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Statutes of Newfoundland and Labrador 2010


CHAPTER 23

AN ACT TO AMEND THE INSURANCE COMPANIES ACT NO. 3

(Assented to June 24, 2010)

Analysis


        1.   S.25 R&S
Appeals

        2.   S.71 Amdt.
Information to be filed in court

        3.   S.77 R&S
Examination of insurers

        4.   Ss.77.1 to 77.5 Added
77.1 Investigation order
77.2 Powers
77.3 Search and seizure
        with warrant
77.4 Production order
77.5 Interim preservation of
        property

        5.   S.81 Amdt.
Record of fire premium income and losses

        6.   S.108 R&S
108.   Offence
108.1 Offence
108.2 Limitation period

 

 


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

RSNL1990 cI-10
as amended

        1. Section 25 of the Insurance Companies Act is repealed and the following substituted:

Appeals

      25. An insurer whose licence has been suspended or cancelled under this Act or whose application for a licence has been refused under this Act may, in accordance with the Financial Services Appeal Board Act, appeal that suspension, cancellation or refusal to the board established under that Act.

 

        2. Subsection 71(3) of the Act is repealed and the following substituted:

             (3)  A liquidator who refuses or neglects to provide information under subsection (2) is guilty of an offence and may, in addition, be dismissed or removed.

 

        3. Section 77 of the Act is repealed and the following substituted:

Examination of insurers

      77. (1) The superintendent, or a person appointed by the superintendent for the purpose, may conduct an examination at the head office or chief office in the province of an insurer incorporated under the laws of the province and the superintendent or a person appointed by the superintendent may examine the statements of the condition and affairs of each insurer incorporated under the laws of the province filed under this Act, and make those inquiries that are necessary to ascertain its condition and 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.

             (2)  Where the head office of an insurer is not in the province and the superintendent considers it necessary to make a further examination into its affairs, the superintendent, or a person appointed by the superintendent for the purpose, may visit the head office of the insurer to examine its affairs and to make those further inquiries that the superintendent considers appropriate.

             (3)  The officers and agents of an insurer shall open the books and records of the insurer for the examination of the superintendent, or a person appointed by the superintendent for the purpose, and shall otherwise facilitate the examination.

             (4)  In order to facilitate the examination of the books and records of an insurer, the insurer may be required by the superintendent, or a person appointed by the superintendent for the purpose, to produce the books and records at the head office or chief office in the province of the insurer or at another convenient place that the superintendent or the person directs.

             (5)  For the purpose of an examination under this section, the superintendent, or a person appointed by the superintendent for the purpose, may examine documents or other things, whether they are in the possession or control of the insurer or another person or company.

 

        4. The Act is amended by adding immediately after section 77 the following:

Investigation order

   77.1 The superintendent may, by order, appoint a person to conduct an investigation that the superintendent considers necessary for the administration of this Act.

Powers

   77.2 (1) A person conducting an examination under section 77 or an investigation under section 77.1 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.

Search and seizure with warrant

   77.3 (1) Where the superintendent, or a person appointed by the superintendent under section 77 or 77.1, believes on reasonable grounds that a person is contravening or has contravened this Act, the superintendent, or person appointed by the superintendent may, with a warrant issued under subsection (2), enter a premises and seize anything that may be there that may provide evidence of the contravention.

             (2)  A judge of the Provincial Court or the Trial Division who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act has occurred, or is occurring, may issue a warrant authorizing the person named in the warrant to enter premises, including a dwelling house, and to

             (a)  search;

             (b)  examine the contents of the premises and make those inquires that the investigator considers necessary; and

             (c)  copy, extract, photograph, video, seize and take away evidence, books and records

for the purpose of investigating the suspected contravention.

             (3)  A person present at a premises referred to in this section shall not obstruct the person named in the warrant in its execution.

Production order

   77.4 (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 person making the investigation.

             (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.

Interim preservation of property

   77.5 (1) Where the superintendent considers it necessary for the administration of this Act, the superintendent may direct a person or company having on deposit or under its control or for safekeeping funds or property of a person or company, to retain those funds or property and to hold it until the superintendent in writing revokes the direction or consents to release a particular fund or property from the direction, or until a judge of the Trial Division orders otherwise.

             (2)  A direction under subsection (1) that names a bank or other financial institution shall apply only to a branch of the bank or other financial institution identified in the direction.

             (3)  As soon as practicable, and not later than 7 days after a direction is issued under subsection (1), the superintendent shall apply to a judge of the Trial Division to continue the direction or for another order that the judge considers appropriate.

             (4)  A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent immediately by means that the superintendent may determine to all persons and companies named in the direction.

 

        5. Subsection 81(4) of the Act is repealed and the following substituted:

             (4)  An insurer and the principal officer within the province of an insurer that contravenes this section is guilty of an offence.

 

        6. Section 108 of the Act is repealed and the following substituted:

Offence

   108. (1) A person who contravenes this Act or the regulations is guilty of an offence and liable on summary conviction to a penalty 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)  A person who obstructs or interferes with an investigator or examiner in the course of a lawful investigation or examination under this Act or the regulations is guilty of an offence and is liable on summary conviction to a penalty 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.

             (3)  A penalty imposed under this Act shall be paid into the Consolidated Revenue Fund.

             (4)  Where a person is convicted of an offence under this Act or the regulations, the court making the conviction may, in addition to another penalty, order the person convicted to pay compensation or restitution.

Offence

108.1 (1) An insurer who fails to comply with section 5.1 is guilty of an offence and liable on summary conviction to a fine of not less than $100,000 and not more than $1,000,000.

             (2)  An insurer who fails to comply with a requirement of section 96.1 or 96.2 is guilty of an offence and liable on summary conviction

             (a)  for a first conviction to a fine of not less than $25,000 and not more than $1,000,000; and

             (b)  for a second or subsequent conviction, to a fine of not less than $50,000 and not more than $1,000,000.

             (3)  In subsection (2), "insurer" includes the Facility Association.

             (4)  Where a person is convicted of an offence under this section, the court making the conviction may, in addition to another penalty, order the person convicted to pay compensation or make restitution.

Limitation period

108.2 A prosecution under this Act and the regulations shall not be started later than 2 years from the date the offence was discovered by the superintendent.