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This version is current as of April 15, 2015.
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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)

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

INTRODUCTORY PROVISIONS

Definitions

1           In this Act, except where inconsistent with the interpretation section of any Part,

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

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

"adjuster" means a person who

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

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

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

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

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

"agent" means a person who for compensation

(a) solicits insurance on behalf of an insurer,

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

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

"automobile" includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; (« automobile »)

"automobile insurance" means the class of automobile insurance prescribed in the regulations; (« assurance-automobile »)

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

"chief agency" means

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

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

"class", in relation to insurance, means a class of insurance prescribed in the regulations; (« classe »)

"common-law partner" of a person means

(a) another person who, with the person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) another person who, not being married to the person, cohabited with him or her in a conjugal relationship

(i) for a period of at least three years, or

(ii) for a period of at least one year and they are together the parents of a child,

except where either

(c) the dissolution of the common-law relationship has been registered under section 13.2 of The Vital Statistics Act, or

(d) the person has lived separate and apart from the other person for at least three years; (« conjoint de fait »)

"common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait »)

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

"contract" and "contract of insurance" mean a contract the subject matter of which is insurance, and includes any writing evidencing the contract, but where such words are used in a Part of this Act relating to a specific class of insurance they shall, when so used, mean a contract of the class of insurance to which the Part relates; (« contrat » et « contrat d'assurance »)

"court" means the Court of Queen's Bench, except

(a) in subsections 410(3), (6) and (7), and

(b) where the context requires a different meaning; (« tribunal »)

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

"employees' mutual benefit society" means a society

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

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

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

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

"endowment insurance" means the class of endowment insurance prescribed in the regulations; (« assurance mixte »)

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

"exchange" or "reciprocal or inter-insurance exchange" means a group of persons exchanging reciprocal contracts of indemnity or inter-insurance with each other through the same attorney; (« bourse » ou « bourse d'assurance réciproque ou d'interassurance »)

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

"extra-provincial Crown insurer" means an insurer that

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

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

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

"family" includes a common-law partner; (« famille »)

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

"foreign jurisdiction" includes any jurisdiction other than Manitoba; (« territoire étranger »)

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

"friendly society" means a society, order, association or corporation formed or incorporated, and carried on for the purpose of making with its members only, and not for profit, contracts under which

(a) sickness, accident and disability benefits, or any one or more of them, not exceeding $5. per week, or

(b) funeral benefits not exceeding $150.,

for all of such benefits, may be paid only to its members or their beneficiaries, in accordance with its constitution and laws and the provisions of this Act; (« société de collecte »)

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

"hail insurance" means the class of hail insurance prescribed in the regulations; (« assurance contre la grêle »)

"industrial contract" means a contract of life insurance for an amount not exceeding $2,000., exclusive of any benefit, surplus, profit, dividend or bonus also payable under the contract, and which provides for payment of premiums at fortnightly or shorter intervals, or if the premiums are usually collected at the home of the insured, at monthly intervals; (« contrat populaire »)

"insurance" means the undertaking by one person to indemnify another person against loss or liability for loss in respect of a certain risk or peril to which the object of the insurance may be exposed, or to pay a sum of money or other thing of value upon the happening of a certain event and, without limiting the generality of the foregoing, includes life insurance; but does not include an agreement of the nature commonly described as an investment contract made by a person not licensed under this Act to undertake contracts of insurance; (« assurance »)

"insurance fund," as applied to a fraternal society or as applied to any corporation not incorporated exclusively for the transaction of insurance, includes all money, securities for money and assets appropriated by the rules of the society or corporation to the payment of insurance liabilities or appropriated for the management of the insurance branch, department or division of the society, or otherwise legally available for insurance liabilities, but does not include funds of a trade union appropriated to or applicable for the voluntary assistance of wage earners unemployed or upon strike; (« fonds d'assurance »)

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

"insured" means a person insured by a contract whether named or not; (« assuré »)

"insurer" means the person who undertakes or agrees or offers to undertake a contract; (« assureur »)

"licence" means a licence issued under this Act; (« licence »)

"life insurance" means the class of life insurance prescribed in the regulations; (« assurance-vie »)

"marine insurance" means the class of marine insurance prescribed in the regulations; (« assurance maritime »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)

"motor vehicle" has the same meaning as "automobile"; (« véhicule automobile »)

"motor vehicle liability policy" means a policy or part of a policy evidencing a contract insuring

(a) the owner or driver of an automobile, or

(b) a person who is not the owner or driver of an automobile that is being used or operated by the person's employee or agent or another person on the person's behalf,

against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by the automobile or its use or operation; (« police de responsabilité automobile »)

"mutual insurance" means a contract of insurance, other than life, accident and sickness insurance, in which the consideration is not fixed or certain at the time the contract is made and is to be determined at the termination of the contract or at fixed periods during the term of the contract according to the experience of the insurer in respect of all similar contracts whether or not the maximum amount of such consideration is predetermined; (« assurance mutuelle »)

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

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

"officer" includes any trustee, director, manager, treasurer, secretary, or member of the board or committee of management of an insurer, or any person appointed by the insurer to sue and be sued in its behalf; (« dirigeant »)

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

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

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

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

"policy" means the instrument evidencing a contract; (« police »)

"premium" means the single or periodical payment to be made for the insurance, and includes dues and assessments; (« prime »)

"premium note" means an instrument given as consideration for insurance whereby the maker undertakes to pay such sum or sums as are legally demanded by the insurer, the aggregate of such sums not to exceed an amount specified in the instrument and includes any undertaking to pay such sums regardless of the form thereof and whether or not accompanied by a deposit of money or security; (« billet de souscription »)

"prescribed" means prescribed in the regulations or otherwise under the authority of this Act; (« prescrit »)

"property" includes profits, earnings, and other pecuniary interests, and expenditure for rents, interest, taxes, and other outgoings and charges and in respect of inability to occupy the insured premises, but only to the extent of express provision in the contract; (« biens »)

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

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

"public liability insurance" means the class of public liability insurance prescribed in the regulations; (« assurance responsabilité civile »)

"superintendent" means the Superintendent of Insurance and includes the deputy; (« surintendant »)

"trade union" means an organization of wage-earners of a particular trade or industrial calling constituted primarily and operated bona fide for regulation of wages and hours of labour as between employers and employed; but does not include a co-operative association or corporation; (« syndicat ouvrier »)

"trade union benefit society" means a society, association or corporation, membership in which is restricted exclusively to bona fide members of one trade union and which under the authority of its charter has an assurance or benefit fund for the benefit of its own members exclusively. (« société mutuelle syndicale »)

S.M. 1989-90, c. 57, s. 2; S.M. 2002, c. 48, s. 12; S.M. 2007, c. 10, s. 2; S.M. 2012, c. 29, s. 3.

Definitions re uninsured income-replacement benefits

1.1(1)      In this section, "employee"

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

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

Disclosure about uninsured income-replacement benefits

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

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

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

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

S.M. 2012, c. 29, s. 4.

Filing by electronic means

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

Express consent required

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

S.M. 2012, c. 29, s. 4.

PART I

SUPERINTENDENT OF INSURANCE

Appointment of superintendent and deputy

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

Functions and duties of the superintendent

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

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

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

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

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

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

S.M. 2012, c. 29, s. 5.

Duties of deputy

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

S.M. 2012, c. 29, s. 5.

Delegation of powers, duties and functions

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

S.M. 2012, c. 29, s. 5.

Agreement with Canada re inspection of insurers

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

Provision for payment to Canada

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

Designated official to ascertain inspection expenditure

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

Assessment

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

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

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

Payment of assessment

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

Regulations for carrying agreement into effect

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

S.M. 2012, c. 29, s. 5.

Agreement with compensation associations

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

Regulations

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

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

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

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

S.M. 1989-90, c. 57, s. 3; S.M. 2012, c. 29, s. 5.

Taking evidence

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

(a) may

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

(ii) examine witnesses under oath; and

(b) has the same power to

(i) summon persons to attend as witnesses,

(ii) enforce their attendance, and

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

as any court has in civil cases.

Oaths

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

S.M. 2012, c. 29, s. 5.

Conflict of interest

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

(a) the superintendent;

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

S.M. 2012, c. 29, s. 5.

Immunity of superintendent and others

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

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

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

Actions by superintendent

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

S.M. 2000, c. 40, s. 2; S.M. 2012, c. 29, s. 5.

BOOKS AND RECORDS

Superintendent's records

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

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

(i) its name,

(ii) the address of its head office,

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

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

(v) the licence number,

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

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

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

Public inspection of records

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

Form of records

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

R.S.M. 1987 Supp., c. 18, s. 1; S.M. 2000, c. 40, s. 3; S.M. 2012, c. 29, s. 5.

Notice of licence in Manitoba Gazette

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

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

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

Superintendent's certificate as evidence

10(2)       A certificate of the superintendent that

(a) on a stated day

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

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

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

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

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

S.M. 1989-90, c. 57, s. 4; S.M. 2012, c. 29, s. 5.

POWERS AND DUTIES RESPECTING INSURERS AND INSURERS' LICENCES

Superintendent to determine right to licence

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

S.M. 2012, c. 29, s. 5.

Applications under Corporations Act for superintendent's approval

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

Information to be provided to superintendent

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

Appeal

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

S.M. 2012, c. 29, s. 5.

Decision of superintendent

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

Certified copy of decision

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

Recording evidence

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

S.M. 2012, c. 29, s. 5.

Appeal

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

S.M. 1989-90, c. 57, s. 5; S.M. 2012, c. 29, s. 5.

INSPECTION AND FINANCIAL EXAMINATION OF INSURERS

Superintendent may question insurer

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

Insurer must answer superintendent

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

S.M. 2012, c. 29, s. 5.

Access to books and records

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

Access must be provided

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

S.M. 2012, c. 29, s. 5.

Insurer's duty to provide information on request

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

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

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

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

Information to be provided by other licence holders

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

S.M. 2012, c. 29, s. 5.

Inspection and financial examination of insurers

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

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

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

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

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

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

Less frequent inspections and financial examinations

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

Inspection and financial examination at extra-provincial head office

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

Duty of directors, officers and agents re inspections

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

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

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

Place of production of books

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

Expenses of director or officer re inspection

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

Certain powers of the superintendent re inspection and financial examination

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

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

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

Insurer liable to pay expenses

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

Expenses of extra-provincial inspection or financial examination

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

Recovery of expenses

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

Assistants and their expenses

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

Expenses that may be certified

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

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

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

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

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

Inspection or financial examination adopted

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

(a) by another government in Canada; or

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

S.M. 2012, c. 29, s. 5.

SERVICE OF PROCESS

Service of process on superintendent

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

Unlicensed insurer with outstanding contracts

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

Insurer must notify superintendent about address

19(3)       A licensed insurer must

(a) file with the superintendent notice of

(i) a post office address, or

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

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

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

Superintendent to forward process

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

Record of actions and proceedings

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

Fee to be paid by insurer

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

No judgment by default unless service is proved

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

S.M. 1989-90, c. 57, s. 6; S.M. 2012, c. 29, s. 5.

ANNUAL REPORT

Annual report

20(1)       The superintendent must

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

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

Only authorized investments to be recognized

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

Superintendent's correction of annual statements

20(3)       In the report, the superintendent may

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

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

Appraisal of insurer's assets and collateral

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

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

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

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

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

Cooperation with appraisal

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

20(5) and (6)  [Repealed] S.M. 2012, c. 29, s. 6.

Disposal of unauthorized investments

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

Directors' liability for shortfall

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

Saving

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

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

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

Appeal

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

S.M. 2012, c. 29, s. 6.

APPEAL FROM SUPERINTENDENT'S DECISION

Appeal

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

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

(b) the person must,

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

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

(iii) prosecute the appeal with due diligence.

Stay of decision — loss of appeal right

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

Information to be provided by superintendent

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

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

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

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

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

S.M. 2012, c. 29, s. 7.

PART II

GENERAL PROVISIONS APPLICABLE TO INSURERS CARRYING ON BUSINESS IN MANITOBA

Undertaking insurance

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

Carrying on business

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

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

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

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

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

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

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

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

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

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

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

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

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

S.M. 2012, c. 29, s. 8.

Definition of "contingency levy"

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

Certain organizations deemed to be insurers

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

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

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

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

S.M. 2012, c. 29, s. 8.

LICENCES

Necessity of licence

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

Prohibition of unlicensed insurance

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

Prohibition against person acting on behalf of unlicensed insurer

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

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

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

Exceptions

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

(a) an employees' mutual benefit society;

(b) a friendly society;

(c) a trade union benefit society;

(d) any other organization specified by the regulations.

Carrying on business in foreign jurisdiction without authority

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

S.M. 2007, c. 10, s. 3; S.M. 2012, c. 29, s. 8.

Reinsurance with unlicensed insurer

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

S.M. 2012, c. 29, s. 8.

Types of insurers

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

(a) a provincial company;

(b) an extra-provincial company;

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

(d) a federally authorized company;

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

Applying for a licence

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

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

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

Issuing a licence

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

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

(b) has paid the prescribed application fee.

Form of licence

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

Term and renewal of licences

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

Effect of licence

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

R.S.M. 1987 Supp., c. 18, s. 2; S.M. 1993, c. 9, s. 2; S.M. 2007, c. 10, s. 4; S.M. 2012, c. 29, s. 8.

Classes of insurance

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

Limited or conditional licence

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

Changes re licences

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

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

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

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

Insurer must be given an opportunity to be heard

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

Determination of contract's class of insurance by superintendent

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

Conditions of automobile insurance licence

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

1.

In an action in Manitoba against the licensed insurer, or its insured, arising out of an automobile accident in Manitoba, the insurer must appear and may not set up a defence to a claim under a contract made outside Manitoba, including a defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in Manitoba.

2.

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

Cancelling licence for contravention of condition

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

S.M. 2007, c. 10, s. 5; S.M. 2012, c. 29, s. 8.

Restriction on life insurance licence

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

Exception

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

(a) accident and sickness insurance; or

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

S.M. 2012, c. 29, s. 8.

29(1)       [Repealed] S.M. 2012, c. 29, s. 9.

Property insurance in respect of automobiles

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

S.M. 2012, c. 29, s. 9.

Restrictions on granting licence

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

30(2)       [Repealed] R.S.M. 1987 Supp., c. 18, s. 4.

30(3) and (4)  [Repealed] S.M. 2012, c. 29, s. 10.

Proof of compliance with Act and regulations required for licence

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

Evidence by insurer whose head office outside of province

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

Certain types of agreements requiring superintendent's approval

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

(a) is authorized under its constitution and laws

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

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

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

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

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

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

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

Regulations designating members of compensation plan

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

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

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

Agreement of compensation plan required for exemption

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

Obligations of membership

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

Failure to observe obligations

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

30(11)      [Repealed] S.M. 2012, c. 29, s. 10.

R.S.M. 1987 Supp., c. 18, s. 3 to 5; S.M. 1989-90, c. 57, s. 7 to 9; S.M. 1997, c. 14, s. 2; S.M. 2007, c. 10, s. 6; S.M. 2012, c. 29, s. 10.

Publication of notice of application for licence

31          The superintendent may require an applicant for a licence to

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

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

S.M. 2012, c. 29, s. 11.

32(1) and (2)  [Repealed] S.M. 2012, c. 29, s. 12.

Notification of certain changes

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

S.M. 1992, c. 58, s. 12; S.M. 2007, c. 10, s. 7; S.M. 2012, c. 29, s. 12.

Statement of expenses of organization

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

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

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

Payment of expenses before licence is granted

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

Conditions precedent to issue of licence

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

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

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

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

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

S.M. 2012, c. 29, s. 13.

Compliance with market conduct laws

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

S.M. 2012, c. 29, s. 13.

34          [Repealed]

S.M. 2012, c. 29, s. 14.

35          [Repealed]

S.M. 2000, c. 40, s. 4; S.M. 2012, c. 29, s. 14.

CANCELLATION OF LICENCE

Cancelling a licence for non-payment of claims

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

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

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

Revival of licence

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

S.M. 2012, c. 29, s. 15.

37          [Repealed]

S.M. 2000, c. 40, s. 5.

Suspending or cancelling a licence

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

S.M. 2007, c. 10, s. 8; S.M. 2012, c. 29, s. 16.

Superintendent must report insufficiency to minister

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

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

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

the superintendent must report the finding to the minister.

Suspension or cancellation of licence

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

Transacting business for insurer after licence cancellation

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

Limited licence

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

Failure to meet financial criteria

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

S.M. 1989-90, c. 57, s. 10; S.M. 2012, c. 29, s. 17.

Suspension or cancellation elsewhere

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

Licence restrictions elsewhere

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

S.M. 2012, c. 29, s. 17.

Revival of licence

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

S.M. 2000, c. 40, s. 6; S.M. 2012, c. 29, s. 17.

Report of contraventions

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

S.M. 2012, c. 29, s. 17.

SUPPLEMENTARY PROVISIONS RESPECTING CORPORATE GOVERNANCE OF INSURERS INCORPORATED IN MANITOBA

Definitions

41.1(1)     The following definitions apply in this section and in sections 41.2 to 41.25.

"affiliate" means an entity that is affiliated with an insurer within the meaning of subsection (2). (« groupe »)

"entity" means

(a) a body corporate;

(b) a trust;

(c) a partnership;

(d) a fund;

(e) an unincorporated association or organization;

(f) Her Majesty in right of Canada or a province;

(g) an agency of Her Majesty in right of Canada or a province; or

(h) the government of, or of a political subdivision of, a foreign country or an agency of such a government. (« entité »)

"indebtedness" includes indebtedness in respect of

(a) commercial paper;

(b) acceptances;

(c) lines of credit to the extent drawn on; and

(d) margin loans made to a director or officer of an insurer. (« dette »)

"insurer" means an insurer incorporated under The Corporations Act. (« assureur »)

"not in good standing", in relation to a loan, means a loan in respect of which

(a) a payment of principal or interest is 90 days or more overdue;

(b) interest is not being accrued on the books of the lender because it is doubtful whether the principal or interest will be paid or recovered; or

(c) the rate of interest is reduced by the lender because the borrower is financially weak. (« en souffrance »)

"significant borrower", in relation to an insurer, means

(a) an individual who has indebtedness for money borrowed from the insurer or from an affiliate of the insurer, other than a loan secured by a mortgage on the individual's principal residence, the total principal of which exceeds the greater of

(i) $200,000., and

(ii) 0.02% of the insurer's regulatory capital; or

(b) an entity that has indebtedness for money borrowed from the insurer or from an affiliate of the insurer the total principal of which exceeds the greatest of

(i) $500,000.,

(ii) 0.05% of the insurer's regulatory capital, and

(iii) 25% of the value of the entity's assets. (« emprunteur important »)

"subsidiary", in relation to an insurer, means an entity that is controlled by the insurer. (« filiale »)

Affiliated bodies

41.1(2)     An entity is affiliated with an insurer if one of them is controlled by the other or both are controlled by the same person.

S.M. 2007, c. 10, s. 9.

Sections 41.1 to 41.25 supplementary to Corporations Act

41.2(1)     Sections 41.1 to 41.25 are supplementary to the provisions of The Corporations Act that apply to insurers.

Precedence over Corporations Act

41.2(2)     If there is a conflict between a provision of sections 41.1 to 41.25 and The Corporations Act, this Act takes precedence.

S.M. 2007, c. 10, s. 9.

Unanimous shareholder agreements not allowed

41.3(1)     The shareholders of an insurer shall not enter into a unanimous shareholder agreement, as defined in The Corporations Act. Such an agreement is of no force and effect.

Shareholders must appoint auditor

41.3(2)     Despite section 157 of The Corporations Act, the shareholders of an insurer shall not resolve not to appoint an auditor.

S.M. 2007, c. 10, s. 9.

Control of a body corporate or other entity

41.4(1)     For the purposes of sections 41.1 to 41.25,

(a) a person controls a body corporate if

(i) securities of the body corporate to which are attached more than 50% of the votes that may be cast to elect directors of the body corporate are beneficially owned by the person, and

(ii) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate;

(b) a person controls an unincorporated entity other than a limited partnership if

(i) more than 50% of the ownership interests, however designated, into which the entity is divided are beneficially owned by that person, and

(ii) the person is able to direct the business and affairs of the entity;

(c) the general partner of a limited partnership controls the limited partnership; and

(d) a person controls an entity if the person has any direct or indirect influence that, if exercised, would result in control in fact of the entity.

Deemed control

41.4(2)     A person who controls an entity is deemed to control any entity that is controlled, or deemed to be controlled, by the entity.

Deemed control — common ownership of securities

41.4(3)     A person is deemed to control an entity if the aggregate of

(a) any securities of the entity that are beneficially owned by the person; and

(b) any securities of the entity that are beneficially owned by any entity controlled by the person;

is such that, if the person and all of the entities referred to in clause (b) that beneficially own securities of the entity were one person, that person would control the entity.

S.M. 2007, c. 10, s. 9.

Significant interest in insurer's shares

41.5(1)     For the purposes of sections 41.1 to 41.25, a person has a significant interest in a class of an insurer's shares if the aggregate of

(a) any shares of that class beneficially owned by the person; and

(b) any shares of that class beneficially owned by entities controlled by the person;

exceeds 10% of all of the outstanding shares of that class of the insurer's shares.

Substantial investment in a body corporate

41.5(2)     For the purposes of sections 41.1 to 41.25, a person has a substantial investment in a body corporate where

(a) the voting rights attached to the aggregate of any voting shares of the body corporate beneficially owned by the person and by any entities controlled by the person exceed 10% of the voting rights attached to all of the outstanding voting shares of the body corporate; or

(b) the aggregate of any shares of the body corporate beneficially owned by the person and by any entities controlled by the person represents ownership of greater than 25% of the shareholders' equity of the body corporate.

Substantial investment in an unincorporated entity

41.5(3)     For the purposes of sections 41.1 to 41.25, a person has a substantial investment in an unincorporated entity where the aggregate of any ownership interests, however designated, into which the entity is divided, beneficially owned by the person and by any entities controlled by the person exceeds 25% of all of the ownership interests into which the entity is divided.

S.M. 2007, c. 10, s. 9.

Five directors required

41.6(1)     An insurer shall have at least five directors.

Residency

41.6(2)     A majority of the directors of an insurer shall be residents of Canada.

Majority to be residents

41.6(3)     An insurer's directors shall not transact business at a meeting of directors unless a majority of the directors present are residents of Canada.

Exception

41.6(4)     Despite subsection (3), directors may transact business at a directors' meeting when a majority of the directors present are not residents of Canada, if

(a) a director who is a resident of Canada and who is unable to be present approves in writing, or by telephone or other communication facility, the business transacted at the meeting; and

(b) the required majority would have been present at the meeting had that director been present.

S.M. 2007, c. 10, s. 9.

Duties of directors

41.7(1)     The directors of an insurer shall manage, or supervise the management of, its business and affairs.

Duties re audits and controls

41.7(2)     Without limiting the generality of subsection (1), the directors of an insurer shall

(a) establish an audit committee and a conduct review committee;

(b) establish procedures to resolve conflicts of interest, including techniques for identifying potential conflict situations and for restricting the use of confidential information; and

(c) establish policies and procedures to ensure that the insurer applies prudent investment standards.

Appointing actuary

41.7(3)     At the organizational meeting of an insurer required by subsection 99(1) of The Corporations Act, the directors shall appoint a qualified person to be the insurer's actuary.

Filling vacancy in actuary's position

41.7(4)     If the position of actuary becomes vacant, the directors shall appoint another qualified person to fill it. They may not delegate that power to a managing director or a committee of directors.

Superintendent may exempt certain insurers

41.7(5)     At the request of an insurer, the superintendent may exempt the insurer from the requirements of subsection (3), if

(a) the insurer satisfies the superintendent that its insurance business

(i) is limited in scope,

(ii) is seasonal, or

(iii) involves minimal policy liabilities; and

(b) the superintendent believes that the exemption will not prejudice the insurer's policyholders or shareholders.

Statement of actuary

41.7(6)     The actuary of an insurer who resigns or whose appointment is revoked shall submit to the insurer's directors and the superintendent a written statement of

(a) the circumstances of the resignation or revocation; and

(b) the reasons why the actuary resigned or why, in the actuary's opinion, the appointment was revoked.

Duty of replacement actuary

41.7(7)     When an insurer's actuary resigns or the actuary's appointment is revoked, no person shall accept an appointment or consent to be appointed as the insurer's actuary before requesting and receiving from the former actuary the written statement referred to in subsection (6).

Exception

41.7(8)     A person may accept an appointment or consent to be appointed as the insurer's actuary if no reply is received from the former actuary within 15 days after the request under subsection (7) is made.

Effect of non-compliance

41.7(9)     Unless subsection (8) applies, the appointment of a person as an insurer's actuary is void if the person does not comply with subsection (7).

S.M. 2007, c. 10, s. 9.

Qualifications of directors

41.8        The following persons are disqualified from being a director of an insurer:

(a) a person who is not an individual;

(b) a person who is less than 18 years of age;

(c) a person who has the status of a bankrupt;

(d) a person who has been found to be of unsound mind by a court in Canada or elsewhere;

(e) a person who is suffering from a mental disorder, as defined in The Mental Health Act, or a person for whom a substitute decision maker for property has been appointed under The Vulnerable Persons Living with a Mental Disability Act;

(f) a member of the civil service of Manitoba whose official duties are concerned with the business or affairs of insurers, insurance agents or adjusters;

(g) an employee of an insurance council;

(h) a person who fails to meet any other qualification requirements of the insurer's by-laws;

(i) a person who, within the preceding five years,

(i) has been convicted of an indictable offence of a kind that is related to the qualifications, functions or duties of a corporate director, or

(ii) has been convicted of an offence under this Act,

if the time for making an appeal has expired without an appeal having been made or the appeal has been finally disposed of by the courts or abandoned.

S.M. 2007, c. 10, s. 9.

Limit on directors who are employees

41.9        No more than 20% of an insurer's directors may be employees of the insurer or its subsidiaries, except as the result of the resignation, removal or death of a director.

S.M. 2007, c. 10, s. 9.

Limit on affiliated directors

41.10(1)    No more than 2/3 of an insurer's directors may be affiliated directors, except as the result of the resignation, removal or death of a director.

When a person is an affiliated director

41.10(2)    A director is an affiliated director of an insurer if he or she

(a) is an officer or employee of the insurer or any of its affiliates;

(b) has a significant interest in a class of the insurer's shares;

(c) has a substantial investment in an affiliate of the insurer;

(d) is a significant borrower of the insurer;

(e) is a director, officer or employee of an entity that is a significant borrower of the insurer;

(f) controls one or more entities whose total indebtedness to the insurer or its affiliates would cause the entities, if treated as a single entity, to be a significant borrower of the insurer;

(g) provides goods or services to the insurer for which the total annual billings to the insurer exceeds 10% of his or her total annual billings;

(h) is

(i) a partner in or an employee of a partnership, or

(ii) an officer or employee of, or a person who has a substantial investment in, a body corporate,

that provides goods or services to the insurer for which the total annual billings to the insurer exceeds 10% of the partnership's or body corporate's total annual billings;

(i) has a loan from the insurer, or from an affiliate of the insurer, that is not in good standing;

(j) is a director, officer or employee of, or an individual who controls, an entity that has a loan from the insurer, or from an affiliate of the insurer, that is not in good standing;

(k) is a professional adviser to the insurer;

(l) is an insurance agent, broker or adjuster of the insurer;

(m) is the spouse or common-law partner of an individual described in any of clauses (a) to (l); or

(n) is a relative of an individual described in any of clauses (a) to (l) who resides in the same home as the individual.

Determination of affiliation

41.10(3)    Whether or not a person is affiliated with an insurer within the meaning of subsection (2) shall be determined as of the day the notice of the annual meeting is sent to shareholders. The determination becomes effective on the day of that meeting and continues to be in effect until the next annual meeting of shareholders.

S.M. 2007, c. 10, s. 9.

Determination by superintendent re affiliation

41.11(1)    Despite subsections 41.10(2) and (3), the superintendent may determine that a particular director is affiliated with an insurer for the purposes of this Act if the superintendent believes that the director has a relationship with the insurer or with any of its affiliates that can reasonably be expected to affect the exercise of the director's best judgment.

Effective period of determination

41.11(2)    A determination under subsection (1)

(a) becomes effective on the day of the next annual meeting of the insurer's shareholders unless a written notice from the superintendent revoking the determination is received by the insurer before that day; and

(b) ceases to be in effect on the day of the next annual meeting of the insurer's shareholders after a written notice from the superintendent revoking the determination is received by the insurer.

S.M. 2007, c. 10, s. 9.

Statement of dissenting director

41.12(1)    A director of an insurer who

(a) resigns;

(b) receives a notice or otherwise learns of a meeting of the insurer's shareholders called to remove him or her from office; or

(c) receives a notice or otherwise learns of a meeting of insurer's directors or shareholders at which another person is to be appointed or elected to fill his or her office as director, whether because of his or her resignation or removal or because his or her term of office has expired or is about to expire;

is entitled to submit to the insurer a written statement giving the reasons for the resignation or the reasons why he or she opposes any proposed action or resolution.

Resignation of director due to disagreement

41.12(2)    If a director of an insurer resigns as a result of a disagreement with the other directors or the officers of the insurer, the director shall submit to the insurer a written statement of the nature of the disagreement.

Circulating statement

41.12(3)    Without delay after receiving a director's statement under subsection (2) or about a matter referred to in clause (1)(b) or (c), the insurer shall send a copy of the statement

(a) to the other directors and the superintendent; and

(b) to the shareholders entitled to receive notice of meetings under clause 129(1)(a) of The Corporations Act, unless

(i) the statement is attached to a notice of a shareholders' meeting, or

(ii) the directors believe on reasonable grounds that sending the statement will materially and adversely affect the insurer's financial viability.

Refraining from sending statement

41.12(4)    If the insurer's directors decide under subclause (3)(b)(ii) not to send the statement to the shareholders, the insurer shall promptly notify the superintendent in writing and state the grounds for the directors' belief. After receiving the insurer's notification, the superintendent may

(a) allow the insurer to not send the statement; or

(b) order the insurer to send the statement to the shareholders.

Immunity

41.12(5)    No insurer or person acting on behalf of an insurer incurs any liability by reason only of circulating a director's statement in compliance with subsection (3).

S.M. 2007, c. 10, s. 9.

When composition of board fails

41.13(1)    Despite subsection 41.6(3) of this Act and subsection 106(4) of The Corporations Act, if — because of a vacancy — the number of directors or the composition of the board of directors fails to meet a requirement of section 41.6 or 41.9 or subsection 41.10(1) of this Act, the directors who, in the absence of any provision in the articles, are empowered to fill the vacancy shall promptly fill it.

Determining affiliation — vacancy

41.13(2)    Despite subsection 41.10(3), the affiliation of a person to be elected or appointed to fill a vacancy shall be determined as at the date of the person's election or appointment. The determination continues to be in effect until the next annual meeting of the shareholders.

S.M. 2007, c. 10, s. 9.

At least four directors' meetings per year

41.14       An insurer's directors shall meet at least four times during each financial year.

S.M. 2007, c. 10, s. 9.

Quorum at meeting of directors' committee

41.15       A quorum for a meeting of a committee of the directors is a majority of the directors comprising the committee.

S.M. 2007, c. 10, s. 9.

At least one unaffiliated director at meeting

41.16(1)    An insurer's directors shall not transact business at a directors' meeting unless at least one unaffiliated director is present.

Exception

41.16(2)    Despite subsection (1), an insurer's directors may transact business at a directors' meeting if an unaffiliated director who is unable to be present approves in writing, or by telephone or other communication facility, the business transacted at the meeting.

S.M. 2007, c. 10, s. 9.

Record of attendance at directors' meetings

41.17(1)    An insurer shall keep a record of the attendance at each meeting of directors and each committee meeting of directors.

Statement to shareholders

41.17(2)    An insurer shall attach a statement to the notice of each annual meeting it sends to its shareholders showing

(a) the total number of directors' meetings and directors' committee meetings held during the financial year immediately preceding the meeting; and

(b) the number of those meetings attended by each director.

S.M. 2007, c. 10, s. 9.

Meeting required by superintendent

41.18(1)    If the superintendent considers it to be necessary, the superintendent may, by a notice in writing, require an insurer to hold a meeting of its directors to consider the matters set out in the notice.

Superintendent may attend and address meeting

41.18(2)    The superintendent may attend and address a meeting referred to in subsection (1) in person or by telephone or other communication facility.

S.M. 2007, c. 10, s. 9; S.M. 2012, c. 29, s. 18.

Audit committee

41.19       The audit committee of an insurer shall consist of at least three members,

(a) all of whom are directors of the insurer;

(b) a majority of whom are unaffiliated directors; and

(c) none of whom are officers or employees of the insurer or a subsidiary of the insurer.

S.M. 2007, c. 10, s. 9.

Duties of the audit committee

41.20(1)    The audit committee shall

(a) review the annual financial statements of the insurer before the directors approve them;

(b) review any returns of the insurer that the superintendent requires it to review;

(c) require the insurer's management to implement and maintain appropriate internal control procedures;

(d) review, evaluate and approve the procedures referred to in clause (c);

(e) review any investments and transactions that the insurer's auditor or any of its officers may bring to the attention of the committee as potentially affecting adversely the insurer's well-being;

(f) meet with the insurer's auditor to discuss the annual financial statements, and the returns and transactions referred to in this subsection;

(g) meet with the insurer's actuary to discuss the parts of the annual financial statements and the annual return prepared by the actuary; and

(h) meet with the insurer's chief internal auditor, or the officer or employee of the insurer acting in a similar capacity, and with the insurer's management, to discuss the effectiveness of the internal control procedures established for the insurer.

Report to directors

41.20(2)    In the case of the annual financial statements of an insurer that must be approved by the insurer's directors under subsection 152(1) of The Corporations Act, before the approval is given the insurer's audit committee shall report to the directors about any matter that the committee considers relevant to the directors' decision.

Audit committee may call a meeting of directors

41.20(3)    An insurer's audit committee may call a meeting of the insurer's directors to consider any matter of concern to the committee.

S.M. 2007, c. 10, s. 9.

Auditor's statement re subsection 162(5) of C225

41.21(1)    Despite subsection 162(5) of The Corporations Act, an auditor described in clause (a), (b) or (c) of that subsection must submit to the insurer a written statement giving the reasons for his or her resignation or the reasons why he or she opposes any proposed action or resolution.

Circulating statement

41.21(2)    Without delay after receiving a statement under subsection (1), the insurer shall send a copy of the statement

(a) to the superintendent; and

(b) unless the statement is included in or attached to a management proxy circular required by section 143 of The Corporations Act, to every shareholder entitled, under that Act, to receive notice of shareholders' meetings.

S.M. 2007, c. 10, s. 9.

Application of Division VIII of Part XXIV of C225

41.22       Division VIII of Part XXIV of The Corporations Act applies to an insurer, with necessary changes. A reference in that Division to a "corporation" must be read as a reference to an "insurer".

S.M. 2007, c. 10, s. 9.

Conduct review committee

41.23       The conduct review committee of an insurer shall consist of at least three members

(a) all of whom are directors of the insurer;

(b) a majority of whom are unaffiliated directors; and

(c) none of whom are officers or employees of the insurer or a subsidiary of the insurer.

S.M. 2007, c. 10, s. 9.

Duties of the conduct review committee

41.24(1)    The conduct review committee shall

(a) require the insurer's management to establish procedures for complying with Division VIII of Part XXIV of The Corporations Act;

(b) review those procedures and their effectiveness in ensuring that the insurer is complying with that Division; and

(c) review the insurer's practices to ensure that any transactions with related parties of the insurer that may have a material effect on the stability or solvency of the insurer are identified.

Insurer report to superintendent

41.24(2)    An insurer shall report to the superintendent on the mandate and responsibilities of the conduct review committee and the procedures referred to in clause (1)(a).

S.M. 2007, c. 10, s. 9.

Conduct committee to report to directors

41.25       After each meeting of an insurer's conduct review committee, the committee shall report to the directors of the insurer on matters reviewed by the committee.

S.M. 2007, c. 10, s. 9.

42          [Repealed]

S.M. 2000, c. 40, s. 7.

43          [Repealed]

R.S.M. 1987 Supp., c. 18, s. 6; S.M. 1993, c. 9, s. 3; S.M. 2000, c. 40, s. 7.

44 to 48    [Repealed]

S.M. 2000, c. 40, s. 7.

49 to 50    [Repealed]

S.M. 1992, c. 58, s. 12; S.M. 2000, c. 40, s. 7.

51          [Repealed]

S.M. 2000, c. 40, s. 7.

HEAD OFFICE

Changing head office

52          An insurer whose head office is situated in Manitoba shall not change the situation of the head office to another province without the consent of the minister.

S.M. 2000, c. 40, s. 8.

53 to 75    [Repealed]

S.M. 2000, c. 40, s. 9.

INVESTMENTS

Investment of surplus funds

76(1)       An insurer, incorporated and licensed under the laws of the province, may invest its surplus funds and reserve in any investments in which an insurer who has obtained an order under section 53 of the Insurance Companies Act (Canada) is permitted under that Act to invest its funds.

Deposit in bank, trust company, credit union or caisse populaire

76(2)       Uninvested funds of the insurer shall be kept on deposit in the name of the insurer in a bank, trust company, credit union or caisse populaire.

S.M. 1992, c. 58, s. 12; S.M. 1994, c. 16, s. 2.

BOOKS OF INSURERS

Books to be kept

77(1)       An insurer must keep

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

(b) such books of account;

as the superintendent requires.

Audit of records

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

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

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

Payment of accountant's expenses

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

Collection of accountant's expenses from insurer

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

S.M. 2012, c. 29, s. 19.

Inspection of registers by superintendent

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

S.M. 2012, c. 29, s. 19.

RECORDS AND RETURNS

79 and 80     [Repealed]

S.M. 2012, c. 29, s. 20.

By-laws and by-law changes to be filed

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

(a) the insurer's by-laws;

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

Other information — licensed insurers

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

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

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

S.M. 2012, c. 29, s. 21.

82          [Repealed]

S.M. 2012, c. 29, s. 22.

Report of auditor

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

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

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

Auditor's remarks on certain issues required

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

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

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

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

S.M. 2012, c. 29, s. 23.

Meaning of "reinsurance"

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

Annual statement

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

Form and verification of statement

84(3)       The statement must

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

(b) show

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

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

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

Annual statement — reinsurance

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

Answering superintendent's questions

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

Valuation of actuarial and other policy liabilities

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

Report of actuary on reserve

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

S.M. 1993, c. 9, s. 4; S.M. 2012, c. 29, s. 23.

Standards of financial reporting

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

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

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

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

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

S.M. 2012, c. 29, s. 23.

Waiver or variation of reporting requirements

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

S.M. 2012, c. 29, s. 23.

Non-application of Statutes and Regulations Act

84.3        The Statutes and Regulations Act does not apply

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

(b) to an order under section 84.2.

S.M. 2012, c. 29, s. 23.

Publication of misleading or unauthorized statements

85          An insurer must not publish or circulate

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

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

S.M. 2012, c. 29, s. 23.

Statements of financial standing

86          A person must not represent orally or in writing that

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

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

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

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

S.M. 2012, c. 29, s. 23.

Misleading statement by insurer prohibited

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

S.M. 2012, c. 29, s. 23.

Insurance compliance self-evaluative audit

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

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

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

Audit document is privileged

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

Evidence about audit is not compellable

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

Privilege not waived by certain disclosures

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

When privilege may be waived

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

When privilege does not apply

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

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

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

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

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

S.M. 2012, c. 29, s. 23.

LIFE INSURANCE RESERVES

Valuation of life insurance contracts — provincial companies

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

88(2) to (4)[Repealed] S.M. 2012, c. 29, s. 24.

Life insurance contract must be self-supporting

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

88(6)       [Repealed] S.M. 2012, c. 29, s. 24.

Annuity contracts

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

Insurer with federal order

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

S.M. 1992, c. 58, s. 12; S.M. 2012, c. 29, s. 24.

INSURANCE WITH UNLICENSED INSURERS

Insurance with unlicensed insurers

89          No person in the province shall enter into a contract of insurance with an insurer not licensed under this Act, except through a licensed special insurance broker.

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

DEALINGS IN LIFE INSURANCE POLICIES

Traffic in life insurance policies prohibited

90          No person other than an insurer or its duly authorized agent shall advertise or hold himself out as a purchaser of life insurance policies or benefits thereunder, nor shall he traffic or trade in life insurance policies for the purpose of procuring the sale, surrender, transfer, assignment, pledge, or hypothecation thereof, to himself or any other person; and if he does so he is guilty of an offence.

Prohibition of certain policies

91(1)       The superintendent may require an insurer to file with him a copy of any form of policy, or of the form of application for any policy, issued or used by the insurer.

Unfair forms of policy or application

91(2)       Where an insurer issues a policy or uses a form of application, or where an insurer or agent uses an advertisement, illustration, circular, memorandum or statement that, in the opinion of the superintendent, is unfair, fraudulent, or not in the public interest, the superintendent shall, after hearing the insurer or agent, prohibit

(a) the insurer or agent from issuing or using the form of policy or application; or

(b) the insurer or agent from issuing or using the advertisement, illustration, circular, memorandum or statement.

Insurer guilty of offence

91(3)       An insurer that issues a policy or uses an application form, after being prohibited from doing so under subsection (2), is guilty of an offence.

Insurer and agent guilty of offence

91(4)        An insurer or agent that uses an advertisement, illustration, circular, memorandum or statement, after being prohibited from doing so under subsection (2), is guilty of an offence.

Appeal

91(5)       Where an insurer or agent feels aggrieved by a decision of the superintendent under subsection (2) the insurer or agent may appeal the decision under subsection 389.0.1(1).

R.S.M. 1987 Supp., c. 18, s. 7; S.M. 2012, c. 29, s. 25.

Limited meaning of "contract of insurance"

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

Effect of violation of law on enforcement of policy

92(2)       Unless a contract of insurance provides otherwise, a contravention of any criminal or other law in force in Manitoba or elsewhere does not render unenforceable a claim for indemnity under a contract of insurance except when the contravention is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage.

S.M. 2012, c. 29, s. 26.

93          [Repealed]

S.M. 2007, c. 10, s. 11.

FORFEITURE FOR NON-USER OR DISCONTINUANCE

Non-user forfeits charter

94(1)       Where an insurer incorporated under the laws of the province does not go into actual operation within two years after incorporation, or where, after an insurer has undertaken contracts, it discontinues business for one year, or where its licence remains suspended for one year, or is terminated otherwise than by effluxion of time and is not renewed within the period of 60 days, the insurer's corporate powers shall thereupon cease and determine, except for the sole purpose of winding-up its affairs; and the court, upon the application of the Attorney-General or of any person interested, may limit the time within which the insurer shall settle and close its accounts, and may, for that purpose or for the purpose of liquidation generally, appoint a receiver.

Rights of creditors preserved

94(2)       No such forfeiture affects prejudicially the rights of creditors as they exist at the date of the forfeiture.

Onus

94(3)       In any action or proceeding where such non-user is alleged, proof of user shall be upon the insurer.

APPOINTMENT OF SUPERVISOR

When supervisor may be appointed

95(1)       Where the superintendent is satisfied that an insurer that is subject to this Act is not complying with any provision of this Act or with the by-laws of the insurer approved by him, or is for any reason not entitled to have its licence renewed, the minister may appoint a supervisor for the affairs of the insurer.

Effect of appointment of supervisor

95(2)       From and after the appointment of the supervisor the insurer, its officers or servants shall not make any contract for, incur any liability on behalf of, or expend any moneys of, the insurer without the approval of the supervisor.

Powers of minister

95(3)       The supervisor at all times is subject to the directions of the minister; and the minister may remove the supervisor upon being satisfied that the insurer is complying with its approved by-laws and with this Act and is entitled to have its licence renewed.

Removal of supervisor by court

95(4)       A judge of the Court of Queen's Bench, on application by the insurer, may make an order removing the supervisor on being satisfied that it is in the public interest so to do.

LIQUIDATION AND WINDING-UP

Application of Corporations Act to provincial insurance cos.

96          An insurance company that is incorporated under The Corporations Act or under any other Act of the Legislature or that was incorporated by a special Act of the Legislature, is subject to the winding-up provisions of The Corporations Act, except in so far as they may be varied by the provisions of this Act or of any special Act incorporating it.

Winding-up on application of superintendent

97(1)       An insurer incorporated in Manitoba may also be wound up by order of the court on the application of the superintendent if the court is satisfied that

(a) the insurer has failed to exercise its corporate powers during any continuous period of four years; or

(b) the insurer has not commenced business or gone into actual operation within four years after it was incorporated; or

(c) the insurer has discontinued business for one year after it has undertaken insurance contracts within the meaning of this Act; or

(d) the insurer's licence has been suspended for one year or more; or

(e) the insurer has carried on business or entered into a contract or used its funds in a manner or for a purpose prohibited or not authorized by this Act or by its Act of incorporation or by The Corporations Act or by any special Act applicable thereto; or

(f) other sufficient cause has been shown.

Approval of Lieutenant Governor in Council

97(2)       No such application shall be made by the superintendent without the approval of the Lieutenant Governor in Council.

Application of The Corporations Act to winding-up

97(3)       Upon the making of an order under this section the provisions of The Corporations Act relating to the winding-up of a company, in so far as they are not inconsistent with this Act, apply.

Appointment of provisional liquidator by minister

98(1)       In the case of an insurer incorporated in Manitoba,

(a) if its licence expires and

(i) the insurer fails to renew within the period limited by this Act; or

(ii) a renewal is refused; or

(b) if its licence is cancelled;

the minister may appoint a provisional liquidator, who shall take charge of the affairs of the company and may direct that it be wound up forthwith under The Corporations Act.

Powers of provisional liquidator

98(2)       Until a permanent liquidator is appointed the provisional liquidator shall exercise all the powers of the insurer; and none of the officers or servants of the insurer shall make any contract for, incur any liability on behalf of, or expend any moneys of, the insurer without the approval of the provisional liquidator.

Petition by provisional liquidator for winding-up order

98(3)       The provisional liquidator shall petition the court for a winding-up order; and if the court is of the opinion that it is just and equitable so to do, it may make an order winding-up the company and thereupon the provisions of The Corporations Act relating to the winding-up of a company, in so far as they are not inconsistent with this Act, apply.

Sale of business by liquidator or provisional liquidator

98(4)       The provisional liquidator or the liquidator, notwithstanding the provisions of The Corporations Act, but subject to the approval of the court, may sell the business and undertaking of the company as a going concern.

Remuneration of provisional liquidator

99(1)       The remuneration to be paid to a provisional liquidator appointed under subsection 98(1) shall be fixed by the minister.

Payment of cost of provisional liquidator

99(2)       The remuneration and all expenses and outlay in connection with the appointment of the provisional liquidator, together with all expenses and outlay of the provisional liquidator while he acts in that capacity, shall be borne and paid by the insurer, and form a first lien or charge upon the assets of the insurer.

99(3)       [Repealed]

S.M. 2000, c. 40, s. 10.

Notice of ceasing business or meeting to consider winding-up to be given

100(1)      When an insurer incorporated under, or subject to, the laws of the province proposes to cease writing insurance, or to call a general meeting to consider a resolution for the voluntary liquidation of the insurer under The Corporations Act, it shall give at least one month's notice in writing thereof to the Superintendent of Insurance of each other province in which the insurer is licensed.

Notice to superintendent of voluntary winding-up

100(2)      When an insurer has passed a resolution for voluntary winding-up the insurer shall notify the superintendent thereof, and of the date at which contracts of insurance will cease to be entered into by the insurer, and of the name and address of its liquidator.

Publication of notice

100(3)      The notice under subsection (2) shall also be published by the insurer in two consecutive issues of The Manitoba Gazette and of the official gazette of each other province in which the insurer is licensed and in such newspapers and other publications as the superintendent may require.

Consent to winding-up of fraternals and mutuals

100(4)      A fraternal society or mutual insurance company to which this Act applies shall not go into voluntary liquidation or otherwise arrange for the winding-up of its affairs without the written consent of the superintendent.

Definitions

100.1       In sections 101, 103, 105 and 106,

"insured person" means

(a) a person who enters into a subsisting contract of insurance with an insurer,

(b) a person insured by a contract of insurance, whether named or not,

(c) a person to whom, or for whose benefit, all or part of the proceeds of a contract of insurance are payable, and

(d) a person entitled to have insurance money applied toward satisfaction of his or her judgment in accordance with section 258; (« personne assurée »)

"loss" includes the happening of an event or contingency by reason of which a person becomes entitled to a payment under a contract of insurance of money other than a refund of unearned premiums; (« sinistre »)

"Manitoba contract" means a subsisting contract of insurance that

(a) has for its subject

(i) property that, at the time of the making of the contract, is in the province or is in transit to or from the province, or

(ii) the life, safety, fidelity or insurable interest of a person who, at the time of the making of the contract, is resident in, or has its head office in, the province, or

(b) makes provision for payment primarily to a resident of the province or to an incorporated company that has its head office in the province. (« contrat du Manitoba )

S.M. 2000, c. 40, s. 11.

Reinsurance arranged by liquidator or provisional liquidator

101(1)      The provisional liquidator or the liquidator may arrange for the reinsurance of the subsisting contracts of insurance of the insurer with some other insurer licensed in the province.

Funds available for reinsurance

101(2)      For the purpose of securing the reinsurance the following funds are available:

(a) the entire assets of the insurer in the province, except the amount reasonably estimated by the liquidator or the provisional liquidator as being required to pay

(i) the costs of the liquidation or winding-up,

(ii) all claims for losses covered by the insurer's contracts of insurance of which notice has been received by the insurer or liquidator or provisional liquidator before the date on which the reinsurance is effected,

(iii) the claims of the preferred creditors who are the persons paid in priority to other creditors under the winding-up provisions of The Corporations Act;

all of which shall be a first charge on the assets of the insurer;

(b) [repealed] S.M. 2000, c. 40, s. 12.

101(3)      [Repealed] S.M. 2000, c. 40, s. 12.

Payments to creditors other than preferred

101(4)      Creditors of the insurer, other than the insured persons and the said preferred creditors, shall be entitled to receive a payment on their claims only if provision has been made for the payments mentioned in subsection (2) and for the reinsurance.

Reinsurance of part of contracts only

101(5)      Where, after providing for the payments mentioned in subsection (2), the balance of the assets of the insurer is insufficient to secure the reinsurance of the contracts of the insured persons in full, the reinsurance may be effected for such portion of the full amount of the contracts as may be possible.

Approval of reinsurance by court

101(6)      No contract of reinsurance shall be entered into pursuant to this section until it is approved by the court.

Saving

101(7)      Nothing in this section prejudices or affects the priority of any mortgage, lien, or charge, upon the property of the insurer.

S.M. 2000, c. 40, s. 12.

Payment of costs of liquidator or provisional liquidator

102         The amount payable to the liquidator or the provisional liquidator for the winding-up of the insurer, and all costs and expenses incurred by him or her in the winding-up, shall be paid from, and shall be a first charge on, the assets of the insurer, except as provided in subsection 97(3).

S.M. 2000, c. 40, s. 13.

Termination date fixed where reinsurance not arranged

103(1)      If he fails to secure reinsurance, or if, in his opinion, it is impracticable or inexpedient to arrange for reinsurance, the provisional liquidator or the liquidator,

(a) with the approval of the court and subject to such terms as may be prescribed by the court; and

(b) for the purpose of securing the payment of existing claims and avoiding further losses;

may publish a notice fixing a termination date for the subsisting contracts of insurance of that insurer; and on and after that date coverage and protection under the Manitoba contracts shall cease; and the insurer is not liable under any such contract for a loss that occurs after that date.

Termination of Manitoba contracts where termination date fixed in another province

103(2)      Where a provisional liquidator or a liquidator has been appointed in another province to wind up an insurer incorporated in that province, if the provisional liquidator or the liquidator fixes a termination date for the contracts of insurance of that insurer, on and after that date coverage and protection under the Manitoba contracts ceases and determines; and the insurer is not liable under any such contract for a loss that occurs after that date.

103(3)      [Repealed] S.M. 2000, c. 40, s. 14.

S.M. 2000, c. 40, s. 14.

Publication of notice of termination date

104         The provisional liquidator or the liquidator shall cause the notice

(a) to be published in The Manitoba Gazette and in the official gazette of each other province in which the insurer is licensed, and in such newspapers as the court may direct in order to give reasonable notice of the termination date so fixed; and

(b) to be mailed to each policyholder at his address as shown on the books and records of the company.

Provision for payment of claims for losses and preferred claims

105(1)      The liquidator shall pay or set aside from the assets of the insurer sums in his opinion sufficient to pay

(a) the costs of the liquidation or winding-up;

(b) all claims for losses covered by the insurer's contracts of insurance that occurred before the termination date fixed pursuant to section 61 or section 103 and that have not been paid or provided for in the administration of the deposit and of which notice has been received by the insurer or the liquidator;

(c) the full amount of the legal reserve in respect of each unmatured life insurance contract;

(d) the claims of preferred creditors who are the persons paid in priority to other creditors under the winding-up provisions of The Corporations Act.

Provision for payment of unearned premiums

105(2)      Except in the case of life insurance, the assets remaining after payment, or making provision for payment, of the amounts mentioned in subsection (1) shall be used to pay the claims of the insured persons for refunds of unearned premiums on a pro rata basis in proportion to the periods of their contracts respectively unexpired on the termination dates.

Calculation of unearned premium claims

105(3)      The claims of the insured persons for refunds of unearned premiums shall be calculated

(a) as at the termination date fixed pursuant to section 61 or section 101; or

(b) as at the date the insured person cancelled the contract;

whichever date is the earlier.

Effect of refund of unearned premium

105(4)      The refund of all or a portion of the premium does not destroy or defeat any other remedy the insured person may have against the insurer in respect thereof or for any other cause.

Saving

105(5)      Nothing in this section prejudices or affects the priority of any mortgage, lien, or charge, upon the property of the insurer.

S.M. 2000, c. 40, s. 15.

Payment of government fees, taxes, etc.

106         The fees, taxes, and costs, payable by the insurer to each province shall be paid out of the assets of the insurer remaining after the reinsurance of the subsisting contracts of insurance of the insurer or after the payment of the claims of policyholders for refund of unearned premiums, as the case may be; and the balance shall be distributed amongst the creditors of the insurer other than the insured persons, preferred creditors and the several provinces.

Filing with court of quarterly statements by receiver

107(1)      Unless otherwise ordered by the court, within seven days after the close of each period of three months and until the affairs of the insurer are wound up and the accounts are finally closed, the liquidator shall file with the court or other authority appointing him and also with the superintendent detailed schedules showing, in such forms as may be required,

(a) receipts and expenditures; and

(b) assets and liabilities.

Production of books, etc., by liquidator

107(2)      The liquidator, whenever he is required to do so by the authority appointing him or by the minister, shall exhibit the office books and vouchers and furnish such other information respecting the affairs of the insurer as may be required.

Failing to provide information

107(3)      The authority that appointed the liquidator may, without notice, dismiss the liquidator if the liquidator neglects or refuses to provide any information required by this section.

S.M. 2007, c. 10, s. 12.

Endowment and life funds distributed

108(1)      Where a fraternal society transacts endowment or expectancy insurance and has an endowment fund separate and distinct from its life insurance fund, the society may, by resolution passed at a general meeting after at least one month's notice of the intended resolution, determine that the endowment or expectancy be discontinued, and that the endowment or expectancy fund be distributed pro rata among the members then in good standing who are contributing to the fund, to each member according to his total contribution.

Procedure

108(2)      After the resolution is assented to by the superintendent and filed with the Provincial Secretary, the executive officers may proceed to ascertain the persons entitled to rank upon the fund, and may distribute the fund among those entitled; and the distribution discharges the society and all executive officers thereof from all liability in respect of the fund and of the endowment or expectancy contracts undertaken by the society.

Merger of funds

108(3)      If all the members interested in the endowment or expectancy fund are also interested as holders of life insurance contracts, the general meeting, instead of determining that the endowment or expectancy fund be distributed, may determine that the fund be converted into, or merged in, a life insurance fund; and after the resolution is so assented to and filed, the endowment or expectancy fund becomes and is a life insurance fund.

Extension of licence

109         For the purpose of a voluntary winding-up the superintendent may renew or extend the licence of the insurer.

FEE FOR LATE OR INCOMPLETE REPORTS, RETURNS OR STATEMENTS

110         [Repealed]

S.M. 2007, c. 10, s. 14.

Meaning of "default" re reports and returns

111(1)      In this section, "default", in relation to making or filing a report, return or statement to the superintendent, means

(a) that the report, return or statement is not made or filed on or before the day on which it is required to be made or filed; or

(b) that, despite being made or filed when required, the report, return or statement is incomplete or inaccurate.

Fee for default in filing of returns and reports

111(1.1)    If an insurer or other person defaults in making or filing a report, return or statement that the insurer or person is required to make to or file with the superintendent under this Act, the insurer or person shall pay a fee of $200. for each day that the default continues, beginning with the eighth day after the day on which the report, return or statement was required to be made or filed.

Superintendent must give notice of default

111(2)      As soon as practicable after becoming aware of the default, the superintendent shall send the insurer or other person a notice of default. The notice must state the nature of the default, and may be sent by any means that the superintendent reasonably believes will result in its reaching the insurer or person in a timely manner.

When liability to pay the fee arises

111(3)      The liability of the insurer or other person to pay the fee under subsection (1.1) arises when the superintendent sends the notice under subsection (2).

Fee is a debt to the government

111(4)      A fee payable under this section is a debt owing by the insurer or other person to the government.

Fee additional to fine

111(5)      The amount for which any insurer or other person is liable as a debt under this section is in addition to any fine or other penalty that may be imposed on the insurer or person under this Act in respect of the same failure to make or file the report, return, or statement, or for any other cause.

S.M. 2007, c. 10, s. 15.

112         [Repealed]

S.M. 2007, c. 10, s. 16.

Definitions

113(1)      In this section

"person" means a person engaged in the business of insurance and includes any individual, corporation, association, partnership, reciprocal or inter-insurance exchange, member of the society known as Lloyds, fraternal society, agent, broker and adjuster; (« personne »)

"unfair or deceptive acts or practices in the business of insurance" includes

(a) any unfair discrimination between individuals of the same class and of the same expectation of life, in the amount or payment or the return of premiums, or rates charged by it for contracts of life insurance or annuity contracts, or in the dividends or other benefits payable thereon or in the terms and conditions thereof,

(b) any unfair discrimination in any rate or schedule of rates between risks in Manitoba of essentially the same physical hazards in the same territorial classification,

(c) any illustration, circular, memorandum or statement that misrepresents, or by omission is so incomplete that it misrepresents, the terms, benefits or advantages of any policy or contract of insurance issued or to be issued,

(d) any false or misleading statement as to the terms, benefits or advantages of any contract or policy of insurance issued or to be issued,

(e) any incomplete comparison of any policy or contract of insurance with that of any other insurer for the purpose of inducing, or intending to induce, an insured to lapse, forfeit or surrender a policy or contract,

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

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

(h) any consistent practice or conduct that results in unreasonable delay or resistance to the fair adjustment and settlement of claims, and

(i) the commission of any act prohibited under this Act or the regulations. (« actes ou pratiques injustes ou trompeurs dans le commerce d'assurance »)

Prohibition

113(2)      No person shall engage in any unfair or deceptive act or practice in the business of insurance.

When fee may be charged in addition to commission

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

(a) the contract does not insure

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

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

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

Investigation by superintendent

113(3)      The superintendent may examine and investigate the business practices of every person engaged in the business of insurance in Manitoba in order to determine whether the person has been, or is, engaged in any unfair or deceptive act or practice.

Order of superintendent

113(4)      Where it appears to the superintendent that any person is engaged in any unfair or deceptive act or practice in the business of insurance, the superintendent may order that the person cease engaging in his business or any part thereof named in the order, and an order under this subsection may be subject to such terms and conditions as the superintendent may specify in the order and the order may be revoked when the superintendent is satisfied that the unfair or deceptive acts or practices are corrected and not likely to recur.

Further contents of order

113(5)      In an order made under subsection (4), the superintendent may order any insurer that has engaged in unfair or deceptive acts or practices to send to each insured who has a contract of insurance with the insurer

(a) that, in the opinion of the superintendent, was entered into during the time the insurer engaged in the unfair or deceptive acts or practices; and

(b) in respect of which the insured, in the opinion of the superintendent, might have been misled or under a misapprehension by reason of the unfair or deceptive acts or practices;

a notice indicating

(c) such facts and matters relating to the contract, and in respect of which the insured might have been misled or under a misapprehension by reason of the unfair or deceptive acts or practices, as the superintendent may specify; and

(d) that the insured may, at his option, terminate the contract and receive a refund of any unearned premium paid by him.

Hearing

113(6)      No order shall be made under subsection (4) without a hearing unless, in the opinion of the superintendent, the length of time required for a hearing could be prejudicial to the public interest, in which event a temporary order may be made which shall expire 15 days from the making thereof or such longer time as is consented to by the person entitled to the hearing.

Service and effect of order

113(7)      A notice of every order made under this section shall be served upon every person named therein and upon such other persons as the superintendent considers appropriate and thereupon any person ordered thereby to cease engaging in his business or any part thereof named in the order shall not thereafter engage in that business or that part thereof until the order is rescinded.

Appeal to minister

113(8)      Any person affected by an order made by the superintendent under this section may appeal the order to the minister who may confirm, vary, or quash the order of the superintendent.

Appeal to court

113(9)      Any person affected by an order made by the minister under subsection (8) may appeal the order to the court by way of originating notice of motion and the court may after hearing the matter de novo confirm, vary or quash the order of the minister.

113(10)     [Repealed] S.M. 2007, c. 10, s. 17.

Effect of termination of contract

113(11)     Where an insurer is required by an order of the superintendent made under this section to send a notice to an insured indicating that the insured may, at his option, terminate a contract of insurance and receive a refund of any unearned premium paid by him, if the insured notifies the insurer in writing of his desire to terminate the contract, the insurer shall terminate the contract and refund to the insured any unearned premium paid by the insured in respect of the contract of insurance.

Restriction on insurer

113(12)     Where an insurer is ordered to send a notice to an insured as provided under subsection (5), if the insurer, within six months after the notice was sent to the insured,

(a) enters into a new contract of insurance with the insured in respect of a similar kind of insurance as that covered in the contract in respect of which the notice was sent; or

(b) amends the contract of insurance in respect of which the notice was sent;

the insured is entitled to, and the insurer shall give to the insured, the same treatment in respect of rates of premium and insurability as the insured would have been entitled at the time when, and under the circumstances, including age and condition of health of the insured, under which the contract of insurance in respect of which the notice was sent was made.

S.M. 2007, c. 10, s. 17; S.M. 2012, c. 29, s. 27.

TERMINATION BY ELECTRONIC MEANS

Notice of termination of contract given by electronic means

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

Application of regulations

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

S.M. 2012, c. 29, s. 28.

FEES AND REGULATIONS

Fees

114(1)      The Lieutenant Governor in Council may make regulations prescribing the fees payable to the minister by an insurer or other person for services performed under this Act.

Payment of

114(2)      The insurer shall pay any such fees payable by it before a licence or the renewal of a licence is issued.

Regulations

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

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

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

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

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

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

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

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

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

(i) the value of its corporate capital,

(ii) the nature of its corporate capital,

(iii) the amount of its unimpaired corporate surplus,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(q) for the purpose of section 113.1,

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

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

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

Effect of order

114(4)      A copy of every order in council made pursuant to this section, certified by the Clerk of the Executive Council to be a true copy, shall be laid before the Legislature forthwith, if it is then in session, and if not, then within 15 days of the opening of the next session.

Application of regulations

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

(a) be general or particular in its application;

(b) establish classes of insurers; and

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

R.S.M. 1987 Supp., c. 18, s. 8; S.M. 1989-90, c. 57, s. 11; S.M. 1993, c. 9, s. 5; S.M. 1997, c. 14, s. 3; S.M. 2007, c. 10, s. 18; S.M. 2012, c. 29, s. 29.

PART III

INSURANCE CONTRACTS IN MANITOBA

Application of Part

115         Where not inconsistent with other provisions of this Act, this Part applies to every contract of insurance made in the province other than contracts of

(a) accident and sickness insurance;

(b) life insurance; and

(c) marine insurance.

S.M. 2012, c. 29, s. 30.

When a contract is made in Manitoba

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

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

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

Interpretation of contract

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

Application despite agreement to the contrary

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

S.M. 2012, c. 29, s. 31.

POLICY OF INSURANCE

Contract terms to be set out in or attached to policy

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

Terms invalid unless set out in full

117(1.1)    Unless so set out or attached no term of the contract or condition, stipulation, warranty or proviso modifying or impairing its effect is valid or admissible in evidence to the prejudice of the insured or a person to whom insurance money is payable under the contract.

Non-application to alterations or modifications

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

Renewal

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

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

(b) the renewal receipt refers

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

(ii) to a new premium note.

Statements must be material

117(3)      The application of the insured must not, as against the insured, be deemed to be a part of or be considered with the contract except insofar as the court determines that it contains a material misrepresentation by which the insurer was induced to enter into the contract.

Insurer has burden of proof

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

Error in statement must be material to affect contract

117(4)      No contract of insurance shall contain or have endorsed upon it, or be made subject to, any term, condition, stipulation, warranty or proviso to the effect that the contract is to be avoided by reason of any statement in the application therefor, or inducing the insurer to enter into the contract, unless the term, condition, stipulation, warranty or proviso is, and is expressed to be, limited to cases in which the statement is material to the contract; and no contract shall be avoided by reason of the inaccuracy of any such statement unless it is material to the contract.

Materiality question of fact

117(5)      The question of materiality in any contract shall be a question of fact; and no admission, term, condition, stipulation, warranty or proviso to the contrary, contained in the application for insurance, or in the policy, or in any agreement or document relating thereto, shall have any force or validity.

Precedence of statutory conditions and provisions

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

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

(b) an express provision of this Act.

Non-application to automobile insurance

117(6)      This section does not apply to contracts of automobile insurance.

S.M. 2012, c. 29, s. 32.

Providing copies of application and policy

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

Cost of copies

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

S.M. 2012, c. 29, s. 33.

Contracts generally

119(1)      No insurer shall make a contract of insurance inconsistent with this Act.

Non-compliance not to invalidate

119(2)      Any act or omission of the insurer resulting in non-compliance or imperfect compliance with any provision of this Act shall not render a contract invalid as against the insured.

Specified content of policy

120(1)      Every policy must contain the following:

(a) the name of the insurer;

(b) the name of the insured;

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

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

(e) the subject matter of the insurance;

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

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

(h) the date the insurance takes effect;

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

(j) the following statement:

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

When subsection (1) does not apply

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

S.M. 2012, c. 29, s. 34.

Deemed content of contract before policy is issued

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

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

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

Exception

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

Non-application to automobile insurance

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

S.M. 2012, c. 29, s. 34.

Definition

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

When section applies

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

Non-application to hail insurance

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

Insured or insurer may demand dispute resolution

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

Appointment of dispute resolution representatives and umpire

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

Who may not be a representative or umpire

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

(a) the insured or the insurer; or

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

How disputes are to be resolved

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

Costs

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

Appointment by judge

121(9)      If

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

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

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

Costs awarded by court

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

Application to superintendent to appoint umpire

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

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

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

Names and credentials of proposed umpires

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

Notice of intention to apply

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

Application must include copy of notice

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

Umpire nominations by other representative

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

Appointment of umpire by superintendent

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

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

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

Rules of procedural fairness apply to umpire

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

S.M. 2012, c. 29, s. 34.

Policy payable in Canadian money

122         Insurance money is payable in Manitoba in lawful money of Canada.

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

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

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

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

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

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

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

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

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

Court may proceed in absence of appraisal

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

S.M. 2012, c. 29, s. 35.

124         [Repealed]

S.M. 2012, c. 29, s. 36.

Effect of delivering policy

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

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

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

Unpaid premiums

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

(a) sue for the unpaid premium;

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

Termination of contract for failing to pay premium

125(3)      If

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

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

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

S.M. 2012, c. 29, s. 37.

LOSS UNDER POLICY

Forms of proof

126(1)      Every insurer, immediately upon receipt of a request, and in any event not later than 60 days after receipt of notice of loss, shall furnish to the insured or to any person who indicates to the insurer that he wishes to make a claim under the contract forms upon which to make the proof of loss required under the contract.

When proof of loss forms are deemed to be provided

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

Failure to provide proof of loss forms

126(2)      Every insurer who neglects or refuses to comply with subsection (1) is guilty of an offence, and, in addition, section 131 is not available to the insurer as a defence to an action brought, after such neglect or refusal, for the recovery of money payable under the contract of insurance.

Payment of void claims

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

Effect of furnishing forms

126(4)      The insurer by furnishing forms to make proof of loss shall not be taken to have admitted that a valid contract is in force or that the loss in question falls within the insurance provided by the contract.

S.M. 2012, c. 29, s. 38.

Right of injured third party against insurer

127(1)      Where a person incurs a liability for injury or damage to the person or property of another, and is insured against such liability, and fails to satisfy a judgment awarding damages against him in respect of his liability, and an execution against him in respect thereof is returned unsatisfied, the person entitled to the damages may recover by action against the insurer the amount of the judgment up to the face value of the policy, but subject to the same equities as the insurer would have if the judgment had been satisfied.

Where subsection (1) not applicable

127(2)      This section does not apply to motor vehicle liability policies.

Consolidating actions

128(1)      Where several actions are brought for the recovery of money payable under a contract of insurance in respect of the happening of any event giving rise to the claims, the court may consolidate or otherwise deal therewith, so that the actions be tried and disposed of as one action.

Infants' actions

128(2)      Where an action is brought to recover, the share of one or more infants, all other infants entitled, or the trustees or guardians entitled to receive payment of the shares of such infants, shall be made parties, and the rights of all the infants shall be determined in one action.

Apportionment of insurance money

128(3)      In all actions where several persons are interested in the insurance money, the court may apportion among the persons entitled the sum ordered to be paid, and may give all necessary directions therefor.

Payment to foreigner

128(4)      Where the person entitled to receive money payable under a contract of insurance, not being insurance of the person, is domiciled or resides in a foreign jurisdiction and payment, valid according to the law of that jurisdiction, is made to the person, payment so made is valid.

129         [Repealed]

S.M. 2012, c. 29, s. 39.

Payment into court by insurer

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

Court may order payment in

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

Discharge of insurer

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

Insurance money to be dealt with as ordered by the court

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

Costs of proceedings

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

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

S.M. 2012, c. 29, s. 40.

Relief from forfeiture

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

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

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

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

S.M. 2012, c. 29, s. 41.

Limitation of actions

131         No action shall be brought for the recovery of money payable under a contract of insurance until the expiration of 60 days after proof, in accordance with the provisions of the contract,

(a) of the loss; or

(b) of the happening of the event upon which the insurance money is to become payable;

or of such shorter period as may be fixed by the contract of insurance.

NOTICES

Service of notice

132(1)      Subject to any statutory condition, any notice given by an insurer, when the mode thereof is not otherwise expressly provided, may be given in the case of a member or person insured by mailing it to his post office address given in his original application for insurance or otherwise notified in writing to the insurer.

Service by letter

132(2)      Subject to any statutory condition, delivery of any written notice to an insurer, where the mode thereof is not otherwise expressly provided, may be by letter delivered at its head office or chief office in the province, or sent by registered post addressed to the insurer, its manager or agent at that head office or chief office or to an authorized agent of the insurer.

INSURANCE AS COLLATERAL SECURITY

Insurance clauses in mortgages, etc.

133(1)      Where a contract of insurance is given as collateral security to a mortgage or vendor's lien on property, or where any such contract so given is about to expire, whether or not a specific insurer is named in the mortgage or agreement for sale, a term requiring the mortgagor or purchaser to insure is sufficiently satisfied, save as to the amount, by the production by the mortgagor or purchaser of a subsisting policy of insurance issued by an insurer licensed to carry on its business in the province.

Mortgagee not to receive commission from insurer

133(2)      A mortgagee shall not accept or be entitled to receive, either directly or through his agent or employee, and no officer or employee of the mortgagee shall accept or receive, any commission or other remuneration or benefit in consideration of effecting a contract of insurance or renewal thereof under which contract loss, if any, is payable to him as mortgagee.

Payment of commission prohibited

133(3)      No insurer or agent or broker shall pay, allow or give any commission or other remuneration or benefit to a mortgagee or to any person in his employ or on his behalf, in consideration of effecting a contract of insurance or renewal thereof, under which contract loss, if any, is payable to him as mortgagee.

Specifying of insurer prohibited

133(4)      No person by himself or by his agent shall require

(a) as a condition precedent to financing, as vendor under an agreement for sale or otherwise, purchase of property or to lending money upon the security of a mortgage on property; or

(b) as a condition prerequisite for the renewal or extension of any loan or mortgage or for the performance of any other Act in connection therewith;

that the person

(c) for whom the purchase is to be financed or to whom the money is to be lent; or

(d) for whom the extension, renewal or other Act is to be granted or performed;

negotiate, take-out or pay the premium for any policy of insurance or renewal thereof covering the property with a specified insurer or with any one or more of a designated group of insurers licensed to carry on business in the province.

Rights of mortgagee or vendor

133(5)      In a policy produced under subsection (1), the mortgagee or vendor shall be named as payee by assignment, endorsement or otherwise, but the mortgagee or vendor has the right to require, in addition, that an endorsement be attached to the policy by the insurer evidencing that

(a) no act or default of the insured before or after the production of the policy in violation of the law or of the terms of the policy shall prejudice the right of the mortgagee or vendor to recover his interest under the policy or be available to the insurer as a defence to any action by the mortgagee or vendor; and

(b) where the insurer pays to the mortgagee or vendor any sum for loss under the policy and claims that, as to the insured, no liability therefor existed, the insurer is at once legally subrogated to all rights of the mortgagee or vendor under all securities held as collateral to the mortgage debt or balance of purchase money owing to the extent of the payment; or at its option the insurer may pay to the mortgagee or vendor the whole amount owing him secured by his mortgage or agreement of sale, and shall thereupon receive a full assignment and transfer of the mortgage or agreement of sale, and all other securities held as collateral thereto, but no such subrogation shall impair the rights of the mortgagee or vendor to recover in priority the full amount of his claim.

Right of mortgagee or vendor to insurer

133(6)      If the mortgagor or purchaser has not placed the insurance agreed upon on the property, whether farm or otherwise, and has not lodged the policy with the mortgagee or vendor within the time agreed upon, or, where there is a subsisting policy, has not renewed the policy or has not substituted another policy with the mortgagee or vendor at least ten days before the expiry date of the subsisting policy in accordance with this section, the mortgagee or vendor may insure the property to the amount agreed upon with any insurer licensed to carry on business in the province.

Duty to give description of property and amount of insurance

133(7)      Where the contract of insurance has been placed by the mortgagee or vendor in accordance with this section, a copy of the description of the property insured given in the contract together with the amount of insurance placed upon each item shall forthwith be given to the mortgagor or purchaser.

Effect of section

133(8)      This section has effect notwithstanding any agreement, condition or stipulation to the contrary.

Offence

133(9)      An insurer or other person who contravenes this section is guilty of an offence.

Effect of assignment of right to refund

134(1)      Where an insured assigns the right to refund of premium that may accrue by reason of the cancellation or termination of a contract of insurance under the terms thereof, and notice of the assignment is given by the assignee to the insurer, the insurer shall pay any such refund to the assignee notwithstanding any condition in the contract, whether prescribed under this Act or not, requiring the refund to be paid to the insured or to accompany any notice of cancellation or termination to the insured.

Statement by insurer

134(2)      Where the condition in the contract dealing with cancellation or termination by the insurer provides that the refund shall accompany the notice of cancellation or termination, the insurer shall include in the notice a statement that, in lieu of payment of the refund in accordance with the condition, the refund is being paid to the assignee under this section.

135 and 136  [Repealed]

S.M. 1993, c. 9, s. 6.

MISCELLANEOUS PROVISIONS

Policy in accordance with terms of application

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

Premium refund for rejected policy

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

Adjustment of refund in certain cases

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

When policy is deemed to be accepted

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

S.M. 2012, c. 29, s. 42.

Non-application to automobile and hail insurance

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

Limitation of actions

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

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

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

S.M. 2012, c. 29, s. 42.

Cancellation by insurer

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

Notice of cancellation

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

S.M. 2012, c. 29, s. 42.

Meaning of "policy"

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

Statutory conditions

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

Effect of variations, omissions and additions

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

Non-application to certain classes of insurance

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

Application of statutory conditions to property insurance

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

S.M. 2012, c. 29, s. 42.

Recovery by innocent persons

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

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

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

(c) who

(i) consented to the act or omission, and

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

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

Recovery limited to proportionate interest

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

Compliance with regulations by certain persons

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

S.M. 2012, c. 29, s. 42.

Limitation of liability clause

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

(a) a deductible clause;

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

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

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

When limitation clause is not binding

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

S.M. 2012, c. 29, s. 42.

Coverage under more than one contract

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

Policy deemed in force

136.7(2)    For the purpose of subsection (1), a contract is deemed to be in force despite any term of the contract that the policy does not cover, come into force, attach, or become insurance with respect to the property until after full or partial payment of any loss under any other policy.

Division into items

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

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

(b) a limit of insurance on specified property;

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

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

Deductible clauses

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

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

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

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

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

Limitation

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

First loss insurance

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

S.M. 2012, c. 29, s. 42.

Unjust contract terms

136.8(1)    When a contract contains a stipulation, condition or warranty that is or may be material to the risk, including, but not limited to, a provision in respect to the use, condition, location or maintenance of the insured property, the stipulation, condition or warranty is not binding upon the insured if it is held to be unjust or unreasonable by the court before which a question relating to it is tried.

Agreement to make joint estimate of loss

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

Prohibited exclusions

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

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

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

Prohibited exclusions are invalid

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

Prohibition applies in all circumstances

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

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

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

S.M. 2012, c. 29, s. 42.

Subrogation

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

Loss divided

136.9(2)    If the net amount recovered, after deducting the costs of recovery, is not sufficient to provide a complete indemnity for the loss or damage suffered, that amount must be divided between the insurer and the insured in the respective proportions in which they have borne the loss or damage.

Effect of insured's interest being limited to deductible

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

Application to court to determine certain matters

136.9(4)    When the interest of an insured in any recovery exceeds that referred to in subsection (3) and the insured and the insurer cannot agree as to

(a) the solicitors to be instructed to bring the action in the name of the insured;

(b) the conduct and carriage of the action or any related matters;

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

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

(e) the apportionment of costs; or

(f) the launching or prosecution of an appeal;

either party may apply to the court for the determination of the matters in question. The court may make any order it considers reasonable having regard to the interests of the insured and the insurer in any recovery in the action or proposed action or in any offer of settlement.

Rules applicable to application

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

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

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

Settlement or release only binding on concurring parties

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

S.M. 2012, c. 29, s. 42.

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

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

Non-application

136.10(2)    This section does not apply

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

(b) to insurance on stocks or merchandise.

S.M. 2012, c. 29, s. 42.

Regulations

136.11      The Lieutenant Governor in Council may make regulations

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

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

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

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

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

S.M. 2012, c. 29, s. 42.

PART IV

137 to 147  [Repealed]

S.M. 1993, c. 9, s. 7; S.M. 2012, c. 29, s. 43.

PART V

LIFE INSURANCE

Definitions

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

"application" means an application for life insurance or for the reinstatement of life insurance. (« proposition »)

"beneficiary" means a person, other than the insured or the insured's personal representative, to whom or for whose benefit insurance money is made payable in a contract or by a declaration. (« bénéficiaire »)

"blanket insurance" means group insurance that covers loss

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

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

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

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

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

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

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

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

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

"group insurance" means life insurance, other than creditor's group insurance and family insurance, under which the lives of a number of persons are insured severally under a single contract between an insurer and an employer or other person. (« assurance collective »)

"group life insured" means a person whose life is insured by a contract of group insurance but does not include a person whose life is insured under the contract as a person dependent on or related to the group life insured. (« personne couverte par une assurance-vie collective »)

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

"insured", in relation

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

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

(ii) their rights and status; and

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

Persons insurable

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

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

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

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

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

(iv) the primary person's employee, and

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

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

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

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

Annuity deemed to be life insurance

148(3)      For the purposes of this Part, an undertaking entered into by an insurer to provide an annuity, or what would be an annuity except that the periodic payments may be unequal in amount, is deemed to be and always to have been life insurance whether the annuity is for

(a) a term certain;

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

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

S.M. 2002, c. 48, s. 12; S.M. 2007, c. 10, s. 19; S.M. 2012, c. 29, s. 44.

Application of certain provisions of Part III

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

S.M. 2012, c. 29, s. 44.

APPLICATION OF PART

Application

149(1)      Notwithstanding any agreement, condition, or stipulation to the contrary, this Part applies to a contract made in the province on or after the day on which this section comes into force, and, subject to subsections (2) and (3), applies to a contract made in the province before that day.

Beneficiary for value

149(2)      The rights and interests of a beneficiary for value under a contract that was in force immediately prior to the day on which this section comes into force are those provided in Part V of The Insurance Act then in force.

Preferred beneficiary

149(3)      Where the person who would have been entitled to the payment of insurance money if the money had become payable immediately prior to the day on which this section comes into force was a preferred beneficiary within the meaning of Part V of The Insurance Act then in force, the insured may not, except in accordance with that Part,

(a) alter or revoke the designation of a beneficiary; or

(b) assign, exercise rights under or in respect of, surrender or otherwise deal with, the contract;

but this subsection does not apply after a time at which the insurance money, if it were then payable, would be payable wholly to a person other than a preferred beneficiary within the meaning of that Part.

Group insurance

150         In the case of a contract of group insurance made with an insurer authorized to transact life insurance in Manitoba at the time the contract was made, this Part applies in determining

(a) the rights and status of beneficiaries and personal representatives as recipients of insurance money if the group life insured was resident in Manitoba at the time the group life insured became insured; and

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

S.M. 2012, c. 29, s. 45.

ISSUANCE AND CONTENTS OF POLICY

Insurer to issue policy

151(1)      An insurer entering into a contract must

(a) issue a policy; and

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

Provisions forming contract

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

(a) the application;

(b) the policy;

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

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

Contract of fraternal society

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

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

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

(c) the application;

(d) the policy;

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

(f) the applicant's medical statement.

Copy of contract generally

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

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

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

Copy of group insurance

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

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

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

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

(b) must, upon request and reasonable notice,

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

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

Copy of creditor's group insurance

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

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

(i) the debtor insured's application, and

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

(b) must, upon request and reasonable notice,

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

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

Fee for providing copy

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

Personal information protected

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

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

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

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

(b) information prescribed by the regulations.

Access to information relevant to claims

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

(a) a claim under the contract; or

(b) a denial of such a claim.

S.M. 2012, c. 29, s. 45.

Exceptions

152(1)      This section does not apply to

(a) a contract of group insurance;

(b) a contract of creditor's group insurance; or

(c) a contract made by a fraternal society.

Contents of policy

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

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

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

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

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

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

(f) the options, if any,

(i) of surrendering the contract for cash,

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

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

(g) the following statement:

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

Statement about restriction on designating beneficiary

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

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

S.M. 2012, c. 29, s. 45.

Contents of group policy

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

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

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

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

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

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

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

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

(h) the following statement:

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

S.M. 2012, c. 29, s. 45.

Non-application of section

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

Contents of group certificate

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

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

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

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

(ii) the debtor insured;

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

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

(ii) the debtor insured;

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

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

(ii) the following statement in conspicuous bold type:

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

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

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

(g) the following statement:

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

S.M. 2012, c. 29, s. 45.

FORMATION OF CONTRACT

Lack of insurable interest

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

Exceptions

155(2)      A contract is not void for lack of insurable interest

(a) if it is a contract of group insurance; or

(b) if the person whose life is insured has consented in writing to the life insurance being placed on his or her life.

Consent in case of minor

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

Court may order termination if insurable interest no longer exists

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

S.M. 2012, c. 29, s. 45.

Termination of contract by court in certain cases

155.1(1)    If

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

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

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

What court orders may be made

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

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

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

Notice to insured and others

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

Court may dispense with notice to certain persons

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

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

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

Order binds anyone interested in the contract

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

S.M. 2012, c. 29, s. 45.

Capacity of minors aged 16 and older

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

(a) to make an enforceable contract; and

(b) in respect of a contract.

S.M. 2012, c. 29, s. 45.

156         [Repealed]

S.M. 2002, c. 48, s. 12; S.M. 2012, c. 29, s. 46.

Contract taking effect

157(1)      Subject to any provision to the contrary in the application or the policy, a contract does not take effect unless

(a) the policy is delivered to an insured, to the insured's agent or assignee or to a beneficiary;

(b) payment of the first premium is made to the insurer or its authorized agent; and

(c) no change has taken place in the insurability of the life to be insured between the time the application was completed and the time the policy was delivered.

Delivery to agent

157(2)      When a policy is issued on the terms applied for and is delivered to an agent of the insurer for unconditional delivery to a person referred to in clause (1)(a), it is deemed to have been delivered to the insured, but not to the prejudice of the insured.

S.M. 2012, c. 29, s. 47.

Default in paying premium

158(1)      When a cheque or other bill of exchange, or a promissory note or other written promise to pay, is given for the whole or part of a premium and payment is not made according to its tenor, the premium or part of the premium is deemed not to have been paid.

Payment by registered letter

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

S.M. 2012, c. 29, s. 47.

Who may pay premium

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

Grace period

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

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

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

whichever is longer.

Contract in force during grace period

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

Deduction of overdue premium

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

S.M. 2012, c. 29, s. 47.

Duty to disclose

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

(a) in the application;

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

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

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

Failure to disclose — basic policy

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

Failure to disclose — additional coverages

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

(a) additional coverage under a contract;

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

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

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

S.M. 2012, c. 29, s. 47.

Exceptions

161(1)      This section does not apply

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

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

Incontestability

161(2)      Subject to subsection (3), if a contract, or an addition, increase or change referred to in subsection 160(3), has been in effect for two years during the lifetime of the person whose life is insured, a failure to disclose or a misrepresentation of a fact required by section 160 to be disclosed does not, in the absence of fraud, render the contract voidable.

Incontestability in group insurance and creditor's group insurance

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

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

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

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

S.M. 2012, c. 29, s. 47.

Non-disclosure by insurer

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

S.M. 2012, c. 29, s. 47.

Exceptions

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

Misstatement of age

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

Limitation of insurable age

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

(a) the person is alive; and

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

S.M. 2012, c. 29, s. 47.

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

164         In the case of a contract of group insurance or creditor's group insurance, a misstatement to the insurer of the age of a person whose life is insured does not of itself render the contract voidable, and the provisions of the contract, if any, with respect to age or misstatement of age apply.

S.M. 2012, c. 29, s. 47.

Effect of suicide

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

Suicide and reinstatement

165(2)      If

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

(b) the contract lapses and is subsequently reinstated on one or more occasions;

the period of time commences to run from the date of the latest reinstatement.

S.M. 2012, c. 29, s. 47.

Exceptions

166(1)      This section does not apply to

(a) a contract of group insurance;

(b) a contract of creditor's group insurance; or

(c) a contract made by a fraternal society.

Grace period after lapse

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

Reinstatement

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

(a) applies for the reinstatement;

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

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

Exceptions

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

Application of other sections

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

S.M. 2012, c. 29, s. 47.

When insurer remains liable after termination of group contract

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

(a) occurred before the termination; and

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

Exception to subsection (1)

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

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

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

Time limit on payment of insurance money or benefit

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

Replacement contract

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

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

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

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

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

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

S.M. 2012, c. 29, s. 47.

BENEFICIARIES

Designation of beneficiary

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

Change in designation

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

Designation in favour of heirs or estate

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

Beneficiary restrictions in contract

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

Application of designation to replacement contract

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

Insurer's obligations under replacement contract

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

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

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

Beneficiary's status re settlement

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

S.M. 2012, c. 29, s. 47.

Irrevocable designation

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

(a) in a contract; or

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

designate a beneficiary irrevocably.

Effects of an irrevocable designation

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

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

(b) the insurance money

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

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

Attempted designation

168(3)      If the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as provided in subsection (1), the designation has the same effect as if the insured had not purported to make it irrevocable.

S.M. 2012, c. 29, s. 47.

Designation in invalid will

169(1)      A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will, or that the designation is invalid as a bequest under the will.

Priorities

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

Designation in will later revoked

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

Designating instrument revoked by operation of law

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

S.M. 2012, c. 29, s. 47.

Trustee for beneficiary

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

Payment to trustee

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

S.M. 2012, c. 29, s. 47.

Beneficiary dying before life insured

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

(a) to the surviving beneficiary;

(b) if there is more than one surviving beneficiary, to the surviving beneficiaries, in equal shares; or

(c) if there is no surviving beneficiary, to the insured or the insured's personal representative.

Several beneficiaries

171(2)      If two or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is made, the insurance money is payable to them in equal shares.

Disclaimer by beneficiary

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

Disclaimer is irrevocable

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

Payment of insurance money when beneficiary disclaims or is disentitled

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

S.M. 2012, c. 29, s. 47.

Enforcement of payment by beneficiary or trustee

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

Insurer's defences

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

S.M. 2012, c. 29, s. 47.

Insurance money not part of estate

173(1)      If a beneficiary is designated, any insurance money payable to the beneficiary is not, from the time of the happening of the event upon which it becomes payable, part of the estate of the insured and is not subject to the claims of the creditors of the insured.

Contract exempt from seizure

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

S.M. 2002, c. 48, s. 12; S.M. 2012, c. 29, s. 47.

DEALINGS WITH CONTRACT

Insured dealing with contract

174(1)      If a beneficiary

(a) is not designated irrevocably; or

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

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

Insured may exercise rights prescribed by regulation

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

Rights of beneficiary preserved

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

Application to court re beneficiary who is unable to consent

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

Court order

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

S.M. 2012, c. 29, s. 47.

Insured entitled to dividends

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

Insurer may use dividends

175(2)      Unless the insured otherwise directs, the insurer may apply the dividends or bonuses declared on the contract for the purpose of keeping the contract in force.

S.M. 2012, c. 29, s. 47.

Transfer of ownership

176(1)      Despite The Wills Act, if a contract or declaration provides that a person named in the contract or declaration has, upon the death of the insured, the rights and interests of the insured in the contract,

(a) the rights and interests of the insured in the contract do not, upon the insured's death, form part of the insured's estate; and

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

Successive owners

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

Saving

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

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

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

S.M. 2012, c. 29, s. 47.

Interest of assignee

177(1)      If an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada, the assignee has priority of interest as against

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

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

Effect on beneficiary's rights

177(2)      If a contract is assigned as security, the rights of a beneficiary under the contract are affected only to the extent necessary to give effect to the rights and interests of the assignee.

Assignee deemed to be insured

177(3)      If a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given to the insured by the contract and by this Part and is deemed to be the insured.

Assignment revokes certain designations and nominations

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

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

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

Prohibition against assignment

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

(a) the rights or interests of the insured;

(b) in the case of

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

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

S.M. 2012, c. 29, s. 47.

Group life insured enforcing rights

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

S.M. 2012, c. 29, s. 47.

Enforcement of rights re creditor's group insurance

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

Insurance money payable to creditor

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

Payment of excess insurance money to debtor insured

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

S.M. 2012, c. 29, s. 47.

179         [Repealed]

S.M. 2012, c. 29, s. 48.

PROCEEDINGS UNDER CONTRACT

Proof of claim

180         If an insurer receives sufficient evidence of

(a) the happening of the event upon which insurance money becomes payable;

(b) the age of the person whose life is insured;

(c) the right of the claimant to receive the insurance money; and

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

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

S.M. 2012, c. 29, s. 49.

Place of payment

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

Payment in Canadian dollars

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

S.M. 2012, c. 29, s. 49.

Payment outside Manitoba

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

Exception for group insurance

182(2)      In the case of a contract of group insurance, insurance money is payable in the province or territory of Canada in which the group life insured was resident at the time the group life insured became insured.

Exception for payment to person who has died

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

S.M. 2012, c. 29, s. 49.

Action on contract made elsewhere

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

S.M. 2012, c. 29, s. 49.

Meaning of "declaration" in sections 184 to 188

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

S.M. 2012, c. 29, s. 49.

Limitation of actions — insurance money payable on death

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

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

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

Exception when a declaration has been made

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

Limitation of other actions

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

Limitation period re continuing losses

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

Limitation period re period payments

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

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

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

S.M. 2012, c. 29, s. 49.

Documents affecting payment of claim

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

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

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

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

No person other than insurer affected by subsection (1)

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

S.M. 2012, c. 29, s. 49.

Declaration by court as to sufficiency of proof

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

S.M. 2012, c. 29, s. 49.

Declaration as to presumption of death

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

Content of declaration

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

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

(b) the gender of the person presumed dead;

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

(d) the date on which death is presumed to have occurred;

(e) whether the presumed death was accidental.

S.M. 2012, c. 29, s. 49.

Court order re payment of insurance money

188(1)      On making a declaration under section 186 or 187, the court may make any order respecting the payment of the insurance money and respecting costs that it considers just, and a declaration, direction or order made under this subsection is binding on the applicant and on all persons to whom notice of the application has been given.

Payment under order

188(2)      A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid.

S.M. 2012, c. 29, s. 49.

Order stays pending action

189         Unless the court orders otherwise, an application made under section 186 or 187 operates as a stay of any pending action with respect to the insurance money.

S.M. 2012, c. 29, s. 49.

Appeal

190         A declaration, direction or order made under section 186, 187 or 188 may be appealed to The Court of Appeal.

S.M. 2012, c. 29, s. 49.

Order re further evidence

191         If the court finds that the evidence provided under section 180 is not sufficient or that a presumption of death is not established, it may order that the matters in issue be decided in an action brought or to be brought, or may make any other order it considers just respecting further evidence to be provided by the claimant, publication of advertisements, further inquiry or any other matter, or respecting costs.

S.M. 2012, c. 29, s. 49.

Payment into court by insurer

192(1)      If an insurer admits liability for insurance money and it appears to the insurer that

(a) there are adverse claimants;

(b) the whereabouts of a person entitled to the insurance money is unknown;

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

(d) there is no person entitled to the insurance money; or

(e) the person to whom the insurance money is payable would be disentitled on public policy or other grounds;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

192(2)      Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

192(3)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

192(4)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

192(5)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

S.M. 2012, c. 29, s. 49.

Simultaneous deaths

193         Unless a contract or declaration provides otherwise, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable as if the beneficiary had died before the person whose life is insured.

S.M. 2012, c. 29, s. 49.

Definition

194(1)      In this section, "instalments" includes insurance money held by the insurer under section 195.

Insurance money payable in instalments

194(2)      Subject to subsections (3) and (4), if

(a) insurance money is payable in instalments; and

(b) a contract, or an instrument signed by the insured and delivered to the insurer, provides that a beneficiary does not have the right to commute the instalments or to alienate or assign the beneficiary's interest in the insurance money;

the insurer must not, unless the insured subsequently directs otherwise in writing, commute the instalments or pay them to any person other than the beneficiary.

Instalments not subject to legal process

194(3)      Instalments to which subsection (1) applies are not, in the hands of the insurer, subject to any legal process except an action to recover the value of necessaries supplied to the beneficiary or the beneficiary's minor children.

Commutation by beneficiary

194(4)      A court may, upon the application of a beneficiary and upon at least 10 days' notice, declare that in view of special circumstances

(a) the insurer may, with the consent of the beneficiary, commute instalments of insurance money; or

(b) the beneficiary may alienate or assign the beneficiary's interest in the insurance money.

Commutation after death of beneficiary

194(5)      After the death of the beneficiary, the beneficiary's personal representative may, with the consent of the insurer, commute any instalments of insurance money payable to the beneficiary.

S.M. 2012, c. 29, s. 49.

Insurer holding insurance money

195(1)      An insurer may hold insurance money

(a) subject to the order of an insured or a beneficiary; or

(b) upon trusts or other agreements for the benefit of the insured or the beneficiary;

as provided in the contract, by an agreement in writing to which it is a party or by a declaration, with interest at a rate agreed upon in the contract, agreement or declaration or, when no rate is agreed upon, at the rate declared by the insurer in respect of insurance money held by it.

Exception

195(2)      The insurer is not bound to hold insurance money as provided in subsection (1) under the terms of a declaration to which it has not agreed in writing.

S.M. 2012, c. 29, s. 49.

Court may order payment

196(1)      If an insurer does not pay insurance money to some person competent to receive it or into court within 30 days after receipt of the evidence required by section 180, the court may on application of any person order that the insurance money or any part of the insurance money be paid into court, or may make any other order as to the distribution of the money that it considers just.

Discharge of insurer

196(2)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

196(3)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

196(4)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

S.M. 2012, c. 29, s. 49.

197         [Repealed]

S.M. 2012, c. 29, s. 50.

Insurance money payable to minor

198(1)      If an insurer admits liability for insurance money payable to a minor and there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so, the insurer may, at any time after 30 days after the date of the event on which the insurance money becomes payable, pay the money to the Public Guardian and Trustee for the benefit of the minor and notify the Public Guardian and Trustee of the name, date of birth and residential address of the minor.

Payment discharges insurer

198(2)      A payment made by an insurer under subsection (1) discharges the insurer to the extent of the amount paid.

S.M. 2012, c. 29, s. 51; S.M. 2013, c. 46, s. 46.

Payment to representative

199         Despite section 198, when it appears that a representative of a beneficiary who is a minor or is otherwise under a legal disability may accept payments on behalf of the beneficiary under the law of the jurisdiction in which the beneficiary resides, the insurer may make payment to the representative. The payment discharges the insurer to the extent of the amount paid.

S.M. 2012, c. 29, s. 51.

MISCELLANEOUS PROVISIONS

Presumption against agency

200         An officer, agent or employee of an insurer, or a person soliciting life insurance, whether or not that person is an agent of the insurer, must not, to the prejudice of any of the following persons, be considered to be the person's agent in respect of any question arising out of a contract:

(a) the insured;

(b) the person whose life is insured;

(c) the group life insured;

(d) the debtor insured.

S.M. 2012, c. 29, s. 51.

Insurer giving information

201         An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received that affects the insurance money.

S.M. 2012, c. 29, s. 51.

Regulations

201.1       The Lieutenant Governor in Council may make regulations

(a) prescribing information for the purpose of clause 151(8)(b);

(b) for the purpose of subsection 167(4), respecting the circumstances under which an insurer may not restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable;

(c) prescribing rights in respect of contracts for the purpose of subsection 174(2);

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

S.M. 2012, c. 29, s. 51.

202         [Repealed]

S.M. 2012, c. 29, s. 52.

PART VI

ACCIDENT AND SICKNESS INSURANCE

Definitions

203(1)      The following definitions apply in this Part.

"application" means an application for accident and sickness insurance or for the reinstatement of accident and sickness insurance. (« proposition »)

"beneficiary" means a person, other than the insured or the insured's personal representative, to whom or for whose benefit insurance money is made payable in a contract or by a declaration. (« bénéficiaire »)

"blanket insurance" means group insurance that covers loss

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

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

"contract" means a contract of accident and sickness insurance. (« contrat »)

"creditor's group insurance" means accident and sickness insurance effected by a creditor under which the lives or well-being, or both, of a number of the creditor's debtors are insured severally under a single contract. (« assurance-prêt »)

"debtor insured" means a debtor whose life or well-being, or both, are insured under a contract of creditor's group insurance. (« débiteur assuré »)

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

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

(b) makes, changes or revokes an appointment under section 226 or a nomination referred to in section 228.3. (« déclaration »)

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

"group insurance" means accident and sickness insurance, other than creditor's group insurance and family insurance, under which the lives or well-being, or both, of a number of persons are insured severally under a single contract between an insurer and an employer or other person. (« assurance collective »)

"group person insured" means a person (referred to in this definition as the "primary person") whose life or well-being, or both, are insured under a contract of group insurance, but does not include a person whose life or well-being, or both, are insured under the contract as a person dependent on or related to the primary person. (« personne couverte par une assurance collective »)

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

"insured", in relation

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

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

(ii) their rights and status; and

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

"person insured" means a person in respect of whose accident or sickness insurance money is payable under a contract, but does not include a group person insured or debtor insured. (« personne assurée »)

Persons insurable

203(2)      Without restricting the meaning of "insurable interest", a person (referred to in this section as the "primary person") has an insurable interest

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

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

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

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

(iv) the primary person's employee, and

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

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

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

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

S.M. 2002, c. 48, s. 12; S.M. 2007, c. 10, s. 20; S.M. 2012, c. 29, s. 53.

Application of certain provisions of Part III

203.1       Despite section 115, the following provisions apply to contracts of accident and sickness insurance:

(a) section 119;

(b) subsections 123(1) and (2);

(c) section 132.

S.M. 2012, c. 29, s. 53.

APPLICATION OF PART

Application of this Part

204(1)      Notwithstanding any agreement, condition or stipulation to the contrary, this Part applies to a contract made in the province on and after October 1, 1970, and sections 203 to 206, 213, 216, 217, 218, 222, and 224 to 230(18) inclusive, apply also to a contract made in the province before that day.

Application of sections of prior Act

204(2)      Sections 206, 207, 208, 209, 211, 218 and 221 of Part VI of The Insurance Act in force immediately prior to October 1, 1970, apply to a contract made in the province before that day.

Exceptions

204(3)      This Part does not apply to

(a) to (c) [repealed] S.M. 2012, c. 29, s. 55;

(d) insurance provided under section 263, 264 or 265;

(e) except as otherwise provided by regulations, to accident and sickness insurance that is part of a contract of life insurance under which the insurer undertakes to pay insurance money, or to provide other benefits, in the event the person whose life is insured becomes disabled as a result of bodily injury or disease; or

(f) to accident and sickness insurance that is part of a contract of life insurance under which the insurer undertakes to pay an additional amount of insurance money in the event of death by accident of the person whose life is insured.

S.M. 2012, c. 29, s. 55.

Application of Part to group insurance

205         In the case of a contract of group insurance made with an insurer authorized to transact accident and sickness insurance in Manitoba at the time the contract was made, this Part applies in determining

(a) the rights and status of beneficiaries and personal representatives as recipients of insurance money if the group person insured was resident in Manitoba at the time the group person insured became insured; and

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

S.M. 2012, c. 29, s. 56.

ISSUANCE AND CONTENTS OF POLICY

Insurer to issue policy

206(1)      An insurer entering into a contract must

(a) issue a policy; and

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

Provisions forming contract

206(2)      Subject to subsection (3), the provisions in the following constitute the entire contract:

(a) the application;

(b) the policy;

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

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

Contract of fraternal society

206(3)      The provisions in the following constitute the entire contract of a contract made by a fraternal society:

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

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

(c) the application;

(d) the policy;

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

(f) the applicant's medical statement.

Copy of contract

206(4)      Except in the case of a contract of group insurance or creditor's group insurance, an insurer must, upon request, provide the insured or a claimant under the contract with a copy of

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

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

Copy of group insurance

206(5)      In the case of a contract of group insurance, the insurer

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

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

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

(b) must, upon request and reasonable notice,

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

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

Copy of creditor's group insurance

206(6)      In the case of a contract of creditor's group insurance, the insurer

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

(i) the debtor insured's application, and

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

(b) must, upon request and reasonable notice,

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

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

Fee for providing copy

206(7)      An insurer may charge a reasonable fee to cover its expenses for providing copies of documents under subsection (4), (5) or (6), other than the first copy provided to each person.

Personal information protected

206(8)      Access to the documents described in clause (5)(b) or (6)(b) does not extend to

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

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

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

(b) information prescribed by the regulations.

Access to information relevant to claims

206(9)      A claimant's access to documents under subsections (4) to (6) extends only to information that is relevant to

(a) a claim under the contract; or

(b) a denial of such a claim.

S.M. 2012, c. 29, s. 56.

Exceptions

207(1)      Subsections (2) and (3) do not apply to

(a) a contract of group insurance;

(b) a contract of creditor's group insurance; or

(c) a contract made by a fraternal society.

Contents of policy

207(2)      An insurer must set out the following in the policy:

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

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

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

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

(e) the term of the accident and sickness insurance or the method of determining the dates on which the accident and sickness insurance starts and terminates;

(f) the following statement:

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

Statement about restriction on designating beneficiary

207(3)      If a policy contains a provision removing or restricting the right of the insured to designate persons to whom or for whose benefit insurance money is to be payable, the front page of the policy must include the following statement in conspicuous bold type:

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

Contents of group policy

207(4)      In the case of a contract of group insurance or creditor's group insurance, the insurer must set out the following in the policy:

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

(b) the method of determining the persons whose lives or well-being, or both, are insured;

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

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

(e) the term of the accident and sickness insurance or the method of determining the dates on which the accident and sickness insurance starts and terminates;

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

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

(h) the following statement:

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

S.M. 2012, c. 29, s. 56.

When insurer remains liable after termination of group contract

208(1)      Despite the termination of a contract of group insurance, or a benefit provision in such a contract, the insurer continues, as though the termination had not occurred, to be liable to pay to or in respect of a group person insured under the contract benefits relating to

(a) loss of income because of disability;

(b) death;

(c) dismemberment; or

(d) accidental damage to natural teeth;

arising from an accident or sickness that occurred before the termination of the contract or benefit provision, if the disability, death, dismemberment or accidental damage to natural teeth is reported to the insurer within six months after the termination or within any longer continuous period specified in the contract.

Exception to subsection (1)

208(2)      Despite subsection (1), an insurer does not, under a contract or benefit provision described in that subsection, remain liable to pay a benefit for loss of income for the recurrence of a disability after both of the following occur:

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

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

Time limit on payment benefit for loss of income

208(3)      An insurer that is liable under subsection (1) to pay a benefit for loss of income as a result of the disability of a group person insured is not liable to pay or provide it for any period longer than the portion remaining, at the date the disability began, of the maximum period provided under the contract for the payment of benefits for loss of income in respect of a disability of the group person insured.

Replacement contract

208(4)      If a contract of group insurance (referred to in this subsection as the "replacement contract") is entered into within 31 days after the termination of another contract of group insurance (referred to in this subsection as the "other contract") and the replacement contract insures some or all of the same group persons insured as the other contract,

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

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

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

(b) every person who was insured under the other contract and who is insured under the replacement contract is entitled to receive credit for any deductible earned before the effective date of the replacement contract; and

(c) no person who was insured under the other contract at the time of its termination may be excluded from eligibility under the replacement contract by reason only of not being actively at work on the effective date of the replacement contract;

and despite subsection (1), if the replacement contract provides that all benefits to be paid under subsection (1) by the insurer of the other contract are to be paid instead under the replacement contract, the insurer of the other contract is not liable to pay those benefits.

Rights of insured under replacing group contract

208(5)      Where a contract of group insurance (herein referred to as the "replacing contract") is entered into within 31 days of the termination of another contract of group insurance (herein referred to as the "other contract") and insures the same group or a part of the group insured under the other contract,

(a) the replacing contract shall provide or shall be deemed to provide that any person who was insured under the other contract at the time of its termination is insured under the replacing contract from and after the termination of the other contract if,

(i) the insurance on that person under the other contract terminated solely by reason of the termination of the other contract, and

(ii) the person is a member of a class eligible for insurance under the replacing contract;

(b) every person who was insured under the other contract and who is insured under the replacing contract is entitled to receive credit for satisfaction of any deductible earned before the effective date of the replacing contract; and

(c) no person who was insured under the other contract shall be excluded from eligibility under the replacing contract solely because of not being actively at work on the effective date of the replacing contract;

but if the replacing contract provides that the full benefits required to be paid pursuant to subsection (2) by the insurer of the other contract is to be provided instead under the replacing contract, the insurer of the other contract is not liable to pay any such benefits.

S.M. 2012, c. 29, s. 56.

Non-application of section

209(1)      This section does not apply to a contract

(a) of blanket insurance; or

(b) of group insurance of a non-renewable type issued for a term not exceeding six months.

Contents of group certificate

209(2)      In the case of a contract of group insurance or creditor's group insurance, the insurer must issue, for delivery by the insured to each group person insured or debtor insured, a certificate or other document in which are set out the following:

(a) the name of the insurer and a sufficient identification of the contract;

(b) the amount, or the method of determining the amount, of insurance on the group person insured or debtor insured and on any person insured;

(c) the circumstances in which the insurance terminates and the rights, if any, on termination of the insurance of the group person insured or debtor insured and of any person insured;

(d) in the case of a contract of group insurance that contains a provision removing or restricting the right of the group person insured to designate persons to whom or for whose benefit insurance money is to be payable,

(i) the method of determining the persons to whom or for whose benefit the insurance money is or may be payable, and

(ii) the following statement in conspicuous bold type:

This policy contains a provision removing or restricting the right of the group person insured to designate persons to whom or for whose benefit insurance money is to be payable.

(e) in the case of a contract of group insurance that replaces another contract of group insurance on some or all of the group persons insured under the replaced contract, whether a designation of a group person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable under the replaced contract applies to the replacing contract;

(f) the rights of the group person insured, the debtor insured or a claimant under the contract to obtain copies of documents under subsection 206(5) or (6);

(g) the following statement:

Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in The Insurance Act.

S.M. 2012, c. 29, s. 56.

Exceptions or reductions

210(1)      Subject to section 211 and except as otherwise provided in this section, the insurer must set out in the policy every exception or reduction affecting the amount payable under the contract, either in the provision affected by the exception or reduction or under a heading such as "Exceptions" or "Reductions".

Exceptions or reductions affecting single provision

210(2)      If an exception or reduction affects only one provision in the policy, it must be set out in that provision.

Reference in endorsements, insertions or riders

210(3)      If an exception or reduction is contained in an endorsement, insertion or rider, the endorsement, insertion or rider must, unless it affects all amounts payable under the contract, make reference to the provisions in the policy affected by the exception or reduction.

Saving

210(4)      The exception or reduction mentioned in section 223 does not need to be set out in the policy.

Application of section

210(5)      This section does not apply to a contract

(a) of group insurance;

(b) of creditor's group insurance; or

(c) made by a fraternal society.

S.M. 2012, c. 29, s. 56.

Statutory Conditions

Statutory conditions

211         Except as provided in sections 212 and 213,

(a) the conditions set out in Schedule C are deemed to be part of every contract, other than a contract of group insurance or creditor's group insurance, and must be printed on or attached to the policy forming part of the contract under the heading "Statutory Conditions"; and

(b) no variation or omission of or addition to any statutory condition not authorized by section 212 is binding on the insured.

S.M. 2012, c. 29, s. 56.

Definition

212(1)      In this section, "statutory condition" means a statutory condition set out in Schedule C.

Omitting or varying conditions

212(2)      If a statutory condition is not applicable to the benefits provided by the contract, it may be omitted from the policy or varied so that it will be applicable.

Statutory conditions 3 and 7

212(3)      Statutory conditions 3 and 7 may be omitted from the policy if the contract does not contain any provisions respecting the matters dealt with in those statutory conditions.

Statutory condition 4

212(4)      Statutory condition 4 must be omitted from the policy if the contract does not provide that it may be terminated by the insurer before the end of any period for which a premium has been accepted.

Less favourable variation

212(5)      Statutory conditions 3, 4 and 7 and, subject to the restriction in subsection (6), statutory condition 5 may be varied, but if by reason of the variation the contract is less favourable to the insured, a person insured or a beneficiary than it would be if the condition had not been varied, the condition is deemed to be included in the policy in the form in which it appears in Schedule C.

No variation

212(6)      Subparagraphs (1)(a) and (b) of statutory condition 5 must not be varied in policies providing benefits for loss of time.

Time

212(7)      Statutory conditions 8 and 9 may be varied by shortening the periods of time set out in them.

Reproduction

212(8)      The title of a statutory condition must be reproduced in the policy along with the statutory condition, but the number of a statutory condition may be omitted.

Contract made by a fraternal society

212(9)      In the case of a contract made by a fraternal society,

(a) the following text must be printed on every policy in substitution for the text of paragraph (1) of statutory condition 1:

This policy, the Act or instrument of incorporation of the society, its constitution, by-laws and rules, and the amendments made from time to time to any of them, the application for the contract and the medical statement of the applicant constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.

(b) subparagraph (1)(b) and paragraph (3) of statutory condition 4 must not be printed on the policy.

S.M. 2012, c. 29, s. 56.

Notice of statutory conditions

213         In the case of a policy of accident and sickness insurance of a non-renewable type issued for a term of six months or less or in relation to a travel ticket, the statutory conditions set out in Schedule C do not need to be printed on or attached to the policy if the policy contains the following notice printed in conspicuous type:

Despite any other provision contained in the contract, the contract is subject to the statutory conditions in The Insurance Act respecting contracts of accident and sickness insurance.

S.M. 2012, c. 29, s. 56.

214 and 215   [Repealed]

S.M. 2012, c. 29, s. 57.

216         [Repealed]

S.M. 2002, c. 48, s. 12; S.M. 2012, c. 29, s. 57.

FORMATION OF CONTRACT

Lack of insurable interest

217(1)      Subject to subsection (2), if at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.

Exceptions

217(2)      A contract is not void for lack of insurable interest

(a) if it is a contract of group insurance; or

(b) if the person insured has consented in writing to the accident and sickness insurance.

Consent in case of minor

217(3)      If the person insured is under the age of 16 years, consent to the accident and sickness insurance may be given by one of the person's parents or by a guardian of the person as defined in The Child and Family Services Act.

S.M. 2012, c. 29, s. 58.

Court may order termination if insurable interest no longer exists

217.1       A person whose life or well-being, or both, are insured may, if an insurable interest no longer exists, apply to the court for an order requiring the insurer to immediately terminate the policy and pay over to the policy owner any value that exists in the policy.

S.M. 2012, c. 29, s. 58.

Termination of contract by court in certain cases

217.2(1)    If

(a) a person whose life or well-being, or both, are insured under a contract is someone other than the insured; and

(b) the person reasonably believes that the person's life or health might be endangered by the insurance continuing under that contract;

on application of that person, the court may make the orders the court considers just in the circumstances.

What court orders may be made

217.2(2)    Without limiting subsection (1), the orders that the court may make under subsection (1) include

(a) an order that the accident and sickness insurance on that person under the contract be terminated in accordance with the terms of the contract other than any terms respecting notice of termination; and

(b) an order that the amount of accident and sickness insurance on that person be reduced.

Notice to insured and others

217.2(3)    An application under subsection (1) must be made on at least 30 days' notice to the insured, the beneficiary, the insurer and any other person the court considers to have an interest in the contract.

Court may dispense with notice to certain persons

217.2(4)    Despite subsection (3), if the court considers it just to do so, it may dispense with the notice

(a) to a person other than the insurer; or

(b) if the contract is a contract of group insurance or creditor's group insurance, to the insured.

Order binds anyone interested in the contract

217.2(5)    An order made under subsection (1) binds any person having an interest in the contract.

S.M. 2012, c. 29, s. 58.

Who may pay premium

217.3       Except in the case of group insurance or creditor's group insurance, an assignee of a contract, a beneficiary or a person acting on behalf of one of them or on behalf of the insured may pay any premium that the insured is entitled to pay.

S.M. 2012, c. 29, s. 58.

Non-application of certain subsections

217.4(1)    Subsections (2), (3) and (7) do not apply to a contract made by a fraternal society.

Termination for non-payment

217.4(2)    If a policy evidencing a contract, or a certificate evidencing the renewal of a contract, is delivered to the insured and the initial premium due under the contract or renewal has not been fully paid,

(a) the contract or the renewal of it evidenced by the policy or certificate is as binding on the insurer as if the premium had been paid even if the policy or certificate was delivered by an officer or an agent of the insurer who did not have authority to deliver it; and

(b) the contract may be terminated for non-payment of the premium by the insurer giving 15 days' notice of termination by registered mail or 5 days' written notice of termination personally delivered.

Unpaid premiums

217.4(3)    If a premium referred to in subsection (2) has not been fully paid, the insurer may do one or both of the following:

(a) if there is a claim under the contract, except in the case of a contract of group insurance or creditor's group insurance, deduct the amount of the unpaid premium from the amount for which the insurer is liable under the contract;

(b) sue for any unpaid premium.

Grace period

217.4(4)    If a premium, other than a premium referred to in subsection (2), is not fully paid at the time it is due, the premium may be paid within a grace period of

(a) 30 days after the day the premium is due; or

(b) the number of days, if any, specified in the contract for payment of an overdue premium;

whichever is longer.

Contract in force during grace period

217.4(5)    If the event on which the insurance money becomes payable occurs during the grace period and before the overdue premium is paid, the contract is deemed to be in effect as if the premium had been paid at the time it was due.

Deduction of overdue premium

217.4(6)    Except in the case of a contract of group insurance or creditor's group insurance, the amount of the overdue premium under subsection (5) may be deducted from the amount for which the insurer is liable under the contract.

When 15-day period begins

217.4(7)    The 15-day period referred to in clause (2)(b) starts to run on the day the registered letter or notification of it is delivered to the insured's postal address.

S.M. 2012, c. 29, s. 58.

Default in paying premium

217.5       When a cheque or other bill of exchange, or a promissory note or other written promise to pay, is given for the whole or part of a premium and payment is not made according to its tenor, the premium or part of the premium is deemed not to have been paid.

S.M. 2012, c. 29, s. 58.

Capacity of minors aged 16 and older

218         Except in respect of the minor's rights as beneficiary, a minor who has attained the age of 16 years has the capacity of an adult

(a) to make an enforceable contract; and

(b) in respect of a contract.

S.M. 2012, c. 29, s. 58.

Duty to disclose

219(1)      An applicant for accident and sickness insurance and a person who is to be insured for accident or sickness must each disclose to the insurer

(a) in the application;

(b) on a medical examination, if any; and

(c) in any written statements or answers provided as evidence of insurability;

every fact within the applicant's or person's knowledge that is material to the accident and sickness insurance and is not so disclosed by the other.

Failure to disclose — basic policy

219(2)      Subject to subsection (3) and sections 220 and 223, a failure to disclose or a misrepresentation of a fact referred to in subsection (1) renders the contract voidable by the insurer.

Failure to disclose — additional coverages

219(3)      A failure to disclose or a misrepresentation of a fact referred to in subsection (1) relating to evidence of insurability with respect to an application for

(a) additional coverage under a contract;

(b) an increase in accident and sickness insurance under a contract; or

(c) any other change to accident and sickness insurance after the policy is issued;

renders the contract voidable by the insurer, but only in relation to the addition, increase or change.

S.M. 2012, c. 29, s. 58.

Incontestability

220(1)      Subject to subsections (2) and (3) and section 223, if a contract, including renewals of the contract, or an addition, increase or change referred to in subsection 219(3), has been in effect for two years with respect to a person insured, a failure to disclose or a misrepresentation of a fact required by section 219 to be disclosed does not, in the absence of fraud, render the contract voidable.

Incontestability in group insurance and creditor's group insurance

220(2)      In the case of a contract of group insurance or creditor's group insurance, a failure to disclose or a misrepresentation of a fact required by section 219 to be disclosed in respect of a group person insured, debtor insured or person insured under the contract does not render the contract voidable, but

(a) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for the insurance in respect of the person, the accident and sickness insurance in respect of that person is voidable by the insurer; and

(b) if the failure to disclose or misrepresentation relates to evidence of insurability specifically requested by the insurer at the time of application for an addition, increase or change referred to in subsection 219(3) in respect of the person, the addition, increase or change in respect of that person is voidable by the insurer;

unless the insurance, addition, increase or change has been in effect for two years during the lifetime of that person, in which case the insurance, addition, increase or change is not, in the absence of fraud, voidable.

Exceptions

220(3)      If a claim arises from a loss incurred or a disability beginning

(a) before a contract, including renewals of it; or

(b) before the addition, increase or change;

has been in effect for two years with respect to the person in respect of whom the claim is made, subsection (1) does not apply to that claim.

S.M. 2012, c. 29, s. 58.

Application of incontestability to reinstatement

221         Sections 219 and 220 apply, with necessary changes, to a failure to disclose or a misrepresentation at the time of reinstatement of a contract, and the period of two years referred to in section 220 starts to run in respect of a reinstatement from the date of reinstatement.

S.M. 2012, c. 29, s. 58.

Pre-existing conditions

222         If a contract contains a general exception or reduction with respect to pre-existing disease or physical conditions and the group person insured, person insured or debtor insured suffers or has suffered from a disease or physical condition that existed before the date the contract came into force with respect to that person and the disease or physical condition is not by name or specific description excluded from the insurance respecting that person,

(a) the prior existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part for a loss incurred or a disability beginning after the contract, including renewals of the contract, has been in force continuously for two years immediately prior to the date of loss incurred or commencement of disability with respect to that person; and

(b) the prior existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part if the disease or physical condition was disclosed in the application for the contract.

S.M. 2012, c. 29, s. 58.

Misstatement of age

223(1)      Subject to subsections (2) and (3), if the age of the person insured has been misstated to the insurer then, at the option of the insurer, either

(a) the benefits payable under the contract may be increased or decreased to the amount that would have been provided for the same premium at the correct age; or

(b) the premium may be adjusted in accordance with the correct age as of the date the person insured became insured.

Misstatement of age in group insurance or creditor's group insurance

223(2)      In the case of a contract of group insurance or creditor's group insurance, a misstatement to the insurer of the age of a group person insured, person insured or debtor insured does not of itself render the contract voidable, and the provisions of the contract, if any, with respect to age or misstatement of age apply.

True age governs

223(3)      If the age of a person affects the commencement or termination of the insurance, the true age governs.

S.M. 2012, c. 29, s. 58.

BENEFICIARIES

Designation of beneficiary

224(1)      Subject to subsection (4), an insured may in a contract or by a declaration designate the insured, the insured's personal representative or a beneficiary as the person to whom or for whose benefit insurance money is to be payable.

Change in designation

224(2)      Subject to subsections 224.1(1) and (2), the insured may by declaration change or revoke a designation referred to in subsection (1).

Designation in favour of heirs or estate

224(3)      A designation in favour of the "heirs", "next of kin" or "estate" of the insured, or the use of words having a similar meaning in a designation, is deemed to be a designation of the insured's personal representative.

Beneficiary restrictions in contract

224(4)      Subject to the regulations, an insurer may restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable.

Application of designation to replacement contract

224(5)      A contract of group insurance replacing another contract of group insurance on some or all of the group persons insured under the replaced contract may provide that a designation applicable to the replaced contract of a group person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable is deemed to apply to the replacing contract.

Insurer's obligations under replacement contract

224(6)      If a contract of group insurance replacing another contract of group insurance provides that a designation referred to in subsection (5) is deemed to apply to the replacing contract,

(a) each certificate in respect of the replacing contract must indicate that the designation under the replaced contract has been carried forward and that the group person insured should review the existing designation to ensure it reflects the group person insured's current intentions; and

(b) as between the insurer under the replacing contract and a claimant under that contract, that insurer is liable to the claimant for any errors or omissions by the previous insurer in respect of the recording of the designation carried forward under the replacing contract.

Beneficiary's status re settlement

224(7)      If a beneficiary becomes entitled to insurance money and all or part of that insurance money remains with the insurer under a settlement option provided for in the contract or permitted by the insurer, that portion of the insurance money remaining with the insurer is deemed to be insurance money held under a contract on the life of the beneficiary and, subject to the provisions of the settlement option, the beneficiary has the rights and interests with respect to the insurance money that an insured has under a contract of life insurance.

S.M. 2008, c. 42, s. 50; S.M. 2012, c. 29, s. 58.

Irrevocable designation

224.1(1)    During the lifetime of the person whose life or well-being, or both, are insured, an insured may

(a) in a contract; or

(b) by a declaration that is not part of a will but is filed with the insurer at its head or principal office in Canada;

designate a beneficiary irrevocably.

Effects of an irrevocable designation

224.1(2)    During the lifetime of a beneficiary who is designated irrevocably in accordance with subsection (1),

(a) the insured may not change or revoke the designation without the beneficiary's consent; and

(b) the insurance money

(i) is not subject to the insured's control or the claims of the insured's creditors, and

(ii) does not form part of the insured's estate.

Attempted designation

224.1(3)    If the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as provided in subsection (1), the designation has the same effect as if the insured had not purported to make it irrevocable.

S.M. 2012, c. 29, s. 58.

Designation in invalid will

224.2(1)    A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will, or that the designation is invalid as a bequest under the will.

Priorities

224.2(2)    Despite The Wills Act, a designation in a will is of no effect against a designation made later than the making of the will.

Designation in will later revoked

224.2(3)    If a designation is contained in a will, and subsequently the will is revoked by operation of law or otherwise, the designation is revoked.

Designating instrument revoked by operation of law

224.2(4)    If a designation is contained in an instrument that purports to be a will and the instrument, if it were valid as a will would be revoked by operation of law or otherwise, the designation is revoked.

S.M. 2012, c. 29, s. 58.

Beneficiary dying before insured person

225(1)      When a beneficiary dies before the person insured or group person insured, as the case may be, and no disposition of the deceased beneficiary's share in the insurance money is provided in the contract or by a declaration, the share is payable

(a) to the surviving beneficiary;

(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or

(c) if there is no surviving beneficiary, to the insured or group person insured, as the case may be, or the personal representative of the insured or group person insured.

Several beneficiaries

225(2)      If two or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is made, the insurance money is payable to them in equal shares.

Disclaimer by beneficiary

225(3)      A beneficiary may disclaim the beneficiary's right to insurance money by filing a notice in writing with the insurer at its head or principal office in Canada.

Disclaimer is irrevocable

225(4)      A notice of disclaimer filed under subsection (3) is irrevocable.

Payment of insurance money when beneficiary disclaims or is disentitled

225(5)      Subsection (1) applies in the case of a disclaiming beneficiary or of a beneficiary determined by a court to be disentitled to insurance money as if the disclaiming or disentitled beneficiary died before the person whose life or well-being, or both, are insured.

Enforcement of payment by beneficiary or trustee

225(6)      A beneficiary designated under section 224 may enforce for his or her own benefit, and a trustee appointed under section 226 may enforce as trustee, the payment of insurance money payable to the beneficiary or for his or her benefit under the contract or by a declaration in accordance with the provisions of the contract or declaration.

Insurer's defences

225(7)      In an action by the beneficiary or trustee, the insurer may set up any defence that it could have set up against the insured or the insured's personal representative.

Payment discharges insurer

225(8)      Payment by the insurer to the beneficiary or trustee discharges the insurer to the extent of the amount paid.

S.M. 2008, c. 42, s. 50; S.M. 2012, c. 29, s. 58.

Trustee for beneficiary

226         An insured may in a contract or by a declaration appoint a trustee for a beneficiary and may change or revoke the appointment by a declaration.

S.M. 2008, c. 42, s. 50; S.M. 2012, c. 29, s. 58.

Persons to whom insurance money payable

227(1)      Until an insurer receives at its head or principal office in Canada

(a) an instrument or an order of a court affecting the right to receive insurance money; or

(b) a notarial copy or copy verified by statutory declaration of the instrument or order;

it may make payment of the insurance money and is discharged to the extent of the amount paid as if there were no instrument or order.

No person other than insurer affected by subsection (1)

227(2)      Subsection (1) does not affect the rights or interests of any person other than the insurer.

Interest of assignee

227(3)      If an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada, the assignee has priority of interest as against

(a) an assignee other than one who earlier gave notice to the insurer of the assignment in the manner provided for in this subsection; and

(b) a beneficiary other than one designated irrevocably as provided in section 224.1 before the assignee gave notice to the insurer of the assignment in the manner provided for in this subsection.

Effect on beneficiary's rights

227(4)      If a contract is assigned as security, the rights of a beneficiary under the contract are affected only to the extent necessary to give effect to the rights and interests of the assignee.

Assignee deemed to be insured

227(5)      If a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given to the insured by the contract and by this Part and is deemed to be the insured.

Assignment revokes certain designations and nominations

227(6)      Unless the document by which the contract is assigned specifies otherwise, an assignment described in subsection (5) made on or after the date this section comes into force revokes

(a) a designation of a beneficiary made before or after that date and not made irrevocably; and

(b) a nomination referred to in section 228.3 made before or after that date.

Prohibition against assignment

227(7)      A contract may provide that any of the following are not assignable:

(a) the rights or interests of the insured;

(b) in the case of

(i) a contract of group insurance, the rights or interests of the group person insured, or

(ii) a contract of creditor's group insurance, the rights or interests of the debtor insured.

S.M. 2012, c. 29, s. 58.

Insurance money not part of estate

228(1)      If a beneficiary is designated, any insurance money payable to the beneficiary is not, from the time of the happening of the event upon which it becomes payable, part of the estate of the insured and is not subject to the claims of the creditors of the insured.

Contract exempt from seizure

228(2)      While a designation is in effect in favour of a spouse or common-law partner, child, grandchild or parent, or any of them, of the person insured or group person insured, the insurance money and the rights and interests of the insured in the insurance money and contract, so far as either relate to accidental death benefits, are exempt from execution or seizure.

S.M. 2002, c. 48, s. 12; S.M. 2012, c. 29, s. 58.

DEALINGS WITH CONTRACT

Insured dealing with contract

228.1(1)    If a beneficiary

(a) is not designated irrevocably; or

(b) is designated irrevocably but has attained the age of 18 years and consents;

the insured may assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as provided in it or in this Part or as may be agreed upon with the insurer.

Insured may exercise rights prescribed by regulation

228.1(2)    Despite subsection 224.1(1), if a beneficiary is designated irrevocably and has not consented as described in clause (l)(b), the insured may exercise any rights in respect of the contract that are prescribed by regulation.

Rights of beneficiary preserved

228.1(3)    Subject to the terms of a consent under clause (l)(b) or an order of the court under subsection (4), if there is an irrevocable designation of a beneficiary under a contract, a person acquiring an interest in the contract takes that interest subject to the rights of that beneficiary.

Application to court re beneficiary who is unable to consent

228.1(4)    When a beneficiary who is designated irrevocably is unable to provide consent under clause (1)(b) because of legal incapacity, an insured may apply to the court for an order permitting the insured to deal with the contract without that consent.

Court order

228.1(5)    The court may grant an order under subsection (4) on any notice and terms it considers just.

S.M. 2012, c. 29, s. 58.

Insured entitled to dividends

228.2(1)    Despite the irrevocable designation of a beneficiary, the insured is entitled, before his or her death, to the dividends or bonuses declared on a contract unless the contract provides otherwise.

Insurer may use dividends

228.2(2)    Unless the insured otherwise directs, the insurer may apply the dividends or bonuses declared on the contract for the purpose of keeping the contract in force.

S.M. 2012, c. 29, s. 58.

Transfer of ownership

228.3(1)    Despite The Wills Act, if a contract or declaration provides that a person named in the contract or declaration has, upon the death of the insured, the rights and interests of the insured in the contract,

(a) the rights and interests of the insured in the contract do not, upon the insured's death, form part of the insured's estate; and

(b) upon the insured's death, the person named in the contract or declaration has the rights and interests given to the insured by the contract and by this Part and is deemed to be the insured.

Successive owners

228.3(2)    If a contract or declaration referred to in subsection (1) provides that, upon the insured's death, two or more persons named in the contract or declaration have successively on the death of each of them the rights and interests of the insured in the contract, this section applies successively, with necessary changes, to each of those persons and their rights and interests in the contract.

Saving

228.3(3)    Despite a nomination referred to in subsection (1), the insured, before his or her death, may

(a) assign, exercise rights under or in respect of, surrender or otherwise deal with the contract as if the nomination had not been made; and

(b) subject to the terms of the contract, change or revoke the nomination by declaration.

S.M. 2012, c. 29, s. 58.

Group person insured enforcing rights

229(1)      A group person insured may, in his or her own name, enforce a right given by a contract to the group person insured, or to a person insured under the contract as a person dependent on or related to the group person insured, subject to any defence available to the insurer against

(a) the group person insured;

(b) the dependent or related person; or

(c) the insured.

Simultaneous deaths

229(2)      Unless a contract or declaration provides otherwise, if a person insured or group person insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable as if the beneficiary had died before the person insured or group person insured.

S.M. 2012, c. 29, s. 58.

Enforcement of rights re creditor's group insurance

229.1(1)    A debtor insured or a debtor who is jointly liable for the debt with the debtor insured may enforce in his or her own name the creditor's rights in respect of a claim arising in relation to the debtor insured, subject to any defence available to the insurer against the creditor or debtor insured.

Insurance money payable to creditor

229.1(2)    Subject to subsection (3), if an insurer pays insurance money in respect of a claim under subsection (1), the insurer must pay the insurance money to the creditor.

Payment of excess insurance money to debtor insured

229.1(3)    If the debtor insured provides evidence satisfactory to the insurer that the insurance money exceeds the debt then owing to the creditor, the insurer may pay the excess directly to the debtor insured.

S.M. 2012, c. 29, s. 58.

PROCEEDINGS UNDER CONTRACT

Place of payment

230(1)      Subject to subsections (3) to (5), insurance money is payable in Manitoba.

Payment in Canadian dollars

230(2)      Unless a contract provides otherwise, a reference in the contract to dollars means Canadian dollars, whether the contract provides for payment in Canada or elsewhere.

Payment outside Manitoba

230(3)      If a person entitled to receive insurance money is not resident in Manitoba, the insurer may pay the insurance money to that person or to any person who is entitled to receive it on the person's behalf by the law of the jurisdiction in which the payee resides. The payment discharges the insurer to the extent of the amount paid.

Exception for group insurance

230(4)      In the case of a contract of group insurance, insurance money is payable in the province or territory of Canada in which the group person insured was resident at the time the group person insured became insured.

Exception for payment to person who has died

230(5)      If insurance money is payable under a contract to a deceased person who was not resident in Manitoba at the date of the person's death or to that person's personal representative, the insurer may pay the insurance money to the deceased person's personal representative as appointed under the law of the jurisdiction in which the person was resident at the date of the person's death. The payment discharges the insurer to the extent of the amount paid.

S.M. 2002, c. 48, s. 12; S.M. 2012, c. 29, s. 58; S.M. 2013, c. 46, s. 46.

Action on contract made elsewhere

230.1       Regardless of the place where a contract was made, a claimant who is resident in Manitoba may bring an action in Manitoba if the insurer was authorized to transact insurance in Manitoba at the time the contract was made or is so authorized at the time the action is brought.

S.M. 2012, c. 29, s. 58.

Meaning of "declaration" in sections 230.3 to 230.6

230.2       In sections 230.3 to 230.6, "declaration" means a declaration made by the court under section 230.4 or 230.5.

S.M. 2012, c. 29, s. 58.

Limitation of actions — insurance money payable on death

230.3(1)    Subject to subsections (2) and (5), an action or proceeding against an insurer for the recovery of insurance money payable in the event of a person's death must be commenced not later than the earlier of

(a) two years after the proof of claim is provided; and

(b) six years after the date of the death.

Exception when a declaration has been made

230.3(2)    Subject to subsection (5), if a declaration has been made under section 230.5, an action or proceeding referred to in subsection (1) must be commenced not later than two years after the date of the declaration.

Limitation of other actions

230.3(3)    Subject to subsection (5), an action or proceeding against an insurer for the recovery of insurance money not referred to in subsection (1) must be commenced not later than two years after the date the claimant knew or ought to have known of the first instance of the loss or occurrence giving rise to the claim for insurance money.

Limitation period re continuing losses

230.3(4)    If insurance money is not payable unless a loss or occurrence continues for a period of time specified in the contract, the date of the first instance of the loss or occurrence for the purposes of subsection (3) is deemed to be the first day after the end of that period.

Limitation period re period payments

230.3(5)    An action or proceeding against an insurer for the recovery of insurance money payable on a periodic basis must be commenced not later than the later of

(a) the last day of the applicable period under subsection (1), (2), (3) or (4) for commencing an action or proceeding; or

(b) if insurance money was paid, two years after the date the next payment would have been payable had the insurer continued to make periodic payments.

S.M. 2012, c. 29, s. 58.

Application of section

230.4(1)    This section applies only in respect of a claim for accidental death benefits.

Declaration by court as to sufficiency of proof

230.4(2)    If an insurer admits the validity of the accident and sickness insurance but does not admit the sufficiency of the evidence required by statutory condition 5(1) set out in Schedule C and there is no other question in issue except a question under section 230.5, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to the sufficiency of the evidence provided, and the court may make the declaration or may direct what further evidence is to be provided and on the provision of the evidence may make the declaration or, in special circumstances, may dispense with further evidence and make the declaration.

S.M. 2012, c. 29, s. 58.

Declaration as to presumption of death

230.5(1)    If a claimant alleges that the person whose life is insured should be presumed to be dead by reason of the person not having been heard of for seven years, and there is no other question in issue except a question under section 230.4, the insurer or the claimant may, before or after action is brought and on at least 30 days' notice, apply to the court for a declaration as to presumption of the death, and the court may make the declaration.

Content of declaration

230.5(2)    A declaration of presumption of death made by the court under subsection (1) must contain particulars of the following information to the extent that those particulars have been established to the satisfaction of the court:

(a) the full name of the person presumed dead, including maiden or married name if applicable;

(b) the gender of the person presumed dead;

(c) the place where death is presumed to have occurred;

(d) the date on which death is presumed to have occurred;

(e) whether the presumed death was accidental.

S.M. 2012, c. 29, s. 58.

Court order re payment of insurance money

230.6(1)    On making a declaration under section 230.4 or 230.5, the court may make any order respecting the payment of the insurance money and respecting costs that it considers just, and a declaration, direction or order made under this subsection is binding on the applicant and on all persons to whom notice of the application has been given.

Payment under order

230.6(2)    A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid.

S.M. 2012, c. 29, s. 58.

Order stays pending action

230.7       Unless the court orders otherwise, an application made under section 230.4 or 230.5 operates as a stay of any pending action with respect to the insurance money.

S.M. 2012, c. 29, s. 58.

Appeal

230.8       A declaration, direction or order made under section 230.4, 230.5 or 230.6 may be appealed to The Court of Appeal.

S.M. 2012, c. 29, s. 58.

Order re further evidence

230.9       If the court finds that the evidence furnished under statutory condition 5 set out in Schedule C is not sufficient or that a presumption of death is not established, it may order that the matters in issue be decided in an action brought or to be brought, or may make any other order it considers just respecting further evidence to be furnished by the claimant, publication of advertisements, further inquiry or any other matter, or respecting costs.

S.M. 2012, c. 29, s. 58.

Payment into court by insurer

230.10(1)   If an insurer admits liability for insurance money, or any part of it, and it appears to the insurer that

(a) there are adverse claimants;

(b) the whereabouts of a person entitled to the insurance money is unknown;

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

(d) there is no person entitled to the insurance money; or

(e) the person to whom the insurance money is payable would be disentitled on public policy or other grounds;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

230.10(2)   Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

230.10(3)   The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

230.10(4)   After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

230.10(5)   Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

S.M. 2012, c. 29, s. 58.

Insurance money payable to minor

230.11(1)   If an insurer admits liability for insurance money payable to a minor and there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so, the insurer may, at any time after 30 days after the date of the event on which the insurance money becomes payable, pay the money to the Public Guardian and Trustee for the benefit of the minor and notify the Public Guardian and Trustee of the name, date of birth and residential address of the minor.

Payment discharges insurer

230.11(2)   A payment made by an insurer under subsection (1) discharges the insurer to the extent of the amount paid.

Payment to representative

230.11(3)   Despite subsection (1), when it appears that a representative of a beneficiary who is a minor or is otherwise under a legal disability may accept payments on behalf of the beneficiary under the law of the jurisdiction in which the beneficiary resides, the insurer may make payment to the representative. The payment discharges the insurer to the extent of the amount paid.

Payments not exceeding $10,000

230.11(4)   Even though insurance money is payable to a person, the insurer may, if the contract so provides, but subject always to the rights of an assignee, pay an amount not exceeding $10,000 to

(a) a relative of a person insured or the group person insured; or

(b) a person appearing to the insurer to be equitably entitled to the insurance money by reason of having incurred expense for the maintenance, medical attendance or burial of a person insured or the group person insured, or to have a claim against the estate of a person insured or the group person insured in relation to such an expense;

and the payment discharges the insurer to the extent of the amount paid.

S.M. 2012, c. 29, s. 58.

MISCELLANEOUS PROVISIONS

Insurer giving information

230.12      An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received that affects the insurance money.

S.M. 2012, c. 29, s. 58.

Undue prominence

230.13      An insurer must not in the policy give undue prominence to any provision or statutory condition as compared to other provisions or statutory conditions, unless the effect of that provision or statutory condition is to increase the premium or decrease the benefits otherwise provided for in the policy.

S.M. 2012, c. 29, s. 58.

Relief from forfeiture

230.14      If there has been imperfect compliance with a statutory condition as to any matter or thing to be done or omitted by the insured, person insured or claimant with respect to the loss insured against and as a consequence the insurance is forfeited or avoided in whole or in part, and a court before which a question relating to the imperfect compliance is tried deems it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on any terms it considers just.

S.M. 2012, c. 29, s. 58.

Confinement condition

230.15(1)   If a contract issued after September 1, 1973, includes a provision for disability benefits to be payable only during confinement of the person insured, the provision does not bind the insured, and the benefits in respect of disability under the contract are payable regardless of whether the person insured is confined or not.

Permitted exceptions

230.15(2)   Despite subsection (1), a contract of accident and sickness insurance may provide for one or more of the following:

(a) early commencement of loss of income benefits based on the admission of the person insured into a hospital, long-term care facility or other similar institution;

(b) payment of loss of income benefits during the period of in-patient hospitalization of the person insured or the period during which the person insured is confined to a long-term care facility or other similar institution;

(c) payment of daily benefits during the period of in-patient hospitalization of the person insured or the period during which the person insured is confined to a long-term care facility or other similar institution;

(d) payment of lump sum benefits based on the admission of the person insured into a hospital or during the period of in-patient hospitalization or the admission into or period of confinement in a long-term care facility or other similar institution.

S.M. 2012, c. 29, s. 58.

Presumption against agency

230.16      An officer, agent or employee of an insurer, or a person soliciting life insurance, whether or not that person is an agent of the insurer, must not, to the prejudice of any of the following persons, be considered to be the person's agent in respect of any question arising out of a contract:

(a) the insured;

(b) the person insured;

(c) the group person insured;

(d) the debtor insured.

S.M. 2012, c. 29, s. 58.

Regulations

230.17      The Lieutenant Governor in Council may make regulations

(a) respecting the application of this Part to insurance described in clause 204(3)(e);

(b) prescribing information for the purpose of clause 206(8)(b);

(c) for the purpose of subsection 224(4), respecting the circumstances under which an insurer may not restrict or exclude in a contract the right of an insured to designate persons to whom or for whose benefit insurance money is to be payable;

(d) prescribing rights in respect of contracts for the purpose of subsection 228.1(2);

(e) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Part.

S.M. 2012, c. 29, s. 58.

PART VII

AUTOMOBILE INSURANCE

Definitions

231         In this Part

"contract" means a contract of automobile insurance; (« contrat »)

"insured" means a person insured by a contract whether named or not and includes any person who is stated in a contract to be entitled to benefits payable under the insurance mentioned in subsection 264(1) and subsection 265(1), whether described therein as an insured person or not. (« assuré »)

Application of Part

232(1)      This Part applies to contracts providing automobile insurance made or renewed in Manitoba on or after the day on which this Part comes into force.

Exception

232(2)      This Part does not apply to contracts insuring only against,

(a) loss of or damage to an automobile while in or on described premises; or

(b) loss of or damage to property carried in or upon an automobile; or

(c) liability for loss of or damage to property carried in or upon an automobile.

Exception

232(3)      This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under The Drivers and Vehicles Act unless it is insured under a contract evidenced by a form of policy approved under this Part.

Exception

232(4)      This Part does not apply to a contract insuring solely the interest of a person who has a lien upon, or has as security legal title to, an automobile and who does not have possession of the automobile.

S.M. 2005, c. 37, Sch. A, s. 154.

APPROVAL OF FORMS

Approval of forms by superintendent

233(1)      No insurer shall use a form of application, policy, endorsement or renewal or continuation certificate in respect of automobile insurance other than a form approved by the superintendent.

Insurer requiring additional information

233(2)      An insurer may require additional information in an approved application form, but such additional information does not constitute part of the application for the purposes of section 236.

Approval of policies in special cases

233(3)      Where, in the opinion of the superintendent, any provision of this Part, including any statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he may approve a form of policy, or part thereof, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be insured, and the contract evidenced by the policy or endorsement in the form so approved is effective and binding according to its terms notwithstanding that those terms are inconsistent with, vary, omit or add to any provision or condition of this Part.

Approval of extensions

233(4)      Except as to matters mentioned in section 245, the superintendent may, if he considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement thereto that extends the insurance beyond that prescribed in this Part.

Condition of approval of extension

233(5)      The superintendent, in granting an approval under subsection (4), may require the insurer to charge an additional premium for the extension and to state that fact in the policy or in any endorsement.

Approval of standard owners policy

233(6)      The superintendent may approve a form of owners policy containing insuring agreements and provisions in conformity with this Part for use by insurers in general, and which, for the purposes of section 235 shall be the "standard owners policy".

Publication of standard owners policy

233(7)      Where the superintendent approves the form to which reference is made in subsection (6), he shall cause a copy of the form to be published in the Manitoba Gazette; but it is not necessary for him to publish in the Manitoba Gazette endorsement forms approved for use with the standard owners policy.

Revocation of approval

233(8)      The superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, no insurer shall thereafter use or deliver a form that contravenes the notification.

Reason for decision

233(9)      The superintendent shall, on request of any interested insurer, specify in writing his reasons for granting, refusing or revoking an approval of a form.

APPLICATION AND POLICY

Persons forbidden to act as agent

234         No person carrying on the business of financing the sale or purchase of automobiles and no automobile dealer, insurance agent or broker and no officer or employee of such a person, dealer, agent or broker, shall act as the agent of an applicant for the purpose of signing an application for automobile insurance.

Copy of application in policy

235(1)      Subject to subsection (6), a copy of the written application, signed by the insured or his agent, or, if no signed application is made, a copy of the purported application, or a copy of such part of the application or purported application as is material to the contract, shall be embodied in, endorsed upon or attached to the policy when issued by the insurer.

Policy issued where no signed application

235(2)      If no signed written application is received by the insurer prior to the issue of the policy, the insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, a form of application to be completed and signed by the insured and returned to the insurer.

Insured entitled to copy

235(3)      The insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, the policy or a true copy thereof and every endorsement or other amendment to the contract.

Form of policy

235(4)      Where a written application signed by the insured or his agent is made for a contract, the policy evidencing the contract shall be deemed to be in accordance with the application unless the insurer points out in writing to the insured named in the policy in what respect the policy differs from the application, and, in that event, the insured shall be deemed to have accepted the policy unless within one week from the receipt of the notification he informs the insurer in writing that he rejects the policy.

Endorsement on forms

235(5)      Upon every application form and policy, there shall be printed or stamped in conspicuous type a copy of subsection 236(1).

Certificate where standard owners policy in force

235(6)      Where an insurer adopts the standard owners policy, it may, instead of issuing the policy, issue a certificate in a form approved by the superintendent which, when issued, is of the same force and effect as if it was in fact a standard owners policy, subject to the limits and coverages shown thereon by the insurer and any endorsements issued concurrently therewith or subsequent thereto; but, at the request of an insured, at any time, the insurer shall issue the policy and copy of the written application or purported application as required by subsection (1).

Application of other provisions where certificate issued

235(7)      Where a certificate is issued under subsection (6), subsection (5) and subsection 261(2) apply with such modifications as the circumstances require.

Proof of contents of contract

235(8)      Where an insurer issues a certificate under subsection (6), proof of the contents may be given by production of a copy of the Manitoba Gazette containing the form of standard owners policy approved by the superintendent.

Misrepresentation or violation of conditions renders claim invalid

236(1)      Where,

(a) an applicant for a contract,

(i) gives false particulars of the described automobile to be insured to the prejudice of the insurer, or

(ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein; or

(b) the insured contravenes a term of the contract or commits a fraud; or

(c) the insured wilfully makes a false statement in respect of a claim under the contract;

a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited.

Use of application as defence

236(2)      No statement of the applicant shall be used in defence of a claim under the contract unless it is contained in the signed written application therefor or, where no signed written application is made, in the purported application, or part thereof, that is embodied in, endorsed upon or attached to the policy.

Proof required

236(3)      No statement contained in a purported copy of the application, or part thereof, other than a statement describing the risk and the extent of the insurance, shall be used in defence of a claim under the contract unless the insurer proves that the applicant made the statement attributed to him in the purported application, or part thereof.

Statutory conditions

237(1)      Subject to subsection 233(3), section 238, and section 261,

(a) the conditions set forth in this section are statutory conditions and shall be deemed to be part of every contract and shall be printed in every policy with the heading "Statutory Conditions"; and

(b) no variation or omission of or addition to a statutory condition is binding on the insured.

Interpretation

237(2)      In this section, "policy" does not include an interim receipt or binder.

STATUTORY CONDITIONS

In these statutory conditions, unless the context otherwise requires, the word "insured" means a person insured by this contract whether named or not.

Material change in risk

1(1)        The insured named in this contract shall promptly notify the insurer or its local agent in writing of any change in the risk material to the contract and within his knowledge.

Definition

1(2)        Without restricting the generality of the foregoing, the words "change in the risk material to the contract" include:

(a) any change in the insurable interest of the insured named in this contract in the automobile by sale, assignment or otherwise, except through change of title by succession, death or proceedings under the Bankruptcy Act (Canada);

and in respect of insurance against loss of or damage to the automobile,

(b) any mortgage, lien or encumbrance affecting the automobile after the application for this contract;

(c) any other insurance of the same interest, whether valid or not, covering loss or damage insured by this contract or any portion thereof.

Prohibited use by insured

2(1)        The insured shall not drive or operate the automobile

(a) unless he is for the time being either authorized by law or qualified to drive or operate the automobile; or

(b) while his licence to drive or operate an automobile is suspended or while his right to obtain a licence is suspended or while he is prohibited under order of any court from driving or operating an automobile; or

(c) while he is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued to him; or

(d) for any illicit or prohibited trade or transportation; or

(e) in any race or speed test.

Prohibited use by others

2(2)        The insured shall not permit, suffer, allow or connive at the use of the automobile

(a) by any person

(i) unless that person is for the time being either authorized by law or qualified to drive or operate the automobile, or

(ii) while that person is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued; or

(b) by any person who is a member of the household of the insured while his licence to drive or operate an automobile is suspended or while his right to obtain a licence is suspended or while he is prohibited under order of any court from driving or operating an automobile; or

(c) for any illicit or prohibited trade or transportation; or

(d) in any race or speed test.

Requirements where loss or damage to persons or property

3(1)        The insured shall,

(a) promptly give to the insurer written notice, with all available particulars, of any accident involving loss or damage to persons or property and of any claim made on account of the accident;

(b) verify by statutory declaration, if required by the insurer, that the claim arose out of the use or operation of the automobile and that the person operating or responsible for the operation of the automobile at the time of the accident is a person insured under this contract; and

(c) forward immediately to the insurer every letter, document, advice or writ received by him from or on behalf of the claimant.

Prohibited acts of insured

3(2)        The insured shall not

(a) voluntarily assume any liability or settle any claim except at his own cost; or

(b) interfere in any negotiations for settlement or in any legal proceeding.

Obligation of insured

3(3)        The insured shall, whenever requested by the insurer, aid in securing information and evidence and the attendance of any witness and shall co-operate with the insurer, except in a pecuniary way, in the defence of any action or proceeding or in the prosecution of any appeal.

Requirements where loss or damage to automobile

4(1)        Where loss of or damage to the automobile occurs, the insured shall, if the loss or damage is covered by this contract,

(a) promptly give notice thereon in writing to the insurer with the fullest information obtainable at the time;

(b) at the expense of the insurer, and as far as reasonably possible, protect the automobile from further loss or damage; and

(c) deliver to the insurer within 90 days after the date of the loss or damage a statutory declaration stating, to the best of his knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others therein, the encumbrances thereon, all other insurance, whether valid or not, covering the automobile and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

Further loss

4(2)        Any further loss or damage accruing to the automobile directly or indirectly from a failure to protect it as required under subcondition (1) of this condition is not recoverable under this contract.

Repair

4(3)         No repairs, other than those that are immediately necessary for the protection of the automobile from further loss or damage, shall be undertaken and no physical evidence of the loss or damage shall be removed,

(a) without the written consent of the insurer; or

(b) until the insurer has had a reasonable time to make the examination for which provision is made in statutory condition 5.

Examination of insured

4(4)        The insured shall submit to examination under oath, and shall produce for examination at such reasonable place and time as is designated by the insurer or its representative all documents in his possession or control that relate to the matters in question, and he shall permit extracts and copies thereof to be made.

Insurer liable for cash value of automobile

4(5)        The insurer shall not be liable for more than the actual cash value of the automobile at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to that actual cash value with proper deduction for depreciation, however caused, and shall not exceed the amount that it would cost to repair or replace the automobile, or any part thereof, with material of like kind and quality, but, if any part of the automobile is obsolete and out of stock, the liability of the insurer in respect thereof shall be limited to the value of that part at the time of loss or damage, not exceeding the maker's latest list price.

Repair or replacement

4(6)        Except where an appraisal has been made, the insurer, instead of making payment, may, within a reasonable time, repair, rebuild or replace the property damaged or lost with other of like kind and quality if, within seven days after the receipt of the proof of loss, it gives written notice of its intention to do so.

No abandonment; salvage

4(7)        There shall be no abandonment of the automobile to the insurer without the insurer's consent. If the insurer exercises the option to replace the automobile or pays the actual cash value of the automobile, the salvage, if any, shall vest in the insurer.

In case of disagreement

4(8)        In the event of disagreement as to the nature and extent of the repairs and replacements required, or as to their adequacy, if effected, or as to the amount payable in respect of any loss or damage, those questions shall be determined by appraisal as provided under The Insurance Act before there can be recovery under this contract, whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.

Inspection of automobile

5           The insured shall permit the insurer at all reasonable times to inspect the automobile and its equipment.

Time and manner of payment of insurance money

6(1)        The insurer shall pay the insurance money for which it is liable under this contract within 60 days after the proof of loss has been received by it or, where an appraisal is made under subcondition (8) of statutory condition 4, within 15 days after the award is rendered by the appraisers.

When action may be brought

6(2)        The insured shall not bring an action to recover the amount of a claim under this contract unless the requirements of statutory conditions 3 and 4 are complied with or until the amount of the loss has been ascertained as therein provided or by a judgment against the insured after trial of the issue or by agreement between the parties with the written consent of the insurer.

Limitation of actions

6(3)        Every action or proceeding under the contract against the insurer in respect of a claim for indemnification for liability of the insured for loss or damage to property of another person or for personal injury to or death of another person shall be commenced within two years after the liability of the insured is established by a court of competent jurisdiction and not afterwards. Every other action or proceeding against the insurer under the contract, in respect of loss or damage to the automobile shall be commenced within two years from the time the loss or damage was sustained and not afterwards.

Who may give notice and proofs of claim

7           Notice of claim may be given and proofs of claim may be made by the agent of the insured named in this contract in case of absence or inability of the insured to give the notice or make the proof, such absence or inability being satisfactorily accounted for or, in the like case or if the insured refuses to do so, by a person to whom any part of the insurance money is payable.

Termination

8(1)        This contract may be terminated,

(a) by the insurer giving to the insured 15 days' notice of termination by registered mail or five days' written notice of termination personally delivered;

(b) by the insured at any time on request.

Refund

8(2)        Where this contract is terminated by the insurer,

(a) the insurer shall refund the excess of premium actually paid by the insured over the pro rata premium for the expired time, but in no event shall the pro rata premium for the expired time be deemed to be less than any minimum retained premium specified; and

(b) the refund shall accompany the notice unless the premium is subject to adjustment or determination as to the amount, in which case the refund shall be made as soon as practicable.

Excess premium

8(3)        Where this contract is terminated by the insured, the insurer shall refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time, but in no event shall the short rate premium for the expired time be deemed to be less than any minimum retained premium specified.

Mode of payment

8(4)        The refund may be made by money, postal or express company money order or cheque payable at par.

Time

8(5)        The 15 days mentioned in clause (a) of subcondition (1) of this condition commences to run on the day following the receipt of the registered letter at the post office to which it is addressed.

Notice

9           Any written notice to the insurer may be delivered at, or sent by registered mail to, the chief agency or head office of the insurer in the province. Written notice may be given to the insured named in this contract by letter personally delivered to him or by registered mail addressed to him at his latest post office address as notified to the insurer. In this condition, the expression "registered" means registered in or outside Canada.

Exceptions respecting statutory conditions

238(1)      Except as otherwise provided in the contract, the statutory conditions set forth in section 237 do not apply to insurance coming within section 263, 264 or 265.

Condition 3

238(2)      Where a contract does not insure against liability for loss or damage to persons and property, statutory condition 3 in section 237 is not a part of the policy and may be omitted from the printing of the conditions in the policy.

Condition 4

238(3)      When a contract does not insure against loss of or damage to the automobile, statutory condition 4 in section 237 is not a part of the policy and may be omitted from the printing of the conditions in the policy.

Application of clause 2(2)(b) of conditions

238(4)      Where a person who is a member of a household of the insured under a contract uses the automobile described in the contract while that person's licence to drive or operate an automobile is suspended, or while that person's right to obtain a licence is suspended, or while that person is prohibited under order of any court from driving or operating an automobile, clause (2)(b) of statutory condition 2 as set out in section 237 does not apply if the insured did not know, at that time he permitted, suffered, allowed or connived at the use of the automobile by that person, that that person's licence to drive or operate an automobile was suspended, or that that person's right to obtain a licence was suspended, or that that person was prohibited under order of a court from driving or operating an automobile; but the onus is on the insured to prove that he did not know that fact.

MOTOR VEHICLE LIABILITY POLICIES

Coverage of owner's policy specific automobile

239(1)      Every contract evidenced by an owner's policy insures the person named therein and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a) arising from the ownership, use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person, and damage to property.

Other automobiles

239(2)      Where the contract evidenced by an owner's policy also provides insurance against liability in respect of an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to such persons as are specified in the contract.

Death of person named in owner's policy

239(3)      Where the insured named in an owner's policy dies, the following persons shall be deemed to be the insured under the policy:

(a) The spouse or common-law partner of the deceased insured if residing in the same dwelling premises at the time of his death.

(b) In respect of the described automobile, a newly acquired automobile that was acquired by the deceased insured prior to his death and a temporary substitute automobile, all as defined by the policy,

(i) any person having proper temporary custody thereof until grant of probate or administration to the personal representative of the deceased insured,

(ii) the personal representative of the deceased insured.

S.M. 2002, c. 48, s. 12.

Coverage of non-owner's policy

240         Every contract evidenced by a non-owner's policy insures the person named therein and such other person, if any, as is specified in the policy against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a) arising from the use or operation of an automobile within the definition thereof in the policy, other than an automobile owned by him or registered in his name; and

(b) resulting from bodily injury to or the death of any person, and damage to property.

Persons deemed not owners

241         For the purposes of this Part, a person shall not be deemed to be the owner of an automobile for the reason only that he has a lien on the automobile or has legal title to the automobile as security.

Territorial limits

242         Insurance under sections 239 and 240 applies to the ownership, use or operation of the insured automobile within Canada and the United States of America and upon a vessel plying between ports of those countries.

Rights of unnamed insured

243         Any person insured by but not named in a contract to which section 239 or 240 applies may recover indemnity in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.

Additional agreements

244         Every contract evidenced by a motor vehicle liability policy shall provide that, where a person insured by the contract is involved in an accident resulting from the ownership, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall,

(a) upon receipt of notice of loss or damage caused to persons or property, make such investigations, conduct such negotiations with the claimant and effect such settlement of any resulting claims as are deemed expedient by the insurer;

(b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on account of loss or damage to persons or property;

(c) pay all costs taxed against the insured in any civil action defended by the insurer and any interest accruing after entry of the judgment upon that part of the judgment that is within the limits of the insurer's liability; and

(d) where the injury is to a person, reimburse the insured for outlay for such medical aid as is immediately necessary at the time.

Exceptions from liability

245         The insurer is not liable under a contract evidenced by a motor vehicle liability policy for any liability,

(a) imposed by any workers compensation law upon any person insured by the contract;

(b) resulting from bodily injury to or the death of any person insured by the contract; or

(c) resulting from bodily injury to or the death of any employee of any person insured by the contract while engaged in the operation or repair of the automobile.

Exceptions

246         The insurer may provide under a contract evidenced by a motor vehicle liability policy, in either or both of the following cases, that it shall not be liable,

(a) to indemnify any person engaged in the business of selling, repairing, maintaining, servicing, storing or parking automobiles for any loss or damage sustained while engaged in the use or operation of or while working upon the automobile in the course of that business unless the person is the owner of the automobile or is his employee;

(b) for loss of or damage to property carried in or upon the automobile or to any property owned or rented by or in the care, custody or control of the insured.

Exclusion for machinery, etc. in operation

247         Subject to the limitations and exclusions of the endorsement, the insurer may provide by endorsement to a contract evidenced by a motor vehicle liability policy, that it shall not be liable for loss or damage resulting from the ownership, use or operation of any machinery or apparatus, including its equipment, mounted on or attached to the automobile while the automobile is at the site of the use or operation of that machinery or apparatus.

Exceptions

248(1)      The insurer may provide under a contract evidenced by a motor vehicle liability policy, in one or more of the following cases, that it shall not be liable while,

(a) the automobile is rented or leased to another person;

(b) the automobile is used to carry explosives or to carry radio-active material for research, education, development or industrial purposes or for purposes incidental thereto;

(c) the automobile is used as a taxicab, public omnibus, livery, jitney or sightseeing conveyance or for carrying passengers for compensation or hire;

(d) where the insured vehicle is an automobile, other than a trailer, it is used for towing a trailer owned by the insured unless like indemnity is also provided by the insurer in respect of the trailer;

(e) where the insured vehicle is a trailer, it is towed by an automobile owned by the insured unless like indemnity is also provided by the insurer in respect of the automobile.

Interpretation

248(2)      In clause (1)(b), "radio-active material" means,

(a) spent nuclear fuel rods that have been exposed to radiation in a nuclear reactor; or

(b) radio-active waste material; or

(c) unused enriched nuclear fuel rods; or

(d) any other radio-active material of such quantity and quality as to be harmful to persons or property if its container were destroyed or damaged.

Exception

248(3)      Clause (1)(a) does not include the use by an employee of his automobile on the business of his employer and for which he is paid.

Certain rules excepted

248(4)      Clause (1)(c) does not include,

(a) the use by a person of his automobile for the carriage of another person in return for the former's carriage in the automobile of the latter;

(b) the occasional and infrequent use by a person of his automobile for the carriage of another person who shares the cost of the trip;

(c) the use by a person of his automobile for the carriage of a temporary or permanent domestic servant of the insured or his spouse or common-law partner; or

(d) the use by a person of his automobile for the carriage of a client or customer or a prospective client or customer; or

(e) the occasional and infrequent use by the insured of his automobile for the transportation of children to or from school or school activities conducted within the educational program.

S.M. 2002, c. 48, s. 12.

Minimum liability under policy

249(1)      Every contract evidenced by a motor vehicle liability policy insures, in respect of any one accident, to the limit of at least $200,000., exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and loss of or damage to property.

Priorities

249(2)      The contract shall be interpreted to mean that where, by reason of any one accident, liability results from bodily injury or death and from loss of or damage to property,

(a) claims against the insured arising out of bodily injury or death have priority to the extent of $180,000. over claims arising out of loss of or damage to property; and

(b) claims against the insured arising out of loss of or damage to property have priority to the extent of $20,000. over claims arising out of bodily injury or death.

Minimum limits where separate limits designated

249(3)      The insurer may, instead of specifying a limit in the policy for an inclusive amount, specify a limit of liability of at least $200,000., exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and a limit of liability of at least $200,000., exclusive of interest and costs, against liability for loss of or damage to property.

Variation of limits

249(4)      Nothing in this Part precludes an insurer, with respect to a limit or limits in excess of those specified in subsection (1) or (3), from increasing or reducing the limit or limits specified in the contract with respect to the use or operation of the automobile by a named person, but no reduction is effective for a limit less than that required under subsection (1) or (3).

Stipulation in motor vehicle liability policy

250(1)      Every motor vehicle liability policy issued in the province shall provide that, in the case of liability arising out of the ownership, use or operation of the automobile in any province or territory of Canada,

(a) the insurer shall not set up any defence to a claim that might not be set up if the policy were a motor vehicle liability policy issued in that province or territory insuring the insured only in respect of any liability in excess of $200,000.; and

(b) the insured, by acceptance of the policy, constitutes and appoints the insurer his irrevocable attorney to appear and defend in any province or territory of Canada in which an action is brought against the insured arising out of the ownership, use or operation of the automobile.

Power of attorney binding

250(2)      A provision in a motor vehicle liability policy in accordance with clause (1)(b) is binding on the insured.

Excess insurance

251         Nothing in this Part precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided under The Manitoba Public Insurance Corporation Act or by another designated contract evidenced by a motor vehicle liability policy, whether the designated contract is a first loss insurance or an excess insurance.

Termination of excess insurance

252         Where the insurance in excess of which the excess contract provides insurance is terminated or terminates, the excess contract is automatically terminated.

Agreement for partial payment of claim by insured

253         Nothing in this Part precludes an insurer from entering into an agreement with its insured under a contract evidenced by a motor vehicle liability policy providing that the insured will reimburse the insurer in an agreed amount in respect of any claim by or judgment in favour of a third party against the insured, and the agreement may be enforced against the insured according to its tenor.

Offence

254         An insurer that issues a document

(a) purporting to show that, at the date of the issue of the document, there was in force a policy of insurance which was, in fact, not in force; or

(b) showing that a policy of insurance expires on a date later than that on which, in fact, it expires;

is guilty of an offence.

Interpretation

255(1)      In this section, "nuclear energy hazard" means the radio-active, toxic, explosive or other hazardous properties of prescribed substances under the Atomic Energy Control Act (Canada).

Liability when nuclear energy contract also in force

255(2)      Where an insured is covered, whether named therein or not, under a contract evidenced by a motor vehicle liability policy for loss or damage resulting from bodily injury to or the death of any person or damage to property arising directly or indirectly out of a nuclear energy hazard and is also covered, whether named therein or not, against such loss or damage under a contract evidenced by a policy of nuclear energy hazard liability insurance issued by a group of insurers and in force at the time of the event giving rise to the loss or damage,

(a) the motor vehicle liability insurance is excess to the nuclear energy hazard liability insurance, and the insurer under the contract of motor vehicle liability insurance is not liable to pay beyond the minimum limits prescribed by section 249; and

(b) the unnamed insured under the contract of nuclear energy liability insurance may, in respect of such loss or damage, recover indemnity under that contract in the same manner and to the same extent as if named therein as the insured, and for that purpose he shall be deemed to be a party to the contract and to have given consideration therefor.

When contract deemed in force

255(3)      For the purpose of this section, a contract of nuclear energy hazard liability insurance shall be deemed to be in force at the time of the event giving rise to the loss or damage, notwithstanding that the limits of liability thereunder have been exhausted.

Effective payment on behalf of insured

255(4)      Where an insurer makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person who is or alleges himself to be entitled to recover from the insured covered by the policy, the payment constitutes, to the extent of the payment, a release by the person or his personal representative of any claim that the person or his personal representative or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insured and the insurer.

Demand for release

255(5)      Nothing in this section precludes the insurer making the payment from demanding, as a condition precedent to such payment, a release from the person, or his personal representative or any other person to the extent of the payment.

Consideration of payment in judgments

255(6)      Where the person commences an action the court shall adjudicate upon the matter first without reference to the payment, but in giving judgment the payment shall be taken into account, and the person shall be entitled to a judgment only for the net amount, if any.

Intent of section

255(7)      The intention of this section is to permit payments to a claimant without prejudice to the defendant or his insurer, either as an admission of liability or otherwise, and the fact of any payment shall not be disclosed to the judge or jury until after judgment, but before formal entry thereof.

Defence where more than one contract

256(1)      Where a person is insured under more than one contract evidenced by a motor vehicle liability policy, whether the insurance is first loss insurance or excess, and a question arises under clause 244(b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court; and the court shall give such directions as may appear proper with respect to the performance of the obligation.

Hearing

256(2)      On an application under subsection (1) the only parties entitled to notice thereof and to be heard thereon are the insured and his insurers, and no material or evidence used or taken upon such an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided.

Order

256(3)      An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies.

Contribution

256(4)      Where indemnity is provided to the insured under two or more contracts and one or more of them are excess insurance, the insurers shall, as between themselves, contribute to the payment of expenses, costs and reimbursement for which provision is made in section 244 in accordance with their respective liabilities for damages awarded against the insured.

Limitation of group automobile insurance

257(1)      No rating bureau and no insurer authorized to transact the business of insurance within Manitoba shall fix or make any rate or schedule of rates or charge a rate for automobile insurance to any group of persons by reason of the group being engaged in any trade, calling, profession or occupation, or by reason of membership in any guild, union, society, club or association or by reason of common employment or by reason of common occupancy of the same building or group of buildings or for any other reason that would result in a lower cost to an individual in the group than the individual would have had to pay if insured individually; and every insurer or other person who violates this section is guilty of an offence.

Where special rate permitted

257(2)      Nothing in this Act prohibits the fixing or charging of a special rate for the insurance of two or more vehicles owned by and registered in the name of the same person, except where the owner is engaged in the business of leasing the vehicles and the vehicles are the subject of a leasing agreement for a period in excess of 30 days.

Same lessee

257(3)      Nothing in this section prohibits the fixing or charging of a special rate for the insurance of two or more vehicles of a lessor that are rented to the same lessee.

Application of insurance money under motor vehicle liability policy

258(1)      Any person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, notwithstanding that such person is not a party to the contract, may, upon recovering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of his judgment and of any other judgments or claims against the insured covered by the contract and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.

Limitation

258(2)      No action shall be brought against an insurer under subsection (1) after the expiration of one year from the final determination of the action against the insured, including appeals if any.

Other creditors excluded

258(3)      A creditor of the insured is not entitled to share in the insurance money payable under any contract unless his claim is one for which indemnity is provided for by that contract.

Insurer absolutely liable

258(4)      The right of a person who is entitled under subsection (1) to have insurance money applied upon his judgment or claim is not prejudiced by,

(a) an assignment, waiver, surrender, cancellation or discharge of the contract, or of any interest therein or of the proceeds thereof, made by the insurer after the happening of the event giving rise to a claim under the contract; or

(b) any act or default of the insured before or after that event in contravention of this Part or of the terms of the contract; or

(c) any contravention of the Criminal Code (Canada) or a statute of any province or territory of Canada or of any state or the District of Columbia of the United States of America by the owner or driver of the automobile;

and nothing mentioned in clause (a), (b) or (c) is available to the insurer as a defence in an action brought under subsection (1).

Section applicable to purported policy

258(5)      It is not a defence to an action under this section than an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be such a policy is not a motor vehicle liability policy, and this section applies with such modifications as the circumstances require to the instrument.

Contribution among insurers

258(6)      The insurer may require any other insurers liable to indemnify the insured in whole or in part in respect of judgments or claims to which reference is made in subsection (1) to be made parties to the action and contribute according to their respective liabilities, whether the contribution is rateably or by way of first loss or excess insurance, as the case may be, and the insured shall on demand furnish the insurer with particulars of all other insurance covering the subject-matter of the contract.

Payment into court

258(7)      Where any person has recovered a judgment against the insured and is entitled to bring action under subsection (1), and the insurer admits liability to pay the insurance money under the contract and the insurer considers that,

(a) there are or may be other claimants; or

(b) there is no person capable of giving and authorized to give a valid discharge for payment who is willing to do so;

the insurer may apply to the court ex parte for an order for payment of the money into court, and the court may, upon such notice, if any, as it thinks necessary, make an order accordingly.

Effect of order

258(8)      The receipt of the proper officer of the court is sufficient discharge to the insurer for the insurance money paid into court under subsection (7), and the insurance money shall be dealt with as the court may order upon application of any person interested therein.

Section 248 coverage and limitation on coverage

258(9)      Notwithstanding anything contained therein to the contrary, every contract evidenced by a motor vehicle liability policy shall, for the purposes of this section, be deemed to provide all the types of coverage mentioned in section 248; but the insurer is not liable to a claimant with respect to that coverage in excess of the limits mentioned in section 249.

Defence where coverage under sections 246, 247

258(10)     Where one or more contracts provide for coverage of a type mentioned in section 246 or 247, except as provided in subsection (12), the insurer may,

(a) with respect to that type of coverage; and

(b) as against a claimant;

avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).

Defence where excess limits

258(11)     Where one or more contracts provide for coverage in excess of $200,000., except as provided in subsection (12), the insurer may,

(a) with respect to the coverage in excess of those limits; and

(b) as against a claimant;

avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).

Defence where vehicle used in business of carrying passengers

258(12)     Where a contract provides coverage of the type mentioned in clause 247(a) in respect of an automobile operated in the business of carrying passengers for compensation or hire and insured for that purpose, the insurer may,

(a) with respect to that type of coverage; and

(b) as against a claimant;

only avail itself of a defence that it is entitled to set up against the insured in respect of that part of the coverage, if any, that exceeds,

(c) $200,000.; or

(d) the minimum limits required for that type of coverage by or under any other Act;

whichever is the greater.

Insured's liability to reimburse insurer

258(13)     The insured shall reimburse the insurer upon demand in the amount that the insurer has paid by reason of this section and that it would not otherwise be liable to pay.

Insurer may be made third party

258(14)     Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court in which the action is proceeding, be made a third party in any action to which the insured is a party and in which a claim is made against the insured by any party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action.

Rights of insurer

258(15)     Upon being made a third party, the insurer may,

(a) contest the liability of the insured to any party claiming against the insured;

(b) contest the amount of any claim made against the insured;

(c) deliver any pleadings in respect of the claim of any party claiming against the insured;

(d) have production and discovery from any party adverse in interest; and

(e) examine and cross-examine witnesses at the trial;

to the same extent as if it were a defendant in the action.

More than one insurer

258(16)     An insurer may avail itself of subsection (15) notwithstanding that another insurer is defending in the name and on behalf of the insured an action to which its insured is a party.

Insured to give notice of action

259(1)      Every insured against whom an action is commenced for damages occasioned by an automobile shall give notice thereof in writing to the insurer within five days after service of every notice or process in the action.

Insured to disclose insurance

259(2)      Every insured against whom an action is commenced for damages occasioned by an automobile shall, upon recovery of a judgment against the insured, disclose to a judgment creditor entitled to the benefit of any motor vehicle liability policy particulars of such contract within 10 days after written demand therefor.

PHYSICAL DAMAGE COVER

Stipulations in physical damage cover

260         Subject to subsection 233(1), the insurer may provide in a contract such exclusions and limitations, in respect of loss or damage to or the loss of use of the automobile, as it considers necessary.

Partial payment of loss clause

261(1)      A contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof may contain a clause to the effect that, in the event of loss, the insurer shall pay only,

(a) an agreed portion of any loss that may be sustained; or

(b) the amount of the loss after deduction of a sum specified in the policy;

and in either case not exceeding the amount of the insurance.

Stamping required

261(2)      Where a clause is inserted in accordance with subsection (1), there shall be printed or stamped upon the face of the policy in conspicuous type the words: "This policy contains a partial payment of loss clause".

Claims to be adjusted with insured

262(1)      Where a claim is made under any contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, notwithstanding any agreement, adjust the amount of the claim with the insured named in the contract as well as with any person having an interest indicated in the contract.

Exception

262(2)      Where notice is given or proof of loss is made by a person other than the insured, because the insured cannot be located or neglects or refuses or is unable to give notice and make claim under statutory conditions 4 and 7 in section 237, the insurer may, notwithstanding subsection (1) but in any event not earlier than 60 days from delivery or the proof required under clause (1)(c) of statutory condition 4, adjust and pay the claim to the other person having an interest indicated in the contract.

LIMITED ACCIDENT INSURANCE

Uninsured motorist coverage

263(1)      Where an insurer provides in a contract insurance against loss resulting from bodily injury to or the death of a person insured arising out of an accident involving an automobile where,

(a) there is legal liability of another person for the injury or death; and

(b) the other person has no insurance against his liability therefor or that person cannot be identified;

that insurance applies only in respect of,

(c) any person who sustains bodily injury or death while driving, being carried in or upon or entering or getting on to or alighting from the described automobile in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and

(d) the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving, being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the contract for the purposes of that insurance.

Limited application

263(2)      The insurance mentioned in subsection (1) does not apply in respect of a person specified therein who has a right of recovery under The Unsatisfied Judgment Fund Act or similar legislation of any other province or territory of Canada or of any state or the District of Columbia of the United States of America.

S.M. 2002, c. 48, s. 12.

Medical expense coverage

264(1)      Where in a contract an insurer provides insurance against expenses for medical, surgical, dental, ambulance, hospital, professional nursing or funeral services, the insurance applies only in respect of reasonable expenses,

(a) of or incurred for any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and

(b) of the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the contract for the purposes of that insurance.

Release by claimant

264(2)      Where an insurer makes a payment under a contract of insurance referred to in subsection (1), the payment constitutes, to the extent of such payment, a release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and any other person who may be liable to the insured person or his personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his personal representatives or any other person.

First loss and excess insurance

264(3)      The insurance mentioned in the clause (1)(a) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

Excess insurance

264(4)      The insurance mentioned in clause (1)(a) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses.

Excess insurance

264(5)      The insurance mentioned in clause (1)(b) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses.

S.M. 2002, c. 48, s. 12.

Accident benefits

265(1)      Where in a contract an insurer provides accident insurance benefits in respect of the death of, or injury to, an insured person arising out of an accident involving an automobile, the insurance applies only in respect of,

(a) any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and

(b) the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the named insured who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the policy for the purposes of the insurance.

Release by claimant

265(2)      Where an insurer makes a payment under a contract of insurance to which subsection (1) refers, the payment constitutes, to the extent of such payment, a release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and any other person who may be liable to the insured person or his personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his personal representatives or any other person.

First loss and excess insurance

265(3)      Subject to subsection (5), the insurance mentioned in clause (1)(a) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

Excess insurance

265(4)      Subject to subsection (5), the insurance mentioned in clause (1)(b) is excess insurance over any other automobile insurance of the same type available to the injured person or in respect of a deceased person.

Limit of benefit payable

265(5)      Where a person is entitled to benefits under more than one contract providing insurance of the type mentioned in this section, he or his personal representative or any person claiming through or under him or by virtue of The Fatal Accidents Act may recover only an amount equal to,

(a) one benefit, if the benefits under the contracts are of the same limit; or

(b) the highest benefit, if the benefits under the contracts are not of the same limit.

S.M. 2002, c. 48, s. 12.

Demand for particulars of insurance

266(1)      Where a person is injured or killed in an accident in the province involving an automobile, that person or his personal representative may serve,

(a) a demand by registered mail on the owner of the automobile; or

(b) a demand by registered mail on the insurer of the owner of the automobile;

requiring the owner or insurer, as the case may be, to state in writing to the person making the demand whether or not that owner has insurance of the type mentioned in section 264 and 265, or either of them, and, where the demand is made under clause (a), requiring the owner, if he has such insurance, to state the name of the insurer.

Offence

266(2)      An owner or insurer who does not, within 10 days after receiving a demand made under subsection (1), comply with the demand is guilty of an offence.

Rights of unnamed insured

267(1)      Any person insured by but not named in a contract to which section 263, 264 or 265 applies may recover under the contract in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.

Liability in first instance

267(2)      Where a person entitled to benefits provided by insurance under sections 264 and 265, or either of them

(a) is an occupant of a motor vehicle involved in an accident, the insurer of the owner of that motor vehicle shall, in the first instance, be liable for payment of the benefits provided by the insurance; or

(b) is a pedestrian and is struck by a motor vehicle, the insurer of the owner of that motor vehicle shall, in the first instance, be liable for the payment of the benefits provided by the insurance.

Saving clause

267(3)      Nothing in this section affects the operation of the provisions of subsections 264(2) to (5) and subsections 265(2) to (5).

Payment into court by insurer

268(1)      If an insurer admits liability for insurance money payable under section 263, 264 or 265 and it appears to the insurer that

(a) there are adverse claimants;

(b) the whereabouts of a person entitled to the insurance money is unknown; or

(c) there is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so;

the insurer may, after 30 days have elapsed after the date upon which the insurance money became payable, apply to the court, without notice, for an order for the payment of the money into court.

Court may order payment in

268(2)      Upon such notice, if any, as the court considers necessary, it may make an order for payment of the insurance money into court and may provide to what fund or name the money is to be credited.

Discharge of insurer

268(3)      The receipt of the proper officer of the court is a sufficient discharge to the insurer for the insurance money paid into court.

Insurance money to be dealt with as ordered by the court

268(4)      After it is paid into court, the insurance money must be dealt with as the court orders.

Costs of proceedings

268(5)      Without taxation, the court may fix the costs incurred upon or in connection with an application or order under this section and may order the costs to be paid

(a) out of the insurance money;

(b) by the insurer; or

(c) otherwise;

as it considers appropriate.

S.M. 2012, c. 29, s. 59.

Limitation of action

269         Every action or proceeding against an insurer under a contract in respect of insurance provided under section 263, 264, or 265 shall be commenced within the limitation period specified in the contract, but in no event shall the limitation period be less than one year after the happening of the accident.

Demand on claimant

270         Where any person makes a claim for damages in respect of bodily injury or death sustained by the person or any other person while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by an automobile, he shall, if required by the person against whom the claim is made or by someone acting on his behalf, furnish to or for that person full particulars of all insurance available to the claimant under contracts falling within the scope of section 264 or 265 and of any payments of insurance money made or to be made thereunder.

Terms of certain insurances

271         Subject to subsection 233(1), an insurer may in a policy,

(a) provide insurance that is less extensive in scope than the insurance mentioned in section 263, 264, or 265; and

(b) provide the terms of the contract that relate to the insurance mentioned in section 263, 264, or 265.

OTHER INSURANCE

Other insurance

272(1)      Subject to subsections 255(1), (2) and (3), insurance under a contract evidenced by a valid owner's policy is, in respect of liability arising from or occurring in connection with the ownership, use or operation of an automobile owned by the insured named in the contract and within the description or definition thereof in the policy, a first loss insurance, and insurance attaching under any other valid motor vehicle liability policy is excess insurance only.

Rateable proportion

272(2)      Subject to sections 233, 264 and 265 and to subsection (1) of this section, if the insured named in a contract has or places any other valid insurance, whether against liability for the ownership, use or operation of or against loss of or damage to an automobile or otherwise, of his interest in the subject matter of the contract or any part thereof, the insurer is liable only for its rateable proportion of any liability, expense, loss or damage.

Meaning of "rateable proportion"

272(3)      "Rateable proportion" used in subsection (2) means

(a) if there are two insurers liable and each has the same policy limits, each of the insurers shall be liable to share equally in any liability, expense, loss or damage;

(b) if there are two insurers liable with different policy limits, the insurers shall be liable to share equally up to the limit of the smaller policy limit; and

(c) if there are more than two insurers liable, clauses (a) and (b) shall apply with such modifications as the circumstances require.

SUBROGATION

Subrogation

273(1)      An insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights.

Pro-rating recovery

273(2)      Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the recovery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the proportion in which the loss or damage has been borne by them.

Action when section 261 applies

273(3)      Where the interest of an insured in any recovery is limited to the amount provided under a clause in the contract to which section 261 applies, the insurer shall have control of the action.

Application to court

273(4)      Where the interest of an insured in any recovery exceeds that referred to in subsection (3) and the insured and the insurer cannot agree as to,

(a) the solicitors to be instructed to bring the action in the name of the insured; or

(b) the conduct and carriage of the action or any matters pertaining thereto; or

(c) any offer of settlement or the apportionment thereof, whether action has been commenced or not; or

(d) the acceptance of any money paid into court or the apportionment thereof; or

(e) the apportionment of costs; or

(f) the launching or prosecution of an appeal;

either party may apply to the court for the determination of the matters in question, and the court shall make such order as it considers reasonable having regard to the interests of the insured and the insurer in any recovery in the action or proposed action or in any offer of settlement.

Parties

273(5)      On an application under subsection (4), the only parties entitled to notice and to be heard thereon are the insured and the insurer, and no material or evidence used or taken upon the application is admissible upon the trial of an action brought by or against the insured or the insurer.

Concurrence in settlement of release

273(6)      A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer, as the case may be unless they have concurred therein.

PART VIII

274 to 277  [Repealed]

S.M. 2012, c. 29, s. 60.

PART IX

278 to 282  [Repealed]

S.M. 2012, c. 29, s. 60.

PART X

HAIL INSURANCE

APPLICATION OF PART

Application of Part

283(1)      This Part applies to hail insurance and to every insurer carrying on the business of hail insurance in the province.

Interpretation

283(2)      For the purposes of this Part the expression "premium" as defined in section 1 includes a negotiable instrument accepted by the insurer or its general agent as payment of the premium.

HAIL COVERAGE

Powers of insurers

284(1)      Every insurer may, within the limits, and subject to the restrictions, prescribed by its licence, insure or reinsure

(a) crops of wheat, oats, barley, flax, rye, or spelt, field peas, buckwheat, grasses or clover grown for seed, field corn or sunflower grown for seed or fodder; or

(b) field or garden or horticultural crops other than those specified in clause (a).

Superintendent may approve form of contract

284(2)      In the case of the crops mentioned in clause (1)(b) the superintendent may approve a form of contract appropriate to insure those crops, and in that event the statutory conditions shall be read with such modification as is necessary to give effect to the terms and conditions of a contract in the form so approved.

Additional coverage

284(3)      The insurer may, by an endorsement on the policy, and in consideration of an additional premium, insure the crop

(a) for any period during which it is lying in wind-rows; or

(b) for any period during which it is in sheaves either on the ground or in stooks.

Other losses

284(4)      The insurer may by an endorsement on the policy, and in consideration of an additional premium, insure the crop against loss or damage arising from other losses incidental to crops and in such case the statutory conditions shall be read with such modification as is necessary to give effect to the terms and conditions of the endorsement.

Insurable interest

285(1)      The contract is void if, at the time at which it would otherwise take effect, the insured has not an insurable interest in the crop insured.

Payee need not have insurable interest

285(2)      If the insured has an insurable interest in the crop insured when the contract takes effect, it is not necessary for the validity of the contract that any person to whom the insurance money is payable, whether by the terms of the contract or by assignment, have an insurable interest in the crop.

APPLICATION FOR INSURANCE

Application for insurance

286(1)      No insurer shall effect a contract of insurance unless the insurer has been tendered an application therefor in writing signed by the applicant or his agent.

Policy to contain application

286(2)      A copy of the application, or of such part thereof as is material to the contract, shall be embodied in, endorsed upon, or attached to the policy when issued by the insurer, and forms part thereof.

Contents of application

286(3)      The application shall set forth

(a) the name and address of the applicant;

(b) an itemized description of the location and acreage of each part of the crop to be insured and the amount of insurance applied for on each acre;

(c) whether or not the crop has been hailed prior to the time of the application;

(d) the insurable interest of the applicant;

(e) the name of the person or persons to whom the insurance money is payable; and

(f) with the approval of the superintendent, such further information as the insurer requires.

Contents of application and policy

286(4)      There shall also appear on every application and on every policy, in a prominent position and in prominent type, the name and address of the insurer's head or branch office or general agency from which the policy is to be or is issued.

Duty of agents to forward applications

287         Every agent who takes an application on behalf of an insurer shall deliver it to the insurer, or forward it to the insurer by mail, not later than the day following the day on which it is taken.

COMMENCEMENT OF LIABILITY

Commencement of liability

288(1)      If an applicant mails an application for insurance on crops mentioned in clause 284(1)(a) to the head or branch office or the general agency of the insurer in the province and tenders therewith payment of the premium in cash, or by post office order, postal note, express order, bank money order, certificate of deposit of a bank or certified cheque, a contract of insurance in accordance with the application shall take effect at noon, of the day following the date of the mailing.

Date of mailing

288(2)      In a case to which subsection (1) applies, the post office date stamp shall determine the date of mailing.

Application taken by agent

288(2.1)    If an agent of an insurer takes an application for insurance on behalf of the insurer on crops mentioned in clause 284(1)(a), a contract of insurance in accordance with the application takes effect at 12 noon of the day following the date the application is taken.

Notification to insurer

288(2.2)    In a case to which subsection (2.1) applies, the agent shall, on the day the application is taken, notify the insurer of the details of the application by telephone or facsimile transmission or other means specified by the insurer.

Application declined

288(3)      The insurer may decline the application on its receipt.

Notice to applicant

288(4)      Where the application is declined, the insurer shall forthwith give notice thereof by registered letter, or by prepaid telegram if possible, to the applicant at his address as given in the application and to the agent if any; in which case the contract of insurance mentioned in subsections (1) and (2.1) continues in force only until noon of the day following the receipt of the notice by the applicant.

Delivery of notice

288(5)      Notwithstanding subsection (4), notice in writing that the application has been declined may be personally delivered to the applicant by the agent; and in that event the contract of insurance mentioned in subsections (1) and (2.1) continues in force only until noon of the day following receipt of the notice by the applicant.

Disposition of premium

288(6)      The premium tendered with the application shall be returned to the applicant or held by the insurer for the applicant for premium purposes solely, and is payable, on the direction of the applicant, to any insurer to whom an application for insurance is subsequently tendered.

Premium held by insurer may be credited on new application

288(7)      Where the applicant subsequently tenders an application for insurance to another insurer, and endorses on the application a notice that the premium is held as mentioned in subsection (6), the amount so held shall, for the purpose of this section, be deemed to have been tendered with the application.

S.M. 1993, c. 9, s. 8; S.M. 2002, c. 47, s. 30.

Procedure where wrong premium tendered

289         If the amount of premium tendered with an application made in accordance with section 288 is not the correct amount, the insurance shall, unless readjusted before loss occurs, be either reduced or increased to such amount as the premium actually tendered would pay for according to the correct rate of premium applicable to the risk.

Procedure by insurer on delivery of application

290(1)      Where an agent of an insurer, or an applicant, delivers an application for insurance together with the insurance premium to the head or branch office or the general agency of the insurer in the province, the application shall immediately be stamped with the date of its receipt.

Time for acceptance or rejection of application

290(2)      Subject to subsection (3), the application shall be accepted or declined not later than the day following the date of its receipt and shall be so stamped.

Time for acceptance or rejection where order on third party for premium

290(3)      Where the applicant tenders with his application an order on a third party as payment of the premium, the application shall be accepted or declined on the day following the date of receipt from the third party of notice of acceptance or of refusal to accept the order for payment.

When insurance effective

290(4)      Where accepted, the insurance applied for takes effect at noon, of the day on which the application is accepted.

How notice of rejection given

290(5)      Where declined, the applicant shall be so notified on the day on which the application is declined, at his address as given in the application; and where there is a telegraph office at that address, the notice shall be given by telegram prepaid, otherwise it shall be forwarded in writing by registered letter.

When acceptance presumed

290(6)      Where the insurer does not so notify the applicant that his application has been declined, the insurer shall be conclusively presumed to have accepted the application.

S.M. 1993, c. 9, s. 9.

Policy deemed to be in accordance with application

291         A policy issued to an insured upon an application in writing shall be deemed to be in accordance therewith, unless the insurer forthwith gives notice to the insured in writing of the particulars wherein the policy and application differ.

Expiry of contracts

292(1)      Subject to subsection (2), all policies of hail insurance shall expire at noon on September 15 in the year in which they are made.

When liability of insurer lapses

292(2)      Where any portion of the insured crop is cut before that date, the liability of the insurer ceases in respect of that portion when it is cut, and the insurance on each acre of the remaining acreage shall continue until the crop thereon is cut but not beyond the said date unless extended pursuant to subsection (3).

Term of contract may be extended

292(3)      The insurer may, by an endorsement on the policy, in consideration of an additional premium, extend the term of the contract beyond the said date.

Partial payment of loss

293(1)      A policy may contain a partial payment of loss clause to the effect that the insurer shall pay only an agreed proportion of any loss which may be sustained or the amount of the loss after deduction of a sum specified in the policy, in either case not exceeding the amount of the insurance; in which case there shall be printed or stamped upon the face of the policy in conspicuous type in red ink, the words: "This policy contains a partial payment of loss clause".

No variation of statutory conditions

293(2)      Such a partial payment of loss clause shall not be deemed a variation of or addition to the statutory conditions.

294 and 295   [Repealed]

S.M. 2012, c. 29, s. 61.

Notice of termination when loss payable to third party

296         Where the loss has, with the consent of the insurer, been made payable to a person other than the insured, the contract shall not be cancelled or altered to the prejudice of that person without reasonable notice to him by the insurer.

Copy of adjustment given to insured

297         Where an adjustment of loss under a contract has been made, a copy of the adjustment, duly signed by the adjuster and the insured or his agent, shall be given to the insured or his agent.

Procedure where acreage less than stated in application

298(1)      Where the actual acreage of the crop insured under any item of the policy is found to be less than the acreage mentioned in the application under that item, the insurer shall repay to the insured the premium paid on the excess acreage.

Procedure where acreage more than stated in application

298(2)      Where the actual acreage of the crop insured under any item of the policy is found to be greater than the acreage mentioned in the application, the amount of insurance on each acre shall be reduced pro rata in its relation to the actual acreage, unless the acreage insured is clearly identified in the application or by a diagram on the application.

Statutory conditions part of every policy

299         The conditions set forth in this section shall be deemed to be part of every contract in force in the province and shall be printed on every policy with the heading "Statutory Conditions"; and no stipulations to the contrary, or provisions for a variation, addition, or omission, are binding on the insured, nor shall anything contained in the description of the subject matter of the insurance be effective in so far as it is inconsistent with, varies, modifies or avoids any such condition.

STATUTORY CONDITIONS

Misdescription, misrepresentation or omission

1           Where an applicant in his application falsely describes the location and acreage of the crop, to the prejudice of the insurer, or knowingly misrepresents or fails to disclose in the application any fact required to be stated therein, the insurance shall be void as to the item of the application in respect of which the misdescription, misrepresentation or omission is made.

Waiver of condition

2           No term or condition of the policy shall be deemed to have been waived by the insurer, either in whole or in part, unless the waiver is clearly expressed in writing signed by or on behalf of the insurer at its head or branch office or general agency from which the policy was issued.

Officers of insurer deemed agents

3           Any officer or general agent of the insurer who assumes on behalf of the insurer to enter into a written agreement relating to any matter connected with the insurance shall be deemed, prima facie, to be the agent of the insurer for the purpose.

Minimum amount of damage

4           No claimant shall be entitled to indemnity under the policy for any loss or damage which is found to be less than 5% of the crop upon the hailed acreage or any portion thereof and in no case for less than $10., except where the acreage insured is 40 acres or less.

Injury by causes other than hail

5           No claimant shall be entitled to indemnity under the policy

(a) when the crop is wholly destroyed by any agency other than hail; or

(b) when the crop is overripe; or

(c) when the crop or any portion thereof has been so injured by causes other than hail that the crop or such portion, as the case may be, would not yield profit over and above the actual cost of cutting, threshing and marketing it.

Notice of claim

6           Any person claiming under the policy shall give notice of claim in writing to the head or branch office or the general agency of the insurer from which the policy was issued within three days of the occurrence of loss, stating the number of the policy, the day and hour of the storm, the estimated damage to each portion of the insured crop and the names of other insurers carrying insurance on the hailed area: Provided that failure to give notice within such time shall, subject to condition 9, not invalidate the claim if it is shown that it was not reasonably possible to give notice within such time and that notice was given as soon as was reasonably possible.

Right of access of insurer

7           After any loss or damage to the insured crop, the insurer shall have immediate right of access and entry by accredited representatives sufficient to enable them to survey and examine the crop and to make an estimate of the loss or damage.

Ascertainment of damage

8           Within 30 days after the receipt of notice of loss or damage the insurer and the insured or their accredited representatives shall together ascertain and agree upon the percentage of loss or damage sustained on the acreage of the crop or any portion thereof insured under any item of the policy. The amount of indemnity shall be ascertained on the agreed percentage of the insurance on each acre of acreage sustaining loss or damage by hail, subject to any partial payment of loss clause contained in the policy or subject to the determination of the amount of the loss or damage by appraisal as hereinafter provided. No account shall be taken of the cost of cutting or threshing the portion not destroyed or damaged. The determination of the percentage of loss or damage may be deferred to a later date agreed upon by the insurer and the insured.

Proof of loss

9           A person making a claim under the policy shall, within 30 days after the occurrence of a loss or within 30 days of the deferred adjustment date, unless such time is extended in writing by the insurer, furnish a statutory declaration, (hereinafter called "proof of loss"), on a form furnished by the insurer, setting forth the date and number of the policy, the date of the occurrence of the loss or damage, the location and acreage of the crop damaged, the estimated percentage of loss or damage sustained on the acreage of the crop or any portion thereof insured under any item of the policy and whether the crop was damaged by hail prior to the time of the application. If the claimant fails to furnish proof of loss he shall forfeit any claim under the policy: Provided that if the insurer, within the said 30 days or at the time of the deferred adjustment, has ascertained the loss acceptably to the claimant or if the amount of loss has been determined by appraisal as hereinafter provided, the insurer shall be deemed to have waived proof of loss, unless proof of loss is requested by the insurer in writing.

Proof to be made by insured personally

10          Proof of loss must be made by the insured, although the loss is payable to a third person, except that, in the case of the absence of the insured or his inability to make the same, proof may be made by his agent, such absence or inability being satisfactorily accounted for, or in the like case or if the insured refuses to do so, by a person to whom any part of the insurance money is payable.

Fraud or false statement vitiates claim

11          Any fraud or wilfully false statement in a proof of loss shall vitiate the claim of the person making such proof of loss.

Payment of loss

12          The insurer shall pay the insurance money for which it is liable under the policy within 60 days after the proof of loss has been received by it or where an appraisal is had under condition 15, within 30 days after the award is rendered by the appraisers.

When insured liable for expenses of adjustment

13          If the insured claims for loss or damage under the policy and it is found that he is not entitled to indemnity under the conditions of the policy, the insured shall be liable for the expenses incurred in the adjustment of his claim.

Cancellation of policy

14          A policy may be cancelled at any time by the insured named therein by giving written notice to that effect to the head or branch office or the general agency of the insurer from which the policy was issued and the insurer shall, upon surrender of the policy, refund the excess of paid premium above the customary short rate premium for the time the policy has been in force. If a note or other undertaking was accepted as payment of the premium the insured shall pay the insurer the earned portion of the premium and on payment or tender of such amount the insurer shall return such note or undertaking to pay, or if the insured does not pay or tender the amount, the insurer shall endorse on the note or other undertaking a credit of the amount of the unearned portion of the premium.

Appraisal in case of disagreement

15          In the event of a disagreement as to the percentage of damage by hail to any of the crops insured, whether the right to recover on the policy is disputed or not, such percentage shall, when so required by either party, be ascertained by an appraisal which shall be conducted as follows:

(a) The party desiring appraisal shall within three days of such disagreement deliver or cause to be delivered by mail or otherwise to the other party a notice in writing requiring an appraisal to be made and appointing an appraiser who is a taxpayer in the province, who shall act either alone or with an appraiser chosen by the other party to estimate the percentage of the damage.

(b) Not later than three days after receipt of such notice the other party shall, if he so desires, appoint an appraiser to represent him and, within the said period, shall notify the first party of such appointment by notice in writing delivered by mail or otherwise.

(c) In the latter case the appraisers shall together estimate the percentage of damage, and failing to agree shall submit their differences to an umpire, and the award in writing of any two shall determine the percentage of the damage. Such umpire shall be chosen by the appraisers, or in case they cannot agree, then on the application of either appraiser, by the Superintendent of Insurance.

(d) If only one appraiser has been chosen, both parties shall share equally his expenses; if two, each party shall pay the expense of the appraiser chosen by him; both parties shall bear equally the expense of the umpire if an umpire is required.

(e) Should either party after receipt of written notice from the other, neglect or refuse to choose an appraiser within the time above specified, the percentage of damage shall be estimated and determined by the appraiser chosen by the party giving notice.

(f) The actual appraisal of such damage shall be commenced within two days after both appraisers have been chosen, or after the expiration of the time herein allowed for such choice.

(g) The periods of time specified in this condition may on application be extended at the discretion of the Superintendent of Insurance.

Limitation of action

16          Every action or proceeding against the insurer in respect of loss or damage to the crops insured under the policy shall be commenced within one year next after the occurrence of the loss or damage and not afterwards.

Assignment or change of property

17          If the crop insured or the interest of the insured in such crop is assigned without the written permission of the head or branch office or general agency of the insurer from which the policy was issued, such assignment shall not be binding on the insurer; but this condition does not apply to change of title by succession or by operation of the law, or by reason of death.

PART XI

FRATERNAL SOCIETIES

Definition

300         In this Part, "rates of contribution" means the regular net premiums, dues, rates or contributions receivable from the members for the purpose of the payment at maturity of the society's certificates or contracts of insurance.

S.M. 2012, c. 29, s. 62.

APPLICATION OF PART

Application of Part

301         Except as otherwise provided, this Part applies to all fraternal societies duly licensed and carrying on the business of life insurance in the province and to every club, society or association, incorporated or unincorporated, that receives, either as trustee or otherwise, contributions or moneys from its members out of which gratuities or benefits are paid, directly or indirectly, upon the death of any of its members.

LICENSING OF SOCIETY

Societies not to be licensed

302         No fraternal society shall be licensed

(a) if it undertakes insurance contracts with persons other than its own members; or

(b) if it insures or indemnifies against contingencies other than sickness, accident, disability, or death, or funeral expenses; or

(c) if it undertakes old age or endowment insurance other than as authorized in this Part, or annuities upon lives; or

(d) if it has upon its books less than 75 members in good standing; or

(e) if it is in effect the property of its officers or of any other person or persons or is conducted as a mercantile or business enterprise, or for the purpose of mercantile profit, or if its funds are under the control of persons or officers appointed for a period exceeding four years; or

(f) in the case of a society that has not been authorized to carry on business in the province before September 1, 1932, unless it files with the superintendent a declaration of its actuary of its ability to carry out its contracts; or

(g) that undertakes contracts of insurance but is not formed exclusively for that purpose, and that does not for the purposes of those contracts keep distinct and separate funds, securities, books and vouchers.

Endowment insurance annuities permitted

303         Clause 302(c) does not apply to,

(a) contracts guaranteeing the fidelity of officers, servants, or employees of the branches or subdivisions of the corporation;

(b) a society that before September 1, 1932, was bona fide transacting exclusively with its members endowment insurance in the province, and that has continued so to do up to the date of application for licence;

(c) in so far as it relates to annuities upon lives, a society, the membership of which is limited by its constitution or laws to municipal or government employees undertaking annuities on lives in the nature of old age pensions.

Head office in the province

304         A society incorporated under the laws of the province, is not entitled to a licence unless its head office is located and maintained in the province and the secretary and treasurer are actual residents of the province.

Governing body to represent lodge

305(1)      Where two or more lodges or branches of a society, though separately incorporated, are under the financial or administrative control of a central governing body in the province, or a duly authorized provincial representative of the society, the governing body, if incorporated, or the provincial representative of the society, may, if the superintendent thinks proper, be dealt with as the society.

Governing body in province

305(2)      In the case of a society incorporated elsewhere than in the province, the central governing or controlling body in the province, incorporated by virtue of the law of the province, may, if the superintendent thinks proper, be dealt with as the society.

CONSTITUTION AND RULES

Constitution and by-laws to be filed

306(1)      Every society shall with its application for licence file in the office of the superintendent, certified copies in duplicate of those articles of its constitution and rules which contain material terms not set out in a form of contract adopted for use by it, and of every amendment, revision or consolidation thereof, within 30 days after the passing thereof.

Disallowance of amendments

306(2)      The superintendent, may, within 30 days after the date of the filing, take exception to any amendment or revision if, in his opinion the amendment or revision or any part thereof is

(a) contrary to this Act; or

(b) actuarially unsound; or

(c) oppressive to or discriminatory in application against any class of the membership of the society; or

(d) unjust or unreasonable.

Notice and appeal

306(3)      Where the superintendent takes exception to any such amendment or revision, he shall forthwith notify the society thereof in writing, giving the reasons therefor, and the society or any member or person affected by the decision of the superintendent may, within 10 days, appeal therefrom to the Lieutenant Governor in Council, who may approve of the amendment or revision.

Certifying by-laws and rules

306(4)      The constitution and rules and any amendment, revision, or consolidation thereof not excepted to, or, if excepted to, that has been further amended in accordance with the superintendent's direction or approved by the Lieutenant Governor in Council, shall be certified by the superintendent to be duly passed by the society, and filed, and thereupon shall be deemed to be the rules in force on and after the date of the certificate, until a subsequent amendment, revision, or consolidation is in like manner certified and filed, and so from time to time, and is binding and obligatory upon all members of the society and upon every one entitled to any benefit under any membership in, or certificate of, the society.

Invalid certification

306(5)      The failure of the superintendent to take exception to any rule of the society or amendment or revision and his certifying and filing thereof does not make valid any provision of the rule that is inconsistent with this Act.

Improper rules corrected before licence

307         Where, because of a provision in any of its rules, a society otherwise entitled ought not, in the opinion of the superintendent, to be licensed, it is not entitled to a licence until it has repealed or amended those rules in accordance with the direction of the superintendent, or they have, on appeal, been approved by the Lieutenant Governor in Council.

Delivery of copy of rules

308(1)      A copy of all rules of a society relating to its insurance contracts and to the management and application of its insurance funds shall be delivered by the society to any person requiring it on payment of 25¢.

Penalty

308(2)      Where an officer or agent of a society, with intent to mislead or defraud, gives to any person a copy of rules other than the rules then in force on the pretence that they are the rules then in force, he is guilty of an offence.

Payment of insurance by instalments

309(1)      Where, by the constitution and rules of a society, provision is made for the payment of an ascertained or ascertainable sum to a member in the event of his becoming totally disabled, or of his reaching a stated age, or upon the concurrence of both events, whether the provision is combined with other life insurance or not, the society may, with the approval of the superintendent, so amend its constitution and rules as to provide for the payment of that sum in equal consecutive annual instalments without interest, the payment of the instalments to be completed within a period not exceeding 10 years from the happening of the event; but no person who has become or becomes so entitled shall receive payment unless at the maturity of each instalment he continues to be a member and has paid all his dues and assessments.

Unpaid instalment at death

309(2)      Where the member dies after becoming totally disabled or reaching the stated age, but before the payment of all instalments, the instalments unpaid form part of the insurance money or benefits payable upon the death of the member.

Unmatured contract not a liability

309(3)      No unmatured contract of insurance creates any claim or liability against the society while a going society, or against the estate of the society in a winding-up or liquidation; but in a winding-up or liquidation the insured or beneficiary for value under the unmatured contract is entitled to share in the surplus assets of the society.

MEMBER'S RIGHTS AND LIABILITIES

Liability of members

310(1)      The liabilities of a member under his contract are at any date, limited to the assessments, fees and dues that became payable within the preceding 12 months, and of which, at that date, notice had been given in accordance with the constitution and rules of the society.

Withdrawal of member

310(2)      A member may at any time withdraw from the society by delivering to it or sending by registered post, notice in writing of his intention to withdraw and paying or tendering the assessments, fees and dues payable within the preceding 12 months.

Release from liability

310(3)      Upon his withdrawal, the member shall be released from all further accruing liability under his contract.

Rules

310(4)      This section is subject to any rules to the contrary certified by and filed with the superintendent.

Forfeiture of contract

311(1)      No forfeiture or suspension is incurred by reason of any default in paying a contribution or assessment, except such as are payable in fixed sums and at fixed dates, until after notice to the member stating the amount due by him, and that in case of default of payment within a reasonable time, not less than 30 days, to the proper officer to be named in the notice, his interest or benefit will be forfeited or suspended, and default has been made by him in paying his contributions or assessment in accordance with the notice.

"Fixed dates" defined

311(2)      In subsection (1) the expression "fixed dates" includes any numbered day, or any Monday, Tuesday, or as the case may be, numbered, alternate or recurring, of a stated month or months.

Reinstatement of member

311(3)      Where, under the constitution and rules of the society, a defaulting member is entitled to be reinstated on payment of arrears after a stated number of days' default, this section does not prejudice the rights of that member.

Contract suspended or forfeited for just cause

312(1)      Where it is stipulated that the benefit of the contract shall be suspended or reduced or forfeited for any other reason than for non-payment of money, that condition is not valid unless it is held to be just and reasonable under the circumstances of the case.

Condition re intoxicating liquors

312(2)      In any contract in which total abstinence from intoxicating liquor is made an express condition, that condition shall be deemed to be just and reasonable.

Notices to members

313(1)      Subject to subsection (2), any notice required to be given to a member for any purpose of this Act or of the rules of the society may be effectually given if written or printed notice is delivered, or sent by registered post to the member or is left at his last known place of abode or of business, or by publication in the official paper of the society.

Notice of reduction of benefits

313(2)      A notice of the reduction of any benefit payable under a contract of insurance, or of the increase of the premium payable thereunder, shall be sent by registered post to the member at his last known place of abode or of business.

REPORTS AND READJUSTMENT OF CONTRACTS

Filing of certified valuation of actuary

314(1)      In addition to the annual statement required to be filed under this Act, each society shall file with the superintendent, not later than May 1 in each year, a valuation of its certificates or contracts of insurance in force at the last preceding December 31; and that valuation

(a) shall be prepared having regard to the prospective liabilities of the society under its contracts, and to the rates of contribution of members in force at the date of the valuation;

(b) shall be made and certified by an actuary appointed by the society; and

(c) shall include a valuation balance sheet in such form and detail as the superintendent prescribes.

Declaration of actuary of soundness of society

314(2)      Where the valuation balance sheet shows that the society is in a position to provide for the payment of its contracts as they mature, without deduction or abatement and without increase in its existing rates of contribution, the society shall file with the superintendent a declaration of the actuary to that effect.

Mailing to members

314(3)      A summary of the valuation certified by the actuary, and a statement as to the financial condition of the society disclosed by the valuation, shall be mailed to each insured member not later than June 1 in each year or by publication in the official paper of the society.

Exception

314(4)      A society, the membership of which is limited by its constitution or laws to municipal or government employees, is not required to file the valuation or to publish the summary thereof unless and until required by the superintendent in writing so to do.

Report of inability of society

315(1)      Where it appears to the superintendent, from the statement and reports filed with him or from an examination or valuation, that the assets of a society applicable for the purpose are insufficient to provide for the payment of its contracts at maturity without deduction or abatement, and without increase in its existing rates of contribution, he shall make a special report to the minister as to the financial condition of the society.

Minister's order to change rates and benefits

315(2)      Where the minister, after consideration of the report, concurs in the opinion of the superintendent, he shall require the society to make, within such time as he prescribes, but not exceeding four years, such increase in its rates of contribution, or such reduction in the benefits payable under its contracts, or such other changes, as will enable the society to provide for the payment of its contracts at maturity.

Action on order

315(3)      On receipt of the requirement the society shall, in accordance with its laws or constitution, put into effect such changes as are approved by the actuary appointed by the society for the purpose.

Meeting to consider order

315(4)      For the purpose of considering the request of the minister, the governing executive authority of the society may call a special meeting of the supreme legislative body of the society which is required and upon such notice as it deems reasonable.

Power to change rates and benefits

316         A society incorporated under the laws of the province may, by amendment of its constitution and rules, reduce the benefits payable under its contracts of insurance or some of them, or increase the rates of contribution payable by its members as a whole or some class or classes thereof, or make such other changes as are necessary to comply with the requirement of the minister; and such amendments, when adopted by a majority of the votes duly cast by the members of the supreme legislative body of the society at a general meeting thereof, are binding upon the members of the society and upon their beneficiaries and the legal personal representatives of any of them, and upon all persons deriving legal rights from any member or beneficiary.

Failure of society to comply with order

317(1)      Where a society does not, within the time allowed, comply with the requirement of the minister, the superintendent shall report the default to the minister, who shall thereupon appoint a readjustment committee of three persons, of whom at least one shall be an actuary, who shall forthwith investigate the assets, liabilities, rates of contribution and plans of insurance of the society and prepare a report containing such amendments to the society's constitution and rules reducing the benefits payable under its contracts or some of them or increasing the rates of contribution payable by its members as a whole or some class or classes thereof, or making such other changes, as are deemed necessary to provide for the payment of all its contracts as they mature.

Report of readjustment committee

317(2)      The readjustment committee shall file its report in the office of the superintendent and deliver to the society a certified copy thereof whereupon the amendments contained therein are and shall become part of the constitution and rules of the society, and are valid and binding upon its members, their beneficiaries, the legal personal representative of any of them, and all persons deriving legal rights from any member or beneficiary.

Date of operation report

317(3)      The readjustment committee shall in the amendments fix a date not more than six months after the date of filing of the report when the reduction of benefits or increase in the rate of contribution, provided for by the amendments, shall come into force.

Duty of society

317(4)      The society shall furnish the readjustment committee with any required information, and bear the expense of the investigation and report.

Inability of government employee society

318(1)      Where it appears to the superintendent from the statements and reports filed with him or from an examination or valuation, that the assets of a society, the membership of which is limited to municipal or government employees, applicable for the purpose, are insufficient to provide for the payment of its contracts of insurance at maturity without deduction or abatement and without increase in its existing rates of contribution, he shall make a special report as to the financial condition of the society to the minister and to the head or responsible officer of the municipality or government of which the members are employees.

Superintendent not responsible

318(2)      The superintendent shall not make any order or assume any responsibility for the readjustment of rates or benefits of the society but a synopsis of his special report shall be embodied in his annual report.

SPECIAL RATES AND BENEFITS

Special fund from new rates to pay contracts

319(1)      Where a society unable to furnish the declaration of an actuary, adopted before 1970, or thereafter adopts, new rates of contribution that, in the opinion of the actuary appointed by it, filed with the superintendent, make reasonable provision for the payment in full at maturity of its contracts issued or to be issued to its members on those new rates, the society shall, after the payment of the matured contracts, create, and from time to time maintain out of the contributions of the members and interest thereon, a reserve fund not less than the amount that, with the rates of contributions to be collected from the members, is, in the opinion of the actuary, required to pay those contracts in full as they mature; and the fund shall be a separate fund of the society and is not liable for payment of the debts and obligations of the society under its contracts with those members who have not contributed under the new rates.

New certificates to old members

319(2)      The society may provide in its constitution and rules for the issue of new certificates to members admitted to the society prior to the establishment of the reserve fund upon such terms and conditions as will, in the opinion of the actuary appointed by it, certified in writing to the superintendent, enable the society to pay in full the contracts of insurance issued to the members as they mature, and subsection (1) applies to the new certificates.

Valuation to show separate fund

319(3)      The annual valuation of the actuary of the society maintaining a separate fund shall show clearly and separately, and in such detail as the superintendent requires, the financial position of the society in respect of the certificates of insurance included, and those not included, within the scope of the separate fund.

Merger of fund on declaration being filed

319(4)      Where a society that has been maintaining a separate fund files with the superintendent a declaration of the actuary appointed by the society, the separate fund may, with the approval of the superintendent, be merged with other similar funds of the society.

Saving

319(5)      Nothing herein prevents a society that maintains a separate fund, from maintaining a common expense fund.

Contracts on limited payments

320         A society that files with the superintendent the declaration of an actuary, or a society that is maintaining a separate fund for its contracts, may provide in its constitution and rules for the issue of contracts of life insurance wherein the regular rates of contributions payable thereunder are limited to a period of 20 or more years, if those rates of contribution have been approved by an actuary and such certificates of insurance are subject to subsection 319(1); but such a limitation of payments does not affect the right of the society to make an assessment or assessments in respect of the certificates in accordance with its constitution and rules either during or after the period of the limited payments.

Special assessment for epidemic

321         Where an epidemic or other unforeseen contingency impairs the funds of a society, the governing executive authority of the society may impose a special assessment or special assessments upon the members or upon such class or classes thereof, and with such incidence, as in its opinion is deemed necessary and equitable, and the special assessment or assessments is binding on the members of the society, notwithstanding anything to the contrary in its charter or constitution, or in any certificate of insurance issued by it.

Pensions and endowments

322         A society that files with the superintendent the declaration of an actuary may, if its constitution so

provides and subject thereto,

(a) issue to its members, insurance contracts providing for the payment of the money due on maturity thereof either at death or upon the insured attaining a specified age;

(b) in case the society has more than 5,000 members in a life insurance department, issue to its members endowment insurance contracts providing for the payment of the insurance money to the members at the expiration of 20 or more years from the date of the contracts, or to the beneficiary or beneficiaries under any of such contracts in case of death of any of the members prior to the expiration of the endowment period; or

(c) grant such surrender values or other equities as are approved by the actuary of the society and authorized by its constitution.

R.S.M. 1987 Supp., c. 4, s. 11.

Special rates for expenses

323         The governing executive authority of a society may make such additional levies from time to time upon members of the society as are necessary, in the opinion of the governing executive authority, to carry on properly the work of the society and prevent any deficit in its general or expense fund; and the additional levies are binding on the members of the society notwithstanding anything to the contrary in its charter, or constitution or laws, or in any certificate of insurance issued by it.

Certificate of actuary approving new rates

324         Every society shall, before putting into effect any new or additional benefits or any new scale of rates of contribution under certificates of insurance, file with the superintendent a certificate of an actuary approving the benefits or rates of contribution.

Surplus

325          A society the valuation balance sheet of which shows a surplus of assets of more than 5% over and above all net liabilities may apply such portion of the surplus as is approved by the actuary appointed by the society, in the manner prescribed by the constitution and rules of the society.

File 1: s. 1 to 325 (Parts 1 to 11)
File 2: s. 326 to 412 (Parts 12 to 17)

 

 


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