.png){kind=small}
as enacted by SM 1987-88, c. 9 on July 17, 1987.
Search this document and show paragraphs with hits
You can use wild cards:
'*' allows for 0 or more characters (eg. ceas* will match 'cease', 'ceased', 'ceasing' and 'ceases')
'?' allows for 0 or 1 character (eg. cease? will match 'cease', 'ceases' and 'ceased', but not 'ceasing')
This search is not case sensitive.
R.S.M. 1987, c. I40
The Insurance Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act, except where inconsistent with the interpretation section of any Part,
"accident insurance" means insurance by which the insurer undertakes, otherwise than incidentally to some other class of insurance defined by or under this Act, to pay insurance money in the event of accident to the person or persons insured, but does not include insurance by which the insurer undertakes to pay insurance money both in the event of death by accident and in the event of death from any other cause; ("assurance-accidents corporels")
"accidental death insurance" means insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay an additional amount of insurance money in the event of the death by accident of the person whose life is insured; ("assurance en cas de décès accidentel")
"adjuster" means a person who
(a) for or on behalf of an insurer or an insured, for compensation or reward or the hope or expectation thereof, solicits the right to negotiate the settlement of, or investigate, a loss or claim under a contract, or under a fidelity, surety, or guaranty bond issued by an insurer, or directly or indirectly negotiates, investigates, adjusts, or settles, any such loss or claim, or
(b) holds himself 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 the province acting for or on behalf of a client in the course of, and as part of, his practice as a solicitor; ("expert")
"agent" means a person who, for compensation solicits insurance on behalf of any insurer or transmits for a person other than himself, an application for or a policy of insurance to or from such insurer or offers or acts or assumes to act in the negotiation of such insurance or in negotiating the continuance or renewal of other than life insurance contracts; ("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 insurance
(a) against liability arising out of
(i) bodily injury to or the death of a person, or
(ii) loss of or damage to property, caused by an automobile for the use or operation thereof, or
(b) against loss of or damage to an automobile and the loss of use thereof,
and includes insurance otherwise coming within the class of accident insurance where the accident is caused by an automobile or the use or operation thereof, whether liability exists or not, if the contract also includes insurance described in clause (a); ("assurance-automobile")
"aircraft insurance" means insurance against loss of or damage to an aircraft and against liability for loss or damage to persons or property caused by an aircraft, or by the operation thereof; ("assurance-aviation")
"boiler and machinery insurance" means insurance against loss or damage to property and against liability for loss or damage to persons or property through the explosion, collapse, rupture, or breakdown of, or accident to, boilers or machinery of any kind; ("assurance bris des machines")
"chief agency" means the head office of the insurer, or the registered office in the province, of a licensed insurer having its head office out of the province; ("agence principale")
"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 Her Majesty's Court of Queen's Bench for Manitoba; ("tribunal")
"credit insurance" means insurance against loss to the insured through the insolvency or default of a person to whom credit is given in respect of goods, wares or merchandise; ("assurance-crédit")
"disability insurance" means insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease; ("assurance-invalidité")
"employees' mutual benefit society" means a society incorporated or formed and carried on by the officers or officers and employees of an employer for the purpose of providing support and pensions for such of the officers or employees as become incapacitated or as cease to be employed by the employer, or for the purpose of paying pensions, annuities or gratuities to, or for dependants of, such officers or employees, or funeral benefits upon the death of such officers or employees, and membership in which is restricted exclusively to bona fide employees of one employer; ("société mutuelle de salariés")
"employers' liability insurance" means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss to an employer through liability for accidental injury to, or death of, an employee arising out of or in the course of his employment but does not include workmen's compensation insurance; ("assurance responsabilité patronale")
"endowment insurance" means an undertaking to pay an ascertained or ascertainable sum at a fixed future date, if the person whose life is insured is then alive, or at his death, if he dies before such date; ("assurance mixte")
"exchange" or "reciprocal or inter-insurance exchange" means a group of persons exchanging reciprocal contracts of indemnity or interinsurance with each other through the same attorney; ("bourse" ou "bourse d'assurance réciproque ou d'interassurance")
"fire insurance" means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss of or damage to property through fire, lightning or explosion due to ignition; ("assurance-incendie")
"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 its members only and not for profit, contracts of life, accident, or sickness insurance in accordance with its constitution, by-laws, and rules and this Act; but does not include a mutual benefit society, a friendly society, an employees' mutual benefit society, or a 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 undertaking to perform an agreement or contract or to discharge a trust, duty, or obligation upon default of the person liable for the performance or discharge, or to pay money upon such default or in lieu of the performance or discharge, or where there is loss or damage through such default, and includes insurance against loss or liability for loss due to the invalidity of the title to any property or of any instrument or to any defect in such title or instrument, but does not include credit insurance; ("assurance de cautionnement")
"hail insurance" means insurance against loss of or damage to crops caused by hail; ("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")
"inland transportation insurance" means insurance (other than marine insurance) against loss of or damage to property:
(a) while in transit or during delay incidental to transit, or
(b) where, in the opinion of the superintendent, the risk is substantially a transit risk; ("assurance transports terrestres")
"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 on the cash plan" means any insurance that is not mutual insurance; ("assurance au comptant" )
"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")
"legal expense insurance" means insurance against the cost incurred by a person for specified legal services, including fees or other costs, incurred relative to the provision of those services; ("assurance-frais de justice")
"life insurance" means an undertaking by an insurer to pay insurance money
(a) on death, or
(b) on the happening of an event or contingency dependent on human life, or
(c) at a fixed or determinable future time, or (d) for a term dependent on human life,
and without limiting the generality of the foregoing, includes
(e) accidental death insurance but not accident insurance,
(f) disability insurance, and
(g) an undertaking to provide an annuity, or what would be an annuity except that the periodic payments may be unequal in amount, for a term dependent solely or partly on a human life, and such an undertaking shall be deemed always to have been life insurance; ("assurance-vie")
"livestock insurance" means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss through the death or sickness of or accident to an animal; ("assurance-bétail")
"marine insurance" means insurance against marine losses; that is to say, the losses incident to marine adventure, and may by the express terms of a contract or by usage of trade extend so as to protect the insured against losses on inland waters or by land or air, which are incidental to any sea voyage; ("assurance maritime")
"minister" means that member of the Executive Council charged with the administration of 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 thereof where the automobile is being used or operated by his employee or agent or any other person on his behalf, against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation thereof; ("police de responsabilité automobile")
"mutual benefit society" means a society, order or association 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 $10. per week, or
(b) funeral benefits not exceeding $300.,
or all 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; but does not include a friendly society, or an employees' mutual benefit society, or a trade union benefit society; ("société mutuelle")
"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 under the laws of the province without share capital that is not a fraternal society, a friendly society, an employees' mutual benefit society, a mutual benefit society or a trade union benefit society; ("compagnie d'assurance mutuelle")
"non-owner's policy" means a motor vehicle liability policy insuring a person solely in respect of the use or operation by him or on his behalf of an automobile that is not owned by him; ("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 in respect of the ownership, use or operation of an automobile owned by him and within the description or definition thereof in the policy and, if the contract so provides, in respect of the use or operation of any other automobile; ("police de propriétaire" )
"personal property insurance" means insurance against loss of, or damage to, movable or personal property; ("assurance biens personnels")
"plate glass insurance" means insurance (not being insurance incidental to some other class of insurance defined by or under this Act) against loss of or damage to plate, sheet or window glass, whether in place or in transit; ("assurance bris des glaces")
"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 damage insurance" means insurance against loss of or damage to property which is not included in or incidental to some other class of insurance defined by or under this Act; ("assurance contre les dommages matériels")
"public liability insurance" means insurance against loss or damage to the person or property of others which is not included in or incidental to some other class of insurance defined by or under this Act; ("assurance responsabilité civile")
"sick and funeral benefits" includes insurance against sickness, disability or death; ("prestations d'assurance-maladie et indemnités funéraires")
"sickness insurance" means insurance by which the insurer undertakes to pay insurance money in the event of sickness of the person or persons insured, but does not include disability insurance; ("assurance-maladie")
"sprinkler leakage insurance" means insurance against loss of or damage to property through the breakage or leakage of sprinkler equipment or other fire protection system, or of pumps, water pipes, or plumbing and its fixtures; ("assurance-extincteurs automatiques" )
"superintendent" means the Superintendent of Insurance and includes the deputy; ("surintendant" )
"theft insurance" means insurance against loss or damage through theft, wrongful conversion, burglary, housebreaking, robbery, or forgery; ("assurance-vol")
"title insurance" means insurance against loss or damage caused by defect in the title to real property, or by the existence of liens, encumbrances, or servitudes upon real property, or by other matters affecting the title to real property or the right to the use and enjoyment thereof, or by defect in the execution of mortgages, hypothecs, or deeds of trust; ("assurance titres de propriété")
"trade union" means an organization of wageearners 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")
"weather insurance" means insurance against loss or damage through windstorm, cyclone, tornado, rain, hail, flood or frost, but does not include hail insurance; ("assurance-intempéries")
"workers compensation insurance" means insurance of an employer against the cost of compensation prescribed by statute for bodily injury, disability, or death of a worker through accident or disease arising out of or in the course of employment. ("assurance accidents de travail")
SUPERINTENDENT AND HIS DUTIES
Appointment of superintendent, deputy, and staff.
An officer to be called: "Superintendent of Insurance" and an officer to be called: "Deputy Superintendent of Insurance" and such other officers and employees under the superintendent as are necessary for the purposes of this Act may be appointed as provided in The Civil Service Act.
The superintendent shall act under the instructions of the minister, have general supervision of the business of insurance within the province, see that the laws relating thereto are enforced and obeyed, and examine and report to the minister from time to time upon all matters connected therewith.
Applications under section 280 of The Corporations Act.
The superintendent may consider any application, his approval to which is required under section 280 of The Corporations Act.
The Deputy Superintendent of Insurance shall act as superintendent during the absence or inability of the superintendent, and shall perform such other duties as are assigned to him by this Act, by the Lieutenant Governor in Council, the minister, or the superintendent.
Agreement with Canada for inspection of insurers.
Notwithstanding anything in this Act or any other Act of the Legislature, the Lieutenant Governor in Council may enter into an agreement or agreements with the Government of Canada under which, upon the terms and conditions therein contained, the Superintendent of Insurance (Canada) shall perform the duties imposed upon the superintendent under the sections of this Act dealing with the financial inspection and supervision of insurers.
Provision for payment to Canada.
Without restricting the generality of subsection (1), an agreement made under subsection (1) may provide for payment to the Government of Canada for the performance of the duties under the agreement by the Superintendent of Insurance (Canada).
Regulations for carrying agreement into effect.
The Lieutenant Governor in Council may make regulations deemed necessary for carrying any agreement into effect, and may authorize the Superintendent of Insurance (Canada) to exercise and perform any or all of the powers granted to and the duties imposed on the superintendent under the sections referred to in subsection (1) and under subsections (4) and (5).
Superintendent to ascertain inspection expenditure during last preceding year.
Where an agreement is entered into under this section, the Superintendent of Insurance (Canada) shall annually, as soon as may be after the close of each fiscal year, by such inquiry or investigation as he may deem 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 last preceding fiscal year; and the amount of the expenditure so ascertained and certified by the superintendent shall be final and conclusive for all purposes of this section.
In each year that an agreement made under subsection (1) is in force, the Superintendent of Insurance (Canada) shall assess each insurer for the expenses incurred by the Superintendent of Insurance (Canada) for or in connection with the performance by him of duties under the agreement in respect of that insurer and shall notify the superintendent of the amount of each such assessment.
Upon being notified of an assessment made against an insurer under subsection (5), the superintendent shall notify the insurer in writing of the amount of the assessment and that amount is a debt due by the insurer to the Crown, payable to the minister and due on the 30th day after the day the insurer receives the notice of assessment.
Agreement for guarantee of insurers.
The Lieutenant Governor in Council may authorize the minister on behalf of the Government of Manitoba, to enter into an agreement with any corporation established for the purpose of setting up a fund to guarantee, in whole or in part, the obligations of an insurer designated by the corporation.
The Lieutenant Governor in Council may make such regulations as the Lieutenant Governor in Council deems necessary
(a) to carry out any agreement referred to in subsection (1); and
(b) to enforce the rights of the Government of Manitoba under an agreement referred to in subsection (1).
In carrying out his duties and in exercising his powers under this Act or under any other Act relating to insurance, the superintendent may require and may take and receive affidavits, statutory declarations, and depositions, and may examine witnesses upon oath; and he has the same power to summon persons to attend as witnesses, to enforce their attendance, to compel them to produce books, documents and things, and to give evidence as any court has in civil cases.
An oath required by this Act to be taken, may be administered by the superintendent or by any person authorized to administer oaths in the province.
Superintendent not to be shareholder.
Neither the superintendent nor any officer under him shall be interested as a shareholder, directly or indirectly, in any insurance company doing business in the province.
Actions against superintendent.
Without a fiat of the Attorney-General, no action or proceeding shall be brought or taken against the superintendent for anything done or omitted in the performance, or intended or supposed performance of his duty under this Act, or under any other Act which imposes duties upon him.
The superintendent may bring actions and institute proceedings in his name of office for the enforcement of any provision of this Act or for the recovery of fees and penalties payable hereunder.
No action or proceeding for the recovery of fees and penalties payable hereunder shall be commenced without the leave of the superintendent.
BOOKS AND RECORDS
The superintendent shall keep the following books and records:
(a) a register of all licences issued pursuant to this Act, in which shall appear the name of the insurer, the address of its head office, the address of its principal office in Canada, the name and address of its principal general agent in the province, the number of the licence, particulars of the classes of insurance for which the insurer is licensed, and such other information as the superintendent deems necessary;
(b) a record of all securities deposited by each insurer with the Minister of Finance, naming them in detail, their par value, their date of maturity and value at which they are received as deposit; and
(c) a record of agents licensed or authorized under this Act.
The books and records required by this section to be kept shall be open to inspection at such time and upon payment of such fees as are prescribed.
Annual publication in Manitoba Gazette.
The superintendent shall cause to be published yearly in The Manitoba Gazette a list of the insurers licensed at the date of the list, and he shall forthwith cause notice of the issue of a licence to an insurer not theretofore licensed and of the suspension, cancellation, revocation or revivor of a licence to be given by publication in The Manitoba Gazette.
Annual publication in Manitoba Gazette.
A certificate, under the hand and seal of office of the superintendent, that on a stated day an insurer mentioned therein was or was not licensed under this Act, or that any insurer was originally admitted to licence or that the licence of any insurer was renewed, suspended, revived, revoked, or cancelled on a stated day, is evidence of the facts stated in the certificate, without proof of the signature of the superintendent or official signing it.
Certificate of filing evidence.
A certificate of the filing of any document by this or any former Insurance Act required to be filed in the office of the inspector of insurance or of the superintendent is evidence of the filing if signed or purporting to be signed by the superintendent.
DUTIES RESPECTING LICENCES
Superintendent to determine right to licence.
The superintendent shall determine the right of any insurer to be licensed under this Act, subject to appeal, and to the right of the Lieutenant Governor in Council or of the minister to suspend or cancel any licence as hereinafter provided.
Applications for approval by superintendent.
Where an application is made to the superintendent for his approval of any matter requiring his approval under section 280 of The Corporations Act, he may, subject to appeal, give or withhold his approval, and if he gives his approval he shall state therein to what class of insurance, as defined herein, the applicant belongs, and the kinds of insurance which an insurer of that class may transact; and the applicant shall file with the superintendent such evidence as he may require.
Where the superintendent withholds his approval of an application made under subsection (1), the applicant may appeal from the decision of the superintendent to the Lieutenant Governor in Council whose decision thereon is final.
Every decision of the superintendent upon an application for a licence shall be in writing and notice thereof shall be forthwith given to the insurer.
The insurer, or any person interested shall be entitled, upon payment of the prescribed fee, to a certified copy of the decision.
Stenographic report of evidence.
The evidence and proceedings in any matter before the superintendent may be reported by a stenographer sworn before the superintendent faithfully to report it.
An applicant for a licence may appeal from the decision of the superintendent refusing a licence, to the Lieutenant Governor in Council.
INVESTIGATION OF INSURERS
Consequences of failure to answer inquiries.
The superintendent may direct to an insurer any inquiry touching its contracts or financial affairs, and the insurer shall make prompt and explicit answer to any such inquiry, and, in case of refusal or neglect to answer, is guilty of an offence.
The superintendent, or any person authorized under his hand, shall, at all reasonable times, have access to all the books, securities, and documents of an insurer, agent, or adjuster, that relate to contracts of insurance; and any officer or person in charge, possession, custody or control of such books, securities, or documents who refuses or neglects to afford such access is guilty of an offence.
Duty to furnish information on request.
The officers, adjusters, and agents of every licensed insurer, every other licensed person, and every insurer, shall furnish the superintendent on his request with full information relative to any contract issued by the insurer or to the insured, as the case may be, and made or deemed to be made within the province, or relative to any settlement or adjustment under any such contract.
Annual inspection of insurers.
The superintendent shall visit personally, or cause to be visited, at least annually, the head office or chief agency in the province of every licensed insurer, other than a mutual benefit society having less than 300 members, or any insurer as to which he adopts the inspection of some other government, and he shall verify the statement of the condition and affairs of each such insurer filed under this Act, and make such inquiries as are necessary to ascertain its ability to provide for the payment of its contracts as they mature and whether or not it has complied with all the provisions of this Act applicable to its transactions; and the superintendent shall report thereon to the minister as to all matters requiring his attention and decision.
Examination of affairs of insurer.
Where the head office of any such insurer is not in the province the minister may, in his discretion, instruct the superintendent to visit the head office to inspect and examine its affairs and to make such inquiries as the minister requires.
Duty of officers and agents to facilitate examination.
The officers or agents of the insurer shall produce its books and records for the inspection of the superintendent or other person making the inspection, and shall otherwise facilitate the examination so far as is in their power.
Production of books at head office.
In order to facilitate the inspection 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 the province or at such other place as the superintendent directs; and any officer of the insurer who has custody of the books and records so attending shall be entitled to be paid by the insurer the actual expenses of his attendance.
Examination of affairs of an insurer.
The superintendent, with the approval of the minister, may cause abstracts to be prepared of the books and vouchers and a valuation to be made of the assets and liabilities of any such insurer, and the cost thereof, upon the certificate of the superintendent approved by the minister, shall be paid by the insurer.
An insurer examined or inspected under this section outside the province shall forthwith pay to the superintendent his expenses in connection therewith upon the delivery to the insurer of the certificate of the superintendent approved by the minister, certifying as to his travelling and living expenses.
Any amount payable under subsection (6) may be recovered by the superintendent as a debt due to the Crown.
Assistants and their remuneration.
The superintendent may, with the approval of the minister, employ persons to make on his behalf, or to assist him in making, any examination or inspection under this section; and the travelling and living expenses of those persons so employed constitute expenses of the superintendent within the meaning of subsection (6).
Disposal of moneys paid for expenses.
Any moneys paid to the superintendent under this section do not form part of the Consolidated Fund but may be disbursed by the superintendent in payment of his expenses.
With the consent of the minister, the superintendent may, with respect to any insurer, accept the inspection and report, in whole or in part, of, or made under the authority of, any other government in Canada.
SERVICE OF PROCESS
Service of process on superintendent.
Where the head office of a licensed insurer is situated outside the province, notice or process in any action or proceeding in the province may be effectually served upon the insurer by leaving three copies of the notice or process with the superintendent, or with an employee in the office of the superintendent designated for that purpose by him.
Contracts on cessation of licence.
Where a licensed insurer ceases to be licensed, while any contract made in the province by the insurer is in force, the insurer shall, for the purposes of this section, be deemed to be a licensed insurer.
Every licensed insurer shall file in the office of the superintendent notice of a post office address to which the notice or process may be forwarded by the superintendent and shall notify the superintendent of any change in the address.
Superintendent to forward process.
The superintendent shall forthwith after the receipt of the notice or process in triplicate forward one copy thereof to the insurer by registered mail, postage prepaid, addressed in the manner last notified to him for this purpose by the insurer.
The superintendent shall keep a record of all such proceedings, showing the day and hour of the service of process on him; and for that service each insurer shall pay to the superintendent, in the name of the Minister of Finance, for the use of Her Majesty, an annual fee of $5.
No judgment by default unless service is proved.
No judgment against the insurer shall be entered for default of appearance or defence in the action or proceeding unless an affidavit is filed in the court out of, or by, which the process is issued, showing that the superintendent has duly forwarded a copy thereof to the insurer.
ANNUAL REPORT
The superintendent shall prepare for the minister from the statements filed by the insurers and from any inspection or inquiries made, an annual report, showing particulars of the business of each insurer as ascertained from the statements, inspection, and inquiries; and the report shall be printed and published forthwith after completion.
In his report the superintendent shall allow as assets only such of the investments of any insurer as are authorized by this Act, its charter or any other Act applicable to such investments.
Superintendent's correction of annual statements.
In his report the superintendent shall make the necessary corrections in the annual statement of any insurer, and may increase or diminish the liabilities of the insurer to the true and correct amounts thereof as ascertained from any examination of its affairs.
Appraisement of real estate of insurer.
Where it appears to the superintendent, or where he has reason to suppose, from the annual statement, that the value placed by an insurer incorporated and licensed under the laws of the province upon any of its real estate is too great, he may either require the insurer to secure an appraisement of the real estate by one or more competent valuators, or may himself procure such appraisement at the expense of the insurer; and the appraised value, if it varies materially from the statement made by the insurer, may be substituted in the annual report of the superintendent.
In like manner the superintendent may procure an appraisement of any parcel of land that constitutes the security for any loan; and if from the appraisal it appears that the parcel is not adequate security for the loan and accrued interest, he may reduce the value to such an amount as is fairly realizable from the security, in no case to exceed the appraised value, and may insert the reduced value in his report.
Appraisement of other investments.
In like manner the superintendent may make, or cause to be made, an appraisal of the security taken for any investments of the insurer; and if it appears that the value of the securities as shown on the books of the insurer is greater than its true value as shown by the appraisal he may reduce the book value thereof to such amount as is fairly realizable therefrom, and in no case to exceed the appraised value, and may insert the reduced amount in his annual report.
The superintendent may require any insurer incorporated and licensed under the laws of the province to dispose of and realize any of its investments acquired after the passing of this Act and not allowed in his report; and the insurer shall, within 60 days after receiving the requisition, absolutely dispose thereof; and subject to subsection (8), if the amount realized therefrom falls below the amount paid by the insurer therefor, the directors of the insurer are jointly and severally liable for the payment to the insurer of the amount of the deficiency.
If any director present when an investment to which subsection (7) applies was authorized did forthwith, or if any director then absent, did, within eight days after he becomes aware of such an investment, protest and give notice thereof by registered letter to the superintendent, that director may thereby, and not otherwise, exonerate himself from the liability.
An insurer affected thereby may appeal to the Lieutenant Governor in Council from the ruling of the superintendent as to the allowance in his report of any asset not allowed by him, or as to any item or amount added to liabilities, or as to any correction or alteration made in its statement.
APPEAL FROM SUPERINTENDENT'S DECISION
Where, by this Act, an appeal to the Lieutenant Governor in Council is given to any person, the superintendent shall, at the request of the person, give a certificate in writing, setting forth the ruling complained of and his reasons therefor; and the ruling is binding upon the person, unless within ten days after the giving thereof the person serves upon the superintendent notice of his intention to appeal therefrom, setting forth the grounds of appeal, and within ten days thereafter files his appeal with the Lieutenant Governor in Council and with due diligence prosecutes it, in which case action on the ruling shall be suspended until the Lieutenant Governor in Council renders judgment thereon.
The superintendent shall certify and file with the Clerk of the Executive Council the decision appealed from and his reasons therefor, and the documents, statements, inspection reports, certificates, declarations, and other papers relating to the matter, and any evidence taken, and such other information as he had before him in making his decision.
GENERAL PROVISIONS APPLICABLE TO INSURERS IN MANITOBA CARRYING ON BUSINESS
Any insurer undertaking a contract of insurance that, under this Act, is deemed to be made in the province, whether the contract is original or a renewal, except the renewal from time to time of life insurance policies, shall be deemed to be undertaking insurance in the province within the meaning of this Part.
Any insurer that
(a) undertakes or offers to undertake insurance within the province; or
(b) sets up or causes to be set up within the province any sign containing the name of the insurer; or
(c) maintains or operates within the province either in its own name or in the name of an agent or other representative an office for the transaction of a business of insurance either within or without the province; or
(d) distributes or publishes within the province, or causes to be distributed or published within the province, any proposal, circular, card advertisement, printed form, or like document;
or
(e) inserts, prints, or publishes, its name, or permits or causes its name to be inserted, imprinted, or published, in any telephone directory or in any other directory or list of names, with or without addresses, of the residents or occupants of premises in any municipality, locality, area, or district within the province, or in any building within the province; or
(f) makes or causes to be made within the province any written or oral solicitation for insurance; or
(g) issues or delivers within the province any policy of insurance or interim receipt; or
(h) collects or receives within the province or negotiates within the province for, or causes to be collected or received within the province, or negotiated within the province for, any premium for a contract of insurance; or
(i) inspects any risk or adjusts any loss within the province under a contract of insurance; or
(j) prosecutes or maintains within the province any action or proceeding in respect of a contract of insurance; or
(k) represents or holds itself out within the province to the public as being engaged in the insurance business; or
(l) has in force contracts of insurance on property situated in the province, or insuring persons resident in the province shall be deemed to be an insurer carrying on business in the province within the meaning of this Act.
Certain organizations deemed insurers.
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 fixed at the discretion of the directors or of an executive or management committee of the society, order, association or corporation;
shall, subject to subsection 24(4) be deemed to be an insurer within the meaning of this Act.
Definition of "contingency levy".
For the purposes of this section the expression "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 member thereof of any one or more of certain contingencies upon the happening of which that member or his beneficiaries become entitled to receive the proceeds of that assessment or levy.
LICENCES
Every insurer carrying on business in the province shall obtain from the superintendent and hold a licence under this Act.
Prohibition of unlicensed insurance.
Every insurer carrying on business in the province without having obtained a licence as required by this section, is guilty of an offence.
Prohibition against person acting on behalf of unlicensed insurer.
Any person who, within the province, does or causes to be done any act or thing mentioned in section 22 on behalf of, or as agent of, an insurer not licensed under this act, or who receives, directly or indirectly, any remuneration for so doing, is guilty of an offence.
The following shall not be deemed insurers within the meaning of this Act or required or entitled to be licensed as such:
(a) employees' mutual benefit societies;
(b) friendly societies;
(c) trade union benefit societies;
(d) mutual benefit societies whose memberships are confined to railway employees and which do not grant mortuary or funeral benefits; and
(e) such other organizations as the Lieutenant Governor in Council determines.
Carrying on business in foreign jurisdiction without authority.
Where 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 so to do 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.
Every insurer or other person guilty of an offence under this section is liable, on summary conviction, to a fine of not less than $50. and not more than $200. for each such offence.
Reinsurance with unlicensed insurer.
Nothing in this Act prevents a licensed insurer that has lawfully effected a contract of insurance in the province from reinsuring the risk or any portion thereof with any insurer transacting business out of the province and not licensed under this Act.
What insurers may be licensed.
Upon due application and proof of compliance with this Act, the superintendent may issue a licence and upon payment of the prescribed fee, the superintendent may issue a licence to undertake contracts of insurance and carry on business in the province to any insurer coming within one of the following classes:
(a) joint stock insurance companies;
(b) mutual insurance companies;
(c) fraternal societies;
(d) mutual benefit societies;
(e) companies duly incorporated to undertake insurance contracts and not within any of the foregoing classes;
(f) underwriters or syndicates of underwriters operating on the plan known as Lloyd's.
A licence issued pursuant to this Act authorizes the insurer named therein to exercise within the province all rights and powers reasonably incidental to the carrying on of the business of insurance named therein, that are not inconsistent with this Act or with the terms of its charter.
Subject to provisions of Parts of this Act particularly relating to classes of insurers mentioned in section 26, a licence may be granted to an insurer to carry on any one or more of the classes of insurance defined in section 1 and such other classes as may be prescribed by the regulations.
Limited or conditional licence.
A licence may be issued subject to such limitations and conditions as the minister prescribes.
Notwithstanding subsection (2) and section 34, the Minister may, at any time, in respect of any licence of an insurer,
(a) reduce the term for which the licence was issued or renewed; or
(b) impose any condition or limitation relating to the carrying on of the insurer's business that he considers appropriate; or
(c) vary, amend or revoke any condition or limitation to which the licence is then subject;
or do any or all of those things; but the Minister may not exercise any power granted under this subsection unless he has given the insurer notice of his intention to exercise the power and has afforded the insurer a reasonable opportunity to be heard with respect thereto.
Determination of classes of insurance by superintendent.
Where 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; and his determination is effective and final for the purposes of this Act.
Conditions of automobile insurance licence.
A licence to carry an automobile insurance in Manitoba is subject to the following conditions:
(a) In any action in Manitoba against the licensed insurer, or its insured, arising out of an automobile accident in Manitoba, the insurer shall appear and shall not set up any defence to a claim under a contract made outside Manitoba, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in Manitoba.
(b) In any 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 shall appear and shall not set up any defence to a claim under a contract evidenced by a motor vehicle liability policy issued in Manitoba, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in that other province or territory.
A licence may be cancelled when the holder commits a breach of condition as set out in subsection (5).
Every insurer licensed for the transaction of life insurance may, under the authority of its licence, unless the licence expressly provides otherwise, issue annuities and endowments of all kinds and also include in any policy of life insurance, in respect of the same life or lives insured thereby, disability insurance and accidental death insurance.
Scope of fire insurance licence.
Every insurer licensed to carry on fire insurance may, subject to its act of incorporation, and subject to the restrictions prescribed by the licence, insure or reinsure any property in which the insured has an insurable interest against loss or damage by fire, lightning or explosion and may insure or reinsure the same property against loss or damage from falling aircraft, earthquake, windstorm, tornado, hail, sprinkler leakage, riot, malicious damage, weather, water damage, smoke damage, civil commotion and impact by vehicles and any one or more perils falling within such other classes of insurance as are prescribed by the regulations.
Insurance of automobiles against fire.
An insurer licensed to carry on fire insurance may insure an automobile against loss or damage under a policy falling within Part IV of this Act; but in the case of a purely mutual fire insurance corporation, incorporated or licensed in Manitoba and carrying on business on the premium note plan, the automobile shall be specifically insured under a policy separate from that insuring other property.
Restriction re: joint stock company.
A licence shall not be granted to a joint stock insurance company not licensed on June 15, 1967, unless the company furnishes to the superintendent satisfactory evidence that, of the capital stock, not less than $500,000. has been bona fide subscribed for, allotted and paid in and, in addition,
(a) where the company is undertaking life insurance, the company has an unimpaired surplus of not less than $500,000.; or
(b) where the company is not undertaking life insurance, the company has an unimpaired surplus of not less than $100,000.
Restrictions re: life insurance.
A licence shall not be granted to an insurer undertaking life insurance, and that was not licensed on March 17, 1943, unless the insurer is registered under the Canadian and British Insurance Companies Act (Canada), or under the Foreign Insurance Companies Act, (Canada), and has obtained a certificate of registry from the Minister of Finance; but this subsection does not apply to an insurer that is a mutual benefit society.
A licence shall not be granted an insurance company mentioned in clause 26(l)(e), or to an underwriter or syndicate of underwriters operating on the plan known as Lloyd's, except upon proof that
(a) its, or his net surplus of assets over all liabilities exceeds the paid-up capital stock required in the case of a joint stock company under subsection (1), carrying on the same class of insurance; and
(b) its net surplus together with the contingent liability of members, if any, exceeds the subscribed and allotted capital stock required in the case of such a joint stock insurance company.
Restrictions re: mutual insurance.
A licence shall not be granted to a mutual insurance company, except upon proof,
(a) that the total amount insured under the contracts of the company (not being one undertaking hail insurance) in force at the expiration of one year from the date of the issue of the initial licence amount to at least $100,000.
(b) that thereafter the total amount insured under contracts at all times equal $100,000.; and
(c) in the case of a mutual company undertaking hail insurance, that the total amount insured under contracts equal in the aggregate the sum of $100,000.
A licence shall not be granted to any insurer except upon proof that the insurer has complied with the provisions of the Part of this Act and regulations applicable thereto.
Evidence by insurer whose head office outside of province.
Where the head office of an applicant for a licence under this Act is situated outside the province, a licence shall not be granted except upon proof of the applicant's ability to provide for the payment at maturity of all its contracts; but the superintendent may accept as sufficient the fact that the insurer is licensed by any government in Canada.
Certain types of agreements requiring superintendent's approval.
Where an insurer that under its constitution and laws is empowered
(a) to pay to its members or their beneficiaries, as a benefit payable by such insurer, 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 which is fixed at the discretion of the directors or of an executive or management committee of the insurer;
applies for a licence, and the insurer has not, prior to the date of the application, been licensed, if the insurer, after April 6, 1944, and before making the application, has made with any of its shareholders, members or policyholders an agreement whereby the terms of any former contract between the insurer and any shareholder, member or policyholder has been altered or modified, or if any change has been made with respect to any reserve fund or surplus moneys or assets, a licence shall not be granted to the insurer until the agreement or change has been submitted to, and approved by, the minister.
Restriction re guarantee fund.
A licence shall not be granted to an insurer required to be a member of a guarantee fund unless the insurer furnishes proof satisfactory to the superintendent of ability to meet the requirements of membership when the insurer applies to be licensed.
Where an insurer is required to maintain membership in a guarantee fund and fails to do so, the Lieutenant Governor in Council may cancel the licence of the insurer.
The Lieutenant Governor in Council may make regulations requiring any insurer or class of insurer to be a member of a guarantee fund.
Information preliminary to licence.
The superintendent may require such notice of the application for a licence to be given by publication in The Manitoba Gazette and elsewhere as he deems necessary.
Documents to be filed by applicants for licence.
Before the issue of a licence to an insurer, the insurer shall file in the office of the superintendent
(a) in the case of an insurer undertaking life insurance (other than a mutual benefit society) and that was not licensed on March 17, 1943, a certificate of registry under The Canadian and British Insurance Companies Act, (Canada), or under The Foreign Insurance Companies Act, (Canada);
(b) a certified copy of its Act or charter of incorporation, which shall include its constitution, by-laws, and regulations verified in manner satisfactory to the superintendent;
(c) a certified copy of its last balance sheet and auditor's report thereon;
(d) notice of the place where the chief agency or head office of the insurer in the province is to be situated;
(e) a statement showing the amount of the capital of the insurer and the number of shares into which it is divided, the number of shares subscribed and the amount paid up thereon;
(f) notice of appointment of chief agent or resident manager for the province;
(g) such other evidence as the superintendent requires.
Exemption from certain fillings.
Where the insurer is not a corporation or certain of the provisions of subsection (1) are otherwise inapplicable to the insurer, the superintendent may dispense with the filing of those documents that do not apply to the insurer.
Where a change at any time is made in the charter of the insurer or its head office or chief agency or in its chief agent, the insurer shall forthwith notify the superintendent thereof and file with him such further certified copies, notices or powers of attorney as are necessary to evidence the change.
Statement of expenses of organization.
Upon application being made for a licence by an insurer incorporated under the laws of the province after September 1, 1932, there shall be submitted to the superintendent a sworn statement setting forth the several sums of money paid in connection with its incorporation and organization, and therein a list of all unpaid liabilities, if any, arising out of its incorporation and organization.
Until the licence is granted, no payments on account of such expenses, shall be made out of the moneys paid in by shareholders except reasonable sums for the payment of clerical assistance, legal services, office rental, advertising, stationery, postage and expense of travel, if any.
Conditions precedent to issue of licence.
The superintendent shall not issue the licence until he is satisfied that all requirements of this Act and of The Corporations Act, as to subscriptions of stock, payment of money by shareholders on account thereof, election of directors and other preliminaries have been complied with, and that the expenses of incorporation and organization, including the commission payable for the sale of the stock are reasonable.
The licence shall be in such form as is determined by the superintendent, shall specify the business to be carried on by the insurer and shall expire on December 31 in the year of its issue, but may be renewed from year to year.
When an insurer has deposited the security required by this Act and has otherwise complied with the requirements thereof and of The Corporations Act, the superintendent may issue a licence to it.
CANCELLATION OF LICENCE
Withdrawal of licence for non-payment of claims.
Upon written notice to the superintendent and upon proof of an undisputed claim arising from loss insured against in the province remaining unpaid for the space of 60 days after becoming due, or of a disputed claim, after final judgment and tender of a valid discharge, being unpaid, the superintendent shall cancel the licence of the insurer.
The superintendent may revive the licence and the insurer may again carry on business if, within six months after notice to the superintendent of the failure of the insurer to pay such an undisputed claim or the amount of such a final judgment, the undisputed claim or final judgment is paid and satisfied.
Failure to keep deposit unimpaired.
Where the insurer fails to keep unimpaired the deposit, required by this Act, the minister may suspend or cancel the licence of the insurer.
Insufficiency of assets to be reported by superintendent.
Where the superintendent, upon examination, or from annual statements, or upon other evidence, finds that the assets of any insurer are insufficient to justify the continuance of the insurer in business or to provide proper security to persons effecting insurance with the insurer in the province or that the insurer has failed to comply with any provision of law, or its charter, he shall so report to the minister.
Where the minister, after consideration of the report and after hearing or giving notice of a hearing to the insurer, and upon any further investigation he thinks proper, reports to the Lieutenant Governor in Council that he concurs in the report of the superintendent, the Lieutenant Governor in Council may suspend or cancel the licence of the insurer.
Upon the publication of notice of the suspension or cancellation of licence in The Manitoba Gazette, any person who transacts business on behalf of the insurer, except for winding-up purposes, is guilty of an offence.
Where the superintendent has so reported, the minister or the Lieutenant Governor in Council may direct the issue of such modified, limited, or conditional licence as is deemed necessary for the protection of persons in the province who have effected or effect contracts of insurance with the insurer.
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.
Where the licence of an insurer is suspended or cancelled, it may be revived if the insurer makes good the deposit, or the deficiency, or remedies its default, as the case may be, to the satisfaction of the minister.
The superintendent shall report to the minister any violation of any provision of this Act by a licensed insurer; and thereupon the minister may, in his discretion, suspend or cancel or refuse to renew the insurer's licence.
DEPOSITS
The expression "approved securities" in the following sections means only such securities as are authorized for the investment of trust funds under the law of the province in which they are offered for deposit, and are approved by the superintendents of insurance of this and the several provinces of Canada in which the insurer is carrying on business, and with which the province has a reciprocal arrangement respecting deposits.
Every insurer carrying on the business of insurance in the province shall, before receiving a licence under this Act, deposit approved securities with the Minister of Finance in the following amounts:
(a) where the insurer undertakes life insurance -$50,000.;
(b) where the insurer undertakes any one or more classes of insurance other than life or plate glass;
(i) in the province only - $25, 000.;
(ii) in the province and elsewhere - $50,000.;
(c) where the insurer undertakes plate glass insurance only - $3,000.
An insurer may voluntarily make a deposit in excess of the amount prescribed by this section, in which case no part of a voluntary deposit shall be withdrawn without the sanction of the Lieutenant Governor in Council.
Subsections (1) and (2) do not apply to
(a) mutual insurance companies, incorporated under the laws of the province;
(b) fraternal societies;
(c) mutual benefit societies;
(d) underwriters or syndicates of underwriters operated on the plan known as Lloyd's;
(e) insurers making any deposit for the security of its contracts and creditors pursuant to any law of the Parliament of Canada; and
(f) insurers undertaking marine insurance only and insurers undertaking marine insurance and other classes with respect to marine insurance only;
but every mutual insurance company incorporated under the laws of the province insuring mercantile or manufacturing risks shall deposit approved securities with the Minister of Finance in the sum of$15,000.
Increase of amount of deposit.
Either before or after a licence is issued to an insurer, the superintendent, subject to the approval of the Lieutenant Governor in Council, may direct that a deposit required under subsection (1) or (3) to be made by the insurer be increased to such an amount as the superintendent deems to be necessary.
The value of the securities shall be estimated at their market value, not exceeding par, at the time they are deposited.
Other than approved securities.
Where any other than approved securities are offered as a deposit, the Minister of Finance may accept them on such valuation and on such conditions as he deems proper.
Where the market value of any securities that are deposited by an insurer declines below that at which they were deposited, the Minister of Finance may notify the insurer to make such further deposit as it is necessary to ensure that the accepted value of all securities deposited equals the amount that is required by this Act to be deposited.
On failure by the insurer to make a further deposit within sixty days after being so required, the superintendent may suspend of cancel its licence.
The property in any stock bonds or debentures deposited before or after the coming into force of this Act with the Minister of Finance under this or any Act licensing insurers, is hereby vested in the Minister of Finance by virtue of his office, without any formal transfer while the stock, bonds, or debentures form the whole or any part of the deposit required by this Act.
While the conditions of this Act are satisfied and no notice of any final judgment against the insurer or order for its winding-up, or for the distribution of its assets, or for administration of its deposit is given to the Minister of Finance, the insurer is entitled to receive the interest upon the securities forming the deposit.
Where an insurer desires to substitute other approved securities for securities deposited, the Minister of Finance may permit the substitution to be made.
Where at any time it appears that an insurer has on deposit with the Minister of Finance securities in excess of the prescribed amount, the Lieutenant Governor in Council, upon being satisfied that holders of contracts with the insurer in the province will not be prejudiced thereby, and upon giving notice in The Manitoba Gazette and taking such other precautions as he deems expedient, may authorize the withdrawal of the amount of the excess or a portion thereof; but he may authorize such a withdrawal without giving notice.
An insurer having made a deposit may withdraw it, with the sanction of the minister, if it is made to appear to him that the insurer has made a reciprocal deposit under this Act.
Ceasing to do business in province.
An insurer that has ceased to transact business in the province and desires to obtain a return of its deposit may give written notice to that effect to the superintendent, and shall publish in The Manitoba Gazette a notice that is has applied to the Lieutenant Governor in Council for the return of its deposit, calling all claimants, contingent or actual, who object to the return, to file their objections with the superintendent on or before a day named in the notice, which shall not be less than three months after the first publication of it.
Upon giving notice to the superintendent the insurer shall file with him a list of all its outstanding contracts, including contracts in respect of which claims have accrued.
After the day named in the notice, if the superintendent is satisfied that the insurer has obtained a discharge of all such outstanding contracts, and has paid all fees and taxes owing to the Crown, the Lieutenant Governor in Council may direct that the deposit be returned.
Where the superintendent is not satisfied that all such contracts have been discharged, or fees and taxed paid, the Lieutenant Governor in Council may direct that a sufficient amount be retained to meet the contracts unprovided for and that the remainder of the deposit be returned, and thereafter from time to time as such contracts lapse or proof is adduced that they are satisfied, he may direct a further return of the deposit.
Where the deposit is, by virtue of reciprocal legislation in another province, held for the benefit of policyholders resident in that province, the notice shall also be given to the Superintendent of Insurance or minister in charge of the Department of Insurance in that province and shall be published in the official gazette of that province.
Transfer of deposit on reinsurance.
Where a licensed insurer, hereinafter called the "continuing insurer", has acquired the assets and assumed the liabilities, within the province, of another licensed insurer, hereinafter called the "discontinuing insurer", or reinsured all the contracts of a discontinuing insurer outstanding within the province, the Lieutenant Governor in Council may, upon the application of the continuing insurer, and upon the report of the superintendent, direct the transfer to the continuing insurer of the deposit held by the Minister of Finance on behalf of the discontinuing insurer.
In any such case the deposit so transferred shall thereafter be treated and dealt with under this Act as, and deemed to be a deposit by, the continuing insurer.
Return of deposit to insurer taking Dominion registry.
Where a licensed insurer has obtained a certificate of registry under the Canadian and British Insurance Companies Act, (Canada) or the Foreign Insurance Companies Act, (Canada) the Minister of Finance may return to the insurer its deposit.
Payment out of deposit on reinsurance by insurer holding Dominion registry.
Where a licensed insurer, hereinafter called the "continuing insurer," has acquired the assets and assumed the liabilities, within the province of another licensed insurer hereinafter called the "discontinuing insurer," or reinsured all the contracts of a discontinuing insurer outstanding within the province, and where the continuing insurer holds a certificate of registry under the Canadian and British Insurance Companies Act (Canada) or the Foreign Insurance Companies Act, (Canada), the Minister of Finance may, upon the application of the continuing insurer and the discontinuing insurer, pay out the deposit of the discontinuing insurer to the continuing insurer or to the discontinuing insurer.
RECIPROCAL DEPOSITS
In sections 51 to 75 and in sections 96 to 109
"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 thereunder primarily to a resident of the province or to an incorporated company that has its head office in the province; ("contrat du Manitoba")
"insured person" means a person who enters into a subsisting contract of insurance with an insurer and includes
(a) every person insured by a contract whether named or not; and
(b) every person to whom, or for whose benefit, all or part of the proceeds of a contract of insurance are payable; and
(c) every person entitled to have insurance money applied toward satisfaction of his 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")
"reciprocal deposit" means a deposit of an insurer held pursuant to sections 52 or 53; ("dépôt réciproque")
"reciprocating province" means a province that has been declared to be a reciprocating province pursuant to clause 52(l)(a) or subsection 53(1) with respect to the deposit of a particular insurer. ("province avec convention de réciprocité")
Application of sections 51, 52, and 53.
This section and sections 52 and 53 are applicable notwithstanding that the insurer is, or may become, licensed in one province for classes of insurance different from those for which it is, or may become, licensed in another province.
Sole deposit of insurer in province
Where an insurer has its head office for Canada in Manitoba and makes a deposit under this Act for the purpose of this section, by virtue whereof the insurer will not be required to make a deposit in another province in which it is or may become licensed to undertake insurance, the following provisions have effect, and to the extent that they are inconsistent with any other provision of this Act prevail over that provision, namely:
(a) the amount of the deposit to be made and maintained by the insurer shall be fixed by order of the Lieutenant Governor in Council, and the order shall declare what provinces are reciprocating provinces with respect to that insurer's deposit;
(b) the deposit shall be held and administered as security pari passu for the Manitoba contracts of the insurer and for its contracts in any reciprocating province;
(c) the Minister of Finance shall, upon the request of the official who issues or proposes to issue a licence to the insurer in another province, certify under his hand that the deposit is held in manner provided by clause (b), and the superintendent shall forward the certificate to that official and a copy to the Superintendent of Insurance in each province;
(d) where, with respect to the outstanding contracts of the insurer, it appears to the superintendent from the annual statement or any examination of the affairs of the insurer that a further deposit for the purposes of this section is necessary, or where it appears to the Superintendent of Insurance for another province in which the insurer is licensed, from any annual report or any examination of the affairs of the insurer, that a further deposit for the purposes of this section is necessary, and that superintendent requests the superintendent to obtain a further deposit, the insurer shall forthwith deposit such further sum as the Lieutenant Governor in Council fixes;
(e) where the insurer obtains a licence from any government in Canada extending to this or another province the Minister of Finance may, on the request of the insurer, authorize the superintendent to deliver to the insurer or to transfer to the proper official of that government, the whole or part of such deposit as the Minister of Finance thinks fit, having regard to the extent of the licence; and the superintendent forthwith shall give notice of the delivery or transfer to the Superintendent of Insurance of each reciprocating province;
(f) where the licence of the insurer is suspended or cancelled under this Act, the superintendent shall give immediate notice to the Superintendent of Insurance in each province;
(g) where the insurer ceases to carry on insurance business in Canada and its deposit may be withdrawn under this Act, the superintendent shall notify the Superintendent of Insurance in each province, and all claims and liabilities arising in any such province shall be verified by the Superintendent of Insurance there and a statement thereof communicated to the superintendent;
(h) where the insurer ceases to transact business in, or its licence is suspended or cancelled in, a reciprocating province and notice thereof is given to the superintendent, the minister and the superintendent upon the request of the superintendent in the reciprocating province, may take any action that could be taken if the insurer were ceasing to transact business in, or its licence were suspended or cancelled in, Manitoba.
The insurer shall not change the situation of its head office to another province without the consent of the minister, but where the minister so consents, the Minister of Finance may authorize the superintendent to transfer the insurer's deposit to the minister responsible for the deposit in that province, or to the insurer, as the minister in that province requests; and the superintendent forthwith shall give notice of any change or transfer to the Superintendent of Insurance of each reciprocating province.
Deposit of insurer held in another province.
Where an insurer has its head office for Canada in another province and there makes a deposit of such amount as may be fixed by the proper authority in that province, and under the laws of that province the deposit is held as security pari passu for its Manitoba contracts and its contracts in every reciprocating province, the minister, upon receipt of a certified copy of an order of the Lieutenant Governor in Council of the province in which the deposit is made fixing the amount of the deposit and declaring that Manitoba is a reciprocating province with respect to that insurer's deposit, and upon receipt of the consent of the insurer to its deposit being so held, shall exempt the insurer from the provisions of this Act requiring it to make and maintain a deposit.
Notice required on insurer ceasing to do business, etc.
Where the insurer ceases to transact business in, or its licence is suspended or cancelled in, this province the superintendent shall immediately give notice thereof to the superintendent of the province in which the reciprocal deposit is held and to the superintendent of each other reciprocating province.
Action by superintendent on receipt of notice of administration in another province.
Where an order is made for the administration of a reciprocal deposit held in another province pursuant to subsection (1), the superintendent, as soon as is reasonably possible after receipt of notice of the termination date fixed by the receiver, shall proceed pursuant to section 62 to give the notice required by that section to the insured persons under the Manitoba contracts.
Where a licensed insurer is exempted under this section, the Minister of Finance shall transfer its deposit under this Act to the minister responsible for the deposit in the province in which the insurer has its head office and which will hold the deposit, or to the insurer, as that minister requests.
Every provision of this section prevails over any provision of this Act to the extent that it is inconsistent with that other provision.
Agreement for use of deposit for reinsurance.
At any time before the granting of an order for the administration of a reciprocal deposit, the Superintendent of Insurance of each reciprocating province may enter into an agreement to use all or any part of the securities deposited for the purpose of reinsuring all or any part of the risks of the insurer outstanding in all or any of those provinces.
ADMINISTRATION OF DEPOSIT
Use of deposit for reinsurance.
Notwithstanding anything hereinafter contained, but subject to subsection (2), at any time before the granting of an order for administration of a deposit, and upon the recommendation of the superintendent certifying that such action is necessary or desirable for the protection of policyholders entitled to share in the proceeds of the deposit, the minister may use all or any part of the deposit for the purpose of reinsuring all or any part of the Manitoba contracts.
Consents required in case of reciprocal deposit.
A reciprocal deposit may be used for purposes of reinsurance in the manner and to the extent agreed upon by the Superintendents of Insurance of the reciprocating provinces and not otherwise.
The deposit made by an insurer under this Act is subject to administration in the manner hereinafter provided.
Persons for whom deposit administered.
Subject to sections 52 and 53, the deposit shall be held and administered for the benefit of all insured persons under Manitoba contracts; and they are entitled to share in the proceeds of the deposit.
Claims entitling insured to share in deposit
An insured person under a Manitoba contract is entitled to share in the proceeds of the deposit in respect of
(a) a claim for a loss that is covered by the contract and that occurred before the termination date fixed pursuant to section 61 or section 103; or
(b) a claim for refund of unearned premiums except in the case of life insurance; or
(c) a claim for payment of the legal reserve in respect of the contract in the case of life insurance; or
(d) claims under both clauses (a) and (b).
Application for administration.
An application for administration of a deposit shall be made by originating notice of motion to a judge of the Court of Queen's Bench.
Application by superintendent.
With the approval of the minister, the superintendent may make application for administration at any time when, in his opinion, it is necessary or desirable for the protection of the insured persons entitled to share in the proceeds of the deposit.
Application in case of reciprocal deposit.
In the case of a reciprocal deposit held in this province, the Superintendent of Insurance of any reciprocating province may make application for administration of the deposit.
Application by insured person.
An insured person entitled to share in the proceeds of a deposit may make application for administration of the deposit upon producing evidence
(a) that he has served the Superintendent of Insurance for Manitoba with a notice in writing of his intention to make the application, if the superintendent or the Superintendent of Insurance of any reciprocating province does not apply; and
(b) that 60 days have elapsed since the service of the notice and that no application for administration of the deposit has been made.
Duty of superintendents in case of reciprocal deposit.
In the case of a reciprocal deposit, if the superintendent is served with a notice as provided in subsection (3), he shall forthwith notify the Superintendent of Insurance of each reciprocating province that he has been so served.
Service of notice of motion by applicant
The applicant for administration of the deposit shall serve the originating notice of motion, at least 10 days prior to the date specified in the notice for the making of the application,
(a) upon the insurer or, where the insurer is in liquidation, upon the liquidator of the insurer; and
(b) upon the Superintendent of Insurance for Manitoba; and
(c) in the case of a reciprocal deposit, upon the Superintendent of Insurance of each reciprocating province.
When applicant to be entitled to administration order.
An applicant for administration is entitled to an order for administration upon proof
(a) that the licence of the insurer has been cancelled, and that its assets are insufficient to discharge its outstanding liabilities; or
(b) that an order has been made for the winding-up of the insurer; or
(c) that the insurer has failed to pay
(i) an undisputed claim for 60 days after it has been admitted; or
(ii) a disputed claim after final judgment and tender of a valid discharge;
if the claim arose under a contract of insurance in respect of which the deposit is subject to administration.
Upon granting an order for administration the court shall appoint a receiver to administer the deposit.
Liquidator as receiver of deposit
Where a provisional liquidator or a liquidator has been appointed under this Act or The Corporations Act, or a liquidator has been appointed under the Winding-up Act (Canada) to wind up a company that has made a deposit under this Act, the court may appoint the provisional liquidator or the liquidator as the receiver to administer the deposit.
Administration of deposit by liquidator.
Thereupon the provisional liquidator or the liquidator shall administer the deposit for the benefit of the insured persons entitled to share in the proceeds thereof in accordance with the priorities and other provisions prescribed in this Act.
Termination date fixed by receiver.
Where a termination date has not been fixed by a provisional liquidator or a liquidator pursuant to section 103, forthwith after his appointment the receiver shall fix a termination date for the subsisting contracts of insurance of the insurer; and 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.
Termination of Manitoba contracts on date fixed by receiver in another province.
Where a receiver administering a reciprocal deposit held in another province for the benefit of the insured persons under Manitoba contracts fixes a termination date for the subsisting contracts of insurance of the insurer, on and after that date coverage and protection under the Manitoba contracts ceases; and the insurer is not liable under any such contract for a loss that occurs after that date.
When termination date to be fixed.
The termination date shall not be fewer than 20 nor more than 45 days after the date upon which the receiver was appointed.
Notice of termination date to all superintendents concerned.
The receiver shall forthwith give notice in writing of the termination date to the Superintendent of Insurance for Manitoba and, in the case of a reciprocal deposit, to the Superintendent of Insurance of each reciprocating province.
Publication of notice of termination date.
The receiver shall forthwith publish notice of the termination date in The Manitoba Gazette and in the official gazette of each reciprocating province, and in such newspapers circulating in those provinces as the receiver in his opinion deems advisable in order to give reasonable notice of the termination date.
Duty of superintendent to notify Manitoba insured persons.
The superintendent, forthwith upon receiving notice of a termination date fixed by the receiver administering the deposit of an insurer, shall take such action as he may deem advisable in the interests of the insured persons under Manitoba contracts to give notice of that date to them as soon as is reasonably possible.
Lists of insured persons required from agents.
Without restricting the generality of subsection (1), the superintendent may forthwith require each agent of the insurer in the province to forward to him a list showing the name and address of each person who has entered into a contract of insurance with the insurer of whom he has a record.
Notice to be given by mail by superintendent
On receipt of each list forwarded by an agent, the superintendent may send by ordinary mail to each person whose name appears on the list a notice containing the following information:
(a) the termination date fixed by the receiver;
(b) the name and address of the receiver to whom particulars of claims for loss and claims for refund of unearned premiums should be submitted;
(c) such other information as the superintendent deems advisable.
Publication, broadcasting, etc., of contents of notice.
The superintendent, in his discretion, may publish, broadcast, or otherwise communicate or distribute, the information stated in the notice, either generally or in any particular area or case, in such manner and by such means as he deems best suited to convey the information to the insured persons as soon as is reasonably possible having regard to all the circumstances.
Duty of receiver on appointment.
Forthwith after his appointment the receiver shall
(a) call either upon the insurer or its agents or liquidator to furnish a list of all insured persons who are entitled to share in the proceeds of the deposit; and
(b) call upon all insured persons who are entitled to share in the proceeds of the deposit to file their claims if they have not already done so.
When powers of Master of Queen's Bench exercisable by receiver.
The court, by the order appointing a receiver or by any subsequent order, may authorize the receiver to exercise, in respect of the accounts of the insurer, all or any of the powers that the Master of the Court of Queen's Bench would have if he were taking an account of the claims against the deposit; and every receiver so authorized has those powers, as well as all other powers enjoyed by a receiver appointed under an order of the court.
Application by receiver for order for sale of securities.
The receiver may apply to the court from time to time for an order authorizing him
(a) to sell or realize upon all or any portion of the securities comprised in the deposit of the insurer; and
(b) to pay from the proceeds thereof the costs of the administration of the deposit including salaries of office staff, office expenses, the fee for the services of the receiver, fees and disbursements to adjusters and solicitors, and such other costs and expenses as the court deems proper.
The court may require to give such notice, if any, of the application, in such manner, as the court may require.
After hearing the application the court may make the order and may require the receiver to comply with such conditions as the court may direct.
Priorities in payment of proceeds of deposit
The proceeds of the deposit are payable (a) firstly in payment of the receiver and of all costs and expenses incurred by him in the administration of the deposit, and in payment of all or part of the remuneration, costs, and expenses, of the provisional liquidator if so ordered by the minister pursuant to subsection 99(3);
(b) secondly in payment of the insured persons who are entitled to share in the proceeds of the deposit in accordance with the priorities set out in section 67.
Except in the case of life insurance, each insured person who claims in respect of a loss covered by the contract that occurred before the termination date fixed pursuant to section 61 or section 103 is entitled to receive payment of his approved or settled claim in full in priority to the insured persons who claim in respect of refunds of unearned premiums.
Priority of unearned premium claims.
Subject to subsection (1), an insured person who claims in respect of a refund of unearned premiums may claim such part of the premium paid as is proportionate to the period of his contract unexpired
(a) at the termination date fixed by the receiver pursuant to section 61 or fixed by the provisional liquidator or the liquidator pursuant to section 103; or
(b) at the date the insured person cancelled the contract;
whichever date is the earlier.
Priority of life insurance claims.
In the case of life insurance, each insured person who has a claim for a loss covered by the contract that occurred before the termination date fixed pursuant to section 61 or section 103 shall rank, in the distribution of the proceeds of the deposit, for the approved or settled amount of the claim pari passu with insured persons under unmatured life insurance contracts.
Allowable amount of claim under unmatured life policy.
An insured person under an unmatured life insurance contract is entitled to the full amount of the legal reserve in respect of his contract determined by the receiver according to the valuation thereof approved by the superintendent under this Act.
Action of receiver on receipt of claims.
Where an insured person has filed a claim for a loss covered by the contract that occurred before the termination date fixed pursuant to section 61 or section 103, the receiver shall inquire into the claim and
(a) may approve the claim if a final judgment has been obtained against the insurer in respect thereof; or
(b) may approve the claim if it has been adjusted or settled by the insurer or by the receiver at an amount that, in his opinion, the claimant is reasonably entitled to receive; or
(c) may refuse to approve the claim or the amount thereof.
An appeal lies from any decision of the receiver if taken within 30 days from the date on which the person appealing has received notice of the decision.
The appeal shall be taken by the filing and service on the receiver of a notice of motion returnable before a judge of the court in chambers, who may summarily determine the matter, or may direct an issue to be tried, or may make such other order as he deems proper.
List of persons entitled to share in deposit.
The receiver shall prepare a list showing the names of the persons who appear by the books and records of the insurer or otherwise to be entitled to share in the proceeds of the deposit.
Schedule of approved claims for losses.
The receiver shall prepare and attach to the list a schedule of approved claims for losses showing, in respect of each approved claim for loss made by a person appearing on the list,
(a) the name and address of the claimant;
(b) the particulars of the contract of insurance upon which the claim is based;
(c) whether the claim was reduced to judgment or was adjusted or settled; and
(d) the amount for which the claimant is entitled to rank upon the fund.
Schedule of unapproved claims for losses.
The receiver shall prepare and attach to the list a schedule of unapproved claims for losses showing, in respect of each claim for loss that has not yet been approved made by a person appearing on the list,
(a) the name and address of the claimant;
(b) the particulars of the contract of insurance upon which the claim is based; and
(c) the amount for which the claim is made or the amount estimated by the receiver as the probable maximum amount that will be payable under the contract in respect of that loss.
Schedule of unearned premiums.
Except in the case of life insurance, the receiver shall prepare and attach to the list a schedule of unearned premiums refundable showing, in respect of each person whose name appears on the list and who is entitled to a refund,
(a) his name and address;
(b) the particulars of the contract of insurance in respect of which the unearned premium is refundable;
(c) the date on which the policy was terminated either by the receiver pursuant to section 61 or by the provisional liquidator or the liquidator pursuant to section 103 or was cancelled by the insured person; and
(d) the amount of the unearned premium as calculated by the receiver in accordance with subsection 67(2).
Schedule of legal reserves on life policies.
In the case of life insurance, the receiver shall prepare and attach to the list a schedule of contract legal reserves showing, in respect of each person whose name appears on the list and who is entitled to claim for the legal reserve in respect of his contract,
(a) his name and address;
(b) the particulars of the contract of insurance in respect of which the legal reserve is payable; and
(c) the amount of the legal reserve calculated by the receiver pursuant to subsection 67(4).
Application for order for payment on account of claims.
Upon completion of the schedules, and after having paid or provided reasonable reserves from the deposit to pay the amounts payable pursuant to clause 66(a), the receiver may apply to the court for an order authorizing the payment of such aggregate sum as may be fixed by the court on account of the amounts payable pursuant to clause 66(b).
Provision for approved and unapproved claims.
Except in the case of life insurance, the receiver shall divide the sum mentioned in subsection (1) so as to provide for payment of the claims for loss in full or, if the sum is inadequate, pro rata on account of
(a) the approved claims for losses set out in the schedule of approved claims for losses; and
(b) the unapproved claims for losses set out in the schedule of unapproved claims for losses;
and shall distribute the portion referred to in clause (a) at such time or times as the receiver may determine, to the persons entitled thereto, and shall retain the portion referred to in clause (b) for distribution from time to time as the unapproved claims are approved.
Payment of unearned premiums from surplus.
Except in the case of life insurance, if there appears to be a surplus remaining after the receiver has paid or retained a sum that in his opinion is reasonably adequate to pay in full all claims for loss referred to in subsection (2), the receiver shall divide the surplus so as to provide for payment of all unearned premiums in full or, if it is inadequate, among the persons entitled to a refund of unearned premiums in proportion to the amounts payable, as set out in the schedule of unearned premiums refundable.
Payment of claims in case of life insurance.
In the case of life insurance, the receiver shall divide the sum fixed pursuant to subsection (1) so as to provide for payment of the following amounts in full or, if the sum is inadequate, pro rata on account of
(a) the approved claims for losses set out in the schedule of approved claims for losses;
(b) the unapproved claims for losses set out in the schedule of unapproved claims for losses;
(c) the full amount of the legal reserve in respect of each unmatured life insurance contract as set out in the schedule of contract legal reserves;
and shall distribute the portions referred to in clauses (a) and (c), at such time pr times as the receiver may determine, to the persons entitled thereto, and shall retain the portion referred to in clause (b) for distribution from time to time as the unapproved claims are approved.
If a claim in respect of a loss that occurred before the termination date is filed after the receiver has applied to the court under subsection 70(1) and before the final order of the court discharging the receiver, the claimant shall be entitled to share in the distribution of the moneys remaining in the hands of the receiver upon proof of his claim and upon such terms and conditions as the court may direct.
Application to court for directions or advice.
The receiver administering a deposit may apply to the court at any time, on summary application, for directions or advice pertaining to any matter arising in the administration of the deposit.
Submission by receiver of final accounts.
Upon the completion of the distribution of the proceeds of the deposit the receiver shall submit his final accounts to the court; and the court, on the passing thereof, may make an order approving the accounts and discharging the receiver.
Claims remaining unpaid after distribution of deposit.
If a claim is made after the completion of the distribution of the proceeds of the deposit and the discharge of the receiver, or if there is a claim against the insurer by an insured person not fully paid by the distribution of the proceeds of the deposit, the claimant is not barred from any recourse he may have against the insurer, and his claim is a first lien or charge on the assets of the insurer in winding-up as provided in subsection 101(2).
A person who holds security for his claim under a contract, or who is entitled to share in the administration of a deposit with the government of another province for the protection of persons resident therein, is entitled to share in the administration of the deposit held by this province only if he abandons the security or releases his claim upon the deposit with the other government.
INVESTMENTS
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 registered under the Canadian and British Insurance Companies Act (Canada) is permitted, under that Act as amended from time to time heretofore or hereafter, to invest its funds.
Uninvested funds of the insurer shall be kept on deposit in the name of the insurer in a bank.
BOOKS OF INSURERS
Each insurer shall keep such a classification of its contracts and such registers and books of account as are directed or authorized by the superintendent; and, if it appears at any time to the superintendent that the classification, registers, or books are not kept in such a businesslike way as to make, at any time, a proper showing of the affairs and standing of the insurer, he shall thereupon nominate an accountant, under his directions, to audit them and to give such instructions as will enable the insurer to keep them correctly thereafter.
Amount of accountant's expenses.
The fees and expenses of the accountant shall be paid forthwith by the insurer on receipt from the superintendent of notification in writing of the amount thereof; and those fees and expenses shall not exceed such amount as the superintendent certifies to be reasonable and recommends for payment, and as is thereafter approved by the Minister of Finance.
Where the insurer has a share or stock capital, the stock register or register of members shall at all reasonable times be open to the examination of the minister or superintendent.
RECORDS AND RETURNS
Every licensed insurer which carries on the business of fire insurance shall keep a record of its premium income derived from risks located in the province and of claims paid in respect of such risks, so as to show at any time its experience according to the classification of occupancy hazards of the National Board of Fire Underwriters, with such modifications as the superintendent prescribes.
When, at any time, it appears to the minister, on the report of the superintendent, that such a record is not kept in such a manner as to show correctly the experience of the insurer, the minister may nominate an accountant to proceed under his direction to audit the books and records of the insurer and to give such instructions as will enable the insurer to keep the records correctly thereafter.
The expense of such an audit shall not exceed $15. per day and necessary travelling expenses; and the account shall, when certified and approved by the superintendent, be paid forthwith by the insurer.
Statement of premium income and losses.
Every licensed insurer undertaking the business of fire insurance shall, if required by the superintendent, prepare and file annually with the superintendent, on or before the first day of May in each year, on a printed form to be supplied by the superintendent, a sworn statement of the premium income and losses experienced within the province for the year last preceding the date of the return according to the record required to be kept under this section.
Any insurer, and the principal officer within the province of any insurer, that contravenes this section is guilty of an offence.
Return by insurer of automobiles.
Every licensed insurer that carries on the business of automobile insurance shall prepare, and file when required with the superintendent or with such statistical agency as he designates, a record of its automobile insurance premiums, and of its loss and expense costs in the province, in such form and manner, and according to such system of classification, as he approves.
The superintendent may require any agency so designated to compile the data so filed in such form as he approves, and the expense of making the compilation shall be apportioned by the superintendent among the insurers whose data are compiled by the agency; and the superintendent shall certify in writing the amount due from each insurer, and that amount shall be payable by the insurer to the agency forthwith.
Subsections 79(2), (3) and (5) apply, with appropriate changes, to this section.
Every insurer shall deliver to the superintendent, within one month after the passing thereof, a certified copy of its by-laws and of every repeal, amendment, or consolidation thereof or addition thereto.
A copy of every balance sheet or other statement published or circulated by an insurer purporting to show its financial condition, together with any auditor's report thereon, shall be mailed or delivered to the superintendent concurrently with its issue to its shareholders of policyholders, or to the general public.
Each auditor of an insurer, in the report required to be made to shareholders under The Corporations Act, shall state
(a) that he has audited the books of the insurer and verified the cash, bank balance and securities;
(b) in the case of insurers transacting other than life insurance, that he has checked the reserve of unearned premiums and that it is calculated as required by The Insurance Act;
(c) that he has examined the reserve for unpaid claims and that in his opinion it is adequate;
(d) that he has verified the balances owing by agents and other insurers;
(e) that the balance sheet does not include as assets, items prohibited by The Insurance Act from being shown in the annual statements required to be filed thereunder;
(f) that, after due consideration, he has formed an independent opinion as to the position of the company and that, with his independent opinion so formed, and according to the best of his information, and the explanations given him, the balance sheet sets forth fairly and truly the state of affairs of the insurer ; and
(g) that all transactions of the insurer that have come within his notice have been within its powers.
Every licensed insurer shall prepare annually, and deliver to the superintendent on or before the last day of February of each year, a statement of the condition of affairs of the insurer as at December 31 last preceding; and the statement shall be in such form, and verified in such manner, as is prescribed by the superintendent, and shall exhibit the assets, liabilities, receipts, and expenditures of the insurer for the year ended on that date, and shall also exhibit particulars of the business done in the province during that year and such other information as is deemed necessary by the minister or superintendent.
In the case of a corporation the statement shall be verified by the president, vice-president or managing director, or other director appointed for the purpose by the board of directors, and by the secretary or manager of the corporation.
Every insurer shall, when required by the superintendent, make prompt and explicit answer in reply to any inquiry directed to the insurer by him in relation to the statement or in relation to the transactions of the insurer in the province.
In the case of all classes of insurance other than life insurance, and insurance on the premium note plan, the statement shall show, as a liability of the insurer, 80% of the actual portions of unearned premiums on all business in force on December 31 then last past, or 80% of 50% of the premiums written in its policies and received in respect of contracts having one year or less to run, and pro rata on those for longer periods.
In the case of insurers transacting life insurance the statement shall show, as a liability, the valuation of outstanding contracts of insurance according to the standard for valuation of policies of life insurance prescribed by this Act, or such higher standard as the insurer, with the approval of the superintendent, adopts.
The statement shall not show as assets the unpaid balances owing by agents or other insurers in respect of business written prior to October 1 in the last preceding year, or bills receivable on account thereof, or unpaid capital or premium on subscribed shares of capital stock, or investment in office furnishings or equipment, nor shall the statement include as assets any investments not authorized by any Act to which the insurer is subject.
Every licensed insurer may, in its annual statement or in any valuation of its securities, value all of its securities, having a fixed term and rate and not in default as to principal or interest, according to the following rule: If purchased at par at the par value; if purchased above or below par on the basis of the purchase price adjusted so as to bring the value to par at maturity and so as to yield meantime the effective rate of interest at which the purchase was made; but the purchase price shall in no case be taken at a higher figure than the actual market value at the time of purchase.
The superintendent has full discretion in determining the method of calculating values according to the foregoing rule.
An insurer shall not publish or circulate a statement purporting to show the financial condition of an insurer differing from that shown by the statement filed with the superintendent, or a balance sheet or other statement in form differing from that prescribed by the regulations, and if it does, it is guilty of an offence.
Misrepresentation as to statement, report, etc.
Every person, who represents orally or in writing that the issue of a licence to an insurer or the printing or publication of an annual statement in the report or any other publication of the superintendent or any other circumstance of the supervision or regulation of the business of the insurer by law, is a warranty or guarantee of the financial standing of the insurer or of its ability to provide for the payment of its contracts at maturity, is guilty of an offence.
Misleading statement prohibited.
Every insurer, and every officer, director, agent, and employee of an insurer, who, for the purpose of inducing any person to insure with the insurer, makes or uses any misleading statement purporting to show the dividends, profits, or surplus which have been paid or may be paid by the insurer in respect of any policy issued or to be issued by it, as the case may be, is guilty of an offence.
LIFE INSURANCE RESERVES
The valuation of contracts of life insurance issued by insurers incorporated and licensed under the law of the province, except contracts of fraternal societies licensed under this Act, shall be based on the British Offices' Life Tables, 1893, Om (5), and on a rate of interest of 3 1/2% per annum but any such insurer may, with the approval of the superintendent, adopt the American Men Ultimate Table of Mortality Am (5), with interest at 3 1/2% per annum, for the valuation of contracts issued on and after January 1,1929.
Deductions in first year policy.
In computing such a valuation a deduction may be allowed from the value of a policy in the first policy year of an amount ascertained in the following manner, namely: In the case of a 20 payment life policy or any other form of policy, except a term policy, the net annual premium upon which is less than the corresponding net annual premium of a 20 payment life policy, the difference between the net annual premium for such a policy and the corresponding net premium for a one year term insurance, and in the case of a policy with a net annual premium greater than that of a 20 payment life policy, an amount equal to the deduction allowed in respect of a 20 payment life policy.
Deductions in subsequent years.
After the first policy year the deduction allowed by subsection (2) shall be diminished each year by an amount not less than 1/9 of the deduction in the first policy year so that in the tenth year from the date of issue, the value of the policy shall not be less than that ascertained in accordance with subsection (1).
Deductions where less than 10 premiums.
In the case of policies subject to less than 10 annual premiums the deduction ascertained as provided in subsection (2) shall, in each year after the first policy year, be reduced by an amount not less than the equal parts thereof required to provide that the value of the policy at the end of the premium paying period shall be not less than that ascertained in accordance with subsection (1).
No insurer shall issue any contract of life insurance that does not appear to be self-supporting upon reasonable assumption as to interest, mortality, and expenses.
Accident and sickness benefits.
Where a contract of life insurance provides for accident or sickness insurance benefits the superintendent may prescribe by regulations the basis for valuing those benefits, but no deduction shall be allowed from the basis so fixed under subsection (2); and in the valuation of the life insurance benefits under such contracts, the amount of the net annual premium upon which the deduction provided for in the preceding subsections is to be based, shall be the net annual premium exclusive of the premium for those accident or sickness benefits.
In the case of annuity contracts, whether immediate or deferred, the valuation shall be the British Offices' Select Life Annuity Tables, 1893 (male or female according to the sex of the nominee), with interest at 3 1/2% per annum.
Insurers registered under Dominion Act.
Where an insurer is registered under the Canadian and British Insurance Companies Act, (Canada,) the requirements of this section with reference to that insurer in respect of valuations, deductions, and rates of interest, may be modified or altered as may be necessary to permit the insurer to comply with the requirements of the Superintendent of Insurance appointed under the Department of Insurance Act (Canada).
INSURANCE WITH UNLICENSED INSURERS
Insurance with unlicensed insurers.
No person in the province shall enter into a contract of insurance with an insurer not licensed under this Act, except through a special broker duly licensed.
DEALINGS IN LIFE INSURANCE POLICIES
Traffic in life insurance policies prohibited.
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.
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.
Where an insurer issues a policy or uses a form of application that, in the opinion of the superintendent, is unfair, fraudulent, or not in the public interests, the superintendent shall report to the minister thereon; and, after hearing the insurer, the minister may, if he concurs in the report, order the superintendent to prohibit the insurer from issuing or using such a form of policy or application.
An insurer that, after being prohibited, issues any such policy or uses any such application is guilty of an offence.
Effect of violation of law on enforcement of policy.
Unless the contract otherwise provides, a violation of any criminal or other law in force in the province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity under a contract of insurance except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage: Provided that in the case of a contract of life insurance this section shall apply only to disability insurance undertaken as part of the contract.
UNDERWRITERS' AGENCIES
An insurer shall not issue a policy of insurance through an underwriter's agency unless the insurer is licensed to carry on business in the province and has obtained from the superintendent a permit to issue contracts of insurance through the agency.
Every policy of insurance issued through an underwriter's agency shall be in a form approved by the superintendent, and shall bear upon its face the name and address of the insurer in a prominent and conspicuous manner, and the name of the underwriter's agency shall not appear on the face of the policy except as a countersignature thereto.
On no other part of the policy shall the name of the underwriter's agency appear, except that for identification purposes the words "issued through the Underwriter's Agency" may be inscribed on the filing back of the policy, following the name of the insurer in such manner as is approved by the superintendent.
Upon an application for a permit under this section the insurer shall furnish to the superintendent evidence of its approval and adoption of the form of policy to be issued through the underwriter's agency and of the authority of the agency to bind the insurer.
The permit shall be in such form as is prescribed by the superintendent, and shall expire on December 31 of the year of its issue, but shall be renewable from year to year.
Every insurer issuing a policy of insurance through an underwriter's agency shall file an annual return of the business transacted through the agency in a form prescribed by the superintendent.
FORFEITURE FOR NON-USER OR DISCONTINUANCE
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.
No such forfeiture affects prejudicially the rights of creditors as they exist at the date of the forfeiture.
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.
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.
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.
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 bylaws and with this Act and is entitled to have its licence renewed.
Removal of supervisor by court.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 other than the deposit unless otherwise directed pursuant to subsection (3).
Payment of liquidator's costs from deposit.
The minister, in his discretion, may direct that the remuneration, expenses, and outlay shall be paid out of the proceeds of the deposit made by the insurer; and, in that case, the amount directed to be paid has the same priority as the expenses of the receiver administering the deposit as fixed by clause 66(a).
Notice of ceasing business or meeting to consider winding-up to be given.
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.
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.
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.
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.
Reinsurance arranged by liquidator or provisional liquidator.
The provisional liquidator or the liquidator, before any order granting administration of the deposit and before the fixing of a termination date pursuant to section 103, 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.
For the purpose of securing the reinsurance the following funds are available:
(a) the entire assets of the insurer in the province other than the deposit, 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 other than the deposit;
(b) all or such portion, if any, of the deposit as may be agreed upon pursuant to subsection (3).
Agreement for use of deposit for reinsurance.
Where it appears necessary or desirable to secure reinsurance for the protection of insured persons entitled to share in the proceeds of the deposit, the minister, on the recommendation of the superintendent, or, in the case of a reciprocal deposit, the Superintendents of Insurance of each of the reciprocating provinces, may enter into an agreement with the provisional liquidator or the liquidator, whereby, pursuant to section 54 or section 55, all or any part of the securities in the deposit may be used for the purpose of securing the reinsurance.
Payments to creditors other than preferred.
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.
Where, after providing for the payments mentioned in subsection (2), the balance of the assets of the insurer, together with all or such portion, if any, of the deposit as may be agreed upon pursuant to subsection (3), 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.
No contract of reinsurance shall be entered into pursuant to this section until it is approved by the court.
Nothing in this section prejudices or affects the priority of any mortgage, lien, or charge, upon the property of the insurer.
Transfer of deposit from receiver to liquidator or provisional liquidator.
In the winding-up of an insurer that has made a deposit pursuant to this Act, if the person appointed as receiver to administer the deposit pursuant to section 60, is not the person appointed as provisional liquidator or the liquidator under this Act or The Corporations Act or appointed as liquidator under the Winding-up Act (Canada), as the case may be, the court, at any time in its discretion, may order that the deposit and the administration thereof be transferred from the receiver to the provisional liquidator or the liquidator.
Administration of deposit by liquidator or provisional liquidator.
Upon the making of an order pursuant to subsection (1), the provisional liquidator or the liquidator shall administer the deposit for the benefit of the persons entitled to share in the proceeds thereof in accordance with the priorities and other provisions prescribed in this Act.
Payment of costs of liquidator or provisional liquidator.
The amount payable to the provisional liquidator or the liquidator for administering the deposit, and all costs and expenses incurred by him in administering the deposit, shall be paid from the proceeds of the deposit in accordance with the priorities fixed by clause 66(a); but the amount payable to the provisional liquidator or the liquidator and all costs and expenses incurred by him in the winding-up of the insurer shall not be paid from the deposit but shall be paid from, and shall be a first charge on, the assets of the insurer except as provided in subsection 97(3).
Termination date fixed where reinsurance not arranged.
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.
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.
Where termination date fixed by receiver and liquidator.
Where a receiver administering a deposit has fixed a termination date pursuant to section 61, the termination date fixed pursuant to this section applies only to those contracts of insurance not already terminated on the date fixed by the receiver.
Publication of notice of termination date.
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.
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, to the extent that those claims have not been paid or provided for in the administration of the deposit.
Calculation of unearned premium claims.
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.
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.
Nothing in this section prejudices or affects the priority of any mortgage, lien, or charge, upon the property of the insurer.
Payment of government fees, taxes, etc.
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.
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.
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.
A liquidator refusing or neglecting to furnish such information is guilty of an offence and is liable, on summary conviction, for each such offence, to a fine of not less than $50. or more than $200., to be recovered on behalf of Her Majesty for the use of the provinces; and he is, in addition, liable to be dismissed or removed.
Endowment and life funds distributed.
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.
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.
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.
For the purpose of a voluntary winding-up the superintendent may renew or extend the licence of the insurer.
PENALTIES
Every person who
(a) does any act prohibited; or
(b) omits to do any act required;
by this Act is guilty of an offence and, unless another penalty therefor is provided herein, is liable, on summary conviction, to a fine of not less than $50. and not more than $500.
In addition, where an insurer violates the prohibitions of, or fails to comply with the requirements of, or is guilty of an offence under, this Act, the Lieutenant Governor in Council may, upon the report of the superintendent, suspend or cancel the licence of the insurer.
Onus to prove insurer licensed.
Where in a prosecution under this Act, it appears that the defendant or the accused has done any act, or been guilty of any omission, in respect of which he would be liable to a penalty under this Act or the regulations, unless he had been duly licensed, it is incumbent upon the defendant or the accused to prove that he is duly licensed.
Every insurer undertaking insurance or carrying on business in the province without holding a licence to do so is guilty of an offence and is liable on summary conviction, to a fine of $20. for each and every day during which the default continues.
Penalty for failure to file returns.
Where an insurer or person required under this Act to make to, or file with, the superintendent a report, return, or statement, makes default in making or filing it and the default continues for seven days after the end of the period limited herein for making or filing thereof, the insurer or person is, subject as herein provided, liable to Her Majesty in right of the province, as a penalty, for the sum of $10. for each day on which the default has occurred or continues, beginning with the first day following the end of the period aforesaid.
Forthwith after the expiration of the period of seven days mentioned in subsection (1), the superintendent shall, by written notice, demand, from the insurer or other person so making default, payment of the penalty payable by it or him; and the notice shall be mailed to the insurer or other person addressed to it or him at its or his address last known to the superintendent.
The liability of the insurer or other person under subsection (1) arises on the mailing of the notice by the superintendent as provided in subsection (2) and continues as provided in subsection (1).
The amount that, under subsection (1), an insurer or other person is liable to pay is a debt due by that insurer or person to Her Majesty in right of the province, and is recoverable by Her Majesty as such in any court of competent jurisdiction by action brought in the name of Her Majesty in right of the Province of Manitoba, represented therein by the superintendent.
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 it or him under this Act in respect of the same failure to make or file the report, return, or statement, or for any other cause.
Time for beginning prosecution.
In the case of a prosecution for an offence against this Act, the complaint shall be made or the information laid, within two years from the time when the matter of the complaint or information arose.
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, mutual benefit 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) any payment, allowance or gift, or any offer to pay, allow or give, directly or indirectly, any money or thing of value as an inducement to any prospective insured to insure,
(g) any 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 such 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")
No person shall engage in any unfair or deceptive act or practice in the business of insurance.
Investigation by superintendent.
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.
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.
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.
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.
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.
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.
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.
Any person who contravenes an order made under this section is, in addition to any other consequence or remedy provided by law, guilty of an offence and liable, on summary conviction, to a fine of not less than $50. and not more than $200.
Effect of termination of contract
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.
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.
FEES AND REGULATIONS
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.
The insurer shall pay any such fees payable by it before a licence or the renewal of a licence is issued.
The Lieutenant Governor in Council may make regulations
(a) extending the provisions of this Act or any of them to a system or class of insurance not particularly mentioned herein;
(b) providing for, and for the making of, reciprocal or other arrangements with any government in Canada in connection with the licensing, regulation, and inspection of insurers;
(c) generally for the better administration of this Act;
(d) prohibiting certain acts in the business of insurance;
(e) regulating advertising by persons engaged in insurance or prescribing standards for advertising by persons engaged in insurance or both; and
(f) prescribing standards for policies of insurance of specific classes or types.
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.
INSURANCE CONTRACTS IN MANITOBA
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 insurance and sickness insurance;
(b) life insurance; and
(c) marine insurance.
Contracts made in the province.
Where the subject matter of a contract of insurance is property in the province, or an insurable interest of a person resident within the province, the contract, if signed, countersigned, issued or delivered in the province or committed to the post office or to any person to be delivered to the insured, his assign or agent in the province, shall be deemed to evidence a contract made therein, and be construed according to the law thereof, and all moneys payable thereunder shall be paid at the head office or chief agency of the insurer in the province, in lawful money of Canada.
POLICY OF INSURANCE
Terms invalid unless set out in full.
All the terms and conditions of the contract of insurance shall be set out in full in the policy or by writing securely attached to it when issued, or subsequently attached thereto; and unless so set out no term of the contract or condition, stipulation, warranty or proviso modifying or impairing its effect, shall be valid or admissible in evidence to the prejudice of the insured or beneficiary.
Where the contract, whether or not it provides for its renewal, is renewed by a renewal receipt, it shall be a sufficient compliance with subsection (1) if the terms and conditions of the contract are set out in the contract and the renewal receipt refers to it by its number or date.
The application of the insured shall not, as against him, be deemed a part of, or be considered with, the contract of insurance, except in so far as the court determines that it contains a material misrepresentation by which the insurer was induced to enter into the contract.
Error in statement must be material to affect contract.
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.
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.
This section does not apply to contracts of fire or automobile insurance.
Every insurer shall, upon request, furnish to the insured a true copy of his application for insurance.
No insurer shall make a contract of insurance inconsistent with this Act.
Non-compliance not to invalidate.
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.
Every policy shall contain the name of the insurer, the name of the insured, the name of the person or persons to whom the insurance money is payable, the amount, or the method of determining the amount, of the premium for the insurance, the subject matter of the insurance, the indemnity for which the insurer may become liable, the event on the happening of which the liability is to accrue, the date upon which the insurance takes effect and the date it terminates or the method by which the latter is fixed or to be fixed.
This section does not apply to contracts of guarantee insurance.
This section applies to a contract, other than a contract of hail insurance, containing a condition, statutory or otherwise, providing for an appraisal to determine specified matters in the event of a disagreement between the insured and the insurer.
The insured and the insurer shall each appoint a disinterested appraiser, and the two appraisers so appointed shall appoint a disinterested umpire.
The appraisers shall determine the matters in disagreement and, if they fail to agree, they shall submit their differences to the umpire, and the finding in writing of any two determines the matters.
Each party to the appraisal shall pay the appraiser appointed by him and shall bear equally the expense of the appraisal and the umpire.
Where,
(a) a party fails to appoint an appraiser within seven clear days after being served with written notice to do so; or
(b) the appraisers fail to agree upon an umpire within 15 days after their appointment; or
(c) an appraiser or umpire refuses to act or is incapable of acting or dies;
a judge of the Court of Queen's Bench may appoint an appraiser or umpire, as the case may be, upon the application of the insured or the insurer.
Policy payable in Canadian money.
Insurance money is payable in Manitoba in lawful money of Canada.
No term or condition of a contract shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by a person authorized for that purpose by the insurer.
Neither the insurer nor the insured shall be deemed to have waived any term or condition of a contract by any act relating to the appraisal of the amount of loss or to the delivery and completion of proofs or to the investigation or adjustment of any claim under contract.
Court may proceed where no appraisal made, etc.
Notwithstanding any other provision of this Act, and notwithstanding any provision or condition of a contract, statutory or otherwise, 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 in an action brought for that purpose from determining any issues arising under a policy including the determination of the value of the property insured or the value of any loss or damage to such property.
No red ink shall be used on a policy except for the name, address and emblem of the insurer, and the policy number, and for the purposes mentioned in this Act.
Subsection (1) does not apply to a contract to which Part IV applies.
Where the policy has been delivered the contract shall be as binding on the insurer as if the premium had been paid, although it has not in fact been paid, and although delivered by an officer or agent of the insurer who had not authority to deliver it.
The insurer may sue for the unpaid premium and may deduct the amount thereof from the amount for which he is liable under the contract of insurance.
Where a cheque, bill of exchange or promissory note is given, whether originally or by way of renewal, for the whole or part of any premium and the cheque, bill of exchange or promissory note, is not honoured according to its tenor, the insurer may terminate the contract forthwith by giving written notice by registered mail.
LOSS UNDER POLICY
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.
Failure to provide proof of loss forms.
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.
It shall be optional with the insurer to pay or allow claims, wholly or in part, which are void under any statutory condition.
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.
Right of injured third party against insurer.
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.
This section does not apply to motor vehicle liability policies.
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.
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.
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.
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.
Where the insurer does not within one month after the insurance money is payable, pay it to some person competent to receive it or into court, the court may, upon application of any person, order that the insurance money, or any part thereof, be paid into court, or make such other order as to the distribution of the money as the court sees fit, and payment made in accordance with the order is a sufficient discharge to the insurer.
The court may order the costs incurred upon or in connection with any such application or order to be paid out of the insurance money or by the insurer or the applicant or otherwise as seems just.
Where there has been imperfect compliance with a statutory condition as to proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss insured against, and a consequent forfeiture or avoidance of the insurance in whole or in part, and the court deems it inequitable that the insurance be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it deems just.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
This section has effect notwithstanding any agreement, condition or stipulation to the contrary.
An insurer or other person who contravenes this section is guilty of an offence.
Effect of assignment of right to refund
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.
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.
CONTRACTS COUNTERSIGNED BY AGENT
No insurer shall undertake a contract of fire, property or hail insurance upon property situated in the province or described in any contract as situated therein, unless the contract, completed in accordance with this Act, is signed or countersigned by an agent holding a licence under this Act, who is to receive the commission or some part thereof when the premium stipulated in the contract is paid.
Where the policy is issued upon an application procured and submitted to the insurer and signed by the agent, it need not be signed or countersigned by him.
This section does not apply to insurance covering the rolling stock of railroad corporations or property in transit that is in the possession and custody of railroad corporations or other common carriers or to movable property of common carriers used or employed by them in their business as such.
An insurer that issues a contract of insurance save as permitted by this section is guilty of an offence and is liable, on summary conviction, to a fine of not less than $100. and not more than $300. for each contract so issued.
"Insurer" in this section means only a mutual insurance company undertaking insurance on the cash plan and any insurer mentioned in clause 26(1)(a), (e) or (f).
No agent holding a licence shall sign a blank policy or contract of insurance.
No such agent shall give a power of attorney to persons residing outside the province for the purpose of countersigning contracts.
FIRE INSURANCE
This Part applies to insurance against loss of or damage to property arising from the peril of fire in any contract made in the province except
(a) insurance falling within the classes of aircraft, automobile, boiler and machinery, inland transportation, marine, plate glass, sprinkler leakage and theft insurance;
(b) where the subject matter of the insurance is rents, charges or loss of profits;
(c) where the peril of fire is an incidental peril to the coverage provided; or
(d) where the subject matter of the insurance is property that is insured by an insurer or group of insurers primarily as a nuclear risk under a policy covering against loss of, or damage to, the property resulting from nuclear reaction or nuclear radiation and from other perils.
Notwithstanding subsection (1) this Part applies to insurance of an automobile as provided in subsection 29(2).
Subject to subsection (4) of this section and to clause 145(a), in any contract to which this Part applies the contract shall be deemed to cover the insured property
(a) against fire (whether resulting from explosion or otherwise) not occasioned by or happening through
(i) in the case of goods, their undergoing any process involving the application of heat;
(ii) riot, civil commotion, war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military power;
(b) against lightning, but excluding destruction or loss to electrical devices or appliances caused by lightning or other electrical currents unless fire originates outside the article itself and only for such destruction or damage as occurs from such fire;
(c) against explosion (not occasioned by or happening through any of the perils specified in sub-clause (a)(ii)) of natural, coal, or manufactured gas in a building not forming part of a gas works, whether fire ensues therefrom or not.
Unless a contract to which this Part applies otherwise specifically provides, it does not cover the insured property against loss or damage caused by contamination by radio-active material directly or indirectly resulting from fire, lightning, or explosion, within the meaning of subsection (1).
Where property insured under a contract covering at a specified location is necessarily removed to prevent loss or damage or further loss or damage thereto, that part of the insurance under the contract that exceeds the amount of the insurer's liability for any loss incurred shall, for seven days only or for the unexpired term of the contract, if less than seven days, cover the property removed and any property remaining in the original location in the proportions which the value of the property in each of the respective locations bears to the value of the property in them all.
Nothing in subsection (1) precludes an insurer giving more extended insurance against the perils mentioned therein, but in that case this Part does not apply to the extended insurance.
An insurer licensed to carry on fire insurance may include in its insurance contracts a clause or endorsement providing that, in the case of livestock insured against death or injury caused by fire or lightning, the words "lightning" is deemed to include other electrical currents.
A contract may be renewed by delivery of a renewal receipt identifying the policy by number, date or otherwise, or a new premium note.
After an application for insurance is made, if it is in writing, any policy sent to the insured shall be deemed to be intended to be in accordance with the terms of the application, unless the insurer points out in writing the particulars wherein it differs from the application, in which case the insured may, within two weeks from the receipt of the notification, reject the policy.
Where the loss, if any, under a contract has, with the consent of the insurer, been made payable to a person other than the insured, the insurer shall not cancel or alter the policy to the prejudice of that person without notice to him.
The length of and manner of giving the notice under subsection (1) shall be the same as notice of cancellation to the insured under the statutory conditions in the contract.
Effect of Statutory Conditions.
The conditions set forth in this section shall be deemed to be part of every contract in force in Manitoba and shall be printed on every policy with the heading " Statutory Conditions" and no variation or omission of or addition to any statutory condition shall be binding on the insured.
In this section "policy" does not include interim receipts or binders.
STATUTORY CONDITIONS
Misrepresentation.
1
If any person applying for insurance falsely describes the property to the prejudice of the insurer, or misrepresents or fraudulently omits to communicate any circumstance which is material to be made known to the insurer in order to enable it to judge of the risk to be undertaken, the contract shall be void as to any property in relation to which the misrepresentation or omission is material.
Property of others.
2
Unless otherwise specifically stated in the contract, the insurer is not liable for loss or damage to property owned by any person other than the insured, unless the interest of the insured therein is stated in the contract.
Change of interest
3
The insurer shall be liable for loss or damage occurring after an authorized assignment under the Bankruptcy Act or change of title by succession, by operation of law, or by death.
Material change.
4
Any change material to the risk and within the control and knowledge of the insured shall avoid the contract as to the part affected thereby, unless the change is promptly notified in writing to the insurer or its local agent; and the insurer when so notified may return the unearned portion, if any, of the premium paid and cancel the contract, or may notify the insured in writing that, if he desires the contract to continue in force, he must, within 15 days of the receipt of the notice, pay to the insurer an additional premium; and in default of such payment the contract shall no longer be in force and the insurer shall return the unearned portion, if any, of the premium paid.
Termination of contract.
5(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.
5(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 amount, in which case the refund shall be made as soon as practicable.
5(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.
5(4)
The refund may be made by money, postal or express company money order, or by cheque payable at par.
5(5)
The 15 days mentioned in clause (l)(a) of this condition commences to run on the day following the receipt of the registered letter at the post office to which it is addressed.
Requirements after loss.
6(1)
Upon the occurrence of any loss of or damage to the insured property, the insured shall, if such loss or damage is covered by the contract, in addition to observing the requirements of Conditions 9, 10 and 11,
(a) forthwith give notice thereof in writing to the insurer;
(b) deliver as soon as practicable to the insurer a proof of loss verified by a statutory declaration
(i) giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed,
(ii) stating when and how the loss occurred, and if caused by fire or explosion due to ignition, how the fire or explosion originated, so far as the insured knows or believes,
(iii) stating that the loss did not occur through any wilful act or neglect or the procurement, means or connivance of the insured,
(iv) showing the amount of other insurances and the names of other insurers,
(v) showing the interest of the insured and of all others in the property with particulars of all liens, encumbrances and other charges upon the property,
(vi) showing any changes in title, use, occupation, location, possession or exposures of the property since the issue of the contract,
(vii) showing the place where the property insured, was at the time of loss;
(c) if required give a complete inventory of undamaged property and showing in detail quantities, cost, actual cash value;
(d) if required and if practicable, produce books of account, warehouse receipts and stock lists, and furnish invoices and other vouchers verified by statutory declaration, and furnish a copy of the written portion of any other contract.
6(2)
The evidence furnished under clauses (l)(c) and (d) of this condition shall not be considered proofs of loss within the meaning of conditions 12 and 13.
Fraud.
7
Any fraud or wilfully false statement in a statutory declaration in relation to any of the above particulars, shall vitiate the claim of the person making the declaration.
Who may give notice and proof.
8
Notice of loss may be given, and proof of loss may be made, by the agent of the insured named in the contract in case of absence or inability of the insured to give the notice or make the proof, and absence or inability being satisfactorily accounted for, or in the like case, or if the insured refuses to do so, by a person to whom any part of the insurance money is payable.
Salvage.
9(1)
The insured, in the event of any loss or damage to any property insured under the contract, shall take all reasonable steps to prevent further damage to any such property so damaged and to prevent damage to other property insured hereunder including, if necessary, its removal to prevent damage or further damage thereto.
9(2)
The insurer shall contribute pro rata towards any reasonable and proper expenses in connection with steps taken by the insured and required under sub-paragraph (1) of this condition according to the respective interests of the parties.
Entry, control abandonment.
10
After any loss or damage to insured property, the insurer shall have an immediate right of access and entry by accredited agents sufficient to enable them to survey and examine the property, and to make an estimate of the loss or damage, and, after the insured has secured the property, a further right of access and entry sufficient to enable them to make appraisement or particular estimate of the loss or damage, but the insurer shall not be entitled to the control or possession of the insured property, and without the consent of the insurer there can be no abandonment to it of insured property.
Appraisal.
11
In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under The Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independent of all other questions. There shall be no right to an appraisal until a specific demand therefor made in writing and until after proof of loss has been delivered.
When loss payable.
12
The loss shall be payable within 60 days after completion of the proof of loss, unless the contract provides for a shorter period.
Replacement.
13(1)
The insurer, instead of making payment, may repair, rebuild, or replace the property damaged or lost, giving written notice of its intention so to do within 30 days after receipt of the proofs of loss.
13(2)
In that event the insurer shall commence to so repair, rebuild, or replace the property within 45 days after receipt of the proofs of loss, and shall thereafter proceed with all due diligence to the completion thereof.
Action.
14
Every action or proceeding against the insurer for the recovery of any claim under or by virtue of this contract shall be absolutely barred unless commenced within two years next after the loss or damage occurs.
Notice.
15
Any written notice to the insurer may be delivered at, or sent by registered mail to, the chief agency or head office of the insurer in the province. Written notice may be given to the insured named in 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.
A contract containing
(a) a deductible clause; or
(b) a co-insurance, average, or similar clause; or
(c) a clause limiting recovery by the insured to a specified percentage of the value of any property insured at the time of loss, whether or not that clause is conditional or unconditional;
shall have printed or stamped upon its face in red ink the words: "This policy contains a clause which may limit the amount payable"; and unless those words are so printed or stamped the clause shall not be binding upon the insured.
Where, on the happening of any loss or damage to property insured, there is in force more than one contract covering the same interest, the insurers under the respective contracts shall each be liable to the insured for its rateable proportion of the loss unless it is otherwise expressly agreed in writing between the insurers.
For the purpose of subsection (1), a contract shall be deemed to be in force notwithstanding any term thereof that the policy shall 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.
Nothing in subsection (1) affects the validity of any divisions of the sum insured into separate items, or any limits of insurance on specified property, or any clause referred to in section 143 or any contract condition limiting or prohibiting the having or placing of other insurance.
Nothing in subsection (1) affects the operation of any deductible clause and
(a) where one contract contains a deductible the pro rata proportion of the insurer under that contract shall be first ascertained without regard to the clause and then the clause shall be applied only to affect the amount of recovery under that contract; and
(b) where more than one contract contains a deductible the pro rata proportion of the insurers under those contracts shall be first ascertained without regard to the deductible clauses and then the highest deductible shall be pro rated among the insurers with deductibles and these pro rated amounts shall affect the amount of recovery under those contracts.
Nothing in subsection (4) shall be construed to have the effect of increasing the pro rata contribution of an insurer under a contract that is not subject to a deductible clause.
Notwithstanding subsection (1), insurance on identified articles shall be a first loss insurance as against all other insurance.
Where a contract
(a) excludes any loss that would otherwise fall within the coverage prescribed by section 138; or
(b) contains any stipulation, condition or warranty that is or may be material to the risk including, but not restricted to, a provision in respect to the use, condition, location or maintenance of the insured property, the exclusion, stipulation, condition or warranty shall not be binding upon the insured if it is held to be unjust or unreasonable by the court before which a question relating thereto is tried.
The insurer, upon making any payment or assuming liability therefor under a contract of fire insurance, shall be subrogated to all rights of recovery of the insured against any person, and may bring action in the name of the insured to enforce such rights.
Where the net amount recovered, after deducting the costs of recovery is not sufficient to provide a complete indemnity for the loss or damage suffered that amount shall be divided between the insurer and the insured in the proportions in which the loss or damage has been borne by them respectively.
Return of premium paid on insurance in excess of appraised value of property.
Subject to subsection (2), in the event of the total destruction of any insured property with respect to which the total amount of insurance money payable is less than the total amount of insurance thereon, the insurer or insurers shall return to the insured person 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, and that amount shall be paid to the insured at the same time and in the same manner as the loss shall be paid.
This section does not apply where an insured person has knowingly placed insurance in excess of the insurable value of any building or property, or interest therein, or to insurance on stocks or merchandise.
LIFE INSURANCE
In this Part,
"application" means an application for insurance or for the reinstatement of insurance; ("proposition")
"beneficiary" means a person, other than the insured or his personal representative, to whom or for whose benefit insurance money is payable in a contract or by a declaration; ("bénéficiaire")
"contract" means a contract of life insurance; ("contrat")
"court" means Her Majesty's Court of Queen's Bench for Manitoba or a judge thereof; ("tribunal")
"creditor's group insurance" means insurance effected by a creditor in respect of the lives of his debtors whereby the lives of the debtors are insured severally under a single contract; ("assurance-prêt")
"declaration" means an instrument signed by the insured
(a) with respect to which an endorsement is made on the policy, or
(b) that identifies the contract, or
(c) that describes the insurance or insurance fund or a part thereof,
in which he designates, or alters or revokes the designation of, his personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable; ("déclaration")
"family insurance" means insurance whereby the lives of the insured and one or more persons related to him by blood, marriage, or adoption are insured under a single contract between an insurer and the insured; ("assurance familiale")
"group insurance" means insurance, other than creditor's group insurance and family insurance, whereby the lives of a number of persons are insured severally under a single contract between an insurer and an employer or other person; ("assurance collective")
"group life insured" means a person whose life is insured by a contract of group insurance but does not include a person whose life is insured under the contract as a person dependent upon, or related to, him; ("personne couverte par une assurance-vie collective")
"instrument" includes a will; ("instrument")
"insurance" means life insurance; ("assurance")
"insurance money" means the amount payable by an insurer under a contract, and includes all benefits, surplus, profits, dividends, bonuses, and annuities payable under the contract; ("sommes assurées")
"insured"
(a) in the case of group insurance means, in the provisions of the Part relating to the designation of beneficiaries and the rights and status of beneficiaries, the group life insured, and
(b) in all other cases means the person who makes a contract with an insurer. ("assuré")
Annuities as insurance for Part V.
For the purposes of this Part, an undertaking entered into by an insurer to provide an annuity, or what would be an annuity except that the periodic payments may be unequal in amount, shall be conclusively deemed to be and always to have been life insurance whether the annuity is for a term certain, for a term dependent either solely or partly on a human life or for a term dependent solely or partly on the happening of an event not related to a human life.
APPLICATION OF PART
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.
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.
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.
In the case of a contract of group insurance made with an insurer authorized to transact insurance in the province at the time the contract was made, this Part applies in determining
(a) the rights and status of beneficiaries if the group life insured was resident in the province at the time he became insured; and
(b) the rights and obligations of the group life insured if he was resident in the province at the time he became insured.
ISSUANCE OF POLICY AND CONTENTS THEREOF
An insurer entering into a contract shall issue a policy.
Subject to subsection (3), the provisions in
(a) the application; and
(b) the policy ; and
(c) any document attached to the policy when issued; and
(d) any amendment to the contract agreed upon in writing after the policy is issued;
constitute the entire contract.
Contract of fraternal society.
In the case of a contract made by a fraternal society, the policy, the Act or instrument of incorporation of the society, its constitution, bylaws 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.
An insurer shall, upon request, furnish to the insured or to a claimant under the contract a copy of the application.
This section does not apply to a contract
(a) of group insurance; or
(b) of creditor's group insurance; or
(c) made by a fraternal society.
An insurer shall set forth the following particulars 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 period of grace, 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.
In the case of a contract of group insurance or of creditor's group insurance, an insurer shall set forth the following particulars in the policy:
(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 period of grace, 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.
Contents of group certificate.
In the case of a contract of group insurance, an insurer shall issue, for delivery by the insured to each group life insured, a certificate or other document in which are set forth the following particulars:
(a) the name of the insurer and an identification of the contract;
(b) the amount, or the method of determining the amount, of insurance on the . group life insured and on any person whose life is insured under the contract as a person dependent upon, or related to, him;
(c) the circumstances in which the insurance terminates and the rights, if any, upon such termination, of the group life insured or of any person whose life is insured under the contract as a person dependent upon, or related to, him.
CONDITIONS GOVERNING FORMATION OF CONTRACT
Subject to subsection (2), where at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.
A contract is not void for lack of insurable interest
(a) if it is a contract of group insurance; or
(b) if the person whose life is insured has consented in writing to the insurance being placed on his life.
Where the person whose life is insured is under the age of 16 years, consent to insurance being placed on his life may be given by one of his parents or by a person standing in loco parentis to him.
Where court may order termination.
A person whose life is insured may, where 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.
Without restricting the meaning of the expression "insurable interest", a person has an insurable interest in his own life and in the life of
(a) his child or grandchild;
(b) his spouse;
(c) any person upon whom he is wholly or in part dependent for, or from whom he is receiving, support or education;
(d) his employee; and
(e) any person in the duration of whose life he has a pecuniary interest.
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, his assign or agent, or to a beneficiary;
(b) payment of the first premium is made to the insurer or its authorized agent; and
(c) no change has taken place in the insurability of the life to be insured between the time the application was completed and the time the policy was delivered.
Where a policy is issued on the terms applied for and is delivered to an agent of the insurer for unconditional delivery to a person referred to in clause (l)(a), it shall be deemed, but not to the prejudice of the insured, to have been delivered to the insured.
Where a cheque or other bill of exchange, or a promissory note or other written promise to pay, is given for the whole or part of a premium and payment is not made according to its tenor, the premium or part thereof shall be deemed not to have been paid.
Where a remittance for or on account of a premium is sent in a registered letter to an insurer and is received by it, the remittance shall be deemed to have been received at the time of the registration of the letter.
Except in the case of group insurance, an assignee of a contract, a beneficiary or a person acting on behalf of one of them or of the insured may pay any premium that the insured is entitled to pay.
Where a premium, other than the initial premium, is not paid at the time it is due, the premium may be paid within a period of grace of
(a) 30 days, or in the case of an industrial contract 28 days, from and excluding the day on which the premium is due; or
(b) the number of days, if any, specified in the contract for payment of an overdue premium;
whichever is the longer period.
Contract in force during grace period.
Where the happening of the event upon which the insurance money becomes payable occurs during the period of grace and before the overdue premium is paid, the contract shall be deemed to be in effect as if the premium had been paid at the time it was due, but the amount of the premium, together with interest at the rate specified in the contract, but not exceeding 6% per annum, and the balance, if any, of the current year's premium may be deducted from the insurance money.
An applicant for insurance and a person whose life is to be insured shall each disclose to the insurer in the application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within his knowledge that is material to the insurance and is not so disclosed by the other.
Subject to section 161, a failure to disclose, or a misrepresentation of, such a fact renders the contract voidable by the insurer.
This section does not apply to a misstatement of age or to disability insurance.
Subject to subsection (3), where a contract has been in effect for two years during the lifetime of the person whose life is insured, a failure to disclose, or a misrepresentation of, a fact required to be disclosed by section 160 does not, in the absence of fraud, render the contract voidable.
Incontestability in group insurance.
In the case of a contract of group insurance a failure to disclose or a misrepresentation of, such a fact in respect of a person whose life is insured under the contract does not render the contract voidable; but if evidence of insurability is specifically requested by the insurer the insurance in respect of that person is voidable by the insurer unless it has been in effect for two years during the lifetime of that person, in which event it is not, in the absence of fraud, voidable.
Where an insurer fails to disclose, or misrepresents, a fact material to the insurance, the contract is voidable by the insured; but in the absence of fraud the contract is not, by reason of such a failure or misrepresentation, voidable after the contract has been in effect for two years.
This section does not apply to a contract of group insurance or of creditor's group insurance.
Subject to subsection (3), where the age of a person whose life is insured is misstated to the insurer, the insurance money provided by the contract shall be increased or decreased to the amount that would have been provided for the same premium at the correct age.
Where a contract limits the insurable age, and the correct age of the person whose life is insured at the date of the application exceeds the age so limited, the contract is, during the lifetime of that person but not later than five years from the date the contract takes effect, voidable by the insurer within 60 days after it discovers the error.
Misstatement of age in group insurance.
In the case of a contract of group insurance or of creditor's group insurance, a misstatement to the insurer of the age of a person whose life is insured does not of itself render the contract voidable, and the provisions, if any, of the contract, with respect to age or misstatement of age apply.
Where a contract contains an undertaking, express or implied, that insurance money will be paid if a person whose life is insured commits suicide, the undertaking is lawful and enforceable.
Where a contract provides that in case a person whose life is insured commits suicide within a certain period of time the contract is void or the amount payable under it is reduced, if the contract lapses and is subsequently reinstated on one or more occasions, the period of time commences to run from the date of the latest reinstatement.
This section does not apply to a contract of group insurance or to a contract made by a fraternal society.
Where a contract lapses and the insured within two years applies for reinstatement of the contract, if within that time he
(a) pays the overdue premiums and other indebtedness under the contract to the insurer, together with interest at the rate specified in the contract, but not exceeding 6% per annum, compounded annually; and
(b) produces
(i) evidence satisfactory to the insurer of the good health, and
(ii) other evidence satisfactory to the insurer of the insurability, of the person whose life was insured;
the insurer shall reinstate the contract.
Subsection (2) does not apply where the cash surrender value has been paid or an option of taking paid-up or extended insurance has been exercised.
Application of other sections.
Section 160 and 161 apply, with such modifications as the circumstances require, to reinstatement of a contract.
DESIGNATION OF BENEFICIARIES
An insured may in a contract or by a declaration designate his personal representative or a beneficiary to receive insurance money.
Subject to section 168, the insured may alter or revoke the designation by a declaration.
A designation in favour of the "heirs", "next of kin" or "estate" of the insured, or the use of words of like import in a designation shall be deemed to be a designation of the personal representative of the insured.
Designation of beneficiary irrevocably.
An insured may, in a contract or by a declaration, other than a declaration that is part of a will, filed with the insurer at its head or principal office in Canada during the lifetime of the person whose life is insured, designate a beneficiary irrevocably; and in that event the insured, while the beneficiary is living, may not alter or revoke the designation without the consent of the beneficiary and the insurance money is not subject to the control of the insured or of his creditors and does not form part of his estate.
Where the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as provided in subsection (1), the designation has the same effect as if the insured had not purported to make it irrevocable.
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.
Notwithstanding The Wills Act, a designation in a will is of no effect against a designation made later than the making of the will.
Where a designation is contained in a will, if subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
Where a designation is contained in an instrument that purports to be a will, if subsequently the instrument if valid as a will would be revoked by operation of law or otherwise, the designation is thereby revoked.
An insured may, in a contract or by a declaration, appoint a trustee for a beneficiary and may alter or revoke the appointment by a declaration.
A payment made by an insurer to a trustee for a beneficiary discharges the insurer to the extent of the payment.
Beneficiary predeceasing life insured.
Where a beneficiary predeceases the person whose life is insured, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by a declaration, the share is payable
(a) to the surviving beneficiary; or
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries, in equal shares; or
(c) if there is no surviving beneficiary, to the insured or his personal representative.
Where two or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is made, the insurance money is payable to them in equal shares.
A beneficiary may enforce for his own benefit, and a trustee appointed pursuant to section 170 may enforce as trustee, the payment of insurance money made payable to him in the contract or by a declaration and in accordance with the provisions thereof; but the insurer may set up any defence that it could have set up against the insured or his personal representative.
Insurance money free from creditors.
Where a beneficiary is designated, the insurance money, from the time of the happening of the event upon which the insurance money becomes payable, is not part of the estate of the insured and is not subject to the claims of the creditors of the insured.
While a designation in favour of a spouse, child, grandchild or parent of a person whose life is insured, or any of them, is in effect, the insurance money and the rights and interests of the insured therein and in the contract are exempt from execution or seizure.
DEALINGS WITH CONTRACT DURING LIFETIME OF INSURED
Insured dealing with contract.
Where 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 therein or in this Part or as may be agreed upon with the insurer.
Insured entitled to dividends.
Notwithstanding the designation of a beneficiary irrevocably, the insured is entitled while living to the dividends or bonuses declared on a contract, unless the contract otherwise provides.
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.
Notwithstanding The Wills Act, where in a contract or in an agreement in writing between an insurer and an insured it is provided that a person named in the contract or in the agreement has, upon the death of the insured, the rights and interests of the insured in the contract,
(a) the rights and interests of the insured in the contract do not, upon the death of the insured, form part of his estate; and
(b) upon the death of the insured, the person named in the contract or in the agreement has the rights and interests given to the insured by the contract and by this Part and shall be deemed to be the insured.
Where the contract or agreement provides that two or more persons named in the contract or in the agreement shall, upon the death of the insured, have successively on the death of each of them, the rights and interests of the insured in the contract, this section applies successively, with such modifications as the circumstances require, to each of such persons and to his rights and interests in the contract.
Notwithstanding any nomination made pursuant to this section, the insured may, prior to his death, assign, exercise rights under or in respect of, surrender, or otherwise deal with, the contract as if the nomination had not been made, and may alter or revoke the nomination by agreement in writing with the insurer.
Where an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada, he has priority of interest as against
(a) an assignee other than one who gave notice earlier in like manner; and
(b) a beneficiary other than one designated irrevocably as provided in section 168 prior to the time the assignee gave notice to the insurer of the assignment in the manner prescribed in this subsection.
Effect on beneficiary's rights.
Where a contract is assigned as security, the rights of a beneficiary under the contract are affected only to the extent necessary to give effect to the rights and interests of the assignee.
Assignee deemed to be insured.
Where a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given to the insured by the contract and by this Part and shall be deemed to be the insured.
Prohibition against assignment.
A provision in a contract to the effect that the rights or interests of the insured, or in the case of group insurance the group life insured, are not assignable is valid.
Group life insured enforcing rights.
A group life insured may in his own name enforce a right given to him under a contract, subject to any defence available to the insurer against him or against the insured.
MINORS
Except in respect of his rights as beneficiary, a minor who has attained the age of 16 years has the capacity of a person of the age of 18 years
(a) to make an enforceable contract; and
(b) in respect of a contract.
PROCEEDINGS UNDER CONTRACT
Where an insurer receives sufficient evidence of
(a) the happening of the event upon which insurance money becomes payable;
(b) the age of the person whose life is insured;
(c) the right of the claimant to receive payment; and
(d) the name and age of the beneficiary, if there is a beneficiary;
it shall, within 30 days after receiving the evidence, pay the insurance money to the person entitled thereto.
Subject to subsection 182(2), insurance money is payable in the province.
Unless a contract otherwise provides, a reference therein to dollars means Canadian dollars.
Where a person entitled to receive insurance money is not domiciled in the province, the insurer may pay the insurance money to that person or to any other person who is entitled to receive it on his behalf by the law of the domicile of the payee.
Exception for group insurance.
In the case of a contract of group insurance, insurance money is payable in the province or territory of Canada in which the group life insured was resident at the time he became insured.
Notwithstanding where a contract was made, an action on it may be brought in a court by a resident of the province if the insurer was authorized to transact insurance in the province at the time the contract was made or at the time the action is brought.
Subject to subsection (2), an action or proceeding against an insurer for the recovery of insurance money shall not be commenced more than one year after the furnishing of the evidence required by section 180, or more than six years after the happening of the event upon which the insurance money becomes payable, whichever period first expires.
Where a declaration has been made under section 187, an action or proceeding to which reference is made in subsection (1) shall not be commenced more than one year after the date of the declaration.
Until an insurer receives at its head or principal office in Canada an instrument or an order of a court affecting the right to receive insurance money, or a notarial copy, or a copy verified by statutory declaration, of any such instrument or order, it may make payment of the insurance money and shall be as fully discharged to the extent of the amount paid as if there were no such instrument or order.
Subsection (1) does not affect the rights or interests of any person other than the insurer.
Declaration as to sufficiency of proof.
Where an insurer admits the validity of the 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 upon at least 30 days' notice, apply to the court for a declaration as to the sufficiency of the evidence furnished, and the court may make the declaration or may direct what further evidence shall be furnished and on the furnishing thereof may make the declaration or, in special circumstances, may dispense with further evidence.
Declaration as to presumption of death.
Where a claimant alleges that the person whose life is insured should be presumed to be dead by reason of his 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 upon 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.
Upon making a declaration under section 186 or section 187, the court may make such order respecting the payment of the insurance money and respecting costs as it deems just and, subject to section 190, a declaration or direction or order made under this subsection is binding upon the applicant and upon all persons to whom notice of the application has been given.
A payment made under an order made under subsection (1) discharges the insurer to the extent of the amount paid.
Unless the court otherwise orders, an application made under section 186 or section 187 operates as a stay of any pending action with respect to the insurance money.
An appeal lies to The Court of Appeal from any declaration, direction or order made under section 186, section 187, or subsection 188(1).
Where the court finds that the evidence furnished 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 such other order as it deems just respecting further evidence to be furnished by the claimant, publication of advertisements, further inquiry or any other matter or respecting costs.
Where an insurer admits liability for insurance money and it appears to the insurer that
(a) there are adverse claimants; or
(b) the whereabouts of a person entitled is unknown; or
(c) there is no person capable of giving and authorized to give a valid discharge therefor, who is willing to do so;
the insurer may, at any time after 30 days from the date of the happening of the event upon which the insurance money becomes payable, 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.
Unless a contract or a declaration otherwise provides, where the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable in accordance with subsection 171(1) as if the beneficiary had predeceased the person whose life is insured.
Insurance money payable in instalments.
Subject to subsections (2) and (3), where insurance money is payable in instalments and a contract, or an instrument signed by the insured, and delivered to the insurer, provides that a beneficiary has not the right to commute the instalments or to alienate or assign his interest therein, the insurer shall not, unless the insured subsequently directs otherwise in writing, commute the instalments or pay them to any person other than the beneficiary; and the instalments are not, in the hands of the insurer, subject to any legal process except an action to recover the value of necessaries supplied to the beneficiary or his infant children.
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 his interest in the insurance money.
Commutation after death of beneficiary.
After the death of the beneficiary, his personal representative may, with the consent of the insurer, commute any instalments of insurance money payable to the beneficiary.
In this section "instalments" includes insurance money held by the insurer under section 195.
Insurer holding insurance money.
An insurer may hold insurance money
(a) subject to the order of an insured or a beneficiary; or
(b) upon trusts or other agreements for the benefit of the insured or the beneficiary;
as provided in the contract, by an agreement in writing to which it is a party, or by a declaration, with interest at a rate agreed upon therein or, where no rate is agreed upon, at the rate declared from time to time by the insurer in respect of insurance money so held by it.
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.
Where an insurer does not, within 30 days after receipt of the evidence required by section 180, pay the insurance money to some person competent to receive it or into court, the court may, upon application of any person, order that the insurance money or any part thereof be paid into court, or may make such other order as to the distribution of the money as it deems just, and payment made in accordance with the order discharges the insurer to the extent of the amount paid.
The court may fix, without taxation, the costs incurred in connection with an application or order made under section 192 or section 196, and may order them to be paid out of the insurance money or by the insurer or the applicant or otherwise as it deems just.
Where an insurer admits liability for insurance money payable to a minor and there is no person capable of giving, and authorized to give a discharge therefor, who is willing to do so, the insurer may, at any time after 30 days from the date of the happening of the event upon which the insurance money becomes payable, pay the money to the Public Trustee for the benefit of the minor and notify the Public Trustee of the name, date of birth and residence of the minor.
Where it appears that a representative of a beneficiary who is under disability may, under the law of the domicile of the beneficiary, accept payments on behalf of the beneficiary, the insurer may make payment to the representative; and any such payment discharges the insurer to the extent of the amount paid.
MISCELLANEOUS PROVISIONS
No officer, agent or employee of an insurer and no person soliciting insurance, whether or not he is an agent of the insurer shall, to the prejudice of the insured, be deemed to be the agent of the insured in respect of any question arising out of a contract.
An insurer does not incur any liability for any default, error, or omission in giving or withholding information as to any notice or instrument that it has received and that affects the insurance money.
This Part shall be so interpreted and construed as to effect its general purpose of making uniform the law of the provinces the legislatures of which enact it.
ACCIDENT AND SICKNESS INSURANCE
In this Part,
"application" means a written application for insurance or for the reinstatement of insurance; ("proposition")
"beneficiary" means a person designated or appointed in a contract or by a declaration, other than the insured or his personal representative, to whom or for whose benefit insurance money payable in the event of death by accident is to be paid; ("bénéficiaire")
"blanket insurance" means that class of group insurance which covers loss arising from specific hazards incident to or defined by reference to a particular activity or activities; ("assurance globale" )
"contract" means a contract of insurance; ("contrat")
"court" means the Court of Queen's Bench; ("tribunal")
"creditor's group insurance" means insurance effected by a creditor whereby the lives or wellbeing, or the lives and well-being, of a number of his debtors are insured severally under a single contract; ("assurance-prêt")
"declaration" means an instrument signed by the insured,
(a) with respect to which an endorsement is made on the policy, or
(b) that identifies the contract, or
(c) that describes the insurance or insurance fund or a part thereof,
in which he designates or alters or revokes the designation of his personal representative or a beneficiary as one to whom or for whose benefit shall be paid the insurance money which is payable in the event of death by accident; ("déclaration")
"family insurance" means insurance whereby the lives or well-being, or the lives and wellbeing, of the insured and one or more persons related to him by blood, marriage or adoption are insured under a single contract between an insurer and the insured; ("assurance familiale")
"group insurance" means insurance other than creditor's group insurance and family insurance, whereby the lives or well-being, or the lives and well-being, of a number of persons are insured severally under a single contract between an insurer and an employer or other person; ("assurance collective")
"group person insured" means a person who is insured under a contract of group insurance and upon whom a right is conferred by the contract, but does not include a person who is insured thereunder as a person dependent upon or related to him; ("personne couverte par une assurance collective")
"instrument" includes a will; ("instrument")
"insurance" means accident insurance, sickness insurance, or accident insurance and sickness insurance; ("assurance")
"insured"
(a) in the case of group insurance means, in the provisions of this Part relating to the designation of beneficiaries or of personal representatives as recipients of insurance money and their rights and status, the group person insured, and
(b) in all other cases means the person who makes a contract with an insurer; ("assuré")
"person insured" means a person in respect of an accident to whom, or in respect of whose sickness, insurance money is payable under a contract, but does not include a group person insured; ("personne assurée")
"will" includes a codicil. ("testament")
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.
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.
This Part does not apply to
(a) accidental death insurance; or
(b) creditor's group insurance; or
(c) disability insurance; or
(d) insurance provided under section 263, 264 or 265.
In the case of a contract of group insurance made with an insurer authorized to transact insurance in the province 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 the province at the time he became insured; and
(b) the rights and obligations of the group person insured if he was resident in the province at the time he became insured.
An insurer entering into a contract shall issue a policy.
Subsection (2) does not apply to
(a) a contract of group insurance; or
(b) a contract made by a fraternal society.
An insurer shall set forth the following particulars in the policy:
1.
the name or a sufficient description of the insured and of the person insured;
2.
the amount or the method of determining the amount of the insurance money payable and the conditions under which it becomes payable;
3.
the amount or the method of determining the amount of the premium and the period of grace, if any, within which it may be paid;
4.
the conditions upon which the contract may be reinstated if it lapses;
5.
the term of the insurance or the method of determining the day upon which the insurance commences and terminates.
In the case of a contract of group insurance, an insurer shall set forth the following particulars in the policy:
1.
the name or a sufficient description of the insured;
2.
the method of determining the group persons insured and persons insured;
3.
the amount or the method of determining the amount of the insurance money payable and the conditions under which it becomes payable;
4.
the period of grace, if any, within which the premium may be paid;
5.
the term of the insurance or the method of determining the day upon which the insurance commences and terminates.
In this section
"original maximum benefit period" means, in relation to a contract of group insurance, the maximum period provided under that contract for the payment of any benefit payable thereunder in respect of loss of income; ("période initiale d'indemnité maximale")
"prescribed time period" means, in relation to a contract of group insurance, a continuous period of six months following the termination of the contract or a benefit provision therein or such longer continuous period as may be provided in that contract instead of that six month period. ("délai prévu")
Liability of group insurer on termination.
Where a contract of group insurance or a benefit provision therein is terminated, the insurer continues, as though the contract or benefit provision had remained in full force and effect, to be liable, to or in respect of any group person insured under the contract, to pay benefits thereunder relating to
(a) loss of income because of disability ; or
(b) death; or
(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 the prescribed time period.
Notwithstanding subsection (2), an insurer does not remain liable, under a contract or benefit provision described in that subsection, to pay a benefit for loss of income for the recurrence, after the termination of that contract or benefit provision, of a disability that recurs after a continuous period of six months, or such longer period as is provided in the contract, during which the group person insured was not disabled.
An insurer who is liable under subsection (2) to pay a benefit for loss of income on account of the disability of a group person insured is not liable to pay benefits for any period longer than the period remaining of the original maximum benefit period in respect of the disability of the group person insured.
Rights of insured under replacing group contract
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.
Contents of group certificate.
Except as provided in subsection (2), in the case of a contract of group insurance an insurer shall issue for delivery by the insured to each group person insured a certificate or other document in which are set forth the following particulars:
1.
the name of the insurer and a sufficient identification of the contract;
2.
the amount or the method of determining the amount of insurance on the group person insured and on any person insured;
3.
the circumstances under which the insurance terminates, and the rights, if any, upon such termination of the group person insured and of any person insured.
This section does not apply to a contract of blanket insurance or to a contract of group insurance of a non-renewable type issued for a term of six months or less.
Subject to section 211 and except as otherwise provided in this section, the insurer shall set forth in the policy every exception or reduction affecting the amount payable under the contract, either in the provision affected by the exception or reduction, or under a heading such as "Exceptions" or " Reductions".
Where the exception or reduction affects only one provision in the policy it shall be set forth in that provision.
Where the exception or reduction is contained in an endorsement, insertion or rider, the endorsement, insertion or rider shall, unless, it affects all amounts payable under the contract, make reference to the provisions in the policy affected by the exception or reduction.
The exception or reduction mentioned in section 223 need not be set forth in the policy.
This section does not apply to a contract made by a fraternal society.
Subject to section 212, the conditions set forth in this section shall be deemed to be part of every contract other than a contract of group insurance, and shall be printed on or attached to the policy forming part of such contract with the heading "Statutory Conditions".
STATUTORY CONDITIONS
The contract.
1(1)
The application, this policy, any document attached to this policy when issued, and any amendment to the contract agreed upon in writing after the policy is issued, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.
Waiver.
1(2)
The insurer shall be deemed not to have waived any condition of this contract, either in whole or in part, unless the waiver is clearly expressed in writing signed by the insurer.
Copy of application.
1(3)
The insurer shall, upon request, furnish to the insured or to a claimant under the contract a copy of the application.
Material facts.
2
No statement made by the insured or person insured at the time of application for this contract shall be used in defence of a claim under or to avoid this contract unless it is contained in the application or any other written statements or answers furnished as evidence of insurability.
Changes in occupation.
3(1)
If after the contract is issued the person insured engages for compensation in an occupation that is classified by the insurer as more hazardous than that stated in this contract, the liability under this contract is limited to the amount that the premium paid would have purchased for the more hazardous occupation according to the limits, classification of risks and premium rates in use by the insurer at the time the person insured engaged in the more hazardous occupation.
3(2)
If the person insured changes his occupation from that stated in this contract to an occupation classified by the insurer as less hazardous and the insurer is so advised in writing, the insurer shall either,
(a) reduce the premium rate; or
(b) issue a policy for the unexpired term of this contract at the lower rate of premium applicable to the less hazardous occupation;
according to the limits, classification of risks, and premium rates used by the insurer at the date of receipt of advice of the change in occupation, and shall refund to the insured the amount by which the unearned premium on this contract exceeds the premium at the lower rate for the unexpired term.
Relations of earnings to insurance.
Where the benefits for loss of time payable hereunder, either alone or together with benefits for loss of time under another contract, including a contract of group accident insurance or group sickness insurance or of both and a life insurance contract providing disability insurance, exceed the money value of the time of the person insured, the insurer is liable only for that proportion of the benefits or loss of time stated in this policy that the money value of the time of the person insured bears to the aggregate of the benefits for loss of time payable under all such contracts and the excess premium, if any, paid by the insured shall be returned to him by the insurer.
Termination by insured.
The insured may terminate this contract at any time by giving written notice of termination to the insurer by registered mail to its head office or chief agency in the province, or by delivery thereof to an authorized agent of the insurer in the province, and the insurer shall upon surrender of this policy refund the amount of premium paid in excess of the short rate premium calculated to the date of receipt of such notice according to the table in use by the insurer at the time of termination.
Termination by insurer.
The insurer may terminate this contract at any time by giving written notice of termination to the insured and by refunding concurrently with the giving of notice the amount of premium paid in excess of the pro rata premium for the expired time.
6(2) The notice of termination may be delivered to the insured, or it may be sent by registered mail to the latest address of the insured on the records of the insurer.
6(3) Where the notice of termination is delivered to the insured, five days notice of termination shall be given; where it is mailed to the insured, 10 days notice of termination shall be given, and the 10 days shall begin on the day following the date of mailing of notice.
Notice and proof of claim.
7(1)
The insured or a person insured, or a beneficiary entitled to make a claim or the agent of any of them, shall
(a) give written notice of claim to the insurer
(i) by delivery thereof, or by sending it by registered mail to the head office or chief agency of the insurer in the province; or
(ii) by delivery thereof to an authorized agent of the insurer in the province, not later than 30 days from the date a claim arises under the contract on account of an accident, sickness or disability;
(b) within 90 days from the date a claim arises under the contract on account of an accident, sickness or disability, furnish to the insurer such proof as is reasonably possible in the circumstances of the happening of the accident or the commencement of the sickness or disability, and the loss occasioned thereby, the right of the claimant to receive payment, his age, and the age of the beneficiary if relevant; and
(c) if so required by the insurer, furnish a satisfactory certificate as to the cause or nature of the accident, sickness or disability for which claim may be made under the contract and as to the duration of such disability.
Failure to give notice or proof.
7(2)
Failure to give notice of claim or furnish proof of claim within the time prescribed by this statutory condition does not invalidate the claim if the notice or proof is given or furnished as soon as reasonably possible, and in no event later than one year from the date of the accident or the date a claim arises under the contract on account of sickness or disability if it is shown that it was not reasonably possible to give notice or furnish proof within the time so prescribed.
Insurer to furnish forms for proof of claim.
8
The insurer shall furnish forms for proof of claim within 15 days after receiving notice of claim, but where the claimant has not received the forms within that time he may submit his proof of claim in the form of a written statement of the cause or nature of the accident, sickness or disability giving rise to the claim and of the extent of the loss.
Rights of examination.
9
As a condition precedent to recovery of insurance moneys under this contract,
(a) the claimant shall afford to the insurer an opportunity to examine the person of the person insured when and so often as it reasonably requires while the claim hereunder is pending; and
(b) in the case of death of the person insured, the insurer may require an autopsy subject to any law of the applicable jurisdiction relating to autopsies.
When moneys payable other than for loss of time.
10
All moneys payable under this contract, other than benefits for loss of time, shall be paid by the insurer within 60 days after it has received proof of claim.
When loss of time benefits payable.
11
The initial benefits for loss of time shall be paid by the insurer within 30 days after it has received proof of claim, and payment shall be made thereafter in accordance with the terms of the contract but not less frequently than once in each succeeding 60 days while the insurer remains liable for the payments if the person insured when required to do so furnishes before payment proof of continuing disability.
Limitation of actions.
12
An action or proceeding against the insurer for the recovery of a claim under this contract shall not be commenced more than one year after the date the insurance money became payable or would have become payable if it had been a valid claim.
Omission or variation of conditions.
Where a statutory condition is not applicable to the benefits provided by the contract it may be omitted from the policy or varied so that it will be applicable.
Statutory conditions 3, 4 and 9 may be omitted from the policy if the contract does not contain any provisions respecting the matters dealt with therein.
Statutory conditions 5 and 6 shall be omitted from the policy if the contract does not provide that it may be terminated by the insurer prior to the expiry of any period for which a premium has been accepted.
Statutory conditions 3, 4, 5, 6 and 9, and subject to the restriction in subsection (5), statutory condition 7, may be varied but if by reason of the variation the contract is less favourable to the insured, a person insured or a beneficiary than it would be if the condition had not been varied, the condition shall be deemed to be included in the policy in the form in which it appears in section 211.
Clauses (l)(a) and (b) of statutory condition 7 as enacted may not be varied in policies providing benefits for loss of time.
Statutory conditions 10 and 11 may be varied by shortening the periods of time prescribed therein, and statutory condition 12 may be varied by lengthening the period of time prescribed therein.
The title of a statutory condition shall be reproduced in the policy along with the statutory condition, but the number of a statutory condition may be omitted.
In the case of a contract made by a fraternal society,
(a) the following provision shall be printed on every policy in substitution for subsection (1) of statutory condition 1:
The contract.
1(1) This policy, the Act or instrument of incorporation of the society, its constitution, bylaws and rules, and the amendments made from time to time to any of them, the application for the contract and the medical statement of the applicant, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.; and
(b) statutory condition 5 shall not be printed on the policy.
Notice of statutory conditions.
In the case of a policy of accident insurance of a non-renewable type issued for a term of six months or less or in relation to a ticket of travel, the statutory conditions need not be printed on or attached to the policy if the policy contains the following notice printed in conspicuous type:
"Notwithstanding any other provision herein contained, this contract is subject to the statutory conditions in The Insurance Act respecting contracts of accident insurance."
Termination for non-payment of initial or renewal premium.
Where a policy evidencing a contract or a certificate evidencing the renewal of a contract is delivered to the insured and the initial premium or in the case of a renewal certificate the renewal premium therefor has not been fully paid,
(a) the contract or the renewal thereof evidenced by the certificate is as binding on the insurer as if such premium had been paid although delivered by an officer or agent of the insurer who did not have authority to deliver it; and
(b) the contract may be terminated for nonpayment of the premium by the insurer upon 10 days' notice of termination given in writing to the insured and mailed postage prepaid and registered to the latest address of the insured on the records of the insurer and the 10 days shall begin on the day following the date of mailing such notice.
This section does not apply to a contract of group insurance or to a contract made by a fraternal society.
An insurer may
(a) deduct unpaid premiums from an amount which it is liable to pay under a contract; or
(b) sue the insured for unpaid premiums.
Where cheque or note for premium not paid.
Where a cheque or other bill of exchange or a promissory note or other written promise to pay is given for the whole or part of a premium and payment is not made according to its tenor the premium or part thereof shall be deemed never to have been paid.
Clause (l)(a) does not apply to a contract of group insurance.
This section does not apply to a contract made by a fraternal society.
Without restricting the meaning of the expression "insurable interest", a person has an insurable interest in his own life and well-being and in the life and well-being of
(a) his child or grandchild;
(b) his spouse;
(c) any person upon whom he is wholly or in part dependent for, or from whom he is receiving, support or education;
(d) his officer or employee; and
(e) any person in whom he has a pecuniary interest.
Subject to subsection (2), where at the time a contract would otherwise take effect, the insured has no insurable interest, the contract is void.
A contract is not void for lack of insurable interest
(a) if it is a contract of group insurance; or
(b) if the person insured has consented in writing to the insurance.
Where the person insured is under the age of 16 years, consent to the insurance may be given by one of his parents or by a person standing in loco parentis to him.
POLICIES ON LIVES OF MINORS
Except in respect of his rights as beneficiary, a minor who has attained the age of 16 years has the capacity of a person of the age of 18 years
(a) to make an enforceable contract; and
(b) in respect of a contract.
MISREPRESENTATION AND NON-DISCLOSURE
An applicant for insurance on his own behalf and on behalf of each person to be insured, and each person to be insured, shall disclose to the insurer in any application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within his knowledge that is material to the insurance and is not so disclosed by the other.
Subject to sections 220 and 223, a failure to disclose, or a misrepresentation of, such a fact renders a contract voidable by the insurer.
Group insurance failure to disclose.
In the case of a contract of group insurance, a failure to disclose or a misrepresentation of such a fact with respect to a group person insured or a person insured under the contract does not render the contract voidable, but if evidence of insurability is specifically requested by the insurer, the insurance in respect of such a person is, subject to section 220, voidable by the insurer.
Subject to section 223 and except as provided in subsection (2),
(a) where a contract, including renewals thereof, except a contract of group insurance, has been in effect continuously for two years with respect to a person insured, a failure to disclose or a misrepresentation of a fact with respect to that person required by section 219 to be disclosed does not, except in the case of fraud, render the contract voidable; and
(b) where a contract of group insurance, including renewals thereof, has been in effect continuously for two years with respect to a group person insured or a person insured, a failure to disclose or a misrepresentation of a fact with respect to that group person insured or person insured required by section 219 to be disclosed does not, except in the case of fraud, render the contract voidable with respect to that group person insured or person insured.
Where a claim arises from a loss incurred or a disability beginning before a contract, including renewals thereof, has been in force for two years with respect to the person in respect of whom the claim is made, subsection (1) does not apply to that claim.
Application of incontestability to reinstatement.
Sections 219 and 220 apply with such modifications as the circumstances require to a failure at the time of reinstatement of a contract to disclose or a misrepresentation at that time, and the period of two years to which reference is made in section 220 commences to run in respect of a reinstatement from the date of reinstatement.
Where a contract contains a general exception or reduction with respect to pre-existing disease or physical condition and the person insured or group person insured suffers or has suffered from a disease or physical condition that existed before the date the contract came into force with respect to that person and the disease or physical condition is not by name or specific description excluded from the insurance respecting that person,
(a) the prior existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part for a loss incurred or a disability beginning after the contract, including renewals thereof, has been in force continuously for two years immediately prior to the date of loss incurred or commencement of disability with respect to that person; and
(b) the existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part if the disease or physical condition was disclosed in the application for the contract.
Subject to subsections (2) and (3), if the age of the person insured has been misstated to the insurer then, at the option of the insurer, either
(a) the benefits payable under the contract shall be increased or decreased to the amount that would have been provided for the same premium at the correct age; or
(b) the premium may be adjusted in accordance with the correct age as of the date the person insured became insured.
Misstatement of age in group insurance.
In the case of a contract of group insurance, if there is a misstatement to the insurer of the age of a group person insured or person insured, the provisions, if any, of the contract with respect to age or misstatement of age shall apply.
Where the age of a person affects the commencement or termination of the insurance, the true age governs.
BENEFICIARIES
Unless otherwise provided in the policy, an insured may in a contract or by a declaration designate his personal representative or a beneficiary to receive insurance money payable in the event of death by accident, and may from time to time alter or revoke the designation by declaration.
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.
A designation in a will is of no effect against a designation made later than the making of the will.
If a designation is contained in a will and subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
If a designation is contained in an instrument that purports to be a will and subsequently the instrument, if it had been valid as a will would have been revoked by operation of law or otherwise, the designation is thereby revoked.
A designation in favour of the "heirs", "next-of-kin" or "estate", or the use of words of like import in a designation shall be deemed to be a designation of the personal representative.
Where a beneficiary predeceases the person insured or group person insured, as the case may be, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by declaration, the share is payable,
(a) to the surviving beneficiary; or
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or
(c) if there is no surviving beneficiary, to the insured or group person insured, as the case may be, or his personal representative.
A beneficiary designated under section 224 may upon the death by accident of the person insured or group person insured enforce for his own benefit, and a trustee appointed pursuant to section 226 may enforce as trustee, the payment of insurance money payable to him, and the payment to the beneficiary or trustee discharges the insurer to the extent of the amount paid, but the insurer may set up any defence that it could have set up against the insured or his personal representative.
An insured may in a contract or by a declaration appoint a trustee for a beneficiary, and may alter or revoke the appointment by a declaration.
Until an insurer receives at its head or principal office in Canada an instrument or an order of a court affecting the right to receive insurance money, or a notarial copy or a copy verified by statutory declaration of any such instrument or order, it may make payment of the insurance money and shall be as fully discharged to the extent of the amount paid as if there were no such instrument or order.
Subsection (1) does not affect the rights or interests of any person other than the insurer.
Where an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada he has priority of interest as against
(a) any assignee other than one who gave notice earlier in like manner; and
(b) a beneficiary.
Assignee deemed to be insured.
Where a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given by the contract and by this Part to the insured, and shall be deemed to be the insured.
Prohibition against assignment.
A provision in a contract to the effect that the rights or interests of the insured, or in the case of a contract of group insurance the group person insured, are not assignable, is valid.
Insurance money fee from creditors.
Where a beneficiary is designated, any insurance money payable to him 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.
While there is in effect a designation of beneficiary in favour of any one or more of a spouse, child, grandchild or parent of the person insured or group person insured, the rights and interests of the insured in the insurance money and in the contract so far as either relate to accidental death benefits are exempt from execution or seizure.
Group person insured enforcing rights.
A group person insured may, in his own name, enforce a right given by a contract to him, or to a person insured thereunder as a person dependent upon or related to him, subject to any defence available to the insurer against him or such person insured or against the insured.
Unless a contract or a declaration otherwise provides, where a person insured or group person insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable in accordance with subsection 225(2) as if the beneficiary had predeceased the person insured or group person insured.
Where the insurer admits liability for the insurance money or any part thereof, and it appears to the insurer that
(a) there are adverse claimants; or
(b) the whereabouts of the person entitled is unknown; or
(c) there is no person capable of giving or authorized to give a valid discharge therefor who is willing to do so;
the insurer may apply ex parte to the court for an order for payment of money into court, and the court may upon such notice, if any, as it deems necessary, make an order accordingly.
The court may fix without taxation the costs incurred upon or in connection with any application or order made under subsection (1), and may order the costs to be paid out of the insurance money or by the insurer or otherwise as it deems just.
A payment made pursuant to an order under subsection (1) discharges the insurer to the extent of the payment.
Where an insurer admits liability for insurance money payable to a minor and there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so, the insurer may at any time after 30 days from the date of the happening of the event upon which the insurance money becomes payable, pay the money less the applicable costs mentioned in subsection (5) into court to the credit of the minor.
The insurer may retain out of the insurance money for costs incurred upon payment into court under subsection (4), the sum of $10. where the amount does not exceed $1, 000., and the sum of $15. in other cases, and payment of the remainder of the money into court discharges the insurer.
No order is necessary for payment into court under subsection (4), but the accountant or other proper officer shall receive the money upon the insurer filing with him an affidavit showing the amount payable and the name, date of birth and residence of the minor, and upon such payment being made the insurer shall forthwith notify the Public Trustee in his capacity as official guardian and deliver to him a copy of the affidavit.
Where it appears that a representative of a beneficiary who is under disability may under the law of the domicile of the beneficiary accept payments on behalf of the beneficiary, the insurer may make payment to the representative and any such payment discharges the insurer to the extent of the amount paid.
Payments not exceeding $2,000.
Notwithstanding that insurance money is payable to a person, the insurer may if the contract so provides, but subject always to the rights of an assignee, pay an amount not exceeding $2,000. to
(a) a relative by blood or connection by marriage of a person insured or the group person insured;
or
(b) any person appearing to the insurer to be equitably entitled thereto by reason of having incurred expense for the maintenance, medical attendance or burial of a person insured or the group person insured, or to have a claim against the estate of a person insured or the group person insured in relation thereto;
and any such payment discharges the insurer to the extent of the amount paid.
Subject to subsection (10), insurance money is payable in the province.
Exception for group insurance.
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 he became insured.
Unless a contract otherwise provides, a reference therein to dollars means Canadian dollars whether the contract by its terms provides for payment in Canada or elsewhere.
Where a person entitled to receive insurance money is not domiciled in the province the insurer may pay the insurance money to that person or to any person who is entitled to receive it on his behalf by the law of the domicile of the payee and any such payment discharges the insurer to the extent of the amount paid.
Payment to personal representative.
Where insurance money is by the contract payable to a person who has died or to his personal representative and such deceased person was not at the date of his death domiciled in the province, the insurer may pay the insurance money to the personal representative of such person appointed under the law of his domicile, and any such payment discharges the insurer to the extent of the amount paid.
Regardless of the place where a contract was made, a claimant who is a resident of the province may bring an action in the province if the insurer was authorized to transact insurance in the province at the time the contract was made or at the time the action is brought.
An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received and that affects the insurance money.
The insurer shall not in the policy give undue prominence to any provision or statutory condition as compared to other provisions or statutory conditions, unless the effect of that provision or statutory condition is to increase the premium or decrease the benefits otherwise provided for in the policy.
Where there has been imperfect compliance with a statutory condition as to any matter or thing to be done or omitted by the insured, person insured or claimant with respect to the loss insured against and a consequent forfeiture or avoidance of the insurance in whole or in part, and a court before which a question relating thereto is tried deems it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it deems just.
Where a policy issued after September 1, 1973, includes a provision that provides that disability benefits shall be payable only during confinement of the insured, the provision does not bind the insured and the benefits in respect of disability under the policy are payable regardless of whether the insured is confined or not.
No officer, agent, employee or servant of the insurer, and no person soliciting insurance, whether or not he is an agent of the insurer shall, to the prejudice of the insured, person insured or group person insured, be deemed to be the agent of the insured or of the person insured or group person insured in respect of any question arising out of the contract.
AUTOMOBILE INSURANCE
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")
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.
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.
This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under The Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part.
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.
APPROVAL OF FORMS
Approval of forms by superintendent.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
The refund may be made by money, postal or express company money order or cheque payable at par.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
Coverage of non-owner's policy.
Every contract evidenced by a nonowner'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.
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.
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.
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.
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.
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.
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.
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.
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.
In clause (l)(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.
Clause (l)(a) does not include the use by an employee of his automobile on the business of his employer and for which he is paid.
Clause (l)(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
(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.
Minimum liability under policy.
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.
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.
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.
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.
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.
A provision in a motor vehicle liability policy in accordance with clause (l)(b) is binding on the insured.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ss. 246, 247.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 (l)(c) of statutory condition 4, adjust and pay the claim to the other person having an interest indicated in the contract.
LIMITED ACCIDENT INSURANCE
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 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.
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.
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 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.
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.
The insurance mentioned in the clause (l)(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.
The insurance mentioned in clause (l)(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.
The insurance mentioned in clause (l)(b) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses.
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 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.
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.
Subject to subsection (5), the insurance mentioned in clause (l)(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.
Subject to subsection (5), the insurance mentioned in clause (l)(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.
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.
Demand for particulars of insurance.
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.
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.
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.
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.
Nothing in this section affects the operation of the provisions of subsections 264(2) to (5) and subsections 265(2) to (5).
Where an insurer admits liability for insurance money payable under section 263, 264, or 265 and it appears that,
(a) there are adverse claimants;
(b) the whereabouts of an insured person entitled is unknown; or
(c) there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so;
the insurer may, at any time after 30 days after the date upon which the insurance money becomes payable, 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.
The receipt of the proper officer of the court is sufficient discharge to the insurer for the insurance money paid into court, and the insurance money shall be dealt with as the court orders.
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.
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 require; 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.
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
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.
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".
"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
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.
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.
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.
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.
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.
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.
LIVESTOCK INSURANCE
This Part applies to livestock insurance and to any insurer carrying on the business of livestock insurance in the province.
Every insurer licensed for the transaction of livestock insurance may, within the limits and subject to the conditions prescribed by its licence, insure against loss of livestock, by fire, lightning, accident, disease or other means, except that of design on the part of the insured, or by the invasion of any enemy or by insurrection.
Part IV statutory conditions apply.
The statutory conditions set out in Part IV, except where inapplicable to the nature of the risk, apply to livestock insurance contracts.
A contract of insurance shall not exceed the term of three years.
Renewal of policy for one year or less.
A contract made for one year or any shorter period may be renewed, from time to time, at the discretion of the insurer, by renewal receipt instead of by policy, on the assured paying the required premium; and all payments for renewals shall be made at or before the end of the period for which the policy was granted or renewed; otherwise the policy shall be void.
WEATHER INSURANCE
This Part applies to weather insurance and to any insurer carrying on the business of weather insurance in the province, but does not apply to insurance against damage to crops from hail or to weather insurance provided by an endorsement to a contract of fire insurance.
Every insurer licensed for the transaction of weather insurance may, within the limit and subject to the conditions prescribed by its licence, insure against such atmospheric disturbances, discharges, or conditions as the contract of insurance specifies other than against loss or damage to crops by hail.
Part IV statutory conditions apply.
The statutory conditions set out in Part IV except where inapplicable to the nature of the risk, apply to weather insurance contracts, together with the following additional conditions:
(a) The insurance may be determined by the insurer by giving seven days' notice to that effect.
(b) The insurer is not liable for loss or damage occurring to buildings or structures or to their respective contents where they have been weakened by alterations made subsequently to the contract, unless permission to make the alterations was previously granted in writing signed by the insurer or its authorized agent.
A contract of weather insurance shall not exceed the term of three years.
Cash payment with premium note.
On every premium note taken by the insurer, there shall be payable at the commencement of each year of insurance a cash payment amounting to at least 1/5 of 1% of the sum insured, or pro rata where the cash payment is paid in advance for a longer term; and the premium note, as to the balance thereof, is subject to assessment by the insurers; but where the amount of insurance in force exceeds $3,000,000. and the total assets of the insurer do not fall below 2% of the total of that amount, the superintendent may authorize the reduction of the cash payment to 1/8 of 1% of the sum insured per annum, or pro rata for a longer term.
HAIL INSURANCE APPLICATION OF PART
This Part applies to hail insurance and to every insurer carrying on the business of hail insurance in the province.
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
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.
In the case of the crops mentioned in clause (l)(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.
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.
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.
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.
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
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.
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.
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.
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.
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
If an agent of an insurer 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 chartered 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.
In a case to which subsection (1) applies, the post office date stamp shall determine the date of mailing.
The insurer may decline the application on its receipt.
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 tendering the application; in which case the contract of insurance mentioned in subsection (1) continues in force only until noon of the day following the receipt of the notice by the applicant.
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 subsection (1) continues in force only until noon of the day following receipt of the notice by the applicant.
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.
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.
Procedure where wrong premium tendered.
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 receipt of application.
Where an agent of an insurer tenders an application, with payment of the premium otherwise than as specified in section 288, or if the applicant tenders his application and payment of the 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.
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.
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.
Where accepted, the insurance applied for takes effect at noon, of the day on which the application is accepted.
How notice of rejection given.
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.
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.
Policy deemed to be in accordance with application.
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.
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.
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.
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.
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.
Such a partial payment of loss clause shall not be deemed a variation of or addition to the statutory conditions.
Every insurer shall, before May 1 in each year, file with the superintendent the rates of premium to be charged in designated areas in the province; and those rates are effective during the then current calendar year unless changed in the meantime and the change is notified to the superintendent at least 10 days before becoming effective.
Where a rate has been reduced after notification the new rate is applicable to all contracts issued by the insurer within the designated areas; and the insurer shall return to each insured within the designated areas the amount by which the premium paid by each insured exceeds the premium at the lower rate.
Rate of agents' commission to be filed.
Every insurer shall, before May 1 in each year, file with the superintendent the rate of commission payable to its agents in respect of its contracts issued during the then current year.
Rate filed to be maximum payable.
No insurer or its general agent for the province shall, directly or indirectly, pay or allow or offer or agree to pay or allow any compensation or anything of value to any person for acting or attempting or assuming to act as its agent in excess of that offered, paid or allowed to any one of its agents on risks for which like rates of premium are payable.
Where maximum rate to apply to all agents.
Where, on investigation by the superintendent, an insurer or its general agent for the province is found to have contravened subsection (2), the same rate of commission shall be paid to all agents on risks for which such like rates of premium are charged.
Notice of termination when loss payable to third party.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Any fraud or wilfully false statement in a proof of loss shall vitiate the claim of the person making such proof of loss.
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
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.
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.
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.
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.
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.
FRATERNAL SOCIETIES
In this Part,
"actuary" means a Fellow of the Society of Actuaries, or of the Institute of Actuaries of Great Britain, or of the Faculty of Actuaries in Scotland; ("actuaire")
"rates of contribution" means the regular net premiums, dues, rates, or contributions, receivable from the members for the purpose of the payment at maturity of the society's certificates or contracts of insurance. ("taux de cotisation")
APPLICATION OF PART
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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¢.
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.
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.
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.
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
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 notice had been given in accordance with r x . ? . ition and rules of the society.
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.
Upon his withdrawal, the member shall be released from all further accruing liability under his contract.
This section is subject to any rules to the contrary certified by and filed with the superintendent.
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.
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.
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.
Where it is stipulated that the benefit of the contract shall be suspended or reduced or forfeited for any other reason than for nonpayment 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Nothing herein prevents a society that maintains a separate fund, from maintaining a common expense fund.
Contracts on limited payments.
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.
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.
Old age pensions and endowments.
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, old age insurance contracts providing for the payment of the money due on maturity thereof either at death or upon the insured attaining any age not less than 65 years;
(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.
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.
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.
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.
MUTUAL BENEFIT SOCIETIES
No mutual benefit society shall be licensed, or have its licence renewed,
(a) if it has upon its books fewer than 75 members in good standing, subject to subsection (2);
(b) if it insures or indemnifies against contingencies other than sickness, disability, or funeral expenses;
(c) if it contracts for sick benefits for an amount in excess of $10. per week or for a funeral benefit in excess of $300.;
(d) if it undertakes insurance contracts with persons other than its own members;
(e) if it is in effect the property of its officers or of any other person, or is conducted as a mercantile or business enterprise, or for the purpose of mercantile profit, or if its funds are under the control of persons or officers appointed for life and not under that of the insured; or
(f) if it has charge of, or manages or distributes charity or gratuities or donations only.
Renewal of licence where membership short.
The superintendent may, in his discretion, renew the licence of any mutual benefit society notwithstanding that it has upon its books, at the time of application for such renewal, less than 75 members in good standing.
Sections 305, 306, and 307 apply, with appropriate changes, to societies licensed under this Part.
MUTUAL INSURANCE COMPANIES
This Part applies to every mutual insurance company licensed under this Act, in this Part called "an insurer".
Provisions of this Part to prevail.
Wherever the statutory conditions set out in Part IV are in conflict with this Part, this Part prevails with respect to mutual insurance companies.
Limitation on mutual insurance company business.
A mutual insurance company licensed under this Act shall not undertake or enter or issue contracts of life insurance or of accident or sickness insurance.
CONTRACTS
An insurer may issue policies of insurance for any term not exceeding three years.
No policy of insurance shall be issued by an insurer until application has been made for insurance and approved by the directors, in the case of an insurer undertaking hail insurance, to the amount of $100,000. at least, and in the case of one undertaking fire insurance, to the amount of $50,000. at least.
The form, terms and conditions of the applications and policies of insurance of the insurer shall be determined by the board of directors in conformity with this Act; and any policy may be renewed at the discretion of the directors by a renewal receipt instead of a new policy, on the insured paying the required premium or giving his premium note therefor.
RATES OF INSURANCE
The board of directors may, subject to this Act, adopt a tariff of rates for insurance premiums or premium notes, as the case may be, and vary it from time to time, and determine the sum to be insured on any property.
Rates of hail insurance in special areas.
Where it is established to the satisfaction of the board of directors that crops upon the land mentioned and set out in any application for hail insurance have been injured or destroyed by hail in one or more seasons during the 10 years next preceding the application, the directors may establish and charge special rates for that class of risks and accept premium notes accordingly.
The board may make arrangements with any insurer, whether licensed under this Part or not, for the reinsurance of a risk or any portion thereof, and may accept reinsurance of a risk, or any portion thereof, from any insurer on such conditions with respect to the rate and payment of premiums thereon as is agreed between them.
The minimum rate to be charged or taken by any insurer undertaking fire insurance, for insuring a first class isolated non-hazardous property shall not be less than 40¢ per $100. insurance, per annum; and the minimum rate of insurance upon other property shall be increased relatively with the increased risk, according to the nature of the property; but any insurer that maintains its reserve fund to the maximum permitted by this Act, may charge such rates as the board of directors decide.
CANCELLATION AND TRANSFER OF CONTRACTS
Liability of insured on cancellation.
Where a policy is cancelled or avoided by an insurer, the liability of the insured on his premium note ceases from the date of the cancellation or avoidance on account of any loss that occurs to the insurer thereafter; but the insured is, nevertheless, liable to pay his proportion of the losses and expenses of the insurer to the time of cancelling or avoiding the policy, and, on payment of his proportion of all assessments then payable and to become payable in respect of losses and expenses sustained up to that time, is entitled to a return of his premium note, and to such portion of the premium paid by him as has not been absorbed by the losses and expenses of the insurer up to that period, and a condition to that effect shall be endorsed on the policy.
Where the insured property or any interest therein is alienated or partly alienated and the assignee has the policy transferred to him, the insurer, upon application, and upon the assignee giving a new premium note or other proper security to its satisfaction for such portion of the deposit or premium note as remains unpaid, and, within 30 days next after the alienation, may accept the assignment; thereupon the assignee is entitled to all the rights and privileges, and is subject to all the liabilities and conditions, to which the original party insured was entitled and subject.
Assignment as collateral security.
Where the assignee is a mortgagee, the insurer may permit the policy to remain in force, and to be transferred to him by way of additional security, without requiring any premium note from the assignee, or without his becoming in any manner personally liable for premiums or otherwise; but in that case the premium note and liability of the mortgagor in respect thereof continues and is not affected by the assignment.
PREMIUM NOTES AND ASSESSMENTS
The insurer may accept premium notes for insurance and may issue policies thereon; and the notes shall be assessed for the losses and expenses of the insurer in manner hereinafter provided.
No premium note, whether purporting to do so or not, creates any lien upon the lands on which the insured property is situated.
The directors may demand and collect a portion of the premium in cash, and take a premium note for the remainder thereof; and if the amount so collected is more than sufficient to pay all losses and expenses during the continuance of the policy, then any surplus becomes part of the reserve fund.
The directors may make assessments upon premium notes before losses have happened or expenses been incurred; and any surplus from any such assessment becomes part of the reserve fund.
All assessments on premium notes shall be made by the board of directors and, subject to section 342, the assessments shall be made at such intervals and for such amounts as the directors determine to be necessary to meet losses, expenses, and reserve of the insured during the currency of the policies for which the notes were given; and every insured shall pay the assessments from time to time payable by him to the insurer during the continuance of his policy.
Notice of the assessment shall be mailed by the insurer to each member, directed to his post office address as given in his application, or in writing to the insurer, and to each encumbrancer of the property insured known to the insurer, and the assessment is payable within 30 days after the date of payment specified in the notice.
A notice of assessment shall be deemed sufficient if it embodies the number of the policy, the period over which the assessment extends, the amount of the assessment, and the time when, and the place where, payable.
Assessments in hail companies.
In the case of insurance against loss or damage to crops by hail,
(a) the directors shall make the assessment in each year after the expiry of the crop season;
(b) in making the assessment, the directors may make such addition thereto, not to exceed 20% of the amount estimated to be necessary to pay the losses and expenses, as will enable them to allow a discount for prompt payment, and may compute the assessment on such basis as, in their opinion, will result in sufficient payment to meet the requirements of the insurer after allowing the discount; and the directors may pass a by-law allowing such a discount;
(c) the aggregate amount of the assessment shall be such amount as the directors estimate to be necessary to pay all losses incurred during the crop season, all expenses of the insurer for the whole of the year and such amount as the directors decide to add to the reserve fund;
(d) all premium notes applicable to the crop season of the year for which the assessment is made are liable for the proportionate part of the aggregate assessment, irrespective of the fact that the policy of insurance issued in consideration of any such premium note is in force only during a portion of the crop season.
Non-payment of assessment voids policy.
Where the assessment, in respect of a policy, is not paid within 30 days of the date of payment specified in the notice, the policy is void as to any claim for losses occurring during the time of the non-payment; but the policy becomes revived when the assessment is paid, unless the secretary gives notice to the contrary to the party assessed.
Nothing in this section relieves the insured from his liability to pay the assessment or any subsequent assessments, nor is he entitled to recover the amount of any loss or damage that happens to property insured under the policy while the assessment remains due and unpaid.
Assessments to be proportionate.
The assessment shall always be in proportion to the amount of the premium notes held by the insurer having regard to the branch or department to which the policies respectively appertain; but where an insurer alters its rate and still holds, in respect of subsisting contracts, premium notes at the prior rate, the insurer, as between the respective premium notes so differing in rate, may make and levy such differential assessments as will, in risks of the same amount and of the same class of hazard, equalize the cost of insurance to the makers of the respective premium notes.
Where a member or person who has given a premium note neglects or refuses to pay the assessment within 30 days of the date of payment specified in the notice, the insurer may sue for and recover the assessment with costs of suit, and the proceedings are not a waiver of any forfeiture incurred by the non-payment.
Certificate of insurer evidence.
The certificate of the insurer, specifying an assessment and the amount due to the insurer on a premium note by reason thereof, shall be taken and received as evidence thereof in any court in the province.
Forty days after the expiration of the term of insurance, the premium note given for the insurance shall, on application therefor, be given up to the signer thereof, if all losses and expenses, with which the note is chargeable, have been paid.
LOSSES UNDER CONTRACTS
Where there is a loss on property insured by the insurer, the directors may retain the amount of the premium note given for insurance thereof, until the time has expired for which insurance has been made; and at the expiration of that time the insured has the right to demand and receive the retained amount or such part thereof as remains after deducting assessments on the note.
No executions shall issue against the insurer upon any judgment until after the expiration of three months from the recovery thereof.
Setting off debts against hail losses.
Where a member, with respect to a contract of hail insurance, is indebted to an insurer, and a loss has occurred under the contract, no credit out of any moneys payable by reason of the loss may be applied on the indebtedness until the directors have ascertained what percentage of its total losses the insurer will be able to pay, and in no case shall the credit exceed that percentage of the moneys so payable.
The insurer shall not deduct the amount of any indebtedness of a member from the amount of the loss sustained under a contract of hail insurance until the directors have ascertained the percentage; and in that case the deduction shall be made from the amount of the percentage of the loss.
An insurer, other than one undertaking hail insurance, shall form a reserve fund to consist of all money that remains on hand at the end of each year after payment of the expenses and losses; and for that purpose the board of directors shall levy an annual assessment, not exceeding 25%, and not less than 5% on the premium notes held by the insurer until the reserve fund reaches an amount that makes the total assets of the insurer equal to or exceed 115% of the total liabilities of insurer and the reserve fund shall be maintained at that level, and for that purpose the insurer shall thereafter levy annually an adequate assessment.
The reserve fund may, from time to time, be applied by the directors to pay off such liabilities of the insurer as are not provided for out of the ordinary receipts for the same or any succeeding year.
The reserve fund is the property of the insurer as a whole, and no member has a right to claim any share or interest therein in respect of any payment contributed by him towards it; nor shall the fund be applied or dealt with by the insurer or the directors other than in paying its creditors, except on the order of the Lieutenant Governor in Council.
Reserve fund of hail companies.
Where an insurer undertakes hail insurance,
(a) the insurer shall form a reserve fund, to consist of all moneys that remain on hand at the end of each year after payment of its expenses and losses; and for that purpose the board of directors shall levy an annual assessment, not less than 20% and not exceeding 50% on the premium notes held by the insurer; and the reserve fund may from time to time be applied by the directors to pay off such liabilities of the insurer as are not provided for out of the ordinary receipts for the same or any succeeding year;
(b) the reserve fund as formed, to the extent of $25,000. or securities to the extent of that sum, shall be deposited and kept deposited with the Minister of Finance and shall be held by him to the credit of the insurer so making the deposit;
(c) the deposit or any part thereof shall be returned to the insurer to whose credit it stands, by the Minister of Finance only on the production of a certificate from the superintendent that in his opinion the return is necessary for the purpose of enabling the insurer to meet its losses in any year in which the revenues of the insurer are insufficient to meet its liabilities;
(d) the insurer having the deposit to its credit, shall be entitled to be credited with interest earned thereon or on any of the securities and, except in cases with respect to which it is otherwise provided by the Lieutenant Governor in Council, so long as an insurer's deposit is unimpaired and no notice of any final judgment or order to the contrary is served upon the Minister of Finance, the interest upon securities forming the deposit shall be handed over to the insurer when received by him; and
(e) the reserve fund shall be the property of the insurer, and no member shall have any right to claim a share or any interest therein in respect of any payment contributed by him; nor shall the reserve fund be applied by the insurer or its directors in any manner other than in paying its creditors, except on the order of the Lieutenant Governor in Council.
RECIPROCAL AND INTER-INSURANCE EXCHANGES
In this Part,
"attorney" means a person authorized to act for subscribers; ("fondé de pouvoir")
"subscribers" means persons exchanging with each other reciprocal contracts of indemnity or inter-insurance. ("souscripteurs" )
Authority for exchange of reciprocal contracts of insurance.
Any person may exchange with other persons in the province and elsewhere reciprocal contracts of indemnity or inter-insurance for any class of insurance for which an insurance company may be licensed under this Act, except life insurance, accident insurance, sickness insurance, and guarantee insurance.
No person is an insurer within the meaning of this Act by reason of exchanging with other persons reciprocal contracts of indemnity or inter-insurance.
Reciprocal contracts of indemnity or inter-insurance may be executed on behalf of subscribers by any other person acting as attorney under a power of attorney, a copy of which has been duly filed as hereinafter provided.
Notwithstanding any condition or stipulation of any such power of attorney or of any such contract of indemnity or inter-insurance, any action or proceeding in respect of any such contract may be maintained in any court of competent jurisdiction in the province.
Declaration by members of exchange.
The persons constituting the exchange shall, through their attorney, file with the superintendent a declaration, verified by oath, setting forth
(a) the name of the attorney and the name or designation under which the contracts are issued, which name or designation shall not be so similar to any other name or designation previously adopted by an exchange or by a licensed insurer as, in the opinion of the superintendent, to be likely to result in confusion or deception;
(b) the classes of insurance to be effected or exchanged under the contracts;
(c) a copy of the form of the contract, agreement, or policy under or by which the reciprocal contracts of indemnity or inter-insurance are to be effected or exchanged;
(d) a copy of the form of power of attorney under which the contracts are to be effected or exchanged;
(e) the location of the office from which the contracts are to be issued;
(f) a financial statement in the form prescribed by the superintendent;
(g) evidence satisfactory to the superintendent that it is the practice of the exchange to require its subscribers to maintain in the hands of the attorney, as a condition of membership in the exchange, a premium deposit reasonably sufficient for the risk assumed by the exchange;
(h) evidence satisfactory to the superintendent that the management of the affairs of the exchange is subject to the supervision of an advisory board or committee of the subscribers in accordance with the terms of the power of attorney.
Upon an exchange paying the prescribed fee and otherwise complying with this Part, the superintendent may issue a licence in accordance with the form in the Schedule.
Evidence before issue of licence for.
A licence shall not be issued to an exchange to effect or exchange contracts of indemnity or inter-insurance,
(a) against loss by fire, until evidence satisfactory to the superintendent has been filed with him that applications have been made for indemnity upon at least 75 separate risks in the province or elsewhere, aggregating not less than $1,500,000., as represented by executed contracts or bona fide applications to become concurrently effective;
(b) in respect of automobiles, until evidence satisfactory to the superintendent has been filed with him that applications have been made for indemnity upon at least 500 automobiles, as represented by executed contracts or bona fide applications, to become concurrently effective, and that arrangements satisfactory to the superintendent are in effect for the reinsurance of all liabilities in excess of such limits as the superintendent may prescribe.
Where the office from which the contracts are to be issued is not in the province, service upon the superintendent of notice or process in any action or proceeding in the province in respect of contract of indemnity or interinsurance effected by the exchange shall be deemed service upon the subscribers who are members of the exchange at the time of the service.
Statement of maximum indemnity.
There shall be filed with the superintendent by the attorney, as often as the superintendent requires, a statement of the attorney under oath showing, in the case of fire insurance, the maximum amount of indemnity upon any single risk and a statement of the attorney, verified by oath, to the effect that he has examined the commercial rating of the subscribers of the exchange as shown by the reference book of a commercial agency, having at least 500 subscribers, and that from that examination or other information in his possession it appears that no subscriber has assumed on any single fire insurance risk an amount greater than 10% of the net worth of that subscriber.
There shall at all times be maintained with the attorney, as a reserve fund, a sum in cash or approved securities equal to 50% of the annual deposits or advance premiums collected or credited to the accounts of subscribers on contracts in force having one year or less to run, and pro rata on those for longer periods.
Except as hereinafter provided, there shall also be maintained as a guarantee fund or surplus, an additional sum, in excess of all liabilities, in cash or approved securities, amounting to not less than $50,000.
In the case of a fire insurance exchange whose principal office is in the province, the guarantee fund or surplus referred to in subsection (2) shall not be less than $25, 000.
Automobile insurance exchange.
In the case of an automobile insurance exchange whose principal office is in the province, the guarantee fund or surplus referred to in subsection (2) shall, during the first year of operation of the exchange, be maintained at an amount not less than $10,000., and thereafter no less than $25,000.
Where at any time the amounts on hand are less than the foregoing requirements, the subscribers or the attorney shall forthwith make up the deficiency.
Use of funds supplied to make up deficiency.
Where funds other than those which accrued from premiums or deposits of subscribers are supplied to make up a deficiency as herein provided for, those funds shall be deposited and held for the benefit of subscribers, under such terms and conditions as the superintendent requires so long as a deficiency exists and may thereafter be returned to the depositor.
In this section "approved securities" means securities the investment in which is authorized by section 364.
Investment of surplus and reserve.
Where the principal office of the exchange is in the province, the surplus insurance funds and the reserve fund of the exchange shall be invested in the class of securities authorized by this Act, for the investment of the reserve funds of an insurer.
Proof of investment in case of other companies.
Where the principal office of the exchange is outside the province, it shall be a condition precedent to the issue of a licence under this Act that evidence satisfactory to the superintendent be filed with him showing that the class of security in which funds of the exchange are required by law to be invested, and are in fact invested, is within the limits of investment prescribed for the investment of the reserve funds of an insurance corporation by the jurisdiction in which the office of the exchange is situated.
Contracts for subscribers only.
No exchange shall undertake any liability on a contract of indemnity, interinsurance or insurance except on behalf of a subscriber.
No attorney or exchange shall effect reinsurance of any risks undertaken by the exchange in any other reciprocal or interinsurance exchange.
Attorney not to act until licence granted.
No person shall act as attorney, or for or on behalf of any attorney, in the exchange of reciprocal contracts of indemnity or interinsurance, or in acts or transactions in connection therewith, unless and until a licence has been issued and unless the licence is in force.
Any person who, in contravention of subsection (1) undertakes or effects or agrees or offers to undertake or effect any exchange of reciprocal contracts of indemnity or interinsurance or any act or transaction in connection therewith is guilty of an offence and is liable, on summary conviction, to a fine of not less than $50, or more than $500.
Suspension or revocation of licence.
Where a licensed exchange or attorney fails or refuses to comply with, or contravenes, any provision of this Act, the licence of the exchange may be suspended or revoked by the minister on the report of the superintendent, after due notice and opportunity for a hearing before the superintendent has been given to the exchange or its attorney; but the suspension or revocation does not affect the validity of any reciprocal contracts of indemnity or inter-insurance effected prior thereto or the rights and obligations of subscribers under such contracts.
Notice of the suspension or revocation shall be given by the superintendent in at least two successive issues of The Manitoba Gazette as soon as reasonably may be after the suspension or revocation.
Fire insurance in unlicensed exchange may be effected out of Manitoba.
Notwithstanding anything in this Act, any person may insure against fire any property situated in the province in any exchange not licensed under this Act; and any property so insured or to be insured may be inspected, and any loss incurred in respect thereof adjusted, if the insurance is effected outside of the province and without any solicitation in the province directly or indirectly on the part of the attorney.
PART XV
AGENTS, BROKERS AND ADJUSTERS INSURANCE AGENTS
No person shall act, or offer or undertake to act, as an insurance agent in this province without having first obtained a licence under this Act.
No person shall solicit an annuity or endowment contract on behalf of an insurer licensed under this Act, transmit for a person other than himself an application for, or an annuity or endowment contract to or from an insurer, or offer or act or assume to act in the negotiation of such a contract, without having first obtained a licence of the class mentioned in clause 372(a).
Every applicant for a licence shall deliver to the superintendent an application in the form, and verified in the manner, required by the superintendent, setting out the applicant's name, his address and occupation, and the name or names of insurers to be represented, the amount and value of insurance written by him during the next preceding year, the proposed area of his operations, and such other information as is required by the superintendent.
The application shall be approved in writing by at least one of the insurers to be represented, certifying to the good business reputation of the applicant and his qualifications for, and knowledge of, the business of insurance, and recommending the granting to him of a licence.
The approval may be given by either the head or a branch office of the insurer, or by its manager, branch manager or general agent in the province or by its chief agent in Canada, as the superintendent prescribes.
Errors and omissions insurance for agents.
Every application made under subsection (1) for an insurance agent's licence shall be accompanied by proof satisfactory to the superintendent of the existence of an insurance policy issued by an insurer licensed under this Act insuring the liability of the applicant for his errors and omissions in performing the duties of an insurance agent, in the form, upon the terms and for not less than the amount prescribed by the superintendent.
Exemptions from insurance for agents.
The Lieutenant Governor in Council may, by regulation, exempt a class or group of insurance agents from the application of subsection (4).
Upon receipt of an application for a licence and payment of the prescribed fee, which shall be determined having regard to the proposed area of the operations of the applicant, the superintendent shall, if he is satisfied that the applicant is a suitable person to receive a licence and intends to hold himself out publicly and carry on business in good faith as an insurance agent, issue to the applicant a licence authorizing the holder, during the term of the licence, to carry on within the province the business of insurance of the class stipulated in his licence.
Where, for any reason, the superintendent is of the opinion that an applicant is not a suitable person to receive a licence, he may refuse him a licence.
Restriction on issue of licences.
The superintendent shall not issue a licence
(a) to a corporation whose head office is outside Canada; or
(b) to a corporation if it appears to the superintendent that the application is made for the purpose of allowing the applicant to act as agent or broker wholly or chiefly in the insurance of property owned by the corporation, or by its shareholders, members or employees, or by its subsidiaries, parent corporations or associated corporations, or by any one or more of them; or
(c) to a person if it appears to the superintendent that the application is made to permit the applicant to act as agent or broker wholly or chiefly in the insurance of property owned by one person, estate or family, or by one corporation or firm or its shareholders, members or employees or its subsidiaries, parent corporations or associated corporations or any one or more of them.
Certificate of authority of corporation, etc. , and naming of operating agent.
Subject to section 380, where a licence is issued to
(a) a corporation; or
(b) a partnership; or
(c) a person who carries on business under, or uses as a business style, a name other than his own or who in business, uses his own name with the addition of the words "and company";
the licence, either on the face thereof, or by endorsement thereon, shall name as the operating agent under the licence an individual person, who must be a director, officer, or employee, of the corporation, a member of the partnership, or the person mentioned in clause (c), as the case may be.
No person shall act as an agent under a licence to which subsection (4) applies other than the person named therein as the operating agent.
Substitution of "licence" etc., for "certificate of authority".
In any certificate of authority or other document issued under this Act, or under any former Act for which this Act has been substituted or of which this Act is a revision or a consolidation, or in any order in council or regulation made under this Act or any such former Act, the word "licence" or "licences" may be used to describe or refer to any certificate of authority or certificates of authority issued to an insurance agent or insurance agents under this Part or under Part XV of any such former Act.
A licence issued under section 371 shall be of one of the following classes:
(a) licences covering life insurance or life, accident, and sickness insurance, when issued by the same insurer;
(b) licences covering general insurance, other than life insurance;
(c) licences restricted to any one class of general insurance other than life insurance.
Every licence expires on May 31 next within one year of its issue, but may be renewed on due application to the superintendent and payment of the prescribed fee.
Where the agency contract between an agent and the insurer who has approved the application of the agent for a licence under this Part is terminated, the insurer shall forthwith notify the superintendent in writing of the termination and the licence of the agent is cancelled until
(a) another insurer to be represented by the agent has filed with the superintendent the approval, certificate and recommendation described in subsection 370(2) in respect of the agent; and
(b) the reissue of the licence to the agent is approved by the superintendent.
Power of life insurance agents.
No agent holding a licence for the transaction of life insurance shall
(a) subject to subsection (2), act as an agent for more than one insurer dealing in life insurance;
or
(b) represent himself to the public by advertisement or otherwise to be the agent of more than one insurer dealing in life insurance.
Insurance with other insurers.
Where an agent holding a licence for the transaction of life insurance is unable to negotiate insurance on behalf of an applicant for insurance with the insurer whose name is endorsed on his licence and for which he is the authorized agent, he may obtain the insurance from another insurer if that other insurer obtains, in each case, the consent in writing of the insurer for which the agent is the authorized agent and files a copy of the consent with the superintendent.
Subsections (1) and (2) do not apply to an agent who has held a licence for the transaction of life insurance as the authorized agent of the same insurer for at least two continuous years, but the licence of that agent for the transaction of life insurance and any renewal thereof shall state the name of the insurer who has given, in respect of the agent, the approval, certificate and recommendation described in subsection 370(2).
A licence may be revoked or suspended by the superintendent if, after due investigation by him or his duly accredited representative, he determines that the holder of the licence
(a) has been guilty of misrepresentation, fraud, deceit or dishonesty; or
(b) has violated any provision of this Act or any rule or regulation under this Act; or
(c) has unreasonably failed to pay over to the insurer or agent entitled thereto any moneys collected by him and retained beyond the term stipulated in his agency contract or agreement;
or
(d) has placed insurance with insurers other than those licensed in the province under this Act, without complying with the provisions herein relating to unlicensed insurance; or
(e) has demonstrated his incompetency or untrustworthiness to transact the business of insurance agency for which the licence was granted.
Any information, document, record, statement or thing, made or disclosed to the superintendent concerning any person licensed or applying for a licence under this Act, is absolutely privileged, and shall not be used as evidence in any action or proceeding in any court brought by or on behalf of that person.
No person whose licence has been revoked is entitled to a new licence for one year after the revocation and then only at the discretion of the superintendent.
The holder of a licence is exempt from payment of any licence fee imposed by a municipality within the province for the transaction of the business of insurance.
Limitation on effect of subsection (1).
Nothing in subsection (1) restricts the authority of a municipality, under The Municipal Act, to levy or impose upon the holder of a licence a business tax, or any fee or tax in lieu of a business tax, as provided in that Act.
May not offer compensation to prospect.
No insurer licensed under this Act, and no officer, agent or employee of such an insurer, and no insurance agent authorized under this Act, shall, directly or indirectly, pay or allow, or offer or agree to pay or allow, any commission or other compensation or anything of value to any person for acting or attempting or assuming to act as an insurance agent in respect of insurance in the province or for having or claiming or appearing to have any influence or control over the insured or prospect for insurance unless that person holds at the time a subsisting insurance agent's licence.
No commission if not a holder.
An agent who, at the time he receives an application for insurance, does not hold a subsisting licence, shall not retain or deduct anything on account of commission from any payment made to him with the application, but shall remit to the insurer the full amount paid to him on account of premium.
Certain agreements respecting premiums prohibited.
No insurer, and no officer, employee, or agent thereof, shall, directly or indirectly, make or attempt to make an agreement as to the premium to be paid for a contract of insurance other than as set forth in the contract.
Rebates of premiums, etc., prohibited.
No insurer, and no officer, employee, or agent thereof, shall, directly or indirectly, pay, allow, or give, or offer or agree to pay, allow, or give, any rebate of the whole or part of the premium stipulated by the contract, or any other consideration or thing of value intended to be in the nature of a rebate of premium, to any person insured or applying for insurance.
Nothing in subsection (3) or (4) affects any payment by way of dividend, bonus, profit or savings that is provided for by the contract.
Agents of fraternal societies.
A member of a duly licensed fraternal society, other than a member whose major occupation is, in the opinion of the superintendent, the solicitation of life insurance contracts, may, without a licence, solicit persons to become members of the society.
Salaried officials, etc., acting without licence.
Unless the superintendent otherwise directs, but subject to subsections (8) and (9), an officer or salaried employee of a licensed insurer who does not receive commissions or his salary in lieu of commissions, or an attorney or salaried employee of a reciprocal or inter-insurance exchange at which no commission is paid except to the attorney may, without a licence, act for the insurer or exchange in the negotiation of any contracts of insurance or in the negotiation of the continuance or renewal of any contracts that the insurer or exchange may lawfully undertake.
Officers or employees whose applications for licences as agents have been refused or whose licences have been revoked or suspended, may not act as provided in subsection (7) without the written approval of the superintendent.
In the case of insurers authorized to undertake life insurance only the officers and salaried employees of the head office who do not receive commissions or salaries in lieu of commissions, may act as provided in subsection (7) without a licence.
Nothing in this Act prevents an insurer compensating a bona fide salaried employee of its head or branch office in respect of insurance issued by the employing insurer upon the life of the employee, or requires that the employee shall be licensed as an agent to effect the insurance.
Payment of commission restricted.
No insurer or agent shall pay or allow, or agree to pay or allow, directly or indirectly, any commission or compensation of any kind in lieu of commission to an agent in connection with an application or contract for insurance on the life of the agent or of any member of his immediate family until the agent has, within 12 calendar months, negotiated at least three contracts of insurance on the lives of persons other than those of the classes mentioned in this section, and the first premiums thereon have been fully paid to the insurer.
Twisting life insurance policies prohibited.
Any person who holds a licence covering life insurance, or who is an officer or salaried employee of an insurer licensed to transact life insurance, and who induces, directly or indirectly, an insured to lapse, forfeit, or surrender for cash, or for paid up or extended insurance, or for other valuable consideration, his contract of life insurance with one insurer in order to effect a contract of life insurance with another insurer, or makes any false or misleading statement or representation in the solicitation or negotiation of insurance, or coerces or proposes, directly or indirectly, to coerce a prospective buyer of life insurance through the influence of a business or a professional relationship or otherwise, to give a preference in respect to the placing of life insurance which would not be otherwise given in the effecting of a life insurance contract, is guilty of an offence.
Reciprocal arrangement respecting agents.
The superintendent may, where he deems it in the interests of the residents of an area in proximity to the boundaries of the province, endorse as valid for the province the licences issued by an adjoining province, notwithstanding that the agents are not residents of the province.
Licence as agent to transportation corporation.
Notwithstanding anything in this Act, the superintendent may issue a licence to a transportation corporation authorizing it, by its employees in the province, to act as an agent for a licensed insurer with respect to accident insurance and such other classes of insurance as he may approve.
Regulation by Lieutenant Governor in Council.
The licence shall be subject to such regulations as the Lieutenant Governor in Council may prescribe with respect to the form of the licence, the terms and conditions under which it is issued, and the circumstances under which it may be suspended or cancelled.
BROKERS' LICENCES FOR BUSINESS WITH UNLICENSED INSURERS
The superintendent may, upon the payment of the prescribed fee, issue to any suitable person resident in the province, a licence to act as a special insurance broker to negotiate, continue, or renew contracts of insurance, other than life, accident, or sickness insurance, in the province in insurers not authorized to transact such business in the province.
The applicant for such a licence shall file with the superintendent a written application under oath giving such information as is required of an insurance agent in applying for a licence, and such further information as the superintendent prescribes.
If the superintendent is satisfied with the statements and information required, he shall issue the licence; and, unless it is sooner suspended or revoked, the licence expires on December 31 at the end of the year in respect of which it is issued.
The licence may, in the discretion of the superintendent, be renewed for each succeeding year upon payment of the prescribed fee without requiring anew the detailed information required in the case of an original application.
Every person shall, before receiving such a licence, execute and deliver to the superintendent security to the satisfaction of the superintendent, in an amount of not less than $5,000., that the licensee will faithfully comply with all the requirements of this Act or any other Act of the Legislature.
The superintendent, for cause shown similar to any of those entitling him to revoke the licence of an agent, may suspend or revoke the licence of an insurance broker.
Where sufficient insurance other than life, accident, or sickness insurance in the province at reasonable rates or insurance in the form of contract required by the insured cannot be obtained by the insured from insurers licensed to do business in the province, a special insurance broker, duly licensed, may effect insurance with unlicensed insurers, but shall in the case of every contract so effected obtain from the insured a signed and dated statement describing the subject matter of the insurance and the amount of insurance required, and stating that the insurance cannot be obtained in licensed companies and that the application for the insurance at the stated rate of premiums was previously made to and refused by named companies licensed in the province.
The broker shall, within 10 days after the placing of the insurance with unlicensed insurers, submit to the superintendent a statement setting forth the name of the insured, the subject matter of the insurance, the full names of the unlicensed insurers, and the amount of insurance placed with each and the rate and amount of premium paid to each.
Every broker shall keep a separate account of insurance effected by him under his licence in books in the form prescribed by the superintendent, which shall be open to inspection by the superintendent or any of his officers.
Within 10 days after the end of each month every broker shall make to the superintendent a return under oath in the form and manner by him prescribed, containing particulars of all insurance effected by him under this section during that month.
On it being shown to the satisfaction of the minister that all insurances effected by a licensed special insurance broker are no longer in force or have been reinsured, and that the taxes owing to the province have been paid, the broker is entitled to a release or cancellation of his security.
Prohibition accepting contracts from agents.
A special insurance broker shall accept applications for insurance with unlicensed insurers only from the insured or an agent holding a licence, and shall not receive any such application from, or pay or allow compensation or anything of value in respect of such applications to, an agent not holding a licence under this Act; and any contract of insurance with an unlicensed insurer made by or through any agent not holding a licence shall be deemed to be unlawfully made.
LICENCES OF INSURANCE ADJUSTERS
The superintendent may, upon the payment of the prescribed fee, issue to any suitable person a licence to act as an adjuster.
Restriction on issue of licences.
The superintendent shall not issue a licence to act as an adjuster other than a hail insurance adjuster, to a person who holds a licence as an insurance agent or a licence to act as a special insurance broker.
The applicant for such a licence shall file with the superintendent a written application under oath, upon a form provided by the superintendent, in which the applicant shall state his name, age, residence, and occupation for the five years next preceding the date of the application and such other information as the superintendent requires, and the applicant shall furnish a statement as to his trustworthiness and competency signed by at least three reputable persons resident in the province.
If the superintendent is satisfied with the statements and information required, he shall issue the licence; and, unless the licence is sooner suspended or revoked, it expires on June 30 at the end of the period in respect of which it is issued.
Requirements for adjuster's licence.
The superintendent shall not issue a licence to act as an adjuster to a person unless
(a) that person has held a licence under this section; or
(b) that person has held a licence as an adjuster in some other province; or
(c) that person has served not less than one year
(i) as an assistant adjuster; or
(ii) as an adjuster employed by an insurance company.
A licence may, in the discretion of the superintendent, and upon payment of the prescribed fee, be renewed for each succeeding year without requiring anew the detailed information required in the case of an original application.
The superintendent may, for cause shown, and after a hearing, revoke the licence, or may suspend it for a period not exceeding the unexpired term thereof, and may, for cause shown and after a hearing, revoke the licence while so suspended; and he shall notify the licensee in writing of the revocation or suspension.
Any person who acts as an adjuster without a licence or during a suspension of his licence, is guilty of an offence.
Persons to whom this section does not apply.
This section does not apply to
(a) a person who does not act for compensation or reward or in the hope or on the promise thereof;
or
(b) a trustee or agent of the owner of property insured;
(c) a person who makes or assists in making an adjustment and who
(i) is a salaried employee of an insurer licensed under this Act; or
(ii) is the manager or branch manager of an insurer licensed under this Act and who is in charge of the head office or branch office of the insurer in the province;
and who, in either case, is acting for that insurer; or
(d) a person who is employed as an appraiser, engineer, or other expert, solely for the purpose of giving expert advice or evidence; or
(e) a barrister or solicitor entitled to practise in the province and acting in the usual course of his profession.
Prohibition against acting as assistant adjuster.
No licensed adjuster shall employ any person as a student qualifying himself to become a licensed adjuster, or as an assistant in the adjustment of claims under policies, and no person shall be employed or act in any such capacity, unless, in either case, that person holds a subsisting licence, issued by the superintendent, authorizing him to act as an assistant adjuster.
Subject to subsection (4), an applicant for a licence to act as an assistant adjuster shall file with the superintendent a written application therefor, in such form and containing such information as the superintendent requires, signed by the applicant and endorsed with, or accompanied by, a written approval of the application signed by an adjuster who holds a subsisting licence as such issued under this Act.
The superintendent, upon receipt from any suitable person, of an application duly completed and approved as provided in subsection (2), and accompanied by the prescribed fee, may issue to the applicant a licence authorizing him to act as an assistant adjuster.
Where an application for a licence to act as an assistant adjuster is made by a person who holds, or has previously held, such a licence, the superintendent, in his absolute discretion, may dispense with compliance with any or all of the provisions of subsection (2).
Employment of assistant adjuster.
The holder of a licence to act as an assistant adjuster may be employed only by one adjuster whose name shall be endorsed on the licence, and who, unless the services of the assistant adjuster are transferred as herein provided, shall be the adjuster who approved his application for a licence.
Where an assistant adjuster transfers his services from one adjuster to another he shall immediately notify the superintendent; and the superintendent, if satisfied, may endorse on the licence a memorandum of the change including the name of the adjuster to whom the services are transferred.
Suspension of licence on termination of employment.
Where the holder of a licence to act as an assistant adjuster ceases to be employed by the adjuster whose name is endorsed thereon, the licence shall be deemed to be suspended and the assistant adjuster shall forthwith return it to the superintendent who may, if it has not expired, again issue it to him if he transfers his services to another adjuster.
Every licence issued under this section, unless it is sooner suspended or revoked, expires on June 30 at the end of the period in respect of which it is issued.
The superintendent may, for cause shown and after a hearing, revoke a licence or may suspend it for the balance, or any part, of the unexpired term thereof.
Solicitation for adjustment prohibited.
Subject to subsection (2), no person shall, on behalf of himself or any other person, directly or indirectly,
(a) solicit the right to negotiate, or negotiate or attempt to negotiate, for or in expectation of any fee, gain or reward, the settlement of a claim for loss or damage arising out of a motor vehicle accident resulting in bodily injury to or death of any person or damage to property, on behalf of a claimant; or
(b) hold himself out as an adjuster, investigator, consultant or otherwise as an adviser, on behalf of any person having a claim against an insured for which indemnity is provided by a motor vehicle liability policy.
Except as to soliciting the right to negotiate, this section does not apply to a barrister or solicitor acting in the usual course of his profession.
Disclosure of name of insurer.
Where an adjuster, on behalf of an insurer, enters into negotiations with a person having a claim against an insured for which indemnity is provided by a motor vehicle liability policy, or a policy of public liability insurance, issued by the insurer, the adjuster shall, on request by the claimant, disclose to him the name and address of the insurer.
Appointment of advisory board.
In determining whether to grant, refuse, or renew a licence to act as an insurance agent, or as an adjuster, or to cancel such a licence, the superintendent may appoint an advisory board; and, if so requested in writing by
(a) the applicant for such a licence; or
(b) the holder of such a licence the cancellation of which is under consideration;
he shall appoint an advisory board.
An advisory board appointed under subsection (1)
(a) shall inquire into the relevant facts; and
(b) after hearing the applicant for a licence or the person who has requested the appointment of the board and all other persons desiring to be heard with respect to the matter, shall report to the superintendent and advise him whether, in the opinion of the board, the licence should be granted, refused, renewed, or cancelled, as the case may be.
Where the superintendent so decides, (a) the investigation for which provision is made in subsection 375(1); or
(b) the hearing for which provision is made in subsection 385(6), or in subsection 386(9);
shall be made by an advisory board appointed under subsection (1).
Where an advisory board has been appointed under this section, the superintendent is not bound by any report, advice, recommendation, or action of the board, but may overrule or disregard it; and nothing in this section limits, abridges, impairs, or derogates from, the powers and duties conferred or imposed upon the superintendent by this Act.
Powers of board to obtain evidence.
An advisory board appointed under this section may summon witnesses and require them to give evidence on oath or affirmation, orally or in writing; and for that purpose, the members of the advisory board have like protection and powers as are conferred upon commissioners appointed under Part V of The Manitoba Evidence Act.
Regulations as to members and organization, etc.
The Lieutenant Governor in Council may make regulations as to
(a) the number and qualifications of the members of;
(b) the persons who may be appointed to;
(c) the selection of a chairman of; and
(d) subject to this Act, all other matters relating to the organization, procedure, functions, and duties of;
any advisory board appointed under this section.
AGENTS, BROKERS AND ADJUSTERS GENERALLY
Payment in cash in whole or in part to an agent of an insurer of the amount of a premium or assessment due in respect of a contract issued by the insurer, shall be deemed a payment to the insurer, notwithstanding any condition or stipulation to the contrary; but this provision does not apply to life insurance.
Any person who, not being duly licensed as an agent, a broker, or an adjuster, represents or holds himself out to the public as being an agent, broker, or adjuster, or as being engaged in the insurance business, by means of advertisements, cards, circulars, letterheads, signs or other methods, or being duly licensed as such an agent, broker, or adjuster, advertises as aforesaid or carries on such a business in any other name than that stated in the licence, is guilty of an offence.
The superintendent may prepare, or cause to be prepared, published, and distributed, annually or at more frequent intervals, in The Manitoba Gazette or elsewhere, a list of persons to whom licences have been issued under this Act.
Personal liability of agent for unlawful contracts.
An agent or broker is personally liable to the insured on all contracts of insurance unlawfully made by or through him, directly or indirectly, with any insurer not licensed to undertake insurance in the province, in the same manner as if the agent or broker were the insurer.
An agent or broker who acts in negotiating, or renewing or continuing a contract of insurance, other than life insurance, with a licensed insurer, and who receives any money or other consideration, as a premium for such a contract, from the insured, shall be deemed to hold the premium in trust for the insurer, and, if he fails to pay it over to the insurer within 15 days after written demand made upon him therefor, less his commission and any deductions to which, by the written consent of the insurer, he is entitled, the failure is evidence that he has applied the premiums to his own use or to a use contrary to his trust.
Every insurer and every agent shall make a return under oath to the superintendent in such form, and at such times, as he requires, showing all persons duly authorized as its or his agents in the province, and of persons to whom it or he has paid or allowed, or agreed to pay or allow, directly or indirectly, compensation for placing or negotiating insurance on lives, property, or interests in the province, or negotiating the continuance or renewal thereof, or for attempting to do so.
Where the superintendent refuses a licence to an agent or to a broker or adjuster, or where the superintendent suspends or revokes such a licence, he shall, on demand, state in writing his reasons therefor, and any person who deems himself aggrieved by the decision of the superintendent may appeal therefrom to the Lieutenant Governor in Council; and, in case of an appeal, the decision of the superintendent suspending or revoking a licence does not take effect until after the hearing and disposition thereof by the Lieutenant Governor in Council.
A licence may be issued to an insurance agent, or to a broker, adjuster, or assistant adjuster subject to such limitations and conditions as the superintendent prescribes.
AMALGAMATION, TRANSFER AND REINSURANCE
In this Part, "reinsurance" means an agreement whereby contracts made in the province by a licensed insurer or any class or group thereof are undertaken or reinsured by another insurer either by novation, transfer, assignment or as a result of amalgamation of the insurers.
Nothing in this Part affects contracts of reinsurance of individual risks made by insurers in the ordinary course of business.
An insurer incorporated and licensed under the laws of the province may amalgamate its property and business with those of any other insurer, or may transfer its contracts to, or reinsure them with, or transfer its property and business or any part thereof to, any other insurer, and the insurers may enter into all contracts and agreements necessary to the amalgamation, transfer, or reinsurance upon compliance with the conditions of this Part.
An insurer so incorporated and licensed may, in like manner, reinsure the contracts of any other insurer, or purchase and take over the business and property or any portion thereof of any other insurer.
No such agreement respecting such an amalgamation, transfer, reinsurance, or purchase, comes into force unless it has been approved by the Lieutenant Governor in Council; and the insurers, parties thereto, shall file with the superintendent a petition for the purpose within 60 days from the date of execution of the agreement.
Petition for in case of life insurers.
In the case of insurers undertaking life insurance, before such a petition is heard, notice thereof together with the following documents,
(a) a statement of the nature and terms of the agreement for reinsurance;
(b) an abstract containing the material facts embodied in the agreement under which the reinsurance is proposed to be effected; and
(c) copies of the actuarial or other reports upon which such agreement is founded including a report by an independent actuary approved by the superintendent;
shall be served on the shareholders or members and on policyholders in the province of each insurer other than holders of industrial policies; but the superintendent may dispense with service of such notice and documents on the policyholders of the reinsuring insurer.
The service shall be effected in each case by forwarding by registered mail the notice and documents directed to the registered or other known address of the shareholder, member or policyholder, so as to reach him, if delivered in due course of mail, at least 30 days before the day appointed for the hearing of the petition.
Where a fraternal society is a party to such an agreement, the notice and documents shall be deemed to be served on its members if published in any official publication of the society at least 30 days before the day appointed for the hearing of the petition.
The agreement shall be open to the inspection of the shareholders, members and policyholders at the principal offices of the insurers within the province for a period of 30 days after service of the notice.
Upon the filing of the petition the insurers party to the agreement shall deposit with the superintendent the following documents, that is to say:
(a) a certified copy of the agreement for reinsurance;
(b) a statement of the nature and terms of reinsurance;
(c) certified copies of the statements of assets and liabilities of the insurers parties to the agreement;
(d) certified copies of the actuarial or other reports upon which the agreement is founded;
(e) a declaration under the hands of the president or principal officer and manager or secretary of each insurer verifying the copy of agreement and stating that to the best of their knowledge and belief every payment made or to be made to any person whatsoever on account of the reinsurance is therein fully set forth and that no other payments beyond those set forth have been made or are to be made either in money, policies, bonds, valuable securities or other property by or with the knowledge of any of the parties to the reinsurance;
(f) evidence of the service and publication of the notices required to be served or published, if any;
(g) such other information and reports as the superintendent requires.
Upon receipt of the petition, the superintendent shall fix a day for hearing the petition, and notice of the hearing shall be given in The Manitoba Gazette at least 10 days before the date so fixed, and in case of insurers undertaking life insurance 30 days before that date.
Recommendation of superintendent.
After hearing the directors, shareholders, members and policyholders and such other persons as he considers entitled to be heard upon the petition, or giving them an opportunity to be so heard, the superintendent may recommend that the agreement be approved by the Lieutenant Governor in Council if he is satisfied that no sufficient objection to the agreement has been established.
No such agreement shall be recommended if it appears to the superintendent that, upon the consummation of the reinsurance, an impairment or deficiency will exist in the balance sheet of the continuing or reinsuring insurer when its liabilities (including its capital stock, if any), are calculated according to this Act.
Statutory novation on amalgamation, transfer or reinsurance under this Part
Where an insurer enters into a contract or agreement for amalgamation, transfer or reinsurance with another insurer as provided in this Part and the contract or agreement is approved by the Lieutenant Governor in Council, subject to the terms of that contract or agreement, any contract of insurance taken over, transferred or reinsured by the other insurer may be enforced against the other insurer as though that insurer had entered into the contract of insurance with the insured; but nothing in this section affects the liability of the original insurer under the contract of insurance.
Transfer of contracts where insurer leaves Manitoba.
Where under an agreement between an insurer, in this section called the "continuing insurer", and another insurer, in this section called the "retiring insurer", in anticipation of the retiring insurer ceasing to do business in the province, the continuing insurer assumes liability under contracts of insurance specified in the agreement issued by the retiring insurer and the retiring insurer ceases to carry on business in the province, an insured or other person entitled to rights under those contracts may enforce the rights as though those contracts had been issued by the continuing insurer.
Subsections 370(4) and (5) come into force on a day fixed by proclamation.
Subsection 371(1) is amended by striking out the word "and" in the first line thereof and substituting therefor the words "accompanied by proof of the existence of an insurance policy as required under subsection 370(4) and upon".
Subsection (1) comes into force on a day fixed by proclamation.
SCHEDULE
(SECTION 359)
No.
Term of licence to
SUPERINTENDENT OF INSURANCE, MANITOBA
RECIPROCAL INSURANCE LICENCE
This is to certify that being an exchange within the meaning of The Insurance Act, has complied with the requirements of that Act; and the subscribers of the exchange are hereby licensed and authorized, for and during the term beginning on the day of 19 , and ending on the day of 19 , to exchange reciprocal contracts of indemnity or inter-insurance (here state class of insurance).
Superintendent of Insurance.