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The Insurance Act
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This version is current as of November 12, 2019.
It has been in effect since October 1, 2019.

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C.C.S.M. c. I40

The Insurance Act

File 1: s. 1 to 325 (Parts 1 to 11)
File 2: s. 326 to 412 (Parts 12 to 17)

PART XII

326 and 327 [Repealed]

S.M. 2007, c. 10, s. 21.

PART XIII

MUTUAL INSURANCE COMPANIES

Application of Part

328(1)      This Part applies to every mutual insurance company licensed under this Act, in this Part called "an insurer".

Provisions of this Part to prevail

328(2)      Wherever the statutory conditions set out in Schedule B are in conflict with this Part, this Part prevails with respect to mutual insurance companies.

S.M. 2012, c. 29, s. 63.

Limitation on mutual insurance company business

329         A mutual insurance company licensed under this Act shall not undertake or enter or issue contracts of life insurance or of accident and sickness insurance.

CONTRACTS

Duration of policies

330         An insurer may issue policies of insurance for any term not exceeding three years.

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.

S.M. 2012, c. 29, s. 64.

Policies and applications

332         The form, terms and conditions of the applications and policies of insurance of the insurer shall be determined by the board of directors in conformity with this Act; and any policy may be renewed at the discretion of the directors by a renewal receipt instead of a new policy, on the insured paying the required premium or giving his premium note therefor.

RATES OF INSURANCE

Rates and amount

333(1)      The board of directors may, subject to this Act, adopt a tariff of rates for insurance premiums or premium notes, as the case may be, and vary it from time to time, and determine the sum to be insured on any property.

Rates of hail insurance in special areas

333(2)      Where it is established to the satisfaction of the board of directors that crops upon the land mentioned and set out in any application for hail insurance have been injured or destroyed by hail in one or more seasons during the 10 years next preceding the application, the directors may establish and charge special rates for that class of risks and accept premium notes accordingly.

Reinsurance

334         The board may make arrangements with any insurer, whether licensed under this Part or not, for the reinsurance of a risk or any portion thereof, and may accept reinsurance of a risk, or any portion thereof, from any insurer on such conditions with respect to the rate and payment of premiums thereon as is agreed between them.

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.

S.M. 2012, c. 29, s. 65.

CANCELLATION AND TRANSFER OF CONTRACTS

Liability of insured on cancellation

336         Where a policy is cancelled or avoided by an insurer, the liability of the insured on his premium note ceases from the date of the cancellation or avoidance on account of any loss that occurs to the insurer thereafter; but the insured is, nevertheless, liable to pay his proportion of the losses and expenses of the insurer to the time of cancelling or avoiding the policy, and, on payment of his proportion of all assessments then payable and to become payable in respect of losses and expenses sustained up to that time, is entitled to a return of his premium note, and to such portion of the premium paid by him as has not been absorbed by the losses and expenses of the insurer up to that period, and a condition to that effect shall be endorsed on the policy.

Assignment of policy

337(1)      Where the insured property or any interest therein is alienated or partly alienated and the assignee has the policy transferred to him, the insurer, upon application, and upon the assignee giving a new premium note or other proper security to its satisfaction for such portion of the deposit or premium note as remains unpaid, and, within 30 days next after the alienation, may accept the assignment; thereupon the assignee is entitled to all the rights and privileges, and is subject to all the liabilities and conditions, to which the original party insured was entitled and subject.

Assignment as collateral security

337(2)      Where the assignee is a mortgagee, the insurer may permit the policy to remain in force, and to be transferred to him by way of additional security, without requiring any premium note from the assignee, or without his becoming in any manner personally liable for premiums or otherwise; but in that case the premium note and liability of the mortgagor in respect thereof continues and is not affected by the assignment.

PREMIUM NOTES AND ASSESSMENTS

Premium rates

338         The insurer may accept premium notes for insurance and may issue policies thereon; and the notes shall be assessed for the losses and expenses of the insurer in manner hereinafter provided.

No lien on land

339         No premium note, whether purporting to do so or not, creates any lien upon the lands on which the insured property is situated.

Premium part cash

340(1)      The directors may demand and collect a portion of the premium in cash, and take a premium note for the remainder thereof; and if the amount so collected is more than sufficient to pay all losses and expenses during the continuance of the policy, then any surplus becomes part of the reserve fund.

Surplus of assessments

340(2)      The directors may make assessments upon premium notes before losses have happened or expenses been incurred; and any surplus from any such assessment becomes part of the reserve fund.

Assessments

341(1)      All assessments on premium notes shall be made by the board of directors and, subject to section 342, the assessments shall be made at such intervals and for such amounts as the directors determine to be necessary to meet losses, expenses, and reserve of the insured during the currency of the policies for which the notes were given; and every insured shall pay the assessments from time to time payable by him to the insurer during the continuance of his policy.

Notice of assessment

341(2)       Notice of the assessment shall be mailed by the insurer to each member, directed to his post office address as given in his application, or in writing to the insurer, and to each encumbrancer of the property insured known to the insurer, and the assessment is payable within 30 days after the date of payment specified in the notice.

Requirements of notice

341(3)      A notice of assessment shall be deemed sufficient if it embodies the number of the policy, the period over which the assessment extends, the amount of the assessment, and the time when, and the place where, payable.

Assessments in hail companies

342         In the case of insurance against loss or damage to crops by hail,

(a) the directors shall make the assessment in each year after the expiry of the crop season;

(b) in making the assessment, the directors may make such addition thereto, not to exceed 20% of the amount estimated to be necessary to pay the losses and expenses, as will enable them to allow a discount for prompt payment, and may compute the assessment on such basis as, in their opinion, will result in sufficient payment to meet the requirements of the insurer after allowing the discount; and the directors may pass a by-law allowing such a discount;

(c) the aggregate amount of the assessment shall be such amount as the directors estimate to be necessary to pay all losses incurred during the crop season, all expenses of the insurer for the whole of the year and such amount as the directors decide to add to the reserve fund;

(d) all premium notes applicable to the crop season of the year for which the assessment is made are liable for the proportionate part of the aggregate assessment, irrespective of the fact that the policy of insurance issued in consideration of any such premium note is in force only during a portion of the crop season.

Non-payment of assessment voids policy

343(1)      Where the assessment, in respect of a policy, is not paid within 30 days of the date of payment specified in the notice, the policy is void as to any claim for losses occurring during the time of the non-payment; but the policy becomes revived when the assessment is paid, unless the secretary gives notice to the contrary to the party assessed.

Liability continues

343(2)      Nothing in this section relieves the insured from his liability to pay the assessment or any subsequent assessments, nor is he entitled to recover the amount of any loss or damage that happens to property insured under the policy while the assessment remains due and unpaid.

Assessments to be proportionate

344         The assessment shall always be in proportion to the amount of the premium notes held by the insurer having regard to the branch or department to which the policies respectively appertain; but where an insurer alters its rate and still holds, in respect of subsisting contracts, premium notes at the prior rate, the insurer, as between the respective premium notes so differing in rate, may make and levy such differential assessments as will, in risks of the same amount and of the same class of hazard, equalize the cost of insurance to the makers of the respective premium notes.

Suit for assessment

345         Where a member or person who has given a premium note neglects or refuses to pay the assessment within 30 days of the date of payment specified in the notice, the insurer may sue for and recover the assessment with costs of suit, and the proceedings are not a waiver of any forfeiture incurred by the non-payment.

Certificate of insurer evidence

346         The certificate of the insurer, specifying an assessment and the amount due to the insurer on a premium note by reason thereof, shall be taken and received as evidence thereof in any court in the province.

Surrender of note

347         Forty days after the expiration of the term of insurance, the premium note given for the insurance shall, on application therefor, be given up to the signer thereof, if all losses and expenses, with which the note is chargeable, have been paid.

LOSSES UNDER CONTRACTS

Retention of amount of note

348         Where there is a loss on property insured by the insurer, the directors may retain the amount of the premium note given for insurance thereof, until the time has expired for which insurance has been made; and at the expiration of that time the insured has the right to demand and receive the retained amount or such part thereof as remains after deducting assessments on the note.

Execution against insurer

349         No executions shall issue against the insurer upon any judgment until after the expiration of three months from the recovery thereof.

Setting off debts against hail losses

350         Where a member, with respect to a contract of hail insurance, is indebted to an insurer, and a loss has occurred under the contract, no credit out of any moneys payable by reason of the loss may be applied on the indebtedness until the directors have ascertained what percentage of its total losses the insurer will be able to pay, and in no case shall the credit exceed that percentage of the moneys so payable.

Deduction

351         The insurer shall not deduct the amount of any indebtedness of a member from the amount of the loss sustained under a contract of hail insurance until the directors have ascertained the percentage; and in that case the deduction shall be made from the amount of the percentage of the loss.

RESERVE AND GUARANTEE FUND

Creation of reserve fund

352(1)      An insurer, other than one undertaking hail insurance, shall form a reserve fund to consist of all money that remains on hand at the end of each year after payment of the expenses and losses; and for that purpose the board of directors shall levy an annual assessment, not exceeding 25%, and not less than 5% on the premium notes held by the insurer until the reserve fund reaches an amount that makes the total assets of the insurer equal to or exceed 115% of the total liabilities of insurer and the reserve fund shall be maintained at that level, and for that purpose the insurer shall thereafter levy annually an adequate assessment.

Application against losses

352(2)      The reserve fund may, from time to time, be applied by the directors to pay off such liabilities of the insurer as are not provided for out of the ordinary receipts for the same or any succeeding year.

Property in reserve fund

352(3)      The reserve fund is the property of the insurer as a whole, and no member has a right to claim any share or interest therein in respect of any payment contributed by him towards it; nor shall the fund be applied or dealt with by the insurer or the directors other than in paying its creditors, except on the order of the Lieutenant Governor in Council.

Reserve fund of hail companies

353         Where an insurer undertakes hail insurance,

(a) the insurer shall form a reserve fund, to consist of all moneys that remain on hand at the end of each year after payment of its expenses and losses; and for that purpose the board of directors shall levy an annual assessment, not less than 20% and not exceeding 50% on the premium notes held by the insurer; and the reserve fund may from time to time be applied by the directors to pay off such liabilities of the insurer as are not provided for out of the ordinary receipts for the same or any succeeding year; and

(b) to (d) [repealed] S.M. 2000, c. 40, s. 16;

(e) the reserve fund shall be the property of the insurer, and no member shall have any right to claim a share or any interest therein in respect of any payment contributed by him; nor shall the reserve fund be applied by the insurer or its directors in any manner other than in paying its creditors, except on the order of the Lieutenant Governor in Council.

S.M. 2000, c. 40, s. 16.

PART XIV

RECIPROCAL AND INTER-INSURANCE EXCHANGES

Definitions

354         In this Part,

"attorney" means a person authorized to act for subscribers; (« fondé de pouvoir »)

"subscribers" means persons exchanging with each other reciprocal contracts of indemnity or inter-insurance. (« souscripteurs »)

Authority for exchange of reciprocal contracts of insurance

355         Any person may exchange with other persons in the province and elsewhere reciprocal contracts of indemnity or inter-insurance for any class of insurance for which an insurance company may be licensed under this Act, except life insurance, accident and sickness insurance, and guarantee insurance.

S.M. 2012, c. 29, s. 66.

Subscribers not insurers

356         No person is an insurer within the meaning of this Act by reason of exchanging with other persons reciprocal contracts of indemnity or inter-insurance.

Execution of contract

357(1)      Reciprocal contracts of indemnity or inter-insurance may be executed on behalf of subscribers by any other person acting as attorney under a power of attorney, a copy of which has been duly filed as hereinafter provided.

Who may maintain action

357(2)      Notwithstanding any condition or stipulation of any such power of attorney or of any such contract of indemnity or inter-insurance, any action or proceeding in respect of any such contract may be maintained in any court of competent jurisdiction in the province.

Declaration by members of exchange

358         The persons constituting the exchange shall, through their attorney, file with the superintendent a declaration, verified by oath, setting forth

(a) the name of the attorney and the name or designation under which the contracts are issued, which name or designation shall not be so similar to any other name or designation previously adopted by an exchange or by a licensed insurer as, in the opinion of the superintendent, to be likely to result in confusion or deception;

(b) the classes of insurance to be effected or exchanged under the contracts;

(c) a copy of the form of the contract, agreement, or policy under or by which the reciprocal contracts of indemnity or inter-insurance are to be effected or exchanged;

(d) a copy of the form of power of attorney under which the contracts are to be effected or exchanged;

(e) the location of the office from which the contracts are to be issued;

(f) a financial statement in the form prescribed by the superintendent;

(g) evidence satisfactory to the superintendent that it is the practice of the exchange to require its subscribers to maintain in the hands of the attorney, as a condition of membership in the exchange, a premium deposit reasonably sufficient for the risk assumed by the exchange;

(h) evidence satisfactory to the superintendent that the management of the affairs of the exchange is subject to the supervision of an advisory board or committee of the subscribers in accordance with the terms of the power of attorney.

Licence

359         Upon an exchange paying the prescribed fee and otherwise complying with this Part, the superintendent may issue a licence in accordance with the form set out in Schedule A.

S.M. 2012, c. 29, s. 67.

Evidence before issue of licence for

360         A licence shall not be issued to an exchange to effect or exchange contracts of indemnity or inter-insurance,

(a) against loss by fire, until evidence satisfactory to the superintendent has been filed with him that applications have been made for indemnity upon at least 75 separate risks in the province or elsewhere, aggregating not less than $1,500,000., as represented by executed contracts or bona fide applications to become concurrently effective;

(b) in respect of automobiles, until evidence satisfactory to the superintendent has been filed with him that applications have been made for indemnity upon at least 500 automobiles, as represented by executed contracts or bona fide applications, to become concurrently effective, and that arrangements satisfactory to the superintendent are in effect for the reinsurance of all liabilities in excess of such limits as the superintendent may prescribe.

Service of process

361         Where the office from which the contracts are to be issued is not in the province, service upon the superintendent of notice or process in any action or proceeding in the province in respect of contract of indemnity or inter-insurance effected by the exchange shall be deemed service upon the subscribers who are members of the exchange at the time of the service.

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.

S.M. 2012, c. 29, s. 68.

Exchange must maintain a reserve fund

363(1)      A reciprocal insurance exchange shall maintain with its attorney a reserve fund in cash or approved securities. The amount of the reserve fund must be at least the amount prescribed in the regulations.

Exchange must maintain a guarantee fund

363(2)      A reciprocal insurance exchange shall maintain with its attorney a guarantee fund in cash or approved securities. The amount of the guarantee fund must be at least the amount prescribed in the regulations.

Funds must have separate assets

363(2.1)    Cash and securities maintained by a reciprocal insurance exchange in its reserve fund shall not be included in its guarantee fund.

363(3) and (4) [Repealed] S.M. 2007, c. 10, s. 22.

Deficiency

363(5)      Where at any time the amounts on hand are less than the foregoing requirements, the subscribers or the attorney shall forthwith make up the deficiency.

Use of funds supplied to make up deficiency

363(6)      Where funds other than those which accrued from premiums or deposits of subscribers are supplied to make up a deficiency as herein provided for, those funds shall be deposited and held for the benefit of subscribers, under such terms and conditions as the superintendent requires so long as a deficiency exists and may thereafter be returned to the depositor.

"Approved securities"

363(7)      In this section "approved securities" means securities the investment in which is authorized by section 364.

S.M. 2007, c. 10, s. 22.

Investment of surplus and reserve

364(1)      Where the principal office of the exchange is in the province, the surplus insurance funds and the reserve fund of the exchange shall be invested in the class of securities authorized by this Act, for the investment of the reserve funds of an insurer.

Proof of investment in case of other companies

364(2)      Where the principal office of the exchange is outside the province, it shall be a condition precedent to the issue of a licence under this Act that evidence satisfactory to the superintendent be filed with him showing that the class of security in which funds of the exchange are required by law to be invested, and are in fact invested, is within the limits of investment prescribed for the investment of the reserve funds of an insurance corporation by the jurisdiction in which the office of the exchange is situated.

Contracts for subscribers only

365(1)      No exchange shall undertake any liability on a contract of indemnity, inter-insurance or insurance except on behalf of a subscriber.

Reinsurance

365(2)      No attorney or exchange shall effect reinsurance of any risks undertaken by the exchange in any other reciprocal or inter-insurance exchange.

Attorney not to act until licence granted

366(1)      No person shall act as attorney, or for or on behalf of any attorney, in the exchange of reciprocal contracts of indemnity or inter-insurance, or in acts or transactions in connection therewith, unless and until a licence has been issued and unless the licence is in force.

Penalty

366(2)      Any person who, in contravention of subsection (1) undertakes or effects or agrees or offers to undertake or effect any exchange of reciprocal contracts of indemnity or inter-insurance or any act or transaction in connection therewith is guilty of an offence.

S.M. 2007, c. 10, s. 23.

Suspension or cancellation of licence

367(1)      Where a licensed exchange or attorney fails or refuses to comply with, or contravenes, any provision of this Act, the licence of the exchange may be suspended or cancelled by the minister on the report of the superintendent, after due notice and opportunity for a hearing before the superintendent has been given to the exchange or its attorney; but the suspension or cancellation does not affect the validity of any reciprocal contracts of indemnity or inter-insurance effected prior thereto or the rights and obligations of subscribers under such contracts.

Publication of notice

367(2)      Promptly after the licence of an exchange is suspended or cancelled, the superintendent shall publish a notice of suspension or cancellation in The Manitoba Gazette for a period of at least two weeks.

S.M. 2007, c. 10, s. 24; S.M. 2018, c. 28, s. 15.

Fire insurance in unlicensed exchange may be effected out of Manitoba

368         Notwithstanding anything in this Act, any person may insure against fire any property situated in the province in any exchange not licensed under this Act; and any property so insured or to be insured may be inspected, and any loss incurred in respect thereof adjusted, if the insurance is effected outside of the province and without any solicitation in the province directly or indirectly on the part of the attorney.

Regulations

368.1       The Lieutenant Governor in Council may make regulations

(a) prescribing the minimum amount of reserve funds and guarantee funds for the purposes of section 363;

(b) respecting reserve funds and guarantee funds, including, but not limited to, the assets such funds may include, the valuation of the assets included in a fund and liquidity requirements.

S.M. 2007, c. 10, s. 25.

PART XV

AGENTS, BROKERS AND ADJUSTERS

INSURANCE AGENTS

Not to act without licence

369(1)      No person shall act, or offer or undertake to act, as an insurance agent in this province without having first obtained a licence under this Act.

Selling annuity contracts

369(2)      No person shall solicit an annuity or endowment contract on behalf of an insurer licensed under this Act, transmit for a person other than himself an application for, or an annuity or endowment contract to or from an insurer, or offer or act or assume to act in the negotiation of such a contract, without having first obtained a licence of the class mentioned in clause 372(a).

Application for

370(1)      Every applicant for a licence shall deliver to the superintendent an application in the form, and verified in the manner, required by the superintendent, setting out the applicant's name, his address and occupation, and the name or names of insurers to be represented, the amount and value of insurance written by him during the next preceding year, the proposed area of his operations, and such other information as is required by the superintendent.

Approved of

370(2)      Subject to subsection (2.1), the application shall be approved in writing by at least one of the insurers to be represented, certifying to the good business reputation of the applicant and his qualifications for, and knowledge of, the business of insurance, and recommending the granting to him of a licence.

Exception re approval

370(2.1)    The Lieutenant Governor in Council may by regulation

(a) exempt

(i) certain classes of applicants for insurance agent licences, or

(ii) applicants for certain kinds of insurance agent licence,

from the operation of subsection (2);

(b) make an exemption under clause (a) subject to conditions;

(c) make

(i) certain classes of applicants for insurance agent licences, or

(ii) applicants for certain kinds of insurance agent licence,

subject to other approval requirements.

Who may approve

370(3)      Except as provided in the regulations, the approval required under subsection (2) may be given by one of the following persons:

(a) an authorized person employed in the head or branch office of the insurer;

(b) the insurer's manager, branch manager or general agent in Manitoba;

(c) the insurer's chief agent in Canada.

Duty of care of person or insurer giving approval

370(3.1)    No person or insurer who for the purposes of subsection (2) is authorized under this Act to approve a licence application shall recommend the applicant for an insurance agent licence unless the person or the insurer has implemented reasonable screening procedures to determine if the applicant is a suitable person to receive the licence.

Proof of liability insurance required on application

370(4)      Every application made under subsection (1) for an insurance agent licence shall be accompanied by proof satisfactory to the superintendent of the existence of the liability insurance policy required under subsection 371(1.1).

S.M. 2000, c. 40, s. 17.

Issue of licence

371(1)      Upon receipt of an application for a licence accompanied by proof of the existence of a liability insurance policy as required under subsection (1.1) and upon payment of the prescribed fee, which shall be determined having regard to the proposed area of the operations of the applicant, the superintendent shall, if he is satisfied that the applicant is a suitable person to receive a licence and intends to hold himself out publicly and carry on business in good faith as an insurance agent, issue to the applicant a licence authorizing the holder, during the term of the licence, to carry on within the province the business of insurance of the class stipulated in his licence.

Liability insurance required

371(1.1)    Every insurance agent licence issued under this Act and every renewal of such a licence is conditional upon the existence of and continual maintenance by the agent of a liability insurance policy issued by an insurer licensed under this Act insuring the liability of the agent for the loss of any person as a result of the person's dealings with the agent, in the form, upon the terms and for not less than the amount prescribed in the regulations.

Refusal of licence

371(2)      Where, for any reason, the superintendent is of the opinion that an applicant is not a suitable person to receive a licence, he may refuse him a licence.

Restriction on issue of licences

371(3)      The superintendent shall not issue a licence

(a) to a corporation whose head office is outside Canada;

(b) to a corporation if it appears to the superintendent that the application is made for the purpose of allowing the applicant to act as agent or broker wholly or chiefly in the insurance of property owned by the corporation, or by its shareholders, members or employees, or by its subsidiaries, parent corporations or associated corporations, or by any one or more of them;

(c) to a person if it appears to the superintendent that the application is made to permit the applicant to act as agent or broker wholly or chiefly in the insurance of property owned by one person, estate or family, or by one corporation or firm or its shareholders, members or employees or its subsidiaries, parent corporations or associated corporations or any one or more of them; or

(d) to a person, corporation or partnership, where the person, corporation or partnership has not paid in full a fine imposed on, or costs required to be paid by, the person, corporation or partnership, including any interest payable in relation to the fine or costs,

(i) by virtue of a decision of the superintendent under section 375, if the deadline for payment has passed and

(A) the deadline has not been extended, and

(B) the decision is not under appeal, or

(ii) by virtue of a decision of The Insurance Agents' and Adjusters' Licensing Board, if the deadline for payment has passed and has not been extended.

Certificate of authority of corporation, etc., and naming of operating agent

371(4)      Subject to section 380, where a licence is issued to

(a) a corporation; or

(b) a partnership; or

(c) a person who carries on business under, or uses as a business style, a name other than his own or who in business, uses his own name with the addition of the words "and company";

the licence, either on the face thereof, or by endorsement thereon, shall name as the operating agent under the licence an individual person, who must be a director, officer, or employee, of the corporation, a member of the partnership, or the person mentioned in clause (c), as the case may be.

Restriction thereon

371(5)      No person shall act as an agent under a licence to which subsection (4) applies other than the person named therein as the operating agent.

Substitution of "licence" etc., for "certificate of authority"

371(6)      In any certificate of authority or other document issued under this Act, or under any former Act for which this Act has been substituted or of which this Act is a revision or a consolidation, or in any order in council or regulation made under this Act or any such former Act, the word "licence" or "licences" may be used to describe or refer to any certificate of authority or certificates of authority issued to an insurance agent or insurance agents under this Part or under Part XV of any such former Act.

371(7) and (8)  [Repealed] S.M. 2000, c. 40, s. 18.

Regulation prescribing functions of agent

371(9)      The Lieutenant Governor in Council may make regulations prescribing the functions that constitute the occupations of the various classes of insurance agents.

Agent may hold out as broker

371(10)     Where a general insurance agent represents more than one insurer, he may hold himself out publicly as an insurance broker.

R.S.M. 1987 Supp., c. 18, s. 9; S.M. 2000, c. 40, s. 18; S.M. 2002, c. 47, s. 9.

Classes of licences

372         A licence issued under section 371 shall be of one of the following classes:

(a) licences covering life insurance or life insurance and accident and sickness insurance, when issued by the same insurer;

(b) licences covering general insurance, other than life insurance;

(c) licences restricted to any one class of general insurance other than life insurance.

S.M. 2012, c. 29, s. 69.

Failure to have liability insurance

372.1(1)    No licensed insurance agent shall carry on the activities of an insurance agent while he or she is not insured under a policy of liability insurance that meets the requirements of subsection 371(1.1).

Notice to superintendent

372.1(2)    A licensed insurance agent whose liability insurance lapses, or is cancelled by the agent or the insurer, shall notify the superintendent without delay.

S.M. 2000, c. 40, s. 19.

Expiry and renewal of licence

373(1)      Subject to subsections (1.1) and (3), every licence expires on the 31st day of May next within one year of its issue but may be renewed on application to the superintendent together with the payment of the prescribed fee.

Proof of liability insurance required on renewal

373(1.1)    Every renewal application under subsection (1) shall be accompanied by proof satisfactory to the superintendent of the continuing existence of the liability insurance policy required under subsection 371(1.1).

Where agency terminated

373(2)      Where the agency or employment contract on the basis of which the agent's licence was issued is terminated, the principal or employer shall immediately notify the superintendent in writing of the termination, and the licence of the agent is suspended until

(a) another principal has agreed to be represented by the agent or another employer has agreed to employ the agent;

(b) the agent provides the superintendent with approval for the reinstatement of the agent's licence as required under subsection (2.1); and

(c) the superintendent approves the reinstatement of the agent's licence.

Approval of reinstatement of licence

373(2.1)    For the purposes of clause (2)(b), the reinstatement of the agent's licence shall be approved in the same manner and with the same kind of certification and recommendation as is required under section 370 in respect of an application for a licence of the same kind as the agent's licence or an application by a person of the same class of applicant as the agent.

Regulations to alter renewal date

373(3)      The Lieutenant Governor in Council may make regulations to alter the expiry dates of insurance agents licences in order to permit the expiry of the licences on their anniversary dates or on some other alternate basis.

R.S.M. 1987 Supp., c. 18, s. 10; S.M. 2000, c. 40, s. 20.

374         [Repealed]

S.M. 2007, c. 10, s. 26.

Investigation by superintendent, etc.

375(1)      If, after due investigation by the superintendent and after a discipline hearing, if a hearing is required under the regulations, the superintendent determines that the holder or former holder of an insurance agent licence

(a) has been guilty of misrepresentation, fraud, deceit or dishonesty;

(b) has violated any provision of this Act or any rule or regulation under this Act;

(c) has unreasonably failed to pay over to the insurer or agent entitled thereto any money collected by him or her and retained beyond the term stipulated in his or her agency contract or agreement;

(d) has placed insurance with insurers other than those licensed in the province under this Act, without complying with the provisions of this Act or the regulations relating to unlicensed insurance;

(e) has demonstrated his or her incompetency or untrustworthiness to transact the business of insurance agency for which the licence was granted; or

(f) has failed or refused to comply with any limitation or conditions placed on him or her in relation to the licence;

the superintendent may take one or more of the actions set out in subsection (1.1).

Disciplinary actions by the superintendent

375(1.1)    For the purposes of subsection (1), the superintendent may do one or more of the following after giving a notice of decision in writing to the licence holder or former licence holder:

(a) suspend the licence of the licence holder;

(b) cancel the licence of the licence holder;

(c) subject to the regulations, impose a fine on the licence holder or former licence holder and fix a date for the payment of the fine;

(d) subject to the regulations, require that the licence holder or former licence holder pay some or all of the costs of the investigation and, where applicable, of the hearing and fix a date for the payment of the costs assessed.

Deadline for payment of a fine or costs

375(1.2)    The date fixed by the superintendent for payment of a fine or costs under subsection (1.1) shall not be earlier than 30 days after the day on which the notice of decision imposing the fine or requiring payment of the costs leaves the superintendent's office for delivery to the licence holder or former licence holder.

Extension of deadline

375(1.3)    On application from a person who is required to pay a fine or costs under subsection (1.1), the superintendent may at any time extend, or further extend, the deadline for payment if the superintendent is satisfied

(a) that the person has made reasonable efforts to make the payment; and

(b) that hardship or injustice will result if the deadline is not extended.

Method of giving notice

375(1.4)    A notice of decision under subsection (1.1) shall be delivered to the licence holder or former licence holder by personal delivery or by a delivery service that provides guaranteed delivery and evidence of receipt.

Payment of fine or costs postponed pending appeal

375(1.5)    A fine imposed, or costs required to be paid, under subsection (1.1) need not be paid while the decision imposing the fine or requiring payment of the costs is under appeal.

Failure to pay fine or costs

375(1.6)    If a fine imposed or costs required to be paid under subsection (1.1) are not paid before the payment deadline, and the deadline is not extended under subsection (1.3) and the decision imposing the fine or requiring payment of the costs is not under appeal, the licence of the licence holder is suspended immediately following the last day for payment of the fine or costs and remains suspended until the earlier of

(a) payment in full of the fine or costs, including any interest payable under subsection (1.7); and

(b) the day on which the licence expires.

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.

Privileged information

375(2)      Any information, document, record, statement or thing, made or disclosed to the superintendent concerning any person licensed or applying for a licence under this Act, is absolutely privileged, and shall not be used as evidence in any action or proceeding in any court brought by or on behalf of that person.

R.S.M. 1987 Supp., c. 18, s. 11; S.M. 2000, c. 40, s. 21; S.M. 2007, c. 10, s. 27; S.M. 2012, c. 29, s. 70.

No new licence for one year after cancellation

376         No person whose licence has been cancelled is entitled to a new licence for one year after the cancellation and then only at the discretion of the superintendent.

S.M. 2007, c. 10, s. 28.

Exemption of holder

377(1)      The holder of a licence is exempt from payment of any licence fee imposed by a municipality within the province for the transaction of the business of insurance.

Limitation on effect of subsection (1)

377(2)      Nothing in subsection (1) restricts the authority of a municipality, under The Municipal Act, to levy or impose upon the holder of a licence a business tax, or any fee or tax in lieu of a business tax, as provided in that Act.

May not offer compensation to prospect

378(1)      No insurer licensed under this Act, and no officer, agent or employee of such an insurer, and no insurance agent authorized under this Act, shall, directly or indirectly, pay or allow, or offer or agree to pay or allow, any commission or other compensation or anything of value to any person for acting or attempting or assuming to act as an insurance agent in respect of insurance in the province or for having or claiming or appearing to have any influence or control over the insured or prospect for insurance unless that person holds at the time a subsisting insurance agent's licence.

No commission if not a holder

378(2)      An agent who, at the time he receives an application for insurance, does not hold a subsisting licence, shall not retain or deduct anything on account of commission from any payment made to him with the application, but shall remit to the insurer the full amount paid to him on account of premium.

Certain agreements respecting premiums prohibited

378(3)      No insurer, and no officer, employee, or agent thereof, shall, directly or indirectly, make or attempt to make an agreement as to the premium to be paid for a contract of insurance other than as set forth in the contract.

Rebates of premiums, etc., prohibited

378(4)      No insurer, and no officer, employee, or agent thereof, shall, directly or indirectly, pay, allow, or give, or offer or agree to pay, allow, or give, any rebate of the whole or part of the premium stipulated by the contract, or any other consideration or thing of value intended to be in the nature of a rebate of premium, to any person insured or applying for insurance.

Exceptions

378(5)      Nothing in subsection (3) or (4) affects any payment by way of dividend, bonus, profit or savings that is provided for by the contract.

Agents of fraternal societies

378(6)      A member of a duly licensed fraternal society, other than a member whose major occupation is, in the opinion of the superintendent, the solicitation of life insurance contracts, may, without a licence, solicit persons to become members of the society.

Salaried officials, etc., acting without licence

378(7)      Unless the superintendent otherwise directs, but subject to subsections (8) and (9), an officer or salaried employee of a licensed insurer who does not receive commissions or his salary in lieu of commissions, or an attorney or salaried employee of a reciprocal or inter-insurance exchange at which no commission is paid except to the attorney may, without a licence, act for the insurer or exchange in the negotiation of any contracts of insurance or in the negotiation of the continuance or renewal of any contracts that the insurer or exchange may lawfully undertake.

Exception

378(8)      Officers or employees whose applications for licences as agents have been refused or whose licences have been suspended or cancelled, may not act as provided in subsection (7) without the written approval of the superintendent.

Exception

378(9)      In the case of insurers authorized to undertake life insurance only the officers and salaried employees of the head office who do not receive commissions or salaries in lieu of commissions, may act as provided in subsection (7) without a licence.

Head office employees

378(10)     Nothing in this Act prevents an insurer compensating a bona fide salaried employee of its head or branch office in respect of insurance issued by the employing insurer upon the life of the employee, or requires that the employee shall be licensed as an agent to effect the insurance.

Payment of commission restricted

378(11)     No insurer or agent shall pay or allow, or agree to pay or allow, directly or indirectly, any commission or compensation of any kind in lieu of commission to an agent in connection with an application or contract for insurance on the life of the agent or of any member of his immediate family until the agent has, within 12 calendar months, negotiated at least three contracts of insurance on the lives of persons other than those of the classes mentioned in this section, and the first premiums thereon have been fully paid to the insurer.

Twisting life insurance policies prohibited

378(12)     Any person who holds a licence covering life insurance, or who is an officer or salaried employee of an insurer licensed to transact life insurance, and who induces, directly or indirectly, an insured to lapse, forfeit, or surrender for cash, or for paid up or extended insurance, or for other valuable consideration, his contract of life insurance with one insurer in order to effect a contract of life insurance with another insurer, or makes any false or misleading statement or representation in the solicitation or negotiation of insurance, or coerces or proposes, directly or indirectly, to coerce a prospective buyer of life insurance through the influence of a business or a professional relationship or otherwise, to give a preference in respect to the placing of life insurance which would not be otherwise given in the effecting of a life insurance contract, is guilty of an offence.

Offence to solicit cancellation of policy

378(13)     Any person who holds a licence to act as a life insurance agent and who, within one year from the termination of sponsorship of licence by an insurer, solicits an insured, directly or indirectly, to cancel, lapse, forfeit or surrender a policy of insurance with that insurer in order to effect a contract of life insurance with another insurer is guilty of an offence.

R.S.M. 1987 Supp., c. 18, s. 12; S.M. 2007, c. 10, s. 29.

Reciprocal arrangement respecting agents

379         The superintendent may, where he deems it in the interests of the residents of an area in proximity to the boundaries of the province, endorse as valid for the province the licences issued by an adjoining province, notwithstanding that the agents are not residents of the province.

380         [Repealed]

S.M. 2012, c. 29, s. 71.

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.

S.M. 2012, c. 29, s. 72.

SPECIAL INSURANCE BROKER'S LICENCE FOR BUSINESS WITH UNLICENSED INSURERS

Special insurance broker's licence

381(1)      The superintendent may issue to an insurance agent a licence to act as a special insurance broker to negotiate, continue, or renew contracts of insurance in Manitoba with unlicensed insurers, other than life insurance and accident and sickness insurance.

Application

381(2)      An applicant for a special insurance broker's licence must

(a) [repealed] S.M. 2012, c. 29, s. 73;

(b) hold an unrestricted insurance agent licence for the class of insurance for which the person is seeking the special insurance broker's licence;

(c) file with the superintendent a written application

(i) that is verified in the manner required by the superintendent, and

(ii) that sets out the information required of an insurance agent who applies for a licence, and any further information that the superintendent requires; and

(d) pay the prescribed licence fee.

Issue of licence

381(3)      The superintendent shall issue the licence if

(a) the applicant meets the requirements of subsection (2); and

(b) the superintendent is satisfied with the application and information filed.

Term of licence

381(3.1)    A person's special insurance broker's licence expires on December 31 of the year for which it is issued, or on the day the person's underlying insurance agent licence expires, whichever occurs first.

Renewal

381(4)      The licence may, in the discretion of the superintendent, be renewed for each succeeding year upon payment of the prescribed fee without requiring anew the detailed information required in the case of an original application.

Security required

381(5)      The superintendent shall not issue a special insurance broker's licence to a person unless the person provides security to the superintendent, in accordance with the regulations, that the person will comply with

(a) this Act and the regulations under this Act; and

(b) any other applicable Act or regulation.

The person must maintain the security while the licence or any renewal of it is in force.

Suspending or cancelling a licence

381(6)      The superintendent may suspend or cancel a person's special insurance broker's licence for any reason for which the superintendent may take the same action in respect of the person's underlying insurance agent licence.

When suspension or cancellation is automatic

381(7)      A person's special insurance broker's licence is automatically suspended or cancelled if his or her underlying insurance agent licence is suspended or cancelled.

Personal liability of special insurance broker

381(8)      If by reason of a special insurance broker's failure or neglect to remit a premium to the insurer the contract of insurance is not made or is cancelled, the special insurance broker is personally liable to the insured or intended insured in the same manner as if

(a) the insurance contract had been made or had not been cancelled; and

(b) the special insurance broker were the insurer.

S.M. 2007, c. 10, s. 30; S.M. 2012, c. 29, s. 73.

Arranging insurance with unlicensed insurers

382(1)      Subject to subsection (2), a special insurance broker may assist or act on behalf of a person who wishes to enter into or renew an insurance contract with an unlicensed insurer if

(a) sufficient insurance cannot be arranged at reasonable rates with an insurer licensed under this Act; or

(b) sufficient insurance cannot be arranged on the terms stipulated by the person with an insurer licensed under this Act.

Statement from insured required

382(2)      Before the person enters into or renews the insurance contract, the special insurance broker shall obtain from the person a written statement that

(a) is dated and signed by the person;

(b) describes the nature and amount of the insurance the person requires;

(c) states that the person understands that

(i) the unlicensed insurer is not regulated under this Act,

(ii) the superintendent has no authority under this Act with respect to the unlicensed insurer,

(iii) the orderly payment of claims may be more difficult than it would be if the person obtained insurance from an insurer licensed under this Act, and

(iv) the person will not have the protection of any compensation plan operated by a compensation association designated in the regulations; and

(d) contains any further information that the superintendent may require.

382(3)      [Repealed] S.M. 2017, c. 40, Sch. A, s. 12.

Records of contracts with unlicensed insurers

382(4)      A special insurance broker shall keep separate records, in the form required by the superintendent, about insurance the special insurance broker arranges with unlicensed insurers.

Inspection of records

382(5)      The superintendent or a person authorized by the superintendent may, at any reasonable time, inspect the records required by subsection (4).

Monthly return

382(6)      Within 10 days after the end of each month, a special insurance broker shall file with the superintendent a return

(a) verified in the manner required by the superintendent;

(b) in the form required by the superintendent; and

(c) setting out information about contracts arranged with unlicensed insurers during the month, including, for each contract,

(i) the name of the insured,

(ii) the nature of the insurance,

(iii) the name of the unlicensed insurer, and

(iv) the amount of insurance placed and the rate and amount of the premium paid,

and any other information required by the superintendent.

S.M. 2007, c. 10, s. 31; S.M. 2017, c. 40, Sch. A, s. 12.

Release of security

383         On it being shown to the satisfaction of the minister that all insurances effected by a licensed special insurance broker are no longer in force or have been reinsured, and that the taxes owing to the province have been paid, the broker is entitled to a release or cancellation of his security.

Prohibition accepting contracts from agents

384         A special insurance broker shall accept applications for insurance with unlicensed insurers only from the insured or an agent holding a licence, and shall not receive any such application from, or pay or allow compensation or anything of value in respect of such applications to, an agent not holding a licence under this Act; and any contract of insurance with an unlicensed insurer made by or through any agent not holding a licence shall be deemed to be unlawfully made.

LICENCES OF INSURANCE ADJUSTERS

Issuing licences

385(1)      Subject to subsections (5) and (5.1), the superintendent may issue a licence to act as an insurance adjuster to a suitable person who applies in accordance with subsection (3) and pays the prescribed fee.

Restriction on issue of licences

385(2)      The superintendent

(a) shall not issue a licence to act as an adjuster other than a hail insurance adjuster, to a person who holds a licence

(i) as an insurance agent, or

(ii) to act as a special insurance broker; and

(b) shall not issue a licence to act as an adjuster to a person who has not paid in full a fine or costs, including any interest in relation to the fine or costs, payable

(i) by virtue of a decision of the superintendent under subsection 375(1.1) and subsection (7) of this section, if the deadline for payment has passed and

(A) the deadline has not been extended, and

(B) the decision is not under appeal, or

(ii) by virtue of a decision of The Insurance Agents' and Adjusters' Licensing Appeal Board, if the deadline for payment has passed and has not been extended.

Application for licence

385(3)      The applicant for such a licence shall file with the superintendent a written application under oath, upon a form provided by the superintendent, in which the applicant shall state his name, age, residence, and occupation for the five years next preceding the date of the application and such other information as the superintendent requires, including proof satisfactory to the superintendent of the existence of the liability insurance policy required under subsection (5.1), and the applicant shall furnish a statement as to his trustworthiness and competency signed by at least three reputable persons resident in the province.

Issue of licence

385(4)      If the superintendent is satisfied with the statements and information required, the superintendent shall issue the licence; and, unless the licence is sooner suspended or cancelled, it expires on June 30 at the end of the period in respect of which it is issued.

Requirements for adjuster's licence

385(5)      The superintendent shall not issue a licence to act as an adjuster to a person unless

(a) that person has held a licence under this section;

(b) that person has held a licence as an adjuster in some other province;

(c) that person has served not less than one year

(i) as an assistant adjuster, or

(ii) as an adjuster employed by an insurance company; or

(d) that person satisfies the superintendent that the person is insured under a liability insurance policy that meets the requirements of subsection (5.1).

Liability insurance required

385(5.1)    Every insurance adjuster licence issued under this Act and every renewal of such a licence is conditional upon the existence of and continual maintenance by the adjuster of a liability insurance policy, issued by an insurer licensed under this Act, insuring

(a) the liability of the adjuster for the loss of any person as a result of the person's dealings with the adjuster; and

(b) the liability of any assistant adjuster employed by the adjuster for the loss of any person as a result of the person's dealings with the assistant adjuster;

in the form, upon the terms, and for not less than the amount prescribed in the regulations.

Renewal

385(6)      Subject to subsection (6.1), a licence may, in the discretion of the superintendent, and upon payment of the prescribed fee, be renewed for each succeeding year without requiring anew the detailed information required in the case of an original application.

Proof of liability insurance required on renewal

385(6.1)    Every request made under subsection (6) to renew an insurance adjuster licence shall be accompanied by proof satisfactory to the superintendent of the continuing existence of the liability insurance policy required under subsection (5.1).

Investigation by superintendent, etc.

385(7)      If, after due investigation by the superintendent and after a discipline hearing, if one is required under the regulations, the superintendent determines that the holder or former holder of an insurance adjuster licence

(a) has been guilty of misrepresentation, fraud, deceit or dishonesty;

(b) has violated any provision of this Act or any rule or regulation under this Act;

(c) has demonstrated his or her incompetency or untrustworthiness to transact the business of insurance adjustment; or

(d) has failed or refused to comply with any limitation or conditions placed on him or her in relation to the licence;

the superintendent may take one or more of the actions set out in subsection 375(1.1).

Application of subsections 375(1.2) to (1.8)

385(7.1)    Subsections 375(1.2) to (1.8) apply, with necessary modifications, to a decision of the superintendent under subsection (7) and subsection 375(1.1) in relation to the holder or former holder of an insurance adjuster licence.

Offence

385(8)      Any person who acts as an adjuster without a licence or during a suspension of his licence, is guilty of an offence.

Failure to have liability insurance

385(8.1)    No licensed insurance adjuster shall carry on the activities of an insurance adjuster while he or she is not insured under a policy of liability insurance that meets the requirements of subsection (5.1).

Notice to superintendent

385(8.2)    A licensed insurance adjuster whose liability insurance lapses, or is cancelled by the adjuster or the insurer, shall without delay notify the superintendent.

Persons to whom this section does not apply

385(9)      This section does not apply to

(a) a person who does not act for compensation or reward or in the hope or on the promise thereof;

(b) a trustee or agent of the owner of property insured;

(c) a person who makes or assists in making an adjustment and who

(i) is a salaried employee of an insurer licensed under this Act; or

(ii) is the manager or branch manager of an insurer licensed under this Act and who is in charge of the head office or branch office of the insurer in the province;

and who, in either case, is acting for that insurer;

(d) a person who is employed as an appraiser, engineer, or other expert, solely for the purpose of giving expert advice or evidence;

(e) a lawyer who is entitled to practise law in Manitoba and who is acting in the usual course of his or her profession; or

(f) a licensed general insurance agent in the adjustment of a first party claim, where

(i) the value of the claim is less than the amount prescribed in the regulations,

(ii) the claim arises under a policy that was sold by the agent or by an agency of which the agent is a member, and

(iii) the agent or agency has received authorization to act as an adjuster from the insurer that issued the policy.

S.M. 1994, c. 16, s. 3; S.M. 2000, c. 40, s. 22; S.M. 2007, c. 10, s. 32.

Prohibition against acting as assistant adjuster

386(1)      No licensed adjuster shall employ any person as a student qualifying himself to become a licensed adjuster, or as an assistant in the adjustment of claims under policies, and no person shall be employed or act in any such capacity, unless, in either case, that person holds a subsisting licence, issued by the superintendent, authorizing him to act as an assistant adjuster.

Application

386(2)      Subject to subsection (4), an applicant for a licence to act as an assistant adjuster shall file with the superintendent a written application therefor, in such form and containing such information as the superintendent requires, signed by the applicant and endorsed with, or accompanied by, a written approval of the application signed by an adjuster who holds a subsisting licence as such issued under this Act.

Issue of licence

386(3)      The superintendent, upon receipt from any suitable person, of an application duly completed and approved as provided in subsection (2), and accompanied by the prescribed fee, may issue to the applicant a licence authorizing him to act as an assistant adjuster.

Issue of renewal licence

386(4)      Where an application for a licence to act as an assistant adjuster is made by a person who holds, or has previously held, such a licence, the superintendent, in his absolute discretion, may dispense with compliance with any or all of the provisions of subsection (2).

Employment of assistant adjuster

386(5)      The holder of a licence to act as an assistant adjuster may be employed only by one adjuster whose name shall be endorsed on the licence, and who, unless the services of the assistant adjuster are transferred as herein provided, shall be the adjuster who approved his application for a licence.

Transfer of services

386(6)      Where an assistant adjuster transfers his services from one adjuster to another he shall immediately notify the superintendent; and the superintendent, if satisfied, may endorse on the licence a memorandum of the change including the name of the adjuster to whom the services are transferred.

Suspension of licence on termination of employment

386(7)      Where the holder of a licence to act as an assistant adjuster ceases to be employed by the adjuster whose name is endorsed thereon, the licence shall be deemed to be suspended and the assistant adjuster shall forthwith return it to the superintendent who may, if it has not expired, again issue it to him if he transfers his services to another adjuster.

Term of licence

386(8)      Every licence issued under this section, unless it is sooner suspended or cancelled, expires on June 30 at the end of the period in respect of which it is issued.

Investigation by superintendent

386(9)      If, after due investigation by the superintendent and after a discipline hearing, if one is required under the regulations, the superintendent determines that the holder or former holder of an assistant insurance adjuster licence

(a) has been guilty of misrepresentation, fraud, deceit or dishonesty;

(b) has violated any provision of this Act or any rule or regulation under this Act;

(c) has demonstrated his or her incompetency or untrustworthiness to transact the business of insurance adjustment; or

(d) has failed or refused to comply with any limitation or conditions placed on him or her in relation to the licence;

the superintendent may take one or more of the actions set out in subsection 375(1.1).

Application of subsections 375(1.2) to (1.8)

386(9.1)    Subsections 375(1.2) to (1.8) apply, with necessary modifications, to a decision of the superintendent under subsection (9) and subsection 375(1.1) in relation to the holder or former holder of an assistant insurance adjuster licence.

S.M. 2000, c. 40, s. 23; S.M. 2007, c. 10, s. 33.

Solicitation for adjustment prohibited

387(1)      Subject to subsection (2), no person shall, on behalf of himself or any other person, directly or indirectly,

(a) solicit the right to negotiate, or negotiate or attempt to negotiate, for or in expectation of any fee, gain or reward, the settlement of a claim for loss or damage arising out of a motor vehicle accident resulting in bodily injury to or death of any person or damage to property, on behalf of a claimant; or

(b) hold himself out as an adjuster, investigator, consultant or otherwise as an adviser, on behalf of any person having a claim against an insured for which indemnity is provided by a motor vehicle liability policy.

Exception

387(2)      Except as to soliciting the right to negotiate, this section does not apply to a barrister or solicitor acting in the usual course of his profession.

Disclosure of name of insurer

388         Where an adjuster, on behalf of an insurer, enters into negotiations with a person having a claim against an insured for which indemnity is provided by a motor vehicle liability policy, or a policy of public liability insurance, issued by the insurer, the adjuster shall, on request by the claimant, disclose to him the name and address of the insurer.

LICENSING APPEALS AND THE INSURANCE AGENTS' AND ADJUSTERS' LICENSING APPEAL BOARD

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 »)

R.S.M. 1987 Supp., c. 18, s. 13; S.M. 2000, c. 40, s. 24; S.M. 2012, c. 29, s. 74.

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).

S.M. 2012, c. 29, s. 75.

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.

S.M. 2012, c. 29, s. 75.

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.

389.1(2) and (3)  [Repealed] S.M. 2012, c. 29, s. 76.

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.

S.M. 2000, c. 40, s. 24; S.M. 2012, c. 29, s. 76.

Establishment of appeal board

389.2(1)    There is hereby established an appeal board which shall be known as: "The Insurance Agents' and Adjusters' Licensing Appeal Board".

Membership of the board

389.2(2)    The appeal board shall be composed of suitably qualified persons appointed by the Lieutenant Governor in Council, and each member shall hold office until the term set out in the order appointing him or her expires, or until a successor is appointed for him or her, whichever occurs later.

Composition of the board

389.2(3)    In determining the composition of the appeal board, the Lieutenant Governor in Council shall appoint a sufficient number of

(a) persons with suitable legal qualifications;

(b) lay persons; and

(c) persons representative of various sectors of the insurance industry;

to enable the appeal board to carry out its functions and duties fairly and efficiently.

Chairperson

389.2(4)    The Lieutenant Governor in Council shall designate one of the members of the appeal board as chairperson of the appeal board.

Vice-chairperson

389.2(5)    The Lieutenant Governor in Council may designate one of the members of the appeal board as vice-chairperson of the appeal board, to act as chairperson on the request of the chairperson or the minister during the illness or absence of the chairperson or during the chairperson's inability to perform his or her duties.

Hearings by panels of the appeal board

389.2(6)    A licensing appeal shall be heard by a panel of three or five members of the appeal board, constituted as set out in subsection (7).

Constitution of panels

389.2(7)    The chairperson

(a) shall constitute from among the members of the appeal board a sufficient number of panels of the board to hear the number of appeals outstanding from time to time;

(b) shall designate one member of each panel, who shall have suitable legal qualifications, to be the panel chairperson;

(c) shall assign a panel to an appeal hearing having regard to the experience and qualifications of the panel members, the type of licence involved in the appeal and the matters to be decided in relation to the appeal; and

(d) may be a member or the panel chairperson of a panel.

Substitution of panel members

389.2(8)    The chairperson may assign additional appeal board members to a panel of the appeal board, or substitute one member of the appeal board for another on the panel, where the circumstances require, including, without limitation,

(a) where particular experience or expertise appears to be absent among the panel members; and

(b) where a panel member is required or chooses to withdraw from the hearing of a particular appeal.

Remuneration and expenses

389.2(9)    The members of the appeal board may be paid the remuneration, and the travel and other out-of-pocket expenses incurred by them in the performance of their duties, that may be authorized by the Lieutenant Governor in Council.

Oath

389.2(10)    Before acting on the appeal board, every member of the appeal board shall take and subscribe before a person authorized to administer oaths and affirmations for use in the province, and file with the co-ordinator of appeals, an oath or affirmation in the following form:

I           , do solemnly swear (or affirm) that I will faithfully, truly, impartially and to the best of my knowledge, skill and ability, perform the duties of a member of The Insurance Agents' and Adjusters' Licensing Appeal Board under The Insurance Act and that I will not, without authority, disclose or make known anything that comes to my knowledge by reason of my appointment to the appeal board. So help me God. (Omit last four words where person affirms)

S.M. 2000, c. 40, s. 24.

Rules of procedure

389.3(1)    The appeal board may make rules not inconsistent with any Act or law to regulate its procedure and procedure in matters that come before it.

Quorum

389.3(2)    A majority of the members of the appeal board constitutes a quorum of the board.

New hearing

389.3(3)    An appeal under subsection 389.0.1(1) is a new hearing, and the appeal board may consider

(a) any material filed or evidence submitted by the appellant or the superintendent touching on the subject of the appeal; and

(b) any other material or evidence that it considers relevant to the appeal.

Who is a party to an appeal

389.3(3.1)   The parties to an appeal are the appellant and the superintendent.

Representation by counsel

389.3(4)    A party to an appeal under this section is entitled to be present at the hearing of the appeal, to be represented by counsel, and to be advised by such advisers as the party may require for the purposes of the appeal.

Decision of board

389.3(5)    After the conclusion of an appeal hearing and consideration of the material and evidence presented at, or received in relation to, the hearing, the appeal board may

(a) dismiss the appeal;

(b) allow the appeal; or

(c) make such other order or decision as the appeal board considers appropriate, including, without limitation,

(i) varying the length of a suspension, the conditions imposed on the issuing of a licence or the amount of a fine or assessment of costs, or

(ii) fixing a new date for the payment of a fine or assessment of costs.

389.3(6)    [Repealed] S.M. 2012, c. 29, s. 77.

Majority decision of appeal panel and voting

389.3(7)    The outcome of an appeal hearing shall be decided by a majority vote of the panel of the appeal board hearing the appeal, and the chairperson of the panel has a vote in deciding any appeal or matter before the panel.

Withdrawal of panel member

389.3(8)    A panel member shall withdraw from hearing an appeal if there exists any circumstance in relation to the appellant or the appeal that might prejudice the panel member's objectivity, including, without limitation, if the panel member

(a) has a personal or business relationship with the appellant;

(b) has a business relationship with an insurer for whom the appellant acts or proposes to act as an agent or adjuster; or

(c) has had a relationship mentioned in clause (a) or (b) that meets the criteria for withdrawal, if any, set out in rules of procedure made by the appeal board under subsection (1).

Appeal hearing may proceed in absence of appellant

389.3(9)    Where an appellant has been notified of the date, time and location of the appeal hearing in accordance with subsection 389.1(5) and fails to attend, the appeal board may proceed to hold the hearing and decide the appeal in the absence of the appellant.

Adjournment of hearings

389.3(10)    The appeal board may adjourn the hearing of an appeal before it from time to time as may be necessary and as it considers appropriate.

Written notification of decision

389.3(11)    The appeal board shall notify the parties to an appeal of its decision in writing.

Powers of board

389.3(12)    The appeal board may summon witnesses and require them to give evidence on oath or affirmation, orally or in writing, and for that purpose, the members of the board have the powers conferred upon, and the protection afforded to, commissioners appointed under Part V of The Manitoba Evidence Act.

Withdrawal of appeal

389.3(13)    With the consent of the appeal board, an appellant may withdraw an appeal.

Expert witnesses

389.3(14)    The minister may

(a) obtain the services of such experts, consultants or advisers as in the opinion of the minister may be required by the superintendent or the appeal board; and

(b) authorize payment for those services.

S.M. 2000, c. 40, s. 24; S.M. 2012, c. 29, s. 77.

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.

S.M. 2012, c. 29, s. 78.

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).

S.M. 2012, c. 29, s. 78.

AGENTS, BROKERS AND ADJUSTERS GENERALLY

Effect of payments to agents

390         Payment in cash in whole or in part to an agent of an insurer of the amount of a premium or assessment due in respect of a contract issued by the insurer, shall be deemed a payment to the insurer, notwithstanding any condition or stipulation to the contrary; but this provision does not apply to life insurance.

Holding out

391         Any person who, not being duly licensed as an agent, a broker, or an adjuster, represents or holds himself out to the public as being an agent, broker, or adjuster, or as being engaged in the insurance business, by means of advertisements, cards, circulars, letterheads, signs or other methods, or being duly licensed as such an agent, broker, or adjuster, advertises as aforesaid or carries on such a business in any other name than that stated in the licence, is guilty of an offence.

List published

392(1)      The superintendent may prepare, or cause to be prepared, published, and distributed, annually or at more frequent intervals, in The Manitoba Gazette or elsewhere, a list of persons to whom licences have been issued under this Act.

Personal liability of agent for unlawful contracts

392(2)      An agent or broker is personally liable to the insured on all contracts of insurance unlawfully made by or through him, directly or indirectly, with any insurer not licensed to undertake insurance in the province, in the same manner as if the agent or broker were the insurer.

Payments to agents a trust

393         An agent or broker who acts in negotiating, or renewing or continuing a contract of insurance, other than life insurance, with a licensed insurer, and who receives any money or other consideration, as a premium for such a contract, from the insured, shall be deemed to hold the premium in trust for the insurer, and, if he fails to pay it over to the insurer within 15 days after written demand made upon him therefor, less his commission and any deductions to which, by the written consent of the insurer, he is entitled, the failure is evidence that he has applied the premiums to his own use or to a use contrary to his trust.

Return of agents by insurer

394         Every insurer and every agent shall make a return under oath to the superintendent in such form, and at such times, as he requires, showing all persons duly authorized as its or his agents in the province, and of persons to whom it or he has paid or allowed, or agreed to pay or allow, directly or indirectly, compensation for placing or negotiating insurance on lives, property, or interests in the province, or negotiating the continuance or renewal thereof, or for attempting to do so.

395         [Repealed]

R.S.M. 1987 Supp., c. 18, s. 14; S.M. 2000, c. 40, s. 25; S.M. 2002, c. 47, s. 10; S.M. 2007, c. 10, s. 34; S.M. 2012, c. 29, s. 79.

Restrictions on licence

396(1)      A licence may be issued to an insurance agent, or to a broker, adjuster or assistant adjuster subject to such limitations and conditions as the superintendent may prescribe.

Reprimand

396(2)      A reprimand may be attached to a licence issued to an insurance agent, or to a broker, adjuster or assistant adjuster where it has been determined by the superintendent that the agent, broker, adjuster or assistant adjuster is guilty of conduct which

(a) offends this Act; or

(b) is not in the public interest; or

(c) is not appropriate for an agent, broker, adjuster or assistant adjuster.

Reprimand, etc. to form part of records

396(3)      A reprimand, suspension, or cancellation of a licence, or a condition attached to a licence under this Act forms part of the record of an agent, broker, adjuster or assistant adjuster, as the case may be, licensed or authorized under this Act.

Removal of reprimands, suspensions or conditions

396(4)      Records of reprimands, suspensions and conditions of licences may at the discretion of the superintendent be removed from the record of an agent, broker, adjuster or assistant adjuster at the end of three consecutive years during which the agent, broker, adjuster or assistant adjuster has not received any further reprimand, suspension or condition of licence.

R.S.M. 1987 Supp., c. 18, s. 14; S.M. 2007, c. 10, s. 35.

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 »)

Regulations establishing insurance councils

396.1(2)    The Lieutenant Governor in Council may, by regulation, establish one or more insurance councils.

396.1(3)    [Repealed] S.M. 2007, c. 10, s. 36.

Regulations re membership, powers, functions and duties of councils

396.1(4)    The Lieutenant Governor in Council may make regulations

(a) respecting the membership of insurance councils;

(b) prescribing the powers, functions and duties of insurance councils;

(c) governing how insurance councils must exercise their powers and carry out their functions and duties.

Delegation of powers

396.1(5)    The Lieutenant Governor in Council may, by regulation, authorize the superintendent to delegate to any insurance council or insurance councils certain powers, functions and duties that the superintendent has under this Act and the regulations and specify the powers, functions and duties that may be so delegated.

Fees

396.1(6)    The Lieutenant Governor in Council may, by regulation, fix the licence, registration or other annual and special fees to be paid by agents or applicants for agents' licences and specify the portion of such fees that shall be paid to the government and the portion of such fees that shall be retained by each insurance council to finance its operations under this section.

Specific powers and functions

396.1(7)    Without limiting the generality of subsections (4) and (5), the Lieutenant Governor in Council may make regulations empowering insurance councils, on any terms and conditions the Lieutenant Governor in Council deems appropriate, to

(a) collect any fees fixed under subsection (6);

(b) exercise and perform such powers, functions and duties as are conferred or imposed upon or delegated to the insurance councils under this section;

(c) establish the educational, training and other standards and qualifications required for the licensing or registration of agents;

(d) establish and enforce ethical, operational and trade practices for agents;

(e) investigate complaints and adjudicate or mediate disputes respecting services provided by any agent;

(f) initiate and engage in programs of consumer protection;

(g) make recommendations to the minister;

(h) make rules for its own procedure;

and may make regulations respecting any other matter or thing relating to insurance councils that the Lieutenant Governor in Council deems necessary.

Statutes and Regulations Act does not apply

396.1(8)    The Statutes and Regulations Act does not apply to a rule of an insurance council made pursuant to this section.

Rules require approval

396.1(9)    All rules made by an insurance council pursuant to this section are subject to the superintendent's approval and are of no force or effect unless and until they are approved by the superintendent.

Appeals from licence refusal

396.1(10)    Every refusal, suspension or cancellation of a licence by an insurance council is subject to appeal in accordance with sections 389 to 389.3 with necessary modifications.

Review of decisions

396.1(11)    The superintendent may review

(a) any decision of an insurance council, other than a decision under subsection (10); and

(b) any existing or proposed activity or program of an insurance council;

and may prohibit, or order the insurance council to revoke or cancel or amend, the decision, activity or program, and the insurance council may appeal from any such prohibition or order in accordance with section 389 with necessary modifications.

S.M. 1989-90, c. 57, s. 12; S.M. 1992, c. 58, s. 12; S.M. 2007, c. 10, s. 36; S.M. 2012, c. 29, s. 80; S.M. 2013, c. 39, Sch. A, s. 64.

Regulations

396.2       The Lieutenant Governor in Council may make regulations

(a) respecting liability insurance required by the holders of insurance agent and insurance adjuster licences, including specifying the exclusion of certain perils from the coverage required by holders of specified classes of licence;

(a.1) prescribing the value of claims for the purposes of subclause 385(9)(f)(i);

(b) respecting fines and costs and their imposition and assessment by the superintendent or The Insurance Agents' and Adjusters' Licensing Appeal Board;

(c) respecting interest on fines and costs;

(d) respecting the retention of fines and costs by an insurance council established under section 396.1;

(e) for the purposes of subsection 381(5), governing the security to be given in respect of a special broker's licence, including governing forfeiture of the security and the disposition of its proceeds;

(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.

S.M. 2000, c. 40, s. 27; S.M. 2007, c. 10, s. 37; S.M. 2012, c. 29, s. 81.

PART XVI

AMALGAMATION, TRANSFER AND REINSURANCE

"Reinsurance" defined

397         In this Part, "reinsurance" means an agreement whereby contracts made in the province by a licensed insurer or any class or group thereof are undertaken or reinsured by another insurer either by novation, transfer, assignment or as a result of amalgamation of the insurers.

Saving effect

398         Nothing in this Part affects contracts of reinsurance of individual risks made by insurers in the ordinary course of business.

Transfer and reinsurance

399(1)      An insurer incorporated and licensed under the laws of the province may amalgamate its property and business with those of any other insurer, or may transfer its contracts to, or reinsure them with, or transfer its property and business or any part thereof to, any other insurer, and the insurers may enter into all contracts and agreements necessary to the amalgamation, transfer, or reinsurance upon compliance with the conditions of this Part.

Reinsurance

399(2)      An insurer so incorporated and licensed may, in like manner, reinsure the contracts of any other insurer, or purchase and take over the business and property or any portion thereof of any other insurer.

Agreement for

400         No such agreement respecting such an amalgamation, transfer, reinsurance, or purchase, comes into force unless it has been approved by the Lieutenant Governor in Council; and the insurers, parties thereto, shall file with the superintendent a petition for the purpose within 60 days from the date of execution of the agreement.

Petition for in case of life insurers

401(1)      In the case of insurers undertaking life insurance, before such a petition is heard, notice thereof together with the following documents,

(a) a statement of the nature and terms of the agreement for reinsurance;

(b) an abstract containing the material facts embodied in the agreement under which the reinsurance is proposed to be effected; and

(c) copies of the actuarial or other reports upon which such agreement is founded including a report by an independent actuary approved by the superintendent;

shall be served on the shareholders or members and on policyholders in the province of each insurer other than holders of industrial policies; but the superintendent may dispense with service of such notice and documents on the policyholders of the reinsuring insurer.

Service of notice of hearing

401(2)      The service shall be effected in each case by forwarding by registered mail the notice and documents directed to the registered or other known address of the shareholder, member or policyholder, so as to reach him, if delivered in due course of mail, at least 30 days before the day appointed for the hearing of the petition.

Fraternal society

401(3)      Where a fraternal society is a party to such an agreement, the notice and documents shall be deemed to be served on its members if published in any official publication of the society at least 30 days before the day appointed for the hearing of the petition.

Inspection

401(4)      The agreement shall be open to the inspection of the shareholders, members and policyholders at the principal offices of the insurers within the province for a period of 30 days after service of the notice.

Documents with application

402         Upon the filing of the petition the insurers party to the agreement shall deposit with the superintendent the following documents, that is to say:

(a) a certified copy of the agreement for reinsurance;

(b) a statement of the nature and terms of reinsurance;

(c) certified copies of the statements of assets and liabilities of the insurers parties to the agreement;

(d) certified copies of the actuarial or other reports upon which the agreement is founded;

(e) a declaration under the hands of the president or principal officer and manager or secretary of each insurer verifying the copy of agreement and stating that to the best of their knowledge and belief every payment made or to be made to any person whatsoever on account of the reinsurance is therein fully set forth and that no other payments beyond those set forth have been made or are to be made either in money, policies, bonds, valuable securities or other property by or with the knowledge of any of the parties to the reinsurance;

(f) evidence of the service and publication of the notices required to be served or published, if any;

(g) such other information and reports as the superintendent requires.

Hearing of application

403         Upon receipt of the petition, the superintendent shall fix a day for hearing the petition, and notice of the hearing shall be given in The Manitoba Gazette at least 10 days before the date so fixed, and in case of insurers undertaking life insurance 30 days before that date.

Recommendation of superintendent

404         After hearing the directors, shareholders, members and policyholders and such other persons as he considers entitled to be heard upon the petition, or giving them an opportunity to be so heard, the superintendent may recommend that the agreement be approved by the Lieutenant Governor in Council if he is satisfied that no sufficient objection to the agreement has been established.

Refusal of recommendation

405         No such agreement shall be recommended if it appears to the superintendent that, upon the consummation of the reinsurance, an impairment or deficiency will exist in the balance sheet of the continuing or reinsuring insurer when its liabilities (including its capital stock, if any), are calculated according to this Act.

Statutory novation on amalgamation, transfer or reinsurance under this Part

406         Where an insurer enters into a contract or agreement for amalgamation, transfer or reinsurance with another insurer as provided in this Part and the contract or agreement is approved by the Lieutenant Governor in Council, subject to the terms of that contract or agreement, any contract of insurance taken over, transferred or reinsured by the other insurer may be enforced against the other insurer as though that insurer had entered into the contract of insurance with the insured; but nothing in this section affects the liability of the original insurer under the contract of insurance.

Transfer of contracts where insurer leaves Manitoba

407         Where under an agreement between an insurer, in this section called the "continuing insurer", and another insurer, in this section called the "retiring insurer", in anticipation of the retiring insurer ceasing to do business in the province, the continuing insurer assumes liability under contracts of insurance specified in the agreement issued by the retiring insurer and the retiring insurer ceases to carry on business in the province, an insured or other person entitled to rights under those contracts may enforce the rights as though those contracts had been issued by the continuing insurer.

408         [Repealed]

S.M. 2000, c. 40, s. 28.

409         [Repealed]

S.M. 2000, c. 40, s. 29.

PART XVII

OFFENCES AND PENALTIES

Offences

410(1)      A person is guilty of an offence if the person

(a) directly or indirectly provides false, misleading or incomplete information to the superintendent or to an insurance council established under section 396.1, whether the information is required under this Act or is volunteered;

(b) fails to comply with any requirement of this Act or the regulations, or of an order made under this Act or a regulation;

(c) contravenes this Act or the regulations; or

(d) contravenes any condition or limitation imposed on or by the person's licence.

Penalties

410(2)      A person who is guilty of an offence is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $200,000. or imprisonment for a term of not more than one year, or both; and

(b) in any other case, to a fine of not more than $1,000,000.

Additional fine

410(3)      If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence,

(a) the person acquired any monetary benefits; or

(b) monetary benefits accrued to the person;

the court may order the person to pay a fine of not more than the court's estimation of the amount of those monetary benefits. A fine under this subsection is in addition to and not in place of a fine under subsection (2).

Continuing offence

410(4)      When a contravention of this Act or a regulation under this Act continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Liability of directors and officers

410(5)      If a person other than an individual commits an offence under this Act or a regulation under this Act, any of the person's directors or officers who authorized, permitted or acquiesced in the commission of the offence are also guilty of an offence and are liable on summary conviction to the penalties set out in clause (2)(b), whether or not the person has been prosecuted or convicted.

Order to comply

410(6)      When a person is convicted of an offence under a provision of this Act or the regulations, the court may, in addition to imposing a fine or imprisonment, order the person to comply with the provision.

Restitution

410(7)      When a person is convicted of an offence under this Act, the court may, in addition to imposing a fine or imprisonment, order the person to pay compensation or restitution in respect of the offence.

Filing restitution order in Court of Queen's Bench

410(8)      The person to whom compensation or restitution is payable under an order made under subsection (7) may file the order in the Court of Queen's Bench. Once filed, it may be enforced as a judgment of the court in the person's favour.

S.M. 2007, c. 10, s. 38.

Time limit for prosecution

411         A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

S.M. 2007, c. 10, s. 38.

Application for compliance order

412(1)      The superintendent may apply to the Court of Queen's Bench for an order under subsection (2) if a person contravenes

(a) a provision of this Act or the regulations;

(b) an order made by the superintendent; or

(c) a limitation or condition imposed on or by the person's licence.

Compliance order

412(2)      The court may make an order

(a) directing the person to comply with, or restraining the person from contravening, the provision, order, limitation or condition; and

(b) in the case of a person who is not an individual, directing its directors and officers to cause it to comply with or to cease contravening the provision, order, limitation or condition.

Application by an insurance council

412(3)      An application under subsection (1) in respect of a contravention of Part XV or a regulation made under that Part may be made by an insurance council established under section 396.1.

S.M. 2007, c. 10, s. 38.

SCHEDULE A

(Section 359)

No.

Term of licence            to           

SUPERINTENDENT OF INSURANCE, MANITOBA RECIPROCAL INSURANCE LICENCE

This is to certify that            being an exchange within the meaning of The Insurance Act, has complied with the requirements of that Act; and the subscribers of the exchange are hereby licensed and authorized, for and during the term beginning on the       day of            19  , and ending on the       day of            19  , to exchange reciprocal contracts of indemnity or inter-insurance (here state class of insurance).

Superintendent of Insurance.

S.M. 2012, c. 29, s. 82.

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.

S.M. 2012, c. 29, s. 82.

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.

S.M. 2012, c. 29, s. 83.

File 1: s. 1 to 325 (Parts 1 to 11)
File 2: s. 326 to 412 (Parts 12 to 17)