The valuation of a life insurance contract issued by a provincial company, other than a fraternal society, must be based on generally accepted actuarial practices described in the Standards of Practice, established by the Actuarial Standards Board of the Canadian Institute of Actuaries, as amended from time to time.

24(2)       Subsections 88(2) to (4) are repealed.

24(3)       Subsection 88(5) is replaced with the following:

Life insurance contract must be self-supporting

88(5)       An insurer must not issue a life insurance contract that does not appear to be self-supporting on reasonable assumptions as to interest, mortality and expenses.

24(4)       Subsection 88(6) is repealed.

24(5)       Subsections 88(7) and (8) are replaced with the following:

Annuity contracts

88(7)       The valuation of an immediate or deferred annuity contract must be based on generally accepted actuarial practices described in the Standards of Practice, established by the Actuarial Standards Board of the Canadian Institute of Actuaries, as amended from time to time.

Insurer with federal order

88(8)       If an insurer has obtained an order under section 53 of the Insurance Companies Act (Canada), the requirements of this section may be modified as may be necessary to permit the insurer to comply with the requirements of the Superintendent of Financial Institutions appointed under the Office of the Superintendent of Financial Institutions Act (Canada).

25          Subsection 91(5) is amended by striking out "in accordance with section 395" and substituting "under subsection 389.0.1(1)".

26          Section 92 is replaced with the following:

Limited meaning of "contract of insurance"

92(1)       In this section, "contract of insurance" includes insurance, undertaken by an insurer as part of life insurance, under which the insurer undertakes to pay insurance money or to provide other benefits in the event the person whose life is insured becomes disabled as a result of bodily injury or disease, but does not include other insurance that is part of a life insurance contract.

Effect of violation of law on enforcement of policy

92(2)       Unless a contract of insurance provides otherwise, a contravention of any criminal or other law in force in Manitoba or elsewhere does not render unenforceable a claim for indemnity under a contract of insurance except when 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.

27(1)       The definition "unfair or deceptive acts or practices in the business of insurance" in subsection 113(1) is amended by replacing clauses (f) and (g) with the following:

(f) except as permitted by the regulations, a direct or indirect payment, allowance or gift of, or an offer to directly or indirectly pay, allow or give, money or anything of value to induce a prospective insured to transact insurance with an insurer,

(g) except as permitted under subsection (2.1), a charge by a person for a premium allowance or fee other than as stipulated in a contract of insurance upon which a sales commission is payable to the person,

27(2)       The following is added after subsection 113(2):

When fee may be charged in addition to commission

113(2.1)    A person to whom a commission is payable in relation to a contract of insurance does not contravene subsection (2) by charging a premium allowance or fee other than as stipulated in the contract if

(a) the contract does not insure

(i) an owner-occupied residential property that the insured uses as a residence, including as a seasonal residence, or

(ii) rented property that the insured uses as a residence, including as a seasonal residence; and

(b) the premium allowance or fee is disclosed in accordance with the regulations.

28          The following is added after section 113:

TERMINATION BY ELECTRONIC MEANS

Notice of termination of contract given by electronic means

113.1(1)    Despite the statutory conditions set out in Schedules B and C and in sections 237 and 299 and despite any provision of this Act prohibiting variations of those conditions or providing that a variation is not binding on an insured, when an insurer is permitted under this Act to give notice of termination of an insurance contract by electronic means, the insurer must give the same length of notice as is required for notice of termination given by registered mail.

Application of regulations

113.1(2)    Subsection (1) is subject to any regulations made under clause 114(3)(q).

29(1)       Subsection 114(3) is replaced with the following:

Regulations

114(3)      The Lieutenant Governor in Council may make regulations

(a) extending any or all of the provisions of this Act to a system or class of insurance not specifically mentioned in this Act;

(b) providing for, and providing for making, reciprocal or other arrangements with any government in Canada in connection with the licensing, regulation and inspection of insurers;

(c) prohibiting certain acts in the business of insurance;

(d) governing advertising by persons engaged in insurance or prescribing standards for advertising by persons engaged in insurance, or both;

(e) respecting the classes and subclasses of insurance, and governing insurers that undertake a class or subclass of insurance;

(f) prescribing standards for policies of insurance of specific classes or types;

(g) prescribing financial standards and solvency tests that every insurer or a specified class or classes of insurers must meet;

(h) prescribing financial standards for the purposes of subsection 30(1) that an applicant for a licence as a specified class of insurer must meet, which standards may be based on one or more criteria, including, without limitation, any of the following:

(i) the value of its corporate capital,

(ii) the nature of its corporate capital,

(iii) the amount of its unimpaired corporate surplus,

(iv) the value of its insurance contracts in force at any particular time;

(i) prescribing classes of insurers for the purposes of clause (h) and subsection 30(1) by reference to one or more criteria, including, without limitation, either or both of the following:

(i) the type of capital structure of the members of the class,

(ii) the type of insurance undertaken by the members of the class;

(j) requiring the preparation and delivery to the superintendent, more frequently than specified in this Act, of any financial statement and related material required to be prepared and so delivered under this Act, and specifying the portion of the year to be dealt with in the statement and material;

(k) specifying organizations for the purpose of clause 24(4)(d);

(l) prescribing classes of insurance for the purpose of clause 28(2)(b), and prescribing conditions that apply for the purpose of that clause;

(m) respecting permitted inducements for the purpose of clause (f) of the definition "unfair or deceptive acts or practices in the business of insurance" in subsection 113(2);

(n) respecting the disclosure of premium allowances or fees for the purpose of subsection 113(2.1);

(o) with respect to insurance related to an owner-occupied residential property that the insured uses as a residence, including as a seasonal residence, or to rented property that the insured uses as a residence, including as a seasonal residence,

(i) prohibiting an insurer from issuing or renewing a policy, refusing to issue or renew a policy, or terminating or refusing to enter into a contract of insurance on the basis of, or partly on the basis of the credit information, credit rating, credit score or credit-based insurance score of the insured or applicant,

(ii) regulating the manner in which an insurer may use such information for any of the purposes mentioned in this clause, and

(iii) defining any of the terms "credit information", "credit rating", "credit score" and "credit-based insurance score" for the purpose of this Act;

(p) respecting insurance marketed or transacted by electronic means, including

(i) regulating or prohibiting specific activities in the marketing or transaction of insurance by electronic means,

(ii) prescribing disclosure requirements in respect of insurance marketed or transacted by electronic means, and

(iii) prescribing the rights and remedies of insureds who enter into contracts of insurance wholly or partly by electronic means;

(q) for the purpose of section 113.1,

(i) restricting the operation of that section to specific classes of insurance, and

(ii) prescribing requirements that apply when notice of termination of an insurance contract is given by electronic means;

(r) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

29(2)       The following is added after subsection 114(4):

Application of regulations

114(5)      A regulation made under subsection (3) may

(a) be general or particular in its application;

(b) establish classes of insurers; and

(c) provide differently for different classes or types of insurers or different classes of insurance.

30          Clause 115(a) is replaced with the following:

(a) accident and sickness insurance;

31          Section 116 is replaced with the following:

When a contract is made in Manitoba

116(1)      A contract is deemed to have been made in Manitoba if

(a) it insures an insurable interest of a person who is resident in Manitoba; or

(b) its subject matter is property that is located in Manitoba.

Interpretation of contract

116(2)      A contract that is deemed to have been made in Manitoba must be interpreted according to the laws of Manitoba.

Application despite agreement to the contrary

116(3)      This section has effect despite any agreement, condition or stipulation to the contrary.

32(1)       Subsections 117(1) and (2) are replaced with the following:

Contract terms to be set out in or attached to policy

117(1)      All the terms and conditions of a contract must be set out in full in the policy or in writing securely attached to it when it is issued.

Terms invalid unless set out in full

117(1.1)    Unless so set out or attached 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 a person to whom insurance money is payable under the contract.

Non-application to alterations or modifications

117(1.2)    Subsections (1) and (1.1) do not apply to an alteration or modification of the contract agreed on in writing by the insurer and the insured after the policy is issued.

Renewal

117(2)      If the contract, whether or not it provides for its renewal, is renewed by a renewal receipt, it is a sufficient compliance with subsection (1) if

(a) the terms and conditions of the contract were set out in or attached to the contract; and

(b) the renewal receipt refers

(i) to the contract by its number, date or other identifying characteristic, or

(ii) to a new premium note.

32(2)       Subsection 117(3) is amended by striking out "shall not, as against him, be deemed a part of, or be considered with, the contract of insurance, except in so far" and substituting "must not, as against the insured, be deemed to be a part of or be considered with the contract except insofar".

32(3)       The following is added after subsection 117(3):

Insurer has burden of proof

117(3.1)    The insurer has the burden of proving that the insured's application contains a material misrepresentation that induced it to enter into the contract.

32(4)       The following is added after subsection 117(5):

Precedence of statutory conditions and provisions

117(5.1)    Nothing in this section impairs the effect of

(a) a statutory condition required by this Act to be part of a contract; or

(b) an express provision of this Act.

32(5)       Subsection 117(6) is amended

(a) by replacing the section heading with "Non-application to automobile insurance"; and

(b) by striking out "of fire or".

33          Section 118 is replaced with the following:

Providing copies of application and policy

118(1)      An insurer must on request provide the insured with a copy of the insured's application and policy.

Cost of copies

118(2)      An insurer must provide the first copy free of charge, but may charge a reasonable fee to cover its expenses for providing any additional copies.

34          Sections 120 and 121 are replaced with the following:

Specified content of policy

120(1)      Every policy must contain the following:

(a) the name of the insurer;

(b) the name of the insured;

(c) the name of the person to whom the insurance money is payable;

(d) the amount of the premium for the insurance or the method of determining the premium's amount;

(e) the subject matter of the insurance;

(f) the indemnity for which the insurer may become liable;

(g) the event on the happening of which the liability is to accrue;

(h) the date the insurance takes effect;

(i) the date the insurance terminates or the method by which that date is established;

(j) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

When subsection (1) does not apply

120(2)      Subsection (1) does not apply to a contract of surety insurance or any other class of insurance prescribed by regulation.

Deemed content of contract before policy is issued

120.1(1)    Subject to subsection (2), before a policy is issued in respect of a contract, the contract is deemed to include

(a) the usual terms and conditions contained in the insurer's standard policy for the type of insurance concerned; and

(b) any other terms and conditions of which the insured is given notice in writing as to their existence and contents.

Exception

120.1(2)    Unless the insured has been given notice in writing of the existence and contents of a term or condition, the term or condition does not apply to a contract described in subsection (1) if the insured is not reasonably able to comply with it in the absence of the notice.

Non-application to automobile insurance

120.1(3)    This section does not apply to a contract of automobile insurance.

Definition

121(1)      In this section, "representative" means a dispute resolution representative appointed under subsection (5).

When section applies

121(2)      This section applies to disputes between an insurer and an insured about a matter that under Statutory Condition 11 set out in Schedule B or another condition of the contract must be determined using the dispute resolution process set out in this section.

Non-application to hail insurance

121(3)      This section does not apply to a contract of hail insurance.

Insured or insurer may demand dispute resolution

121(4)      By a demand in writing after proof of loss has been delivered to the insurer, either the insured or the insurer may demand the other's participation in a dispute resolution process.

Appointment of dispute resolution representatives and umpire

121(5)      Within seven days after receiving or giving a demand under subsection (4), the insured and the insurer must each appoint a dispute resolution representative, and within 15 days after their appointment, the two representatives must appoint an umpire.

Who may not be a representative or umpire

121(6)      A person may not be appointed as a representative or umpire if the person is

(a) the insured or the insurer; or

(b) an employee of the insured or the insurer.

How disputes are to be resolved

121(7)      The representatives must determine the matters in dispute by agreement. If they fail to agree, they must submit their differences to the umpire, and the written determination of any two of them determines the matters.

Costs

121(8)      Each party to the dispute resolution process must pay the representative appointed by that party and must bear equally the expense of the dispute resolution process and the umpire.

Appointment by judge

121(9)      If

(a) a party to a dispute resolution process fails to appoint a representative in accordance with subsection (5); or

(b) a representative fails or refuses to act or is incapable of acting and the party that appointed that representative has not appointed another representative within seven days after the failure, refusal or incapacity;

on application of the insurer or the insured on two days' notice to the other, the court may appoint a representative.

Costs awarded by court

121(10)     On an application under subsection (9), the court may award costs on a solicitor and client basis against the person whose representative is appointed by the court, whether or not that person appeared on the application.

Application to superintendent to appoint umpire

121(11)     Either representative may apply to the superintendent for the appointment of an umpire if

(a) the representatives fail to appoint an umpire in accordance with subsection (5); or

(b) the umpire fails or refuses to act or is incapable of acting.

Names and credentials of proposed umpires

121(12)     An application under subsection (11) must contain the names and credentials of three persons who the applicant believes are capable of performing the functions of the umpire.

Notice of intention to apply

121(13)     Before making an application under subsection (11), the applicant must give notice in writing to the other representative of the intention to make the application. The notice must contain the names and credentials the applicant is submitting to the superintendent under subsection (12).

Application must include copy of notice

121(14)     An application under subsection (11) must be accompanied by a copy of the notice under subsection (13) and must state the date on which the notice was given to the other representative.

Umpire nominations by other representative

121(15)     Within 15 days after receiving a notice under subsection (13), the other representative may give the superintendent and the applicant the names and credentials of three persons who the representative believes are capable of performing the functions of the umpire.

Appointment of umpire by superintendent

121(16)     The superintendent must appoint an umpire from the names submitted under subsection (12) or (15) as soon as practicable after the earlier of the following occurs:

(a) the superintendent receives names and credentials under subsection (15);

(b) the period for providing names and credentials under that subsection expires.

Rules of procedural fairness apply to umpire

121(17)     An umpire is bound by the rules of procedural fairness in carrying out the umpire's functions under this section.

35          Section 123 is replaced with the following:

When insured's compliance with a contract requirement may be waived

123(1)      The obligation of an insured to comply with a requirement under a contract is excused to the extent that

(a) the insurer has given notice in writing that the insured's compliance with the requirement is excused in whole or in part, subject to the terms specified in the notice, if any; or

(b) the insurer's conduct reasonably causes the insured to believe that the insured's compliance with the requirement is excused in whole or in part, and the insured acts on that belief to the insured's detriment.

When a term or condition is not deemed to have been waived

123(2)      Neither the insurer nor the insured is deemed to have waived any term or condition of a contract by reason only of

(a) the insurer's or insured's participation in a dispute resolution process under section 121;

(b) the delivery and completion of a proof of loss; or

(c) the investigation or adjustment of any claim under the contract.

Court may proceed in absence of appraisal

123(3)      Despite any provision of this Act and any provision or statutory or other condition of a contract, the failure to have an appraisal made, or the fact that an appraisal is being made or has been made, does not preclude a court from determining, in an action brought for that purpose, an issue arising under a contract, including the determination of the value of the property insured or the value of any loss or damage to such property.

36          Section 124 is repealed.

37          Section 125 is replaced with the following:

Effect of delivering policy

125(1)      When a policy has been delivered, the contract is as binding on the insurer as if the premium had been paid, even though

(a) the premium has not in fact been paid; and

(b) the policy was delivered by an officer or agent of the insurer who had no authority to deliver it.

Unpaid premiums

125(2)      If a premium has not been paid, the insurer may do one or both of the following:

(a) sue for the unpaid premium;

(b) if there is a claim under the contract, deduct the amount of the unpaid premium from the amount for which the insurer is liable under the contract.

Termination of contract for failing to pay premium

125(3)      If

(a) a cheque, bill of exchange, promissory note or other written promise to pay is given for the whole or part of any premium, whether for an original contract or for a renewal of a contract; and

(b) the cheque, bill of exchange, promissory note or other written promise to pay is not honoured according to its tenor;

the insurer may terminate the contract in accordance with any statutory or policy condition or, if there is no relevant statutory or policy condition, by giving notice by registered mail.

38(1)       The following is added after subsection 126(1):

When proof of loss forms are deemed to be provided

126(1.1)    If the insurer has, within 30 days after notification of loss, adjusted the loss acceptably to the person to whom the insurance money is payable, the insurer is deemed to have complied with subsection (1).

38(2)       Subsection 126(3) is replaced with the following:

Payment of void claims

126(3)      An insurer may pay, in whole or in part, a claim that is void under a statutory condition.

39          Section 129 is repealed.

40          The following is added before section 130:

Payment into court by insurer

129.1(1)    If an insurer admits liability for insurance money and cannot obtain a sufficient discharge for it, the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

129.1(2)    Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

129.1(3)    The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

129.1(4)    After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

129.1(5)    Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

41           Section 130 is replaced with the following:

Relief from forfeiture

130         If the court considers it inequitable that there has been a forfeiture or avoidance of insurance, in whole or in part, on the ground that there has been imperfect compliance with a statutory condition, or a condition or term of a contract, as to

(a) the proof of loss to be given by the insured or the claimant; or

(b) another matter or thing done, or omitted to be done, by the insured or the claimant with respect to the loss;

the court may relieve against the forfeiture or avoidance on any terms it considers just.

42          The following is added at the end of Part III:

Policy in accordance with terms of application

136.1(1)    A policy issued to an insured on the basis of a written application is deemed to be in accordance with the terms of the application unless the insurer immediately gives notice to the insured in writing of the particulars in which the policy and the application differ, in which case the insured may, within two weeks after receiving the notice, reject the policy.

Premium refund for rejected policy

136.1(2)    If the insured rejects the policy under subsection (1), the insurer must refund as soon as practicable the excess of premium actually paid by the insured over the prorated premium for the expired time, but in no event may the prorated premium for the expired time be less than any minimum retained premium specified in the policy.

Adjustment of refund in certain cases

136.1(3)    Despite subsection (2), if the insured failed to disclose material information on the application or proposal the knowledge of which would have resulted in the insurer charging a higher premium than what was charged, the amount that the insurer is required to refund under subsection (2) is the excess of premium actually paid by the insured over the short rate premium for the expired time calculated as if the higher premium had been charged.

When policy is deemed to be accepted

136.1(4)    If the insured does not reject the policy under subsection (1), the insured is deemed to have accepted the policy.

Non-application to automobile and hail insurance

136.2(1)    This section does not apply to contracts of automobile insurance and hail insurance.

Limitation of actions

136.2(2)    An action or proceeding against an insurer under a contract must be commenced

(a) in the case of loss or damage to insured property, not later than two years after the date the insured knew or ought to have known that the loss or damage occurred; and

(b) in any other case, not later than two years after the date that the cause of action against the insurer arose.

Cancellation by insurer

136.3(1)    If, with the consent of the insurer, the loss under a contract has been made payable to a person other than the insured, the insurer may not cancel or alter the policy to the prejudice of the person without first notifying the person.

Notice of cancellation

136.3(2)    The length of and manner of giving the notice under subsection (1) must be the same as notice of cancellation to the insured under the statutory conditions in the contract.

Meaning of "policy"

136.4(1)    In this section, "policy" does not include an interim receipt or binder.

Statutory conditions

136.4(2)    Except as provided in subsection (4), the statutory conditions set out in Schedule B are deemed to be part of every contract in force in Manitoba and must be printed on every policy with the heading "Statutory Conditions".

Effect of variations, omissions and additions

136.4(3)    A variation or omission of, or addition to, a statutory condition is not binding on the insured.

Non-application to certain classes of insurance

136.4(4)    This section does not apply to contracts of automobile insurance, hail insurance, surety insurance or any other class of insurance prescribed in the regulations.

Application of statutory conditions to property insurance

136.4(5)    Statutory conditions 1 and 6 to 13, set out in Schedule B, apply only to and need only be printed on contracts that include insurance against loss or damage to property.

Recovery by innocent persons

136.5(1)    If a contract contains a term or condition excluding coverage for loss or damage to property caused by a criminal or intentional act or omission of an insured or any other person, the exclusion applies only to the claim of a person

(a) whose act or omission caused the loss or damage;

(b) who abetted or colluded in the act or omission;

(c) who

(i) consented to the act or omission, and

(ii) knew or ought to have known that the act or omission would cause the loss or damage; or

(d) who is in a class prescribed by regulation.

Recovery limited to proportionate interest

136.5(2)    Nothing in subsection (1) allows a person whose property is insured under the contract to recover more than the person's proportionate interest in the lost or damaged property.

Compliance with regulations by certain persons

136.5(3)    A person whose coverage under a contract would be excluded but for subsection (1) must comply with the requirements prescribed in the regulations.

Limitation of liability clause

136.6(1)    When a contract evidenced by a policy contains

(a) a deductible clause;

(b) a co-insurance, average or similar clause; or

(c) a conditional or unconditional clause limiting recovery by the insured to a specific percentage of the value of any property insured at the time of loss;

the policy must have printed or stamped on the first page in conspicuous bold type the words: "This policy contains a clause which may limit the amount payable."

When limitation clause is not binding

136.6(2)    Unless the words described in the part of subsection (1) after clause (c) are printed or stamped on the policy as required by that subsection, the policy clause referred to in clause (1)(a), (b) or (c) is not binding on the insured.

Coverage under more than one contract

136.7(1)    When insured property is lost or damaged and more than one contract is in force covering the same interest in the property, the insurers under the respective contracts are each liable to the insured for their rateable proportion of the loss unless they otherwise expressly agree in writing.

Policy deemed in force

136.7(2)    For the purpose of subsection (1), a contract is deemed to be in force despite any term of the contract that the policy does 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.

Division into items

136.7(3)    Nothing in subsection (1) affects the validity of

(a) any division of the sum insured into separate items;

(b) a limit of insurance on specified property;

(c) a policy clause referred to in any of clauses 136.6(1)(a) to (c); or

(d) a contract condition limiting or prohibiting having or placing other insurance.

Deductible clauses

136.7(4)    Nothing in subsection (1) affects the operation of any deductible clause, and

(a) when one contract contains a deductible clause, the prorated proportion of the insurer under that contract must first be ascertained without regard to the clause and then the clause is to be applied only to affect the amount of recovery under that contract; and

(b) when more than one contract contains a deductible clause,

(i) the prorated proportions of the insurers under those contracts must first be ascertained without regard to the deductible clauses, and

(ii) then the highest deductible is to be prorated among the insurers with deductibles and the prorated deductible applicable to each insurer is to affect the amount recoverable under the contract with the insurer.

Limitation

136.7(5)    Nothing in subsection (4) is to be construed as having the effect of increasing the prorated contribution of an insurer under a contract that is not subject to a deductible clause.

First loss insurance

136.7(6)    Despite subsection (1), insurance on identified property is first loss insurance as against all other insurance.

Unjust contract terms

136.8(1)    When a contract contains a stipulation, condition or warranty that is or may be material to the risk, including, but not limited to, a provision in respect to the use, condition, location or maintenance of the insured property, the 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 to it is tried.

Agreement to make joint estimate of loss

136.8(2)    Instead of proceeding under statutory condition 11 set out in Schedule B, an insurer and an insured may agree in writing to make a joint survey, examination, estimate or appraisal of the loss or damage, in which case the insurer is deemed to have waived its right to make a separate survey, examination, estimate or appraisal of the loss or damage.

Prohibited exclusions

136.8(3)    No insurer may provide in a contract that includes coverage for loss or damage by fire or by another prescribed peril an exclusion relating to

(a) the cause of the fire or other prescribed peril other than a prescribed exclusion; or

(b) the circumstances of the fire or peril if those circumstances are prescribed.

Prohibited exclusions are invalid

136.8(4)    An exclusion in a contract contrary to subsection (3) is invalid.

Prohibition applies in all circumstances

136.8(5)    For greater certainty, subsection (3) applies in relation to loss or damage by fire

(a) however the fire is caused and in whatever circumstances; and

(b) whether the coverage is under a part of a contract specifically covering loss or damage by fire or under another part.

Subrogation

136.9(1)    An insurer that makes a payment or assumes liability for making a payment under a contract, is subrogated to all rights of recovery of the insured against any person and may bring an action in the name of the insured to enforce those rights.

Loss divided

136.9(2)    If 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 must be divided between the insurer and the insured in the respective proportions in which they have borne the loss or damage.

Effect of insured's interest being limited to deductible

136.9(3)    When the interest of an insured in any recovery is limited to the amount provided under a deductible or co-insurance clause, the insurer has control of the action.

Application to court to determine certain matters

136.9(4)    When 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 related matters;

(c) any offer of settlement or the apportionment of an offer of settlement, whether an action has been commenced or not;

(d) the acceptance or the apportionment of any money paid into court;

(e) the apportionment of costs; or

(f) the launching or prosecution of an appeal;

either party may apply to the court for the determination of the matters in question. The court may make any order 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.

Rules applicable to application

136.9(5)    On an application under subsection (4),

(a) the only parties entitled to notice and to be heard on the application are the insured and the insurer; and

(b) no material or evidence used or taken on the application is admissible on the trial of an action brought by or against the insured or the insurer.

Settlement or release only binding on concurring parties

136.9(6)    A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer unless they have concurred in the settlement or release.

Return of premium paid on insurance in excess of appraised value of property

136.10(1)   Subject to subsection (2), in the event of the total destruction of insured property with respect of which the total amount of insurance money payable is less than the total amount of the insurance on the property, the insurer or insurers must return to the insured the total amount of insurance premium paid for the excess of the insurance over the appraised value of the property at the time of the loss. The amount to be returned must be paid to the insured at the same time and in the same manner as the contract requires the loss to be paid.

Non-application

136.10(2)   This section does not apply

(a) if an insured person has knowingly placed insurance in excess of the insurable value of property or of an interest in property; or

(b) to insurance on stocks or merchandise.

Regulations

136.11      The Lieutenant Governor in Council may make regulations

(a) prescribing classes of insurance for the purpose of subsection 120(2) or the purpose of subsection 136.4(4);

(b) prescribing classes of persons for the purpose of clause 136.5(1)(d);

(c) prescribing requirements with which persons must comply for the purpose of subsection 136.5(3);

(d) respecting risks that must be covered by contracts of specified classes of insurance, and respecting terms or conditions that must be, or may not be, included in contracts of specified classes of insurance;

(e) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Part.

43          Part IV is repealed.

44          Section 148 is replaced with the following:

Definitions

148(1)      The following definitions apply in this Part.

"application" means an application for life insurance or for the reinstatement of life 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 »)

"blanket insurance" means group insurance that covers loss

(a) arising from specific hazards incidental to or defined by reference to a particular activity or activities; and

(b) occurring during a limited or specified period that is not longer than 30 days. (« assurance globale »)

"contract" means a contract of life insurance. (« contrat »)

"creditor's group insurance" means life insurance effected by a creditor in respect of the lives of the creditor's debtors by which the lives of those debtors are insured severally under a single contract. (« assurance-prêt »)

"debtor insured" means a debtor whose life is insured under a contract of creditor's group insurance. (« débiteur assuré »)

"declaration" means an instrument signed by the insured, with respect to which an endorsement is made on the policy, that identifies the contract or describes the life insurance, the insurance fund or a part of either of them, in which the insured

(a) designates, or changes or revokes the designation of, the insured, the insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable; or

(b) makes, changes or revokes an appointment under subsection 170(1) or a nomination referred to in section 176. (« déclaration »)

"family insurance" means life insurance under which the lives of the insured and one or more persons related to the insured by blood, marriage, common-law relationship or adoption are insured under a single contract between an insurer and the insured. (« assurance familiale »)

"group insurance" means life insurance, other than creditor's group insurance and family insurance, under which 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 on or related to the group life insured. (« personne couverte par une assurance-vie collective »)

"instrument" includes a will. (« instrument »)

"insured", in relation

(a) to group insurance, means the group life insured in the provisions of this Part relating to

(i) the designation of beneficiaries or personal representatives as recipients of insurance money, and

(ii) their rights and status; and

(b) to other insurance governed by this Part, means the person who makes a contract with an insurer. (« assuré »)

Persons insurable

148(2)      Without restricting the meaning of "insurable interest", a person (referred to in this section as the "primary person") has an insurable interest

(a) in the case of a primary person who is a natural person, in his or her own life and the lives of

(i) the primary person's child or grandchild,

(ii) the primary person's spouse or common-law partner,

(iii) a person on whom the primary person is wholly or partly dependent for, or from whom the primary person is receiving, support or education,

(iv) the primary person's employee, and

(v) a person in the duration of whose life the primary person has a pecuniary interest; and

(b) in the case of a primary person that is not a natural person, the lives of

(i) the primary person's director, officer or employee, and

(ii) a person in the duration of whose life the primary person has a pecuniary interest.

Annuity deemed to be life insurance

148(3)      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, is deemed to be and always to have been life insurance whether the annuity is for

(a) a term certain;

(b) a term dependent either solely or partly on a human life; or

(c) a term dependent solely or partly on the happening of an event not related to a human life.

Application of certain provisions of Part III

148.1       Despite section 115, section 119 and subsections 123(1) and (2) apply to contracts of life insurance.

45          Sections 150 to 155 are replaced with the following:

Group insurance

150         In the case of a contract of group insurance made with an insurer authorized to transact life insurance in Manitoba 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 life insured was resident in Manitoba at the time the group life insured became insured; and

(b) the rights and obligations of the group life insured if the group life insured was resident in Manitoba at the time the group life insured became insured.

ISSUANCE AND CONTENTS OF POLICY

Insurer to issue policy

151(1)      An insurer entering into a contract must

(a) issue a policy; and

(b) provide the insured with the policy and a copy of the insured's application.

Provisions forming contract

151(2)      Subject to subsection (3), the provisions in the following constitute the entire contract:

(a) the application;

(b) the policy;

(c) any document attached to the policy when it is issued;

(d) any amendment to the contract agreed upon in writing after the policy is issued.

Contract of fraternal society

151(3)      The provisions in the following constitute the entire contract of a contract made by a fraternal society:

(a) the society's Act or instrument of incorporation;

(b) the society's constitution, by-laws and rules;

(c) the application;

(d) the policy;

(e) any amendment to the contract agreed upon in writing after the policy is issued;

(f) the applicant's medical statement.

Copy of contract generally

151(4)      Except in the case of a contract of group insurance or creditor's group insurance, an insurer must, upon request, provide the insured or a claimant under the contract with a copy of

(a) the entire contract as described in subsection (2) or (3); and

(b) any written statement or other record provided to the insurer as evidence of insurability under the contract.

Copy of group insurance

151(5)      In the case of a contract of group insurance, the insurer

(a) must, upon request, provide a group life insured or claimant under the contract with a copy of

(i) the group life insured's application, and

(ii) any written statement or other record provided to the insurer as evidence of the insurability of the group life insured under the contract that is not part of the application; and

(b) must, upon request and reasonable notice,

(i) permit a group life insured or claimant under the contract to examine a copy of the group insurance policy, and

(ii) provide that person with a copy of the policy.

Copy of creditor's group insurance

151(6)      In the case of a contract of creditor's group insurance, the insurer

(a) must, upon request, provide a debtor insured or claimant under the contract with a copy of

(i) the debtor insured's application, and

(ii) any written statement or other record provided to the insurer as evidence of the insurability of the debtor insured under the contract that is not part of the application; and

(b) must, upon request and reasonable notice,

(i) permit a debtor insured or claimant under the contract to examine a copy of the creditor's group insurance policy, and

(ii) provide that person with a copy of the policy.

Fee for providing copy

151(7)      An insurer may charge a reasonable fee to cover its expenses for providing copies of documents under subsection (4), (5) or (6), other than the first copy provided to each person.

Personal information protected

151(8)      Access to the documents described in clause (5)(b) or (6)(b) does not extend to

(a) information contained in those documents that would reveal personal information, as defined in the Personal Information Protection and Electronic Documents Act (Canada), about a person without that person's consent, other than information about

(i) the group life insured or debtor insured in respect of whom the claim is made, or

(ii) the person who requests access to the information; or

(b) information prescribed by the regulations.

Access to information relevant to claims

151(9)      A claimant's access to documents under subsections (4) to (6) extends only to information that is relevant to

(a) a claim under the contract; or

(b) a denial of such a claim.

Exceptions

152(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.

Contents of policy

152(2)      An insurer must set out the following in the policy:

(a) the name or a sufficient description of the insured and of the person whose life is insured;

(b) the amount or the method of determining the amount of the insurance money payable, and the conditions under which it becomes payable;

(c) the amount or the method of determining the amount of the premium and the grace period, if any, within which it may be paid;

(d) whether the contract provides for participation in a distribution of surplus or profits that may be declared by the insurer;

(e) the conditions upon which the contract may be reinstated if it lapses;

(f) the options, if any,

(i) of surrendering the contract for cash,

(ii) of obtaining a loan or an advance payment of the insurance money, and

(iii) of obtaining paid-up or extended insurance;

(g) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

Statement about restriction on designating beneficiary

152(3)      If a policy contains a provision removing or restricting the right of the insured to designate persons to whom or for whose benefit insurance money is to be payable, the front page of the policy must include the following statement in conspicuous bold type:

This policy contains a provision removing or restricting the right of the insured to designate persons to whom or for whose benefit insurance money is to be payable.

Contents of group policy

153         In the case of a contract of group insurance or creditor's group insurance, the insurer must set out the following in the policy:

(a) the name or a sufficient description of the insured;

(b) the method of determining the persons whose lives are insured;

(c) the amount or the method of determining the amount of the insurance money payable, and the conditions under which it becomes payable;

(d) the grace period, if any, within which the premium may be paid;

(e) whether the contract provides for participation in a distribution of surplus or profits that may be declared by the insurer;

(f) in the case of a contract of group insurance, any provision removing or restricting the right of a group life insured to designate persons to whom or for whose benefit insurance money is to be payable;

(g) in the case of a contract of group insurance that replaces another contract of group insurance on some or all of the group life insureds under the replaced contract, whether a designation of a group life insured, a group life insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable under the replaced contract applies to the replacing contract;

(h) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

Non-application of section

154(1)      This section does not apply to a contract of blanket insurance.

Contents of group certificate

154(2)      In the case of a contract of group insurance or creditor's group insurance, the insurer must issue, for delivery by the insured to each group life insured or debtor insured, a certificate or other document in which are set out the following:

(a) the name of the insurer and a sufficient identification of the contract;

(b) the amount, or the method of determining the amount, of insurance on

(i) the group life insured and any person whose life is insured under the contract as a person dependent on or related to the group life insured, or

(ii) the debtor insured;

(c) the circumstances in which the insurance terminates and the rights, if any, on termination of the insurance of

(i) the group life insured and any person whose life is insured under the contract as a person dependent on or related to the group life insured, or

(ii) the debtor insured;

(d) in the case of a contract of group insurance that contains a provision removing or restricting the right of the group life insured to designate persons to whom or for whose benefit insurance money is to be payable,

(i) the method of determining the persons to whom or for whose benefit the insurance money is or may be payable, and

(ii) the following statement in conspicuous bold type:

This policy contains a provision removing or restricting the right of the group life insured to designate persons to whom or for whose benefit insurance money is to be payable.

(e) in the case of a contract of group insurance that replaces another contract of group insurance on some or all of the group life insureds under the replaced contract, whether a designation of a group life insured, a group life insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable under the replaced contract applies to the replacing contract;

(f) the rights of the group life insured, the debtor insured or a claimant under the contract to obtain copies of documents under subsection 151(5) or (6);

(g) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

FORMATION OF CONTRACT

Lack of insurable interest

155(1)      Subject to subsection (2), if at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.

Exceptions

155(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 life insurance being placed on his or her life.

Consent in case of minor

155(3)      If the person whose life is insured is under the age of 16 years, consent to life insurance being placed on the person's life may be given by one of the person's parents or by a guardian of the person as defined in The Child and Family Services Act.

Court may order termination if insurable interest no longer exists

155(4)      A person whose life is insured may, if an insurable interest no longer exists, apply to the court for an order requiring the insurer to immediately terminate the policy and pay over to the policy owner any value that exists in the policy.

Termination of contract by court in certain cases

155.1(1)    If

(a) a person whose life is insured under a contract is someone other than the insured; and

(b) the person reasonably believes that the person's life or health might be endangered by the life insurance on that person's life continuing under that contract;

on application of that person, the court may make the orders the court considers just in the circumstances.

What court orders may be made

155.1(2)    Without limiting subsection (1), the orders that the court may make under subsection (1) include

(a) an order that the life insurance on that person's life under the contract be terminated in accordance with the terms of the contract other than any terms respecting notice of termination; and

(b) an order that the amount of life insurance on that person's life be reduced.

Notice to insured and others

155.1(3)    An application under subsection (1) must be made on at least 30 days' notice to the insured, the beneficiary, the insurer and any other person the court considers to have an interest in the contract.

Court may dispense with notice to certain persons

155.1(4)    Despite subsection (3), if the court considers it just to do so, it may dispense with the notice

(a) to a person other than the insurer; or

(b) if the contract is a contract of group insurance or creditor's group insurance, to the insured.

Order binds anyone interested in the contract

155.1(5)    An order made under subsection (1) binds any person having an interest in the contract.

Capacity of minors aged 16 and older

155.2       Except in respect of the minor's rights as beneficiary, a minor who has attained the age of 16 years has the capacity of an adult

(a) to make an enforceable contract; and

(b) in respect of a contract.

46          Section 156 is repealed.

47          Sections 157 to 178 are replaced with the following:

Contract taking effect

157(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, to the insured's agent or assignee 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

157(2)      When 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 is deemed to have been delivered to the insured, but not to the prejudice of the insured.

Default in paying premium

158(1)      When 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 of the premium is deemed not to have been paid.

Payment by registered letter

158(2)      If a remittance for or on account of a premium is sent in a registered letter to an insurer and is received by the insurer, the remittance is deemed to have been received at the time of the letter's registration.

Who may pay premium

159(1)      Except in the case of group insurance or creditor's group insurance, an assignee of a contract, a beneficiary or a person acting on behalf of one of them or on behalf of the insured may pay any premium that the insured is entitled to pay.

Grace period

159(2)      If a premium, other than the initial premium, is not paid at the time it is due, the premium may be paid within a grace period of

(a) 30 days, or in the case of an industrial contract 28 days, after the day the premium is due; or

(b) the number of days, if any, specified in the contract for payment of an overdue premium;

whichever is longer.

Contract in force during grace period

159(3)      If the event on which the insurance money becomes payable occurs during the grace period and before the overdue premium is paid, the contract is deemed to be in effect as if the premium had been paid at the time it was due.

Deduction of overdue premium

159(4)      Except in the case of a contract of group insurance or creditor's group insurance, the amount of the overdue premium under subsection (3) may be deducted from the insurance money.

Duty to disclose

160(1)      An applicant for life insurance and a person whose life is to be insured must each disclose to the insurer

(a) in the application;

(b) on a medical examination, if any; and

(c) in any written statements or answers provided as evidence of insurability;

every fact within the applicant's or person's knowledge that is material to the life insurance and is not so disclosed by the other.

Failure to disclose — basic policy

160(2)      Subject to subsection (3) and section 161, a failure to disclose or a misrepresentation of a fact referred to in subsection (1) renders the contract voidable by the insurer.

Failure to disclose — additional coverages

160(3)      A failure to disclose or a misrepresentation of a fact referred to in subsection (1) relating to evidence of insurability with respect to an application for

(a) additional coverage under a contract;

(b) an increase in life insurance under a contract; or

(c) any other change to life insurance after the policy is issued;

renders the contract voidable by the insurer, but only in relation to the addition, increase or change.

Exceptions

161(1)      This section does not apply

(a) to a misstatement to an insurer of the age of a person whose life is insured; or

(b) to life insurance under which an insurer, as part of a contract, undertakes to pay insurance money or to provide other benefits in the event the person whose life is insured becomes disabled as a result of bodily injury or disease.

Incontestability

161(2)      Subject to subsection (3), if a contract, or an addition, increase or change referred to in subsection 160(3), 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 by section 160 to be disclosed does not, in the absence of fraud, render the contract voidable.

Incontestability in group insurance and creditor's group insurance

161(3)      In the case of a contract of group insurance or creditor's group insurance, a failure to disclose or a misrepresentation of a fact required by section 160 to be disclosed in respect of a person whose life is insured under the contract does not render the contract voidable, but

(a) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for the insurance in respect of the person, the life insurance in respect of that person is voidable by the insurer; and

(b) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for an addition, increase or change referred to in subsection 160(3) in respect of the person, the addition, increase or change in respect of that person is voidable by the insurer;

unless the insurance, addition, increase or change has been in effect for two years during the lifetime of that person, in which case the insurance, addition, increase or change is not, in the absence of fraud, voidable.

Non-disclosure by insurer

162         If an insurer fails to disclose or misrepresents a fact material to the life insurance, the contract is voidable by the insured. But in the absence of fraud the contract is not, by reason of the failure or misrepresentation, voidable after the contract has been in effect for two years.

Exceptions

163(1)      This section does not apply to a contract of group insurance or creditor's group insurance.

Misstatement of age

163(2)      Subject to subsection (3), if the age of a person whose life is insured is misstated to the insurer, the insurance money provided by the contract must be increased or decreased to the amount that would have been provided for the same premium at the correct age.

Limitation of insurable age

163(3)      If a contract limits insurable age and the correct age of the person whose life is insured exceeds that limit at the date of the application, the contract is voidable by the insurer for five years after the date the contract takes effect, but not afterwards, and only if

(a) the person is alive; and

(b) the insurer voids the contract within 60 days after it discovers the misstatement of age.

Misstatement of age in group insurance or creditor's group insurance

164         In the case of a contract of group insurance or 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 of the contract, if any, with respect to age or misstatement of age apply.

Effect of suicide

165(1)      If a contract contains an express or implied undertaking that insurance money will be paid if a person whose life is insured commits suicide, the undertaking is lawful and enforceable.

Suicide and reinstatement

165(2)      If

(a) a contract provides that it is void or the amount payable under it is reduced in the event that a person whose life is insured commits suicide within a certain period of time; and

(b) 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.

Exceptions

166(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.

Grace period after lapse

166(2)      If a contract lapses at the end of a grace period because a premium due at the beginning of the grace period was not paid, the contract may be reinstated by payment of the overdue premium within a further period of 30 days after the end of the grace period, but only if the person whose life was insured under the contract is alive at the time payment is made.

Reinstatement

166(3)      If a contract lapses and is not reinstated under subsection (2), the insurer must reinstate it if, within two years after the date the contract lapsed, the insured

(a) applies for the reinstatement;

(b) pays to the insurer all overdue premiums and other indebtedness under the contract together with interest not exceeding the rate prescribed under Part XIV of The Court of Queen's Bench Act; and

(c) produces evidence satisfactory to the insurer of the good health and insurability of the person whose life was insured.

Exceptions

166(4)      Subsections (2) and (3) do not apply where the cash surrender value has been paid or an option of taking paid-up or extended life insurance has been exercised.

Application of other sections

166(5)      Sections 160 and 161 apply, with necessary changes, to reinstatement of a contract.

When insurer remains liable after termination of group contract

166.1(1)    Despite the termination of a contract of group insurance, or a benefit provision in a such a contract, under which the insurer undertakes to pay insurance money or provide other benefits if a group life insured becomes disabled as a result of bodily injury or disease, the insurer continues, as though the termination had not occurred, to be liable to pay insurance money or provide benefits in respect of a group life insured if the disability

(a) occurred before the termination; and

(b) is reported to the insurer within six months after the termination or within any longer continuous period specified in the contract.

Exception to subsection (1)

166.1(2)    Despite subsection (1), an insurer does not, under a contract or benefit provision described in that subsection, remain liable to pay insurance money or provide a benefit for the recurrence of a disability after both of the following occur:

(a) the termination of the contract or benefit provision;

(b) a continuous period of six months, or any longer period provided in the contract, during which the group life insured was not disabled.

Time limit on payment of insurance money or benefit

166.1(3)    An insurer that is liable under subsection (1) to pay insurance money or provide a benefit as a result of the disability of a group life insured is not liable to pay or provide it for any period longer than the portion remaining, at the date the disability began, of the maximum period provided under the contract for the payment of insurance money or the provision of other benefits in respect of a disability of the group life insured.

Replacement contract

166.1(4)    If a contract of group insurance (referred to in this subsection as the "replacement contract") is entered into within 31 days after the termination of another contract of group insurance (referred to in this subsection as the "other contract") and the replacement contract insures some or all of the same group life insureds as the other contract,

(a) the replacement contract is deemed to provide that any person who was insured under the other contract at the time of its termination is insured under the replacement contract from and after the termination of the other contract if

(i) the insurance on that person under the other contract terminated by reason only of the termination of the other contract, and

(ii) the person is a member of a class eligible for insurance under the replacement contract; and

(b) no person who was insured under the other contract at the time of its termination may be excluded from eligibility under the replacement contract by reason only of not being actively at work on the effective date of the replacement contract;

and despite subsection (1), if the replacement contract provides that insurance money or other benefits to be paid or provided under subsection (1) by the insurer of the other contract are to be paid instead under the replacement contract, the insurer of the other contract is not liable to pay that insurance money or provide those benefits.

BENEFICIARIES

Designation of beneficiary

167(1)      Subject to subsection (4), an insured may in a contract or by a declaration designate the insured, the insured's personal representative or a beneficiary as the person to whom or for whose benefit insurance money is to be payable.

Change in designation

167(2)      Subject to subsections 168(1) and (2), the insured may by declaration change or revoke a designation referred to in subsection (1).

Designation in favour of heirs or estate

167(3)      A designation in favour of the "heirs", "next of kin" or "estate" of the insured, or the use of words having a similar meaning in a designation, is deemed to be a designation of the insured's personal representative.

Beneficiary restrictions in contract

167(4)      Subject to the regulations, an insurer may restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable.

Application of designation to replacement contract

167(5)      A contract of group insurance replacing another contract of group insurance on some or all of the group life insured under the replaced contract may provide that a designation applicable to the replaced contract of a group life insured, a group life insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable is deemed to apply to the replacing contract.

Insurer's obligations under replacement contract

167(6)      If a contract of group insurance replacing another contract of group insurance provides that a designation referred to in subsection (5) is deemed to apply to the replacing contract,

(a) each certificate in respect of the replacing contract must indicate that the designation under the replaced contract has been carried forward and that the group life insured should review the existing designation to ensure it reflects the group life insured's current intentions; and

(b) as between the insurer under the replacing contract and a claimant under that contract, that insurer is liable to the claimant for any errors or omissions by the previous insurer in respect of the recording of the designation carried forward under the replacing contract.

Beneficiary's status re settlement

167(7)      If a beneficiary becomes entitled to insurance money and all or part of that insurance money remains with the insurer under a settlement option provided for in the contract or permitted by the insurer, that portion of the insurance money remaining with the insurer is deemed to be insurance money held under a contract on the life of the beneficiary and, subject to the provisions of the settlement option, the beneficiary has the rights and interests of an insured with respect to the insurance money.

Irrevocable designation

168(1)      During the lifetime of the person whose life is insured, an insured may

(a) in a contract; or

(b) by a declaration that is not part of a will but is filed with the insurer at its head or principal office in Canada;

designate a beneficiary irrevocably.

Effects of an irrevocable designation

168(2)      During the lifetime of a beneficiary who is designated irrevocably in accordance with subsection (1),

(a) the insured may not change or revoke the designation without the beneficiary's consent; and

(b) the insurance money

(i) is not subject to the insured's control or the claims of the insured's creditors, and

(ii) does not form part of the insured's estate.

Attempted designation

168(3)      If 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.

Designation in invalid will

169(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

169(2)      Despite The Wills Act, a designation in a will is of no effect against a designation made later than the making of the will.

Designation in will later revoked

169(3)      If a designation is contained in a will, and subsequently the will is revoked by operation of law or otherwise, the designation is revoked.

Designating instrument revoked by operation of law

169(4)      If a designation is contained in an instrument that purports to be a will and the instrument, if it were valid as a will would be revoked by operation of law or otherwise, the designation is revoked.

Trustee for beneficiary

170(1)      An insured may, in a contract or by a declaration, appoint a trustee for a beneficiary and may change or revoke the appointment by a declaration.

Payment to trustee

170(2)      A payment made by an insurer to a trustee for a beneficiary discharges the insurer to the extent of the amount paid.

Beneficiary dying before life insured

171(1)      When a beneficiary dies before the person whose life is insured, and no disposition of the deceased beneficiary's share in the insurance money is provided in the contract or by a declaration, the share is payable

(a) to the surviving beneficiary;

(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

171(2)      If 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.

Disclaimer by beneficiary

171(3)      A beneficiary may disclaim the beneficiary's right to insurance money by filing a notice in writing with the insurer at its head or principal office in Canada.

Disclaimer is irrevocable

171(4)      A notice of disclaimer filed under subsection (3) is irrevocable.

Payment of insurance money when beneficiary disclaims or is disentitled

171(5)      Subsection (1) applies in the case of a disclaiming beneficiary or of a beneficiary determined by a court to be disentitled to insurance money as if the disclaiming or disentitled beneficiary died before the person whose life is insured.

Enforcement of payment by beneficiary or trustee

172(1)      A beneficiary may enforce for his or her own benefit, and a trustee appointed under section 170 may enforce as trustee, the payment of insurance money made payable to the beneficiary or trustee in the contract or by a declaration in accordance with the provisions the contract or declaration.

Insurer's defences

172(2)      In an action by the beneficiary or trustee, the insurer may set up any defence that it could have set up against the insured or the insured's personal representative.

Insurance money not part of estate

173(1)      If 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.

Contract exempt from seizure

173(2)      While a designation is in effect in favour of a spouse or common-law partner, child, grandchild or parent, or any of them, of a person whose life is insured, the insurance money and the rights and interests of the insured in the insurance money and contract are exempt from execution or seizure.

DEALINGS WITH CONTRACT

Insured dealing with contract

174(1)      If a beneficiary

(a) is not designated irrevocably; or

(b) is designated irrevocably but has attained the age of 18 years and consents;

the insured may assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as provided in it or in this Part or as may be agreed upon with the insurer.

Insured may exercise rights prescribed by regulation

174         (2) Despite subsection 168(1), if a beneficiary is designated irrevocably and has not consented as described in clause (l)(b), the insured may exercise any rights in respect of the contract that are prescribed by regulation.

Rights of beneficiary preserved

174         (3) Subject to the terms of a consent under clause (l)(b) or an order of the court under subsection (4), if there is an irrevocable designation of a beneficiary under a contract, a person acquiring an interest in the contract takes that interest subject to the rights of that beneficiary.

Application to court re beneficiary who is unable to consent

174(4)      When a beneficiary who is designated irrevocably is unable to provide consent under clause (1)(b) because of legal incapacity, an insured may apply to the court for an order permitting the insured to deal with the contract without that consent.

Court order

174(5)      The court may grant an order under subsection (4) on any notice and terms it considers just.

Insured entitled to dividends

175(1)      Despite the irrevocable designation of a beneficiary, the insured is entitled, before his or her death, to the dividends or bonuses declared on a contract unless the contract provides otherwise.

Insurer may use dividends

175(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.

Transfer of ownership

176(1)      Despite The Wills Act, if a contract or declaration provides that a person named in the contract or declaration 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 insured's death, form part of the insured's estate; and

(b) upon the insured's death, the person named in the contract or declaration has the rights and interests given to the insured by the contract and by this Part and is deemed to be the insured.

Successive owners

176(2)      If a contract or declaration referred to in subsection (1) provides that, upon the insured's death, two or more persons named in the contract or declaration 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 changes, to each of those persons and their rights and interests in the contract.

Saving

176(3)      Despite a nomination referred to in subsection (1), the insured, before his or her death, may

(a) assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as if the nomination had not been made; and

(b) subject to the terms of the contract, change or revoke the nomination by declaration.

Interest of assignee

177(1)      If 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) an assignee other than one who earlier gave notice to the insurer of the assignment in the manner provided for in this subsection; and

(b) a beneficiary other than one designated irrevocably as provided in section 168 before the assignee gave notice to the insurer of the assignment in the manner provided for in this subsection.

Effect on beneficiary's rights

177(2)      If 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

177(3)      If 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 is deemed to be the insured.

Assignment revokes certain designations and nominations

177(4)      Unless the document by which the contract is assigned specifies otherwise, an assignment described in subsection (3) made on or after the date this section comes into force revokes

(a) a designation of a beneficiary made before or after that date and not made irrevocably; and

(b) a nomination referred to in section 176 made before or after that date.

Prohibition against assignment

177(5)      A contract may provide that any of the following are not assignable:

(a) the rights or interests of the insured;

(b) in the case of

(i) a contract of group insurance, the rights or interests of the group life insured, or

(ii) a contract of creditor's group insurance, the rights or interests of the debtor insured.

Group life insured enforcing rights

178         A group life insured may, in his or her own name, enforce a right given to the group life insured under a contract, subject to any defence available to the insurer against the group life insured or the insured.

Enforcement of rights re creditor's group insurance

178.1(1)    A debtor insured or a debtor who is jointly liable for the debt with the debtor insured may enforce in his or her own name the creditor's rights in respect of a claim arising in relation to the debtor insured, subject to any defence available to the insurer against the creditor or debtor insured.

Insurance money payable to creditor

178.1(2)    Subject to subsection (3), if an insurer pays insurance money in respect of a claim under subsection (1), the insurer must pay the insurance money to the creditor.

Payment of excess insurance money to debtor insured

178.1(3)    If the debtor insured provides evidence satisfactory to the insurer that the insurance money exceeds the debt then owing to the creditor, the insurer may pay the excess directly to the debtor insured.

48          Section 179 and the centred heading before it are repealed.

49          Sections 180 to 196 are replaced with the following:

Proof of claim

180         If 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 the insurance money; and

(d) the name and age of the beneficiary, if there is a beneficiary;

it must, within 30 days after receiving the evidence, pay the insurance money to the person entitled to it.

Place of payment

181(1)      Subject to sections 182 and 183, insurance money is payable in Manitoba.

Payment in Canadian dollars

181(2)      Unless a contract provides otherwise, a reference in the contract to dollars means Canadian dollars, whether the contract provides for payment in Canada or elsewhere.

Payment outside Manitoba

182(1)      If a person entitled to receive insurance money is not resident in Manitoba, the insurer may pay the insurance money to that person or to any person who is entitled to receive it on the person's behalf by the law of the jurisdiction in which the payee resides. The payment discharges the insurer to the extent of the amount paid.

Exception for group insurance

182(2)      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 the group life insured became insured.

Exception for payment to person who has died

182(3)      If insurance money is payable under a contract to a deceased person who was not resident in Manitoba at the date of the person's death or to that person's personal representative, the insurer may pay the insurance money to the deceased person's personal representative as appointed under the law of the jurisdiction in which the person was resident at the date of the person's death. The payment discharges the insurer to the extent of the amount paid.

Action on contract made elsewhere

183         Regardless of the place where a contract was made, a claimant who is resident in Manitoba may bring an action in Manitoba if the insurer was authorized to transact life insurance in Manitoba at the time the contract was made or is so authorized at the time the action is brought.

Meaning of "declaration" in sections 184 to 188

183.1       In sections 184 to 188, "declaration" means a declaration made by the court under section 186 or 187.

Limitation of actions — insurance money payable on death

184(1)      Subject to subsections (2) and (5), an action or proceeding against an insurer for the recovery of insurance money payable in the event of a person's death must be commenced not later than the earlier of

(a) two years after the date evidence is provided under section 180; and

(b) six years after the date of the death.

Exception when a declaration has been made

184(2)      Subject to subsection (5), if a declaration has been made under section 187, an action or proceeding referred to in subsection (1) must be commenced not later than two years after the date of the declaration.

Limitation of other actions

184(3)      Subject to subsection (5), an action or proceeding against an insurer for the recovery of insurance money not referred to in subsection (1) must be commenced not later than two years after the date the claimant knew or ought to have known of the first instance of the loss or occurrence giving rise to the claim for insurance money.

Limitation period re continuing losses

184(4)      If insurance money is not payable unless a loss or occurrence continues for a period of time specified in the contract, the date of the first instance of the loss or occurrence for the purposes of subsection (3) is deemed to be the first day after the end of that period.

Limitation period re period payments

184(5)      An action or proceeding against an insurer for the recovery of insurance money payable on a periodic basis must be commenced not later than the later of

(a) the last day of the applicable period under subsection (1), (2), (3) or (4) for commencing an action or proceeding; or

(b) if insurance money was paid, two years after the date the next payment would have been payable had the insurer continued to make periodic payments.

Persons to whom insurance money payable

185(1)      Until an insurer receives at its head or principal office in Canada

(a) an instrument or an order of a court affecting the right to receive insurance money; or

(b) a notarial copy or copy verified by statutory declaration of the instrument or order;

it may make payment of the insurance money and is discharged to the extent of the amount paid as if there were no instrument or order.

No person other than insurer affected by subsection (1)

185(2)      Subsection (1) does not affect the rights or interests of any person other than the insurer.

Declaration by court as to sufficiency of proof

186         If an insurer admits the validity of the life insurance but does not admit the sufficiency of the evidence required by section 180 and there is no other question in issue except a question under section 187, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to the sufficiency of the evidence provided, and the court may make the declaration or may direct what further evidence is to be provided and on the provision of the evidence may make the declaration or, in special circumstances, may dispense with further evidence and make the declaration.

Declaration as to presumption of death

187(1)      If a claimant alleges that the person whose life is insured should be presumed to be dead by reason of the person not having been heard of for seven years, and there is no other question in issue except a question under section 186, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to presumption of the death, and the court may make the declaration.

Content of declaration

187(2)      A declaration of presumption of death made by the court under subsection (1) must contain particulars of the following information to the extent that those particulars have been established to the satisfaction of the court:

(a) the full name of the person presumed dead, including maiden or married name if applicable;

(b) the gender of the person presumed dead;

(c) the place where death is presumed to have occurred;

(d) the date on which death is presumed to have occurred;

(e) whether the presumed death was accidental.

Court order re payment of insurance money

188(1)      On making a declaration under section 186 or 187, the court may make any order respecting the payment of the insurance money and respecting costs that it considers just, and a declaration, direction or order made under this subsection is binding on the applicant and on all persons to whom notice of the application has been given.

Payment under order

188(2)      A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid.

Order stays pending action

189         Unless the court orders otherwise, an application made under section 186 or 187 operates as a stay of any pending action with respect to the insurance money.

Appeal

190         A declaration, direction or order made under section 186, 187 or 188 may be appealed to The Court of Appeal.

Order re further evidence

191         If the court finds that the evidence provided under section 180 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 any other order it considers just respecting further evidence to be provided by the claimant, publication of advertisements, further inquiry or any other matter, or respecting costs.

Payment into court by insurer

192(1)      If 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 to the insurance money is unknown;

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

(d) there is no person entitled to the insurance money; or

(e) the person to whom the insurance money is payable would be disentitled on public policy or other grounds;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

192(2)      Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

192(3)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

192(4)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

192(5)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

Simultaneous deaths

193         Unless a contract or declaration provides otherwise, if 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 as if the beneficiary had died before the person whose life is insured.

Definition

194(1)      In this section, "instalments" includes insurance money held by the insurer under section 195.

Insurance money payable in instalments

194(2)      Subject to subsections (3) and (4), if

(a) insurance money is payable in instalments; and

(b) a contract, or an instrument signed by the insured and delivered to the insurer, provides that a beneficiary does not have the right to commute the instalments or to alienate or assign the beneficiary's interest in the insurance money;

the insurer must not, unless the insured subsequently directs otherwise in writing, commute the instalments or pay them to any person other than the beneficiary.

Instalments not subject to legal process

194(3)      Instalments to which subsection (1) applies 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 minor children.

Commutation by beneficiary

194(4)      A court may, upon the application of a beneficiary and upon at least 10 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

194(5)      After the death of the beneficiary, the beneficiary's personal representative may, with the consent of the insurer, commute any instalments of insurance money payable to the beneficiary.

Insurer holding insurance money

195(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 in the contract, agreement or declaration or, when no rate is agreed upon, at the rate declared by the insurer in respect of insurance money held by it.

Exception

195(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.

Court may order payment

196(1)      If an insurer does not pay insurance money to some person competent to receive it or into court within 30 days after receipt of the evidence required by section 180, the court may on application of any person order that the insurance money or any part of the insurance money be paid into court, or may make any other order as to the distribution of the money that it considers just.

Discharge of insurer

196(2)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

196(3)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

196(4)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

50          Section 197 is repealed.

51          Sections 198 to 201 are replaced with the following:

Insurance money payable to minor

198(1)      If 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 for the insurance money who is willing to do so, the insurer may, at any time after 30 days after the date of the event on which the insurance money becomes payable, pay the money to the Public Trustee for the benefit of the minor and notify the Public Trustee of the name, date of birth and residential address of the minor.

Payment discharges insurer

198(2)      A payment made by an insurer under subsection (1) discharges the insurer to the extent of the amount paid.

Payment to representative

199         Despite section 198, when it appears that a representative of a beneficiary who is a minor or is otherwise under a legal disability may accept payments on behalf of the beneficiary under the law of the jurisdiction in which the beneficiary resides, the insurer may make payment to the representative. The payment discharges the insurer to the extent of the amount paid.

MISCELLANEOUS PROVISIONS

Presumption against agency

200         An officer, agent or employee of an insurer, or a person soliciting life insurance, whether or not that person is an agent of the insurer, must not, to the prejudice of any of the following persons, be considered to be the person's agent in respect of any question arising out of a contract:

(a) the insured;

(b) the person whose life is insured;

(c) the group life insured;

(d) the debtor insured.

Insurer giving information

201         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 that affects the insurance money.

Regulations

201.1       The Lieutenant Governor in Council may make regulations

(a) prescribing information for the purpose of clause 151(8)(b);

(b) for the purpose of subsection 167(4), respecting the circumstances under which an insurer may not restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable;

(c) prescribing rights in respect of contracts for the purpose of subsection 174(2);

(d) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Part.

52          Section 202 is repealed.

53          Section 203 and the Part heading before it are replaced with the following:

PART VI

ACCIDENT AND

SICKNESS INSURANCE

Definitions

203(1)      The following definitions apply in this Part.

"application" means an application for accident and sickness insurance or for the reinstatement of accident and sickness 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 »)

"blanket insurance" means group insurance that covers loss

(a) arising from specific hazards incidental to or defined by reference to a particular activity or activities; and

(b) occurring during a limited or specified period that is not longer than six months. (« assurance globale »)

"contract" means a contract of accident and sickness insurance. (« contrat »)

"creditor's group insurance" means accident and sickness insurance effected by a creditor under which the lives or well-being, or both, of a number of the creditor's debtors are insured severally under a single contract. (« assurance-prêt »)

"debtor insured" means a debtor whose life or well-being, or both, are insured under a contract of creditor's group insurance. (« débiteur assuré »)

"declaration" means an instrument signed by the insured, with respect to which an endorsement is made on the policy, that identifies the contract or describes the accident and sickness insurance, the insurance fund or a part of either of them, in which the insured

(a) designates, or changes or revokes the designation of, the insured, the insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable; or

(b) makes, changes or revokes an appointment under section 226 or a nomination referred to in section 228.3. (« déclaration »)

"family insurance" means accident and sickness insurance under which the lives or well-being, or both, of the insured and one or more persons related to the insured by blood, marriage, common-law relationship or adoption are insured under a single contract between an insurer and the insured. (« assurance familiale »)

"group insurance" means accident and sickness insurance, other than creditor's group insurance and family insurance, under which the lives or well-being, or both, 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 (referred to in this definition as the "primary person") whose life or well-being, or both, are insured under a contract of group insurance, but does not include a person whose life or well-being, or both, are insured under the contract as a person dependent on or related to the primary person. (« personne couverte par une assurance collective »)

"instrument" includes a will. (« instrument »)

"insured", in relation

(a) to group insurance, means the group person insured in the provisions of this Part relating to

(i) the designation of beneficiaries or personal representatives as recipients of insurance money, and

(ii) their rights and status; and

(b) to other insurance governed by this Part, means the person who makes a contract with an insurer. (« assuré »)

"person insured" means a person in respect of whose accident or sickness insurance money is payable under a contract, but does not include a group person insured or debtor insured. (« personne assurée »)

Persons insurable

203(2)      Without restricting the meaning of "insurable interest", a person (referred to in this section as the "primary person") has an insurable interest

(a) in the case of a primary person who is a natural person, in his or her own life or well-being and the lives or well-being of

(i) the primary person's child or grandchild,

(ii) the primary person's spouse or common-law partner,

(iii) a person on whom the primary person is wholly or partly dependent for, or from whom the primary person is receiving, support or education,

(iv) the primary person's employee, and

(v) a person in the duration of whose life or in whose well-being the primary person has a pecuniary interest; and

(b) in the case of a primary person that is not a natural person, in the lives or well-being of

(i) the primary person's director, officer or employee, and

(ii) a person in the duration of whose life or in whose well-being the primary person has a pecuniary interest.

Application of certain provisions of Part III

203.1       Despite section 115, the following provisions apply to contracts of accident and sickness insurance:

(a) section 119;

(b) subsections 123(1) and (2);

(c) section 132.

54          The centred heading "APPLICATION OF PART" is added before section 204.

55          Subsection 204(3) is amended

(a) by repealing clauses (a) to (c); and

(b) by adding the following after clause (d):

(e) except as otherwise provided by regulations, to accident and sickness insurance that is part of a contract of life insurance under which the insurer undertakes to pay insurance money, or to provide other benefits, in the event the person whose life is insured becomes disabled as a result of bodily injury or disease; or

(f) to accident and sickness insurance that is part of a contract of life insurance under which the insurer undertakes to pay an additional amount of insurance money in the event of death by accident of the person whose life is insured.

56          Sections 205 to 213 are replaced with the following:

Application of Part to group insurance

205         In the case of a contract of group insurance made with an insurer authorized to transact accident and sickness insurance in Manitoba 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 Manitoba at the time the group person insured became insured; and

(b) the rights and obligations of the group person insured if the group person insured was resident in Manitoba at the time the group person insured became insured.

ISSUANCE AND CONTENTS OF POLICY

Insurer to issue policy

206(1)      An insurer entering into a contract must

(a) issue a policy; and

(b) provide the insured with the policy and a copy of the insured's application.

Provisions forming contract

206(2)      Subject to subsection (3), the provisions in the following constitute the entire contract:

(a) the application;

(b) the policy;

(c) any document attached to the policy when it is issued;

(d) any amendment to the contract agreed upon in writing after the policy is issued.

Contract of fraternal society

206(3)      The provisions in the following constitute the entire contract of a contract made by a fraternal society:

(a) the society's Act or instrument of incorporation;

(b) the society's constitution, by-laws and rules;

(c) the application;

(d) the policy;

(e) any amendment to the contract agreed upon in writing after the policy is issued;

(f) the applicant's medical statement.

Copy of contract

206(4)      Except in the case of a contract of group insurance or creditor's group insurance, an insurer must, upon request, provide the insured or a claimant under the contract with a copy of

(a) the entire contract as described in subsection (2) or (3); and

(b) any written statement or other record provided to the insurer as evidence of insurability under the contract.

Copy of group insurance

206(5)      In the case of a contract of group insurance, the insurer

(a) must, upon request, provide a group person insured or claimant under the contract with a copy of

(i) the group person insured's application, and

(ii) any written statement or other record provided to the insurer as evidence of the insurability of the group person insured under the contract that is not part of the application; and

(b) must, upon request and reasonable notice,

(i) permit a group person insured or claimant under the contract to examine a copy of the group insurance policy, and

(ii) provide that person with a copy of the policy.

Copy of creditor's group insurance

206(6)      In the case of a contract of creditor's group insurance, the insurer

(a) must, upon request, provide a debtor insured or claimant under the contract with a copy of

(i) the debtor insured's application, and

(ii) any written statement or other record provided to the insurer as evidence of the insurability of the debtor insured under the contract that is not part of the application; and

(b) must, upon request and reasonable notice,

(i) permit a debtor insured or claimant under the contract to examine a copy of the creditor's group insurance policy, and

(ii) provide that person with a copy of the policy.

Fee for providing copy

206(7)      An insurer may charge a reasonable fee to cover its expenses for providing copies of documents under subsection (4), (5) or (6), other than the first copy provided to each person.

Personal information protected

206(8)      Access to the documents described in clause (5)(b) or (6)(b) does not extend to

(a) information contained in those documents that would reveal personal information, as defined in the Personal Information Protection and Electronic Documents Act (Canada), about a person without that person's consent, other than information about

(i) the group person insured or debtor insured in respect of whom the claim is made, or

(ii) the person who requests access to the information; or

(b) information prescribed by the regulations.

Access to information relevant to claims

206(9)      A claimant's access to documents under subsections (4) to (6) extends only to information that is relevant to

(a) a claim under the contract; or

(b) a denial of such a claim.

Exceptions

207(1)      Subsections (2) and (3) do 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.

Contents of policy

207(2)      An insurer must set out the following in the policy:

(a) the name or a sufficient description of the insured and of the person insured;

(b) the amount or the method of determining the amount of the insurance money payable, and the conditions under which it becomes payable;

(c) the amount or the method of determining the amount of the premium and the grace period, if any, within which it may be paid;

(d) the conditions upon which the contract may be reinstated if it lapses;

(e) the term of the accident and sickness insurance or the method of determining the dates on which the accident and sickness insurance starts and terminates;

(f) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

Statement about restriction on designating beneficiary

207(3)      If a policy contains a provision removing or restricting the right of the insured to designate persons to whom or for whose benefit insurance money is to be payable, the front page of the policy must include the following statement in conspicuous bold type:

This policy contains a provision removing or restricting the right of the insured to designate persons to whom or for whose benefit insurance money is to be payable.

Contents of group policy

207(4)      In the case of a contract of group insurance or creditor's group insurance, the insurer must set out the following in the policy:

(a) the name or a sufficient description of the insured;

(b) the method of determining the persons whose lives or well-being, or both, are insured;

(c) the amount or the method of determining the amount of the insurance money payable, and the conditions under which it becomes payable;

(d) the grace period, if any, within which the premium may be paid;

(e) the term of the accident and sickness insurance or the method of determining the dates on which the accident and sickness insurance starts and terminates;

(f) in the case of a contract of group insurance, any provision removing or restricting the right of a group person insured to designate persons to whom or for whose benefit insurance money is to be payable;

(g) in the case of a contract of group insurance that replaces another contract of group insurance on some or all of the group persons insured under the replaced contract, whether a designation of a group person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable under the replaced contract applies to the replacing contract;

(h) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

When insurer remains liable after termination of group contract

208(1)      Despite the termination of a contract of group insurance, or a benefit provision in a such a contract, the insurer continues, as though the termination had not occurred, to be liable to pay to or in respect of a group person insured under the contract benefits relating to

(a) loss of income because of disability;

(b) death;

(c) dismemberment; or

(d) accidental damage to natural teeth;

arising from an accident or sickness that occurred before the termination of the contract or benefit provision, if the disability, death, dismemberment or accidental damage to natural teeth is reported to the insurer within six months after the termination or within any longer continuous period specified in the contract.

Exception to subsection (1)

208(2)      Despite subsection (1), an insurer does not, under a contract or benefit provision described in that subsection, remain liable to pay a benefit for loss of income for the recurrence of a disability after both of the following occur:

(a) the termination of the contract or benefit provision;

(b) a continuous period of six months, or any longer period provided in the contract, during which the group person insured was not disabled.

Time limit on payment benefit for loss of income

208(3)      An insurer that is liable under subsection (1) to pay a benefit for loss of income as a result of the disability of a group person insured is not liable to pay or provide it for any period longer than the portion remaining, at the date the disability began, of the maximum period provided under the contract for the payment of benefits for loss of income in respect of a disability of the group person insured.

Replacement contract

208(4)      If a contract of group insurance (referred to in this subsection as the "replacement contract") is entered into within 31 days after the termination of another contract of group insurance (referred to in this subsection as the "other contract") and the replacement contract insures some or all of the same group persons insured as the other contract,

(a) the replacement contract is deemed to provide that any person who was insured under the other contract at the time of its termination is insured under the replacement contract from and after the termination of the other contract if

(i) the insurance on that person under the other contract terminated by reason only of the termination of the other contract, and

(ii) the person is a member of a class eligible for insurance under the replacement contract;

(b) every person who was insured under the other contract and who is insured under the replacement contract is entitled to receive credit for any deductible earned before the effective date of the replacement contract; and

(c) no person who was insured under the other contract at the time of its termination may be excluded from eligibility under the replacement contract by reason only of not being actively at work on the effective date of the replacement contract;

and despite subsection (1), if the replacement contract provides that all benefits to be paid under subsection (1) by the insurer of the other contract are to be paid instead under the replacement contract, the insurer of the other contract is not liable to pay those benefits.

Non-application of section

209(1)      This section does not apply to a contract

(a) of blanket insurance; or

(b) of group insurance of a non-renewable type issued for a term not exceeding six months.

Contents of group certificate

209(2)      In the case of a contract of group insurance or creditor's group insurance, the insurer must issue, for delivery by the insured to each group person insured or debtor insured, a certificate or other document in which are set out the following:

(a) the name of the insurer and a sufficient identification of the contract;

(b) the amount, or the method of determining the amount, of insurance on the group person insured or debtor insured and on any person insured;

(c) the circumstances in which the insurance terminates and the rights, if any, on termination of the insurance of the group person insured or debtor insured and of any person insured;

(d) in the case of a contract of group insurance that contains a provision removing or restricting the right of the group person insured to designate persons to whom or for whose benefit insurance money is to be payable;

(i) the method of determining the persons to whom or for whose benefit the insurance money is or may be payable, and

(ii) the following statement in conspicuous bold type:

This policy contains a provision removing or restricting the right of the group person insured to designate persons to whom or for whose benefit insurance money is to be payable.

(e) in the case of a contract of group insurance that replaces another contract of group insurance on some or all of the group persons insured under the replaced contract, whether a designation of a group person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable under the replaced contract applies to the replacing contract;

(f) the rights of the group person insured, the debtor insured or a claimant under the contract to obtain copies of documents under subsection 206(5) or (6);

(g) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

Exceptions or reductions

210(1)      Subject to section 211 and except as otherwise provided in this section, the insurer must set out 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".

Exceptions or reductions affecting single provision

210(2)      If an exception or reduction affects only one provision in the policy, it must be set out in that provision.

Reference in endorsements, insertions or riders

210(3)      If an exception or reduction is contained in an endorsement, insertion or rider, the endorsement, insertion or rider must, unless it affects all amounts payable under the contract, make reference to the provisions in the policy affected by the exception or reduction.

Saving

210(4)      The exception or reduction mentioned in section 223 does not need to be set out in the policy.

Application of section

210(5)      This section does not apply to a contract

(a) of group insurance;

(b) of creditor's group insurance; or

(c) made by a fraternal society.

Statutory Conditions

Statutory conditions

211         Except as provided in sections 212 and 213,

(a) the conditions set out in Schedule C are deemed to be part of every contract, other than a contract of group insurance or creditor's group insurance, and must be printed on or attached to the policy forming part of the contract under the heading "Statutory Conditions"; and

(b) no variation or omission of or addition to any statutory condition not authorized by section 212 is binding on the insured.

Definition

212(1)      In this section, "statutory condition" means a statutory condition set out in Schedule C.

Omitting or varying conditions

212(2)      If 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.

Statutory conditions 3 and 7

212(3)      Statutory conditions 3 and 7 may be omitted from the policy if the contract does not contain any provisions respecting the matters dealt with in those statutory conditions.

Statutory condition 4

212(4)      Statutory condition 4 must be omitted from the policy if the contract does not provide that it may be terminated by the insurer before the end of any period for which a premium has been accepted.

Less favourable variation

212(5)      Statutory conditions 3, 4 and 7 and, subject to the restriction in subsection (6), statutory condition 5 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 is deemed to be included in the policy in the form in which it appears in Schedule C.

No variation

212(6)      Subparagraphs (1)(a) and (b) of statutory condition 5 must not be varied in policies providing benefits for loss of time.

Time

212(7)      Statutory conditions 8 and 9 may be varied by shortening the periods of time set out in them.

Reproduction

212(8)      The title of a statutory condition must be reproduced in the policy along with the statutory condition, but the number of a statutory condition may be omitted.

Contract made by a fraternal society

212(9)      In the case of a contract made by a fraternal society,

(a) the following text must be printed on every policy in substitution for the text of paragraph (1) of statutory condition 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.

(b) subparagraph (1)(b) and paragraph (3) of statutory condition 4 must not be printed on the policy.

Notice of statutory conditions

213         In the case of a policy of accident and sickness insurance of a non-renewable type issued for a term of six months or less or in relation to a travel ticket, the statutory conditions set out in Schedule C do not need to be printed on or attached to the policy if the policy contains the following notice printed in conspicuous type:

Despite any other provision contained in the contract, the contract is subject to the statutory conditions in The Insurance Act respecting contracts of accident and sickness insurance.

57          Sections 214 to 216 are repealed.

58          Sections 217 to 230 are replaced with the following:

FORMATION OF CONTRACT

Lack of insurable interest

217(1)      Subject to subsection (2), if at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.

Exceptions

217(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 accident and sickness insurance.

Consent in case of minor

217(3)      If the person insured is under the age of 16 years, consent to the accident and sickness insurance may be given by one of the person's parents or by a guardian of the person as defined in The Child and Family Services Act.

Court may order termination if insurable interest no longer exists

217.1       A person whose life or well-being, or both, is insured may, if an insurable interest no longer exists, apply to the court for an order requiring the insurer to immediately terminate the policy and pay over to the policy owner any value that exists in the policy.

Termination of contract by court in certain cases

217.2(1)    If

(a) a person whose life or well-being, or both, are insured under a contract is someone other than the insured; and

(b) the person reasonably believes that the person's life or health might be endangered by the insurance continuing under that contract;

on application of that person, the court may make the orders the court considers just in the circumstances.

What court orders may be made

217.2(2)    Without limiting subsection (1), the orders that the court may make under subsection (1) include

(a) an order that the accident and sickness insurance on that person under the contract be terminated in accordance with the terms of the contract other than any terms respecting notice of termination; and

(b) an order that the amount of accident and sickness insurance on that person be reduced.

Notice to insured and others

217.2(3)    An application under subsection (1) must be made on at least 30 days' notice to the insured, the beneficiary, the insurer and any other person the court considers to have an interest in the contract.

Court may dispense with notice to certain persons

217.2(4)    Despite subsection (3), if the court considers it just to do so, it may dispense with the notice

(a) to a person other than the insurer; or

(b) if the contract is a contract of group insurance or creditor's group insurance, to the insured.

Order binds anyone interested in the contract

217.2(5)    An order made under subsection (1) binds any person having an interest in the contract.

Who may pay premium

217.3       Except in the case of group insurance or creditor's group insurance, an assignee of a contract, a beneficiary or a person acting on behalf of one of them or on behalf of the insured may pay any premium that the insured is entitled to pay.

Non-application of certain subsections

217.4(1)    Subsections (2), (3) and (7) do not apply to a contract made by a fraternal society.

Termination for non-payment

217.4(2)    If a policy evidencing a contract, or a certificate evidencing the renewal of a contract, is delivered to the insured and the initial premium due under the contract or renewal has not been fully paid,

(a) the contract or the renewal of it evidenced by the policy or certificate is as binding on the insurer as if the premium had been paid even if the policy or certificate was 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 non-payment of the premium by the insurer giving 15 days' notice of termination by registered mail or 5 days' written notice of termination personally delivered.

Unpaid premiums

217.4(3)    If a premium referred to in subsection (2) has not been fully paid, the insurer may do one or both of the following:

(a) if there is a claim under the contract, except in the case of a contract of group insurance or creditor's group insurance, deduct the amount of the unpaid premium from the amount for which the insurer is liable under the contract;

(b) sue for any unpaid premium.

Grace period

217.4(4)    If a premium, other than a premium referred to in subsection (2), is not fully paid at the time it is due, the premium may be paid within a grace period of

(a) 30 days after the day the premium is due; or

(b) the number of days, if any, specified in the contract for payment of an overdue premium;

whichever is longer.

Contract in force during grace period

217.4(5)    If the event on which the insurance money becomes payable occurs during the grace period and before the overdue premium is paid, the contract is deemed to be in effect as if the premium had been paid at the time it was due.

Deduction of overdue premium

217.4(6)    Except in the case of a contract of group insurance or creditor's group insurance, the amount of the overdue premium under subsection (5) may be deducted from the amount for which the insurer is liable under the contract.

When 15-day period begins

217.4(7)    The 15-day period referred to in clause (2)(b) starts to run on the day the registered letter or notification of it is delivered to the insured's postal address.

Default in paying premium

217.5       When 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 of the premium is deemed not to have been paid.

Capacity of minors aged 16 and older

218         Except in respect of the minor's rights as beneficiary, a minor who has attained the age of 16 years has the capacity of an adult

(a) to make an enforceable contract; and

(b) in respect of a contract.

Duty to disclose

219(1)      An applicant for accident and sickness insurance and a person who is to be insured for accident or sickness must each disclose to the insurer

(a) in the application;

(b) on a medical examination, if any; and

(c) in any written statements or answers provided as evidence of insurability;

every fact within the applicant's or person's knowledge that is material to the accident and sickness insurance and is not so disclosed by the other.

Failure to disclose — basic policy

219(2)      Subject to subsection (3) and sections 220 and 223, a failure to disclose or a misrepresentation of a fact referred to in subsection (1) renders the contract voidable by the insurer.

Failure to disclose — additional coverages

219(3)      A failure to disclose or a misrepresentation of a fact referred to in subsection (1) relating to evidence of insurability with respect to an application for

(a) additional coverage under a contract;

(b) an increase in accident and sickness insurance under a contract; or

(c) any other change to accident and sickness insurance after the policy is issued;

renders the contract voidable by the insurer, but only in relation to the addition, increase or change.

Incontestability

220(1)      Subject to subsections (2) and (3) and section 223, if a contract, including renewals of the contract, or an addition, increase or change referred to in subsection 219(3), has been in effect for two years with respect to a person insured, a failure to disclose or a misrepresentation of a fact required by section 219 to be disclosed does not, in the absence of fraud, render the contract voidable.

Incontestability in group insurance and creditor's group insurance

220(2)      In the case of a contract of group insurance or creditor's group insurance, a failure to disclose or a misrepresentation of a fact required by section 219 to be disclosed in respect of a group person insured, debtor insured or person insured under the contract does not render the contract voidable, but

(a) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for the insurance in respect of the person, the accident and sickness insurance in respect of that person is voidable by the insurer; and

(b) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for an addition, increase or change referred to in subsection 219(3) in respect of the person, the addition, increase or change in respect of that person is voidable by the insurer;

unless the insurance, addition, increase or change has been in effect for two years during the lifetime of that person, in which case the insurance, addition, increase or change is not, in the absence of fraud, voidable.

Exceptions

220(3)      If a claim arises from a loss incurred or a disability beginning

(a) before a contract, including renewals of it; or

(b) before the addition, increase or change;

has been in effect for two years with respect to the person in respect of whom the claim is made, subsection (1) does not apply to that claim.

Application of incontestability to reinstatement

221         Sections 219 and 220 apply, with necessary changes, to a failure to disclose or a misrepresentation at the time of reinstatement of a contract, and the period of two years referred to in section 220 starts to run in respect of a reinstatement from the date of reinstatement.

Pre-existing conditions

222         If a contract contains a general exception or reduction with respect to pre-existing disease or physical conditions and the group person insured, person insured or debtor 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 of the contract, 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 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 if the disease or physical condition was disclosed in the application for the contract.

Misstatement of age

223(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 may 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 or creditor's group insurance

223(2)      In the case of a contract of group insurance or creditor's group insurance, a misstatement to the insurer of the age of a group person insured, person insured or debtor insured does not of itself render the contract voidable, and the provisions of the contract, if any, with respect to age or misstatement of age apply.

True age governs

223(3)      If the age of a person affects the commencement or termination of the insurance, the true age governs.

BENEFICIARIES

Designation of beneficiary

224(1)      Subject to subsection (4), an insured may in a contract or by a declaration designate the insured, the insured's personal representative or a beneficiary as the person to whom or for whose benefit insurance money is to be payable.

Change in designation

224(2)      Subject to subsections 224.1(1) and (2), the insured may by declaration change or revoke a designation referred to in subsection (1).

Designation in favour of heirs or estate

224(3)      A designation in favour of the "heirs", "next of kin" or "estate" of the insured, or the use of words having a similar meaning in a designation, is deemed to be a designation of the insured's personal representative.

Beneficiary restrictions in contract

224(4)      Subject to the regulations, an insurer may restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable.

Application of designation to replacement contract

224(5)      A contract of group insurance replacing another contract of group insurance on some or all of the group persons insured under the replaced contract may provide that a designation applicable to the replaced contract of a group person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable is deemed to apply to the replacing contract.

Insurer's obligations under replacement contract

224(6)      If a contract of group insurance replacing another contract of group insurance provides that a designation referred to in subsection (5) is deemed to apply to the replacing contract,

(a) each certificate in respect of the replacing contract must indicate that the designation under the replaced contract has been carried forward and that the group person insured should review the existing designation to ensure it reflects the group person insured's current intentions; and

(b) as between the insurer under the replacing contract and a claimant under that contract, that insurer is liable to the claimant for any errors or omissions by the previous insurer in respect of the recording of the designation carried forward under the replacing contract.

Beneficiary's status re settlement

224(7)      If a beneficiary becomes entitled to insurance money and all or part of that insurance money remains with the insurer under a settlement option provided for in the contract or permitted by the insurer, that portion of the insurance money remaining with the insurer is deemed to be insurance money held under a contract on the life of the beneficiary and, subject to the provisions of the settlement option, the beneficiary has the rights and interests with respect to the insurance money that an insured has under a contract of life insurance.

Irrevocable designation

224.1(1)    During the lifetime of the person whose life or well-being, or both, are insured, an insured may

(a) in a contract; or

(b) by a declaration that is not part of a will but is filed with the insurer at its head or principal office in Canada;

designate a beneficiary irrevocably.

Effects of an irrevocable designation

224.1(2)    During the lifetime of a beneficiary who is designated irrevocably in accordance with subsection (1),

(a) the insured may not change or revoke the designation without the beneficiary's consent; and

(b) the insurance money

(i) is not subject to the insured's control or the claims of the insured's creditors, and

(ii) does not form part of the insured's estate.

Attempted designation

224.1(3)    If 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.

Designation in invalid will

224.2(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

224.2(2)    Despite The Wills Act, a designation in a will is of no effect against a designation made later than the making of the will.

Designation in will later revoked

224.2(3)    If a designation is contained in a will, and subsequently the will is revoked by operation of law or otherwise, the designation is revoked.

Designating instrument revoked by operation of law

224.2(4)    If a designation is contained in an instrument that purports to be a will and the instrument, if it were valid as a will would be revoked by operation of law or otherwise, the designation is revoked.

Beneficiary dying before insured person

225(1)      When a beneficiary dies before the person insured or group person insured, as the case may be, and no disposition of the deceased beneficiary's share in the insurance money is provided in the contract or by a declaration, the share is payable

(a) to the surviving beneficiary;

(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 the personal representative of the insured or group person insured.

Several beneficiaries

225(2)      If 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.

Disclaimer by beneficiary

225(3)      A beneficiary may disclaim the beneficiary's right to insurance money by filing a notice in writing with the insurer at its head or principal office in Canada.

Disclaimer is irrevocable

225(4)      A notice of disclaimer filed under subsection (3) is irrevocable.

Payment of insurance money when beneficiary disclaims or is disentitled

225(5)      Subsection (1) applies in the case of a disclaiming beneficiary or of a beneficiary determined by a court to be disentitled to insurance money as if the disclaiming or disentitled beneficiary died before the person whose life or well-being, or both, are insured.

Enforcement of payment by beneficiary or trustee

225(6)      A beneficiary designated under section 224 may enforce for his or her own benefit, and a trustee appointed under section 226 may enforce as trustee, the payment of insurance money payable to the beneficiary or for his or her benefit under the contract or by a declaration in accordance with the provisions the contract or declaration.

Insurer's defences

225(7)      In an action by the beneficiary or trustee, the insurer may set up any defence that it could have set up against the insured or the insured's personal representative.

Payment discharges insurer

225(8)      Payment by the insurer to the beneficiary or trustee discharges the insurer to the extent of the amount paid.

Trustee for beneficiary

226         An insured may in a contract or by a declaration appoint a trustee for a beneficiary and may change or revoke the appointment by a declaration.

Persons to whom insurance money payable

227(1)      Until an insurer receives at its head or principal office in Canada

(a) an instrument or an order of a court affecting the right to receive insurance money; or

(b) a notarial copy or copy verified by statutory declaration of the instrument or order;

it may make payment of the insurance money and is discharged to the extent of the amount paid as if there were no instrument or order.

No person other than insurer affected by subsection (1)

227(2)      Subsection (1) does not affect the rights or interests of any person other than the insurer.

Interest of assignee

227(3)      If 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) an assignee other than one who earlier gave notice to the insurer of the assignment in the manner provided for in this subsection; and

(b) a beneficiary other than one designated irrevocably as provided in section 224.1 before the assignee gave notice to the insurer of the assignment in the manner provided for in this subsection.

Effect on beneficiary's rights

227(4)      If 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

227(5)      If 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 is deemed to be the insured.

Assignment revokes certain designations and nominations

227(6)      Unless the document by which the contract is assigned specifies otherwise, an assignment described in subsection (5) made on or after the date this section comes into force revokes

(a) a designation of a beneficiary made before or after that date and not made irrevocably; and

(b) a nomination referred to in section 228.3 made before or after that date.

Prohibition against assignment

227(7)      A contract may provide that any of the following are not assignable:

(a) the rights or interests of the insured;

(b) in the case of

(i) a contract of group insurance, the rights or interests of the group person insured, or

(ii) a contract of creditor's group insurance, the rights or interests of the debtor insured.

Insurance money not part of estate

228(1)      If 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.

Contract exempt from seizure

228(2)      While a designation is in effect in favour of a spouse or common-law partner, child, grandchild or parent, or any of them, of the person insured or group person insured, the insurance money and the rights and interests of the insured in the insurance money and contract, so far as either relate to accidental death benefits, are exempt from execution or seizure.

DEALINGS WITH CONTRACT

Insured dealing with contract

228.1(1)    If a beneficiary

(a) is not designated irrevocably; or

(b) is designated irrevocably but has attained the age of 18 years and consents;

the insured may assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as provided in it or in this Part or as may be agreed upon with the insurer.

Insured may exercise rights prescribed by regulation

228.1(2)    Despite subsection 224.1(1), if a beneficiary is designated irrevocably and has not consented as described in clause (l)(b), the insured may exercise any rights in respect of the contract that are prescribed by regulation.

Rights of beneficiary preserved

228.1(3)     Subject to the terms of a consent under clause (l)(b) or an order of the court under subsection (4), if there is an irrevocable designation of a beneficiary under a contract, a person acquiring an interest in the contract takes that interest subject to the rights of that beneficiary.

Application to court re beneficiary who is unable to consent

228.1(4)    When a beneficiary who is designated irrevocably is unable to provide consent under clause (1)(b) because of legal incapacity, an insured may apply to the court for an order permitting the insured to deal with the contract without that consent.

Court order

228.1(5)    The court may grant an order under subsection (4) on any notice and terms it considers just.

Insured entitled to dividends

228.2(1)    Despite the irrevocable designation of a beneficiary, the insured is entitled, before his or her death, to the dividends or bonuses declared on a contract unless the contract provides otherwise.

Insurer may use dividends

228.2(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.

Transfer of ownership

228.3(1)    Despite The Wills Act, if a contract or declaration provides that a person named in the contract or declaration 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 insured's death, form part of the insured's estate; and

(b) upon the insured's death, the person named in the contract or declaration has the rights and interests given to the insured by the contract and by this Part and is deemed to be the insured.

Successive owners

228.3(2)    If a contract or declaration referred to in subsection (1) provides that, upon the insured's death, two or more persons named in the contract or declaration 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 changes, to each of those persons and their rights and interests in the contract.

Saving

228.3(3)    Despite a nomination referred to in subsection (1), the insured, before his or her death, may

(a) assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as if the nomination had not been made; and

(b) subject to the terms of the contract, change or revoke the nomination by declaration.

Group person insured enforcing rights

229(1)      A group person insured may, in his or her own name, enforce a right given by a contract to the group person insured, or to a person insured under the contract as a person dependent on or related to the group person insured, subject to any defence available to the insurer against

(a) the group person insured;

(b) the dependent or related person; or

(c) the insured.

Simultaneous deaths

229(2)      Unless a contract or declaration provides otherwise, if 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 as if the beneficiary had died before the person insured or group person insured.

Enforcement of rights re creditor's group insurance

229.1(1)    A debtor insured or a debtor who is jointly liable for the debt with the debtor insured may enforce in his or her own name the creditor's rights in respect of a claim arising in relation to the debtor insured, subject to any defence available to the insurer against the creditor or debtor insured.

Insurance money payable to creditor

229.1(2)    Subject to subsection (3), if an insurer pays insurance money in respect of a claim under subsection (1), the insurer must pay the insurance money to the creditor.

Payment of excess insurance money to debtor insured

229.1(3)    If the debtor insured provides evidence satisfactory to the insurer that the insurance money exceeds the debt then owing to the creditor, the insurer may pay the excess directly to the debtor insured.

PROCEEDINGS UNDER CONTRACT

Place of payment

230(1)      Subject to subsections (3) to (5), insurance money is payable in Manitoba.

Payment in Canadian dollars

230(2)      Unless a contract provides otherwise, a reference in the contract to dollars means Canadian dollars, whether the contract provides for payment in Canada or elsewhere.

Payment outside Manitoba

230(3)      If a person entitled to receive insurance money is not resident in Manitoba, the insurer may pay the insurance money to that person or to any person who is entitled to receive it on the person's behalf by the law of the jurisdiction in which the payee resides. The payment discharges the insurer to the extent of the amount paid.

Exception for group insurance

230(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 person insured was resident at the time the group person insured became insured.

Exception for payment to person who has died

230(5)      If insurance money is payable under a contract to a deceased person who was not resident in Manitoba at the date of the person's death or to that person's personal representative, the insurer may pay the insurance money to the deceased person's personal representative as appointed under the law of the jurisdiction in which the person was resident at the date of the person's death. The payment discharges the insurer to the extent of the amount paid.

Action on contract made elsewhere

230.1       Regardless of the place where a contract was made, a claimant who is resident in Manitoba may bring an action in Manitoba if the insurer was authorized to transact insurance in Manitoba at the time the contract was made or is so authorized at the time the action is brought.

Meaning of "declaration" in sections 230.3 to 230.6

230.2       In sections 230.3 to 230.6, "declaration" means a declaration made by the court under section 230.4 or 230.5.

Limitation of actions — insurance money payable on death

230.3(1)    Subject to subsections (2) and (5), an action or proceeding against an insurer for the recovery of insurance money payable in the event of a person's death must be commenced not later than the earlier of

(a) two years after the proof of claim is provided; and

(b) six years after the date of the death.

Exception when a declaration has been made

230.3(2)    Subject to subsection (5), if a declaration has been made under section 230.5, an action or proceeding referred to in subsection (1) must be commenced not later than two years after the date of the declaration.

Limitation of other actions

230.3(3)    Subject to subsection (5), an action or proceeding against an insurer for the recovery of insurance money not referred to in subsection (1) must be commenced not later than two years after the date the claimant knew or ought to have known of the first instance of the loss or occurrence giving rise to the claim for insurance money.

Limitation period re continuing losses

230.3(4)    If insurance money is not payable unless a loss or occurrence continues for a period of time specified in the contract, the date of the first instance of the loss or occurrence for the purposes of subsection (3) is deemed to be the first day after the end of that period.

Limitation period re period payments

230.3(5)    An action or proceeding against an insurer for the recovery of insurance money payable on a periodic basis must be commenced not later than the later of

(a) the last day of the applicable period under subsection (1), (2), (3) or (4) for commencing an action or proceeding; or

(b) if insurance money was paid, two years after the date the next payment would have been payable had the insurer continued to make periodic payments.

Application of section

230.4(1)    This section applies only in respect of a claim for accidental death benefits.

Declaration by court as to sufficiency of proof

230.4(2)    If an insurer admits the validity of the accident and sickness insurance but does not admit the sufficiency of the evidence required by statutory condition 5(1) set out in Schedule C and there is no other question in issue except a question under section 230.5, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to the sufficiency of the evidence provided, and the court may make the declaration or may direct what further evidence is to be provided and on the provision of the evidence may make the declaration or, in special circumstances, may dispense with further evidence and make the declaration.

Declaration as to presumption of death

230.5(1)    If a claimant alleges that the person whose life is insured should be presumed to be dead by reason of the person not having been heard of for seven years, and there is no other question in issue except a question under section 230.4, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to presumption of the death, and the court may make the declaration.

Content of declaration

230.5(2)    A declaration of presumption of death made by the court under subsection (1) must contain particulars of the following information to the extent that those particulars have been established to the satisfaction of the court:

(a) the full name of the person presumed dead, including maiden or married name if applicable;

(b) the gender of the person presumed dead;

(c) the place where death is presumed to have occurred;

(d) the date on which death is presumed to have occurred;

(e) whether the presumed death was accidental.

Court order re payment of insurance money

230.6(1)    On making a declaration under section 230.4 or 230.5, the court may make any order respecting the payment of the insurance money and respecting costs that it considers just, and a declaration, direction or order made under this subsection is binding on the applicant and on all persons to whom notice of the application has been given.

Payment under order

230.6(2)    A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid.

Order stays pending action

230.7       Unless the court orders otherwise, an application made under section 230.4 or 230.5 operates as a stay of any pending action with respect to the insurance money.

Appeal

230.8       A declaration, direction or order made under section 230.4, 230.5 or 230.6 may be appealed to The Court of Appeal.

Order re further evidence

230.9       If the court finds that the evidence furnished under statutory condition 5 set out in Schedule C 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 any other order it considers just respecting further evidence to be furnished by the claimant, publication of advertisements, further inquiry or any other matter, or respecting costs.

Payment into court by insurer

230.10(1)   If an insurer admits liability for insurance money, or any part of it, and it appears to the insurer that

(a) there are adverse claimants;

(b) the whereabouts of a person entitled to the insurance money is unknown;

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

(d) there is no person entitled to the insurance money; or

(e) the person to whom the insurance money is payable would be disentitled on public policy or other grounds;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

230.10(2)   Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

230.10(3)   The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

230.10(4)   After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

230.10(5)   Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

Insurance money payable to minor

230.11(1)   If 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 for the insurance money who is willing to do so, the insurer may, at any time after 30 days after the date of the event on which the insurance money becomes payable, pay the money to the Public Trustee for the benefit of the minor and notify the Public Trustee of the name, date of birth and residential address of the minor.

Payment discharges insurer

230.11(2)   A payment made by an insurer under subsection (1) discharges the insurer to the extent of the amount paid.

Payment to representative

230.11(3)   Despite subsection (1), when it appears that a representative of a beneficiary who is a minor or is otherwise under a legal disability may accept payments on behalf of the beneficiary under the law of the jurisdiction in which the beneficiary resides, the insurer may make payment to the representative. The payment discharges the insurer to the extent of the amount paid.

Payments not exceeding $10,000

230.11(4)   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 $10,000 to

(a) a relative of a person insured or the group person insured; or

(b) a person appearing to the insurer to be equitably entitled to the insurance money 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 to such an expense;

and the payment discharges the insurer to the extent of the amount paid.

MISCELLANEOUS PROVISIONS

Insurer giving information

230.12      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 that affects the insurance money.

Undue prominence

230.13      An insurer must 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.

Relief from forfeiture

230.14      If 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 as a consequence the insurance is forfeited or avoided in whole or in part, and a court before which a question relating to the imperfect compliance 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 any terms it considers just.

Confinement condition

230.15(1)   If a contract issued after September 1, 1973, includes a provision for disability benefits to be payable only during confinement of the person insured, the provision does not bind the insured, and the benefits in respect of disability under the contract are payable regardless of whether the person insured is confined or not.

Permitted exceptions

230.15(2)   Despite subsection (1), a contract of accident and sickness insurance may provide for one or more of the following:

(a) early commencement of loss of income benefits based on the admission of the person insured into a hospital, long-term care facility or other similar institution;

(b) payment of loss of income benefits during the period of in-patient hospitalization of the person insured or the period during which the person insured is confined to a long-term care facility or other similar institution;

(c) payment of daily benefits during the period of in-patient hospitalization of the person insured or the period during which the person insured is confined to a long-term care facility or other similar institution;

(d) payment of lump sum benefits based on the admission of the person insured into a hospital or during the period of in-patient hospitalization or the admission into or period of confinement in a long-term care facility or other similar institution.

Presumption against agency

230.16      An officer, agent or employee of an insurer, or a person soliciting life insurance, whether or not that person is an agent of the insurer, must not, to the prejudice of any of the following persons, be considered to be the person's agent in respect of any question arising out of a contract:

(a) the insured;

(b) the person insured;

(c) the group person insured;

(d) the debtor insured.

Regulations

230.17      The Lieutenant Governor in Council may make regulations

(a) respecting the application of this Part to insurance described in clause 204(3)(e);

(b) prescribing information for the purpose of clause 206(8)(b);

(c) for the purpose of subsection 224(4), respecting the circumstances under which an insurer may not restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable;

(d) prescribing rights in respect of contracts for the purpose of subsection 228.1(2);

(e) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Part.

59          Section 268 is replaced with the following:

Payment into court by insurer

268(1)      If an insurer admits liability for insurance money payable under section 263, 264 or 265 and it appears to the insurer that

(a) there are adverse claimants;

(b) the whereabouts of a person entitled to the insurance money is unknown; or

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

268(2)      Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

268(3)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

268(4)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

268(5)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

60          Parts VIII and IX are repealed.

61          Sections 294 and 295 are repealed.

62          Section 300 is replaced with the following:

Definition

300         In this Part, "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.

63          Subsection 328(2) is amended by striking out "Part IV" and substituting "Schedule B".

64          Section 331 is replaced with the following:

Commencing business

331         An insurer must not issue a policy until it has received, and its directors have approved, applications for insurance

(a) to a value of at least $100,000, in the case of an insurer undertaking hail insurance; and

(b) to a value of at least $50,000, in the case of an insurer undertaking property insurance.

65          Section 335 is replaced with the following:

Minimum property insurance premium rates

335(1)      An insurer that undertakes property insurance

(a) must not charge a premium rate less than $0.40 per $100 of insurance for insuring a first-class isolated non-hazardous property; and

(b) must, in accordance with any increased risk, increase the premium rate charged for property insurance on other property.

Premium rates when reserve is at maximum

335(2)      Despite subsection (1), an insurer that maintains its reserve fund to the maximum permitted by this Act may charge such premium rates as the board of directors decide.

66          Section 355 is amended by striking out "accident insurance, sickness insurance," and substituting "accident and sickness insurance".

67           Section 359 is amended by striking out "in the Schedule" and substituting "set out in Schedule A".

68          Section 362 is replaced with the following:

Maximum single risk per subscriber for property insurance

362(1)      An exchange that is licensed to undertake property insurance must ensure that no subscriber has assumed, on any single property insurance risk, an amount greater than 10% of the subscriber's net worth.

Attorney's statement about subscriber risk

362(2)      The superintendent may require the attorney of an exchange that is licensed to undertake property insurance to file a statement under oath

(a) showing the maximum amount of indemnity on any single property insurance risk; and

(b) stating that no subscriber has assumed, on any single property insurance risk, an amount greater than 10% of the subscriber's net worth.

69          Clause 372(a) is amended by striking out "or life, accident, and sickness insurance, when issued by the same insurer" and substituting "or life insurance and accident and sickness insurance, when issued by the same insurer".

70          Subsections 375(1.7) and (1.8) are replaced with the following:

Interest payable on unpaid fines and costs

375(1.7)    If any portion of a fine or assessment of costs is not paid before the payment deadline fixed by the superintendent or by the appeal board under section 389.3, the unpaid portion bears interest from the payment deadline at a rate prescribed in the regulations. The interest is payable by the licence holder or former licence holder in the same manner as the fine or costs on which it is accruing.

Fines and costs receivable by superintendent

375(1.8)    The superintendent is authorized to receive payment of fines imposed and costs required to be paid under this section or section 389.3.

Failing to meet deadline to comply with an order of appeal board

375(1.9) If a licence holder fails to comply with an order of the appeal board under subsection 389.3(5) that requires the licence holder to pay a fine or costs, or to comply with another condition, by a deadline specified in the order, the licence

(a) is suspended immediately after the expiration of the deadline; and

(b) remains suspended until the earlier of

(i) the day on which the licence holder fully complies with the order, including paying any interest payable under subsection (1.7), and

(ii) the day on which the licence expires.

Suspension after extension of deadline to comply

375(1.10)   If under subsection 389.4(3) or (4) the appeal board extends the time for complying with its order, subsection (1.9) is to be read as referring to the extended deadline.

71          Section 380 is repealed.

72          The following is added before the centred heading "SPECIAL INSURANCE BROKER'S LICENCE FOR BUSINESS WITH UNLICENSED INSURERS" that precedes section 381:

Meaning of "incidental seller of insurance"

380.1(1)    In this section, "incidental seller of insurance" means a person that, in the course of selling or providing goods or services to the person's customers or clients, sells, negotiates or arranges insurance, or offers to sell, negotiate or arrange insurance, that relates to those goods or services.

Issuing restricted insurance agent licences

380.1(2)    Despite sections 370 to 372, the superintendent may, in accordance with the regulations, issue a restricted insurance agent licence to an incidental seller of insurance who

(a) meets the eligibility requirements of the regulations for such a licence;

(b) applies for the licence in the manner provided by the regulations; and

(c) pays the fee for the licence prescribed in the regulations.

Effect of licence

380.1(3)    Subject to the regulations, a restricted insurance agent licence authorizes the holder, through its employees in Manitoba, to act or offer to act as an agent in respect of the class or type of insurance specified in the licence.

Application of certain provisions

380.1(4)    For greater certainty, sections 375 to 378 and 390 to 396.2 apply in respect of restricted insurance agent licences and the holders of such licences in the same manner as to other agents and other insurance agent licences.

Regulations

380.1(5)    The Lieutenant Governor in Council may make regulations

(a) respecting restricted insurance agent licences, including

(i) specifying persons that are or are not eligible to apply for and hold such a licence,

(ii) specifying classes or types of insurance in respect of which such a licence may be issued,

(iii) defining types of insurance for the purpose of restricted insurance agent licences,

(iv) respecting the manner in which a person must apply for such a licence and the information that must be supplied with the application,

(v) respecting the expiration and renewal of such licences,

(vi) respecting conditions and restrictions that may be imposed on such a licence and conditions that a licence holder must comply with to hold the licence, and

(vii) respecting the suspension or cancellation of such licences;

(b) prescribing the fee to be paid for a restricted insurance agent licence, and prescribing different fees for different categories of applicants or licence holders;

(c) establishing different categories of applicants and licence holders for the purpose of clause (b);

(d) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this section.

73(1)       Subsection 381(1) is amended by striking out "life, accident, or sickness insurance" and substituting "life insurance and accident and sickness insurance".

73(2)       Clause 381(2)(a) is repealed.

74          Section 389 is replaced with the following:

Definitions

389         The following definitions apply in sections 389.0.1 to 389.5

"appeal board" means The Insurance Agents' and Adjusters' Licensing Appeal Board established under subsection 389.2(1). (« Commission d'appel »)

"co-ordinator of appeals" means the co-ordinator of appeals designated under section 389.1. (« coordonnateur des appels »)

75          The following is added after section 389:

Appeal from decision of superintendent

389.0.1(1)  When the superintendent does one or more of the following:

(a) refuses to grant a licence to an applicant to act as an agent, broker, adjuster or assistant adjuster;

(b) reprimands a licence holder or places conditions on the licence of an agent, broker, adjuster or assistant adjuster;

(c) suspends or cancels any of the licences mentioned in clause (a);

(d) imposes a fine on the holder or former licence holder of an insurance agent licence, insurance adjuster licence or assistant insurance adjuster licence;

(e) requires that the holder or former holder of any of the licences mentioned in clause (d) pay costs in relation to an investigation by the superintendent;

(f) issues a prohibition under subsection 91(2);

the person in respect of whom the decision of the superintendent is made may appeal the decision to the appeal board by filing a notice of appeal with the co-ordinator of appeals within 21 days after the superintendent provides the decision to the person.

Notice of appeal form to be given with superintendent's decision

389.0.1(2)  When the superintendent takes any of the actions described in subsection (1) in respect of a person, the superintendent must provide the person with a notice of appeal form at the same time at which the superintendent provides the decision to the person.

Contents of notice of appeal

389.0.1(3)  A notice of appeal under subsection (1) must

(a) be in writing and in the form approved by the superintendent;

(b) set out the particulars of the decision of the superintendent that is being appealed; and

(c) briefly state the reasons for the appeal.

How appeals are dealt with

389.0.1(4)  An appeal under subsection (1) is to be dealt with in accordance with sections 389.1 to 389.3.

Reinstatement of suspended or cancelled licence

389.0.1(5)  By filing an application with the co-ordinator of appeals in the form approved by the superintendent, a person who has appealed the suspension or cancellation of the person's licence may apply to the appeal board to reinstate the licence until the final disposition of the appeal.

How reinstatement applications are dealt with

389.0.1(6)  A reinstatement application under subsection (5) is to be dealt with in accordance with section 389.4.

Forms to be approved by superintendent

389.0.1(7)  The superintendent may approve the form of the

(a) notice of appeal;

(b) application for reinstatement of licence; and

(c) application to extend a deadline under subsection 389.4(1).

Late filing of notice of appeal

389.0.2(1) If the co-ordinator of appeals considers that an appellant's notice of appeal has been filed after the time limit set out in subsection 389.0.1(1), the co-ordinator must notify the appellant and the superintendent that the notice of appeal was filed late.

Extension of time limit by consent

389.0.2(2) If the superintendent consents to the late filing of the notice of appeal, the co-ordinator of appeals must accept it as though it had been filed in time.

Extension of time limit when superintendent does not consent

389.0.2(3) If the superintendent does not consent to the late filing of the notice of appeal, the co-ordinator of appeals may accept it as though it had been filed in time if the co-ordinator is satisfied

(a) that the person made a reasonable effort to file it before the end of the time limit; and

(b) that hardship or injustice will result if the notice of appeal is not accepted.

76(1)       Subsection 389.1(1) is replaced with the following:

Co-ordinator of appeals

389.1(1) The minister may designate an individual employed under The Civil Service Act as the co-ordinator of appeals for the purposes of this Part.

Delegation by co-ordinator of appeals

389.1(1.1) The co-ordinator of appeals may in writing delegate any of the co-ordinator's powers or duties for a fixed period of time to another individual employed under The Civil Service Act.

76(2)       Subsections 389.1(2) and (3) are repealed.

76(3)       Subsections 389.1(4) and (5) are replaced with the following:

Duties of co-ordinator of appeals

389.1(4) When the co-ordinator of appeals receives a notice of appeal under subsection 389.0.1(1) within the time limit set out in that subsection or receives an application for reinstatement under subsection 389.0.1(5), the co-ordinator must

(a) notify the chairperson of the appeal board and the superintendent about the appeal or application;

(b) in consultation with the chairperson of the appeal board, the appellant and the superintendent, determine the date and time for the hearing of the appeal or application;

(c) arrange for facilities for the hearing; and

(d) notify

(i) the members of the panel of the appeal board assigned to hear the appeal or application,

(ii) the superintendent, and

(iii) the appellant,

of the date, time and location of the hearing.

Application of subsection (4) — late filings

389.1(4.1)  Subsection (4) applies, with necessary changes, when a notice of appeal is accepted for late filing under subsection 389.0.2(2) or (3).

Method of notification to appellant

389.1(5) Notification to the appellant under subclause (4)(d)(iii) must be in writing and be sent to the appellant by personal delivery or by a delivery service that provides guaranteed delivery and evidence of receipt.

77(1)       Subsection 389.3(1) is amended by adding "and procedure in matters that come before it" at the end.

77(2)       Subsection 389.3(3) is amended

(a) in the part before clause (a), by striking out "A licensing appeal shall be" and substituting "An appeal under subsection 389.0.1(1) is"; and

(b) in clause (b) of the English version, by striking out "pertinent" and substituting "relevant".

77(3)       The following is added after subsection 389.3(3):

Who is a party to an appeal

389.3(3.1)  The parties to an appeal are the appellant and the superintendent.

77(4)       Subsection 389.3(6) is repealed.

78          The following is added after section 389.3:

Application to extend a deadline

389.4(1) By filing an application with the co-ordinator of appeals in the form approved by the superintendent, an appellant may apply to the appeal board for an extension of any deadline imposed by the appeal board, including a deadline to pay a fine or costs or a deadline to meet another condition imposed by the appeal board.

Expedited applications

389.4(2) Despite sections 389.1 and 389.2 and subsection 389.3(1), the appeal board may determine its own procedure in hearing an application under subsection (1) or subsection 389.0.1(5), including

(a) instructing the co-ordinator of appeals to arrange

(i) an oral hearing, including an oral hearing by telephone,

(ii) a hearing based on written submissions only, or

(iii) a hearing that is partly oral and partly based on written submissions; and

(b) having a panel of fewer than three members of the appeal board hear the application.

Extension of deadline by consent

389.4(3)    If the superintendent consents to extending the deadline and the appellant and superintendent agree on the extension date, the appeal board must extend the deadline to the date agreed upon.

Extension of deadline when superintendent does not consent

389.4(4) If the superintendent does not consent to extending the deadline or there is no agreement on the extension date, the appeal board may extend the deadline and fix a new date for compliance with the appeal board's order if it is satisfied that

(a) the person has made a reasonable effort to meet the deadline; and

(b) hardship or injustice will result if the deadline is not extended.

Reinstatement of licence by consent

389.4(5)    If the superintendent consents to the reinstatement of an appellant's licence in response to an application under subsection 389.0.1(5), the appeal board must reinstate the appellant's licence until the final disposition of the appeal subject to any conditions the superintendent imposes.

Imposing conditions on reinstatement of licence

389.4(6) In giving consent to the reinstatement of an appellant's licence, the superintendent may impose conditions on the consent, including conditions that the appeal board must attach to the licence.

Reinstatement of licence when superintendent does not consent

389.4(7) If the superintendent does not consent to the reinstatement of the appellant's licence, the appeal board may

(a) reinstate the licence until the final disposition of the appeal; or

(b) dismiss the application if, after consideration, the appeal board believes that it is not in the public interest to reinstate the licence.

Revoking the reinstatement of a licence

389.5(1) Upon the application of the superintendent, the appeal board may revoke the reinstatement of a licence granted under section 389.4 if the appeal board believes that revoking the reinstatement is in the public interest.

Procedure for revoking reinstatement

389.5(2) The procedure for revoking the reinstatement of a licence must be consistent with the procedure for reinstating a licence under section 389.4, and subsection 389.4(2) applies to an application under subsection (1).

79          Section 395 is repealed.

80          Subsection 396.1(1) is replaced with the following:

Definitions

396.1(1)    The following definitions apply in this section.

"agent" means a general insurance agent, a life insurance agent, an insurance adjuster or a person that holds a restricted insurance agent licence under section 380.1. (« agent »)

"insurance council" means an insurance council established under this section. (« conseil d'assurance »)

81          The following is added after clause 396.2(e):

(f) exempting, with or without conditions, certain classes of persons from the requirement to hold a licence under any section of this Part and establishing classes of persons for the purpose of an exemption under this clause;

(g) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Part.

82          The Schedule is amended by renumbering it as Schedule A.

83          Schedules B and C to this Act are added after Schedule A.

Consequential amendments, C.C.S.M. c. I50

84(1)       The Insurance Corporations Tax Act is amended by this section.

84(2)       Clause 2(a) is amended by striking out "accident insurance, life insurance and sickness insurance" and substituting "life insurance and of accident and sickness insurance".

84(3)       Clause 3(a) is amended by striking out "accident insurance, life insurance and sickness insurance" and substituting "life insurance and of accident and sickness insurance".

84(4)       Clause 6(2)(b) is amended by striking out "group accident insurance or group sickness insurance or".

Coming into force

85          This Act comes into force on a day to be fixed by proclamation.

SCHEDULE B

(Section 136.4)

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 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           The insurer is not liable for loss or damage to property owned by a person other than the insured unless

(a) otherwise specifically stated in the contract, or

(b) the interest of the insured in that property 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 and Insolvency Act (Canada) or a change of title by succession, by operation of law or by death.

Material change in risk

4(1)        The insured must promptly give notice in writing to the insurer or its agent of a change that is

(a) material to the risk, and

(b) within the control and knowledge of the insured.

4(2)        If an insurer or its agent is not promptly notified of a change under subparagraph (1) of this condition, the contract is void as to the part affected by the change.

4(3)        If an insurer or its agent is notified of a change under subparagraph (1) of this condition, the insurer may

(a) terminate the contract in accordance with Statutory Condition 5, or

(b) notify the insured in writing that, if the insured desires the contract to continue in force, the insured must, within 15 days after receipt of the notice, pay to the insurer an additional premium specified in the notice.

4(4)        If the insured fails to pay an additional premium when required to do so under subparagraph (3)(b) of this condition, the contract is terminated at that time, and Statutory Condition 5(2)(a) applies in respect of the unearned portion of the premium.

Termination of contract

5(1)        The contract may be terminated,

(a) by the insurer giving to the insured 15 days' notice of termination by registered mail or 5 days' written notice of termination personally delivered, or

(b) by the insured at any time on request.

5(2)        If the contract is terminated by the insurer,

(a) the insurer must refund the excess of premium actually paid by the insured over the prorated premium for the expired time, but in no event may the prorated premium for the expired time be less than any minimum retained premium specified in the contract, and

(b) the refund must accompany the notice unless the premium is subject to adjustment or determination as to amount, in which case the refund must be made as soon as practicable.

5(3)        If the contract is terminated by the insured, the insurer must refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time specified in the contract, but in no event may the short rate premium for the expired time be less than any minimum retained premium specified in the contract.

5(4)        The 15-day period referred to in subparagraph (1)(a) of this condition starts to run on the day the registered letter or notification of it is delivered to the insured's postal address.

Requirements after loss

6(1)        On the happening of any loss or damage to insured property, the insured must, if the loss or damage is covered by the contract, in addition to observing the requirements of Statutory Condition 9,

(a) immediately give notice in writing to the insurer,

(b) deliver as soon as practicable to the insurer a proof of loss in respect of the loss or damage to the insured property verified by statutory declaration

(i) giving a complete inventory of that property and showing in detail quantities and costs of that property and particulars of the 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) stating the amount of other insurances and the names of other insurers,

(v) stating the interest of the insured and of all others in that property with particulars of all liens, encumbrances and other charges on that property,

(vi) stating any changes in title, use, occupation, location, possession or exposure of the property since the contract was issued, and

(vii) stating the place where the insured property was at the time of loss,

(c) if required by the insurer, give a complete inventory of undamaged property showing in detail quantities and cost of that property, and

(d) if required by the insurer and if practicable,

(i) produce books of account and inventory lists,

(ii) furnish invoices and other vouchers verified by statutory declaration, and

(iii) furnish a copy of the written portion of any other relevant contract.

6(2)        The evidence given, produced or furnished under subparagraph (1)(c) and (d) of this condition must not be considered proofs of loss within the meaning of Statutory Conditions 12 and 13.

Fraud

7           Any fraud or wilfully false statement in a statutory declaration in relation to the particulars required under Statutory Condition 6 invalidates the claim of the person who made the declaration.

Who may give notice and proof

8           Notice of loss under Statutory Condition 6(1)(a) may be given and the proof of loss under of Statutory Condition 6(1)(b) may be made

(a) by the agent of the insured if

(i) the insured is absent or unable to give the notice or make the proof, and

(ii) the absence or inability is satisfactorily accounted for, or

(b) by a person to whom any part of the insurance money is payable, if the insured refuses to do so, or in the circumstances described in clause (a) of this condition.

Salvage

9(1)        In the event of loss or damage to insured property, the insured must take all reasonable steps to prevent further loss or damage to that property and to prevent loss or damage to other property insured under the contract, including, if necessary, removing the property to prevent loss or damage or further loss or damage to the property.

9(2)        The insurer must contribute on a prorated basis towards any reasonable and proper expenses in connection with steps taken by the insured under subparagraph (1) of this condition.

Entry, control, abandonment

10          After loss or damage to insured property, the insurer has

(a) an immediate right of access and entry by accredited representatives sufficient to enable them to survey and examine the property, and to make an estimate of the loss or damage, and

(b) after the insured has secured the property, a further right of access and entry by accredited representatives sufficient to enable them to appraise or estimate the loss or damage, but

(i) without the insured's consent, the insurer is not entitled to the control or possession of the insured property, and

(ii) without the insurer's consent, there can be no abandonment to it of the insured property.

In case of disagreement

11(1)       In the event of disagreement as to the value of the insured property, the value of the property saved, the nature and extent of the repairs or replacements required or, if made, their adequacy, or the amount of the loss or damage, those questions must be determined using the applicable dispute resolution process set out in the Insurance Act whether or not the insured's right to recover under the contract is disputed, and independently of all other questions.

11(2)       There is no right to a dispute resolution process under this condition until

(a) a specific demand is made for it in writing, and

(b) the proof of loss has been delivered to the insurer.

When loss payable

12          Unless the contract provides for a shorter period, the loss is payable within 60 days after the proof of loss is completed in accordance with Statutory Condition 6 and delivered to the insurer.

Replacement

13(1)       Unless a dispute resolution process has been initiated, the insurer, instead of making payment, may repair, rebuild or replace the insured property lost or damaged, on giving written notice of its intention to do so within 30 days after receiving the proof of loss.

13(2)       If the insurer gives notice under subparagraph (1) of this condition, the insurer must begin to repair, rebuild or replace the property within 45 days after receiving the proof of loss and must proceed with all due diligence to complete the work within a reasonable time.

Notice

14(1)       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.

14(2)       Written notice to the insured may be personally delivered at, or sent by registered mail addressed to the insured's last known address as provided to the insurer by the insured.

SCHEDULE C

(Section 211)

STATUTORY CONDITIONS

The contract

1           The application, this policy, any document attached to this policy when issued, and any amendment to the contract agreed on in writing after this policy is issued constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.

Material facts

2           No statement made by the insured or a person insured at the time of application for the contract may be used in defence of a claim under or to avoid the 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 this policy is issued the person insured engages for compensation in an occupation that is classified by the insurer as more hazardous than that stated in the contract, the liability under the 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.

3(2)        If the person insured changes occupation from that stated in the contract to an occupation classified by the insurer as less hazardous and the insurer is so advised in writing, the insurer must either

(a) reduce the premium rate, or

(b) issue a policy for the unexpired term of the 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 must refund to the insured the amount by which the unearned premium on the contract exceeds the premium at the lower rate for the unexpired term.

Termination of insurance

4(1)        The contract may be terminated

(a) by the insurer giving to the insured 15 days' notice of termination by registered mail or 5 days' written notice of termination personally delivered, or

(b) by the insured at any time on request.

4(2)        If the contract is terminated by the insurer,

(a) the insurer must refund the excess of premium actually paid by the insured over the prorated premium for the expired time, but in no event may the prorated premium for the expired time be less than any minimum retained premium specified in the contract, and

(b) the refund must accompany the notice.

4(3)        If the contract is terminated by the insured, the insurer must refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium calculated to the date of receipt of the notice according to the table in use by the insurer at the time of termination.

4(4)        The 15-day period referred to in subparagraph (1)(a) of this condition starts to run on the day the registered letter or notification of it is delivered to the insured's postal address.

Notice and proof of claim

5(1)        The insured or a person insured, or a beneficiary entitled to make a claim, or the agent of any of them, must

(a) give written notice of claim to the insurer

(i) by delivery of the notice, or by sending it by registered mail, to the head office or chief agency of the insurer in the province, or

(ii) by delivery of the notice to an authorized agent of the insurer in the province,

not later than 30 days after the date a claim arises under the contract on account of an accident, sickness or disability,

(b) within 90 days after 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

(i) the happening of the accident or the start of the sickness or disability,

(ii) the loss caused by the accident, sickness or disability,

(iii) the right of the claimant to receive payment,

(iv) the claimant's age, and

(v) if relevant, the beneficiary's age, 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 is made under the contract and, in the case of sickness or disability, its duration.

5(2)        Failure to give notice of claim or furnish proof of claim within the time required by this condition does not invalidate the claim if

(a) the notice or proof is given or furnished as soon as reasonably possible, and in no event later than one year after the date of the accident or the date a claim arises under the contract on account of sickness or disability, and it is shown that it was not reasonably possible to give the notice or furnish the proof in the time required by this condition, or

(b) in the case of the death of the person insured, if a declaration of presumption of death is necessary, the notice or proof is given or furnished no later than one year after the date a court makes the declaration.

Insurer to furnish forms for proof of claim

6           The insurer must furnish forms for proof of claim within 15 days after receiving notice of claim, but if 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

7           As a condition precedent to recovery of insurance money under the contract,

(a) the claimant must give the insurer an opportunity to examine the person of the person insured when and as often as it reasonably requires while a claim 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 moneys payable other than for loss of time

8           All money payable under the contract, other than benefits for loss of time, must be paid by the insurer within 60 days after it has received proof of claim.

When loss of time benefits payable

9           The initial benefits for loss of time must be paid by the insurer within 30 days after it has received proof of claim, and payment must be made after that date in accordance with the terms of the contract but not less frequently than once in each succeeding 60 days while the insurer remains liable for the payments if the person insured, when required to do so, furnishes proof of continuing sickness or disability before payment.

Explanatory Note

This Bill makes significant amendments to The Insurance Act and modernizes the wording of approximately one-third of the Act's provisions.

Some of the significant amendments are:

  • Many of the Act's provisions, including virtually all of Parts V and VI (life insurance and accident and sickness insurance), are harmonized with the Insurance Act of Alberta.
  • Part IV (fire insurance) is consolidated with Part III (insurance contracts generally) and harmonized statutory conditions are made applicable to most property and casualty insurance contracts. Parts VIII (livestock insurance) and IX (weather insurance) are repealed. The risks governed by these parts will be governed by the consolidated Part III.
  • Consumer protection enhancements include
    • better access for claimants to documents and information about life insurance and accident and sickness insurance contracts;
    • enhancements to dispute resolution;
    • protection for innocent persons from loss of coverage for intentional acts of co-insureds and other persons;
    • requiring the approval of the Superintendent of Insurance for fire exclusions;
    • authority to licence incidental sellers of insurance.
  • As in other provinces, insurers, brokers and agents will be permitted to offer reasonable customer inducements, such as loyalty reward programs.
  • A broker or agent is no longer prohibited from charging a fee on a commercial insurance transaction in connection with which a commission is also earned.
  • To promote greater risk-based self-evaluation, insurers who conduct their own compliance audits have a limited privilege in relation to the audit documentation.
  • Amendments are made to facilitate and regulate electronic transactions under the Act.
  • Regulations may be made about how insurers may use information about the credit status of policy holders and applicants for property insurance relating to a residence.
  • The procedure for appeals to The Insurance Agents' and Adjusters' Licensing Appeal Board is modified and additional guidance is provided for how the appeal board deals with issues that may arise in connection with an appeal.

The Bill also contains a consequential amendment to The Insurance Corporations Tax Act relating to the name of the class of accident and sickness insurance.