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Copyright © 2010: Queen's Printer,
Statutes of Newfoundland and Labrador 2010
AN ACT TO AMEND THE INSURANCE ADJUSTERS, AGENTS AND BROKERS ACT
(Assented to June 24, 2010)
2. Ss.43.01 & 43.02 Added
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. (1) Subsection 43(3) of the Insurance Adjusters, Agents and Brokers Act is repealed and the following substituted:
(3) A judge of the Provincial Court or the Trial Division who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is in a place anything that will give evidence with respect to a contravention of this Act or the regulations or an unfair trade practice, unconscionable act or practice relating to insurance may issue a warrant authorizing the superintendent, or a person authorized by the superintendent named in the warrant, to enter and search that place and to make those inquiries and to seize those books, documents, correspondence and records that are considered necessary, subject to those conditions that may be specified in the warrant, and to bring them before the judge granting the authorization or another judge to be dealt with by him or her according to the law.
(3.1) Where a thing is seized and brought before a judge under subsection (3), he or she shall, by order,
(a) detain it or direct it to be detained in the care of a person named in the order; or
(b) direct it to be returned,
and the judge may in the order authorize the examination, testing, inspection or reproduction of the thing seized upon the conditions that are reasonably necessary and directed in the order, and may make another provision that in the opinion of the judge is necessary for its preservation.
(3.2) Nothing shall be detained under an order made under subsection (3.1) for a period of more than 3 months after the time of seizure unless, before the expiration of that period,
(a) upon motion, a judge is satisfied that having regard to the nature of the investigation, its further detention for a specified period is warranted and he or she so orders; or
(b) a proceeding is instituted in which the thing detained may be required.
(3.3) Upon the motion of the person having an interest in a thing detained under subsection (3.1), a judge may make an order for the examination, testing, inspection or reproduction of a thing detained upon the conditions that are reasonably necessary and directed in the order.
(3.4) Upon the motion of a person having an interest in a thing detained under subsection (3.1), and upon notice to the person or company in respect of which the investigation is being made, the person from whom the thing was seized, the person to whom the order under subsection (3.1) was issued and a person who has an interest in the thing detained, a judge may make an order for the release of a thing detained to the person from whom the thing was seized where it appears that the thing detained is no longer necessary for the purpose of the investigation.
(2) Section 43 of the Act is amended by adding immediately after subsection (5) the following:
(6) For the purpose of subsections (2) and (3), "place" includes a private dwelling place.
2. The Act is amended by adding immediately after section 43 the following:
43.01 (1) The superintendent or a person authorized by the superintendent who is making an investigation under section 43 has the same power to summon and enforce the attendance of a person and to compel him or her to testify on oath or otherwise, and to summon and compel a person or company to produce documents and other things, that is vested in a judge of the Trial Division, and the refusal of the person to attend or to answer questions or of a person or company to produce documents or other things that are in his, her or its custody or possession makes the person or company liable to be committed for contempt by a judge of the Trial Division as if in breach of an order of that court.
(2) A person or company giving evidence under subsection (1) may be represented by counsel and may claim a privilege to which the person or company is entitled.
43.02 (1) A judge of the Provincial Court or a judge of the Trial Division may order a person, other than a person who is the subject of an investigation,
(a) to produce a document or a copy of a document, certified by affidavit to be a true copy, or to produce data; or
(b) to prepare a document based on a document or data already in existence and to produce it.
(2) An order referred to in subsection (1) shall require the document or data to be produced within the time, at the place and in the form specified and to be given to the superintendent or a person designated by the superintendent.
(3) A judge may make an order referred to in subsection (1) where he or she is satisfied on the basis of an application made in writing on oath or affirmation and without notice that there are reasonable grounds to believe that
(a) a person has contravened or is contravening this Act or the regulations or is suspected to have contravened this Act or the regulations;
(b) the document or data will provide evidence respecting a contravention or suspected contravention of this Act or the regulations; and
(c) the person who is subject to the order has possession or control of the document or data.
(4) An order referred to in subsection (1) may contain terms and conditions that the judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and his or her client.
(5) The order referred to in subsection (1) may be revoked, renewed or varied.
(6) A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.
(7) Copies of documents produced under this section are not required to be returned to the person who provided them.
3. Section 45 of the Act is amended by adding immediately after subsection (13) the following:
(13.1) A person who obstructs or interferes with the superintendent or a person authorized by the superintendent who is carrying out a duty under this Act or the regulations is guilty of an offence.
4. Section 46 of the Act is repealed and the following substituted:
46. (1) On conviction for an offence under this Act, the person convicted is liable on summary conviction to a fine of not more than $1,000,000 or to a period of imprisonment of not more than 2 years or to both a fine and imprisonment.
(2) Every director or officer of a corporation and every person acting in a similar capacity or performing similar functions in an unincorporated association and every member of a partnership, who,
(a) caused, authorized, permitted or participated in an individual, corporation, unincorporated association or partnership committing an offence referred to in section 45; or
(b) failed to take reasonable care to prevent an individual, corporation, unincorporated association or partnership from committing an offence referred to in section 45,
is guilty of an offence and liable on summary conviction to a fine of not more than $1,000,000 or to a period of imprisonment of not more than 2 years or to both a fine and imprisonment whether or not the individual, corporation, unincorporated association or partnership has been prosecuted for or convicted of the offence.
(3) Where a person is convicted of an offence under this Act, the court making the conviction may, in addition to another penalty, order the person convicted to make compensation or restitution.
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