OVERVIEW OF SUBSTANTIVE CHANGES TO THE INSURANCE ACT (B.C.)

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1 OVERVIEW OF SUBSTANTIVE CHANGES TO THE INSURANCE ACT (B.C.) These materials were prepared by John M. Moshonas, John A. Vamplew and Robert B. Lilly of Whitelaw Twining Law Corporation, Vancouver, BC for a conference held in Vancouver, BC hosted by Pacific Business & Law Institute, January 28, 2009.

2 ii TABLE OF CONTENTS I. INTRODUCTION...1 II. MAJOR CHANGES BY TOPIC...2 a. Restructuring of the Act...2 b Limitation Periods...3 i. Extension from 1 to 2 year Limitation Period...3 ii. Postponement of Limitation Period Section 7 of the Limitation Act 4 iii. Notice of Limitation Period Requirement...4 c. Subrogation...4 d. Coverage for Innocent Co-insured...5 e. Revisions to Statutory Conditions...7 f. Expansion of Relief from Forfeiture...7 g. Restrictions on Exclusions in the Event of Loss by Fire...11 h. Complaint Resolution Process...13 i. Dispute Resolution Process...14 j. Electronic Delivery of Documents...14 III. CHANGES BY SECTION...14 a. Changes to Introductory Provisions...15 i. Section 1 [Part 1 Heading]...15 ii. Section 2 [s. 1]...15 iii. Section 3 [s.2]...15 iv. Section 4 [ss. 2.1 to 2.5]...15 b. Changes to General Insurance Provisions...16 i. Section 5 [Part 2 Heading]...16 ii. Section 6 [s. 3]...16 iii. Section 7 [s. 4, 7 to 11 and 11.1]...16 iv. Section 8 [s. 12]...17 v. Section 10 [s. 17]...17 vi. Section 12 [s. 22]...18 vii. Section 13 [ss. 25, 25.1, 26, 26.1, 27, 27.1 and 28]...18 viii. Section 14 [ss to 28.6]...19 c. Changes to Life Insurance Provisions...19 i. Section 15 [s. 29]...19 ii. Section 16 [s. 29.1]...19 iii. Section 17 [s. 30]...20 iv. Section 18 [s. 31]...20 v. Section 19 [s. 32]...20 vi. Section 20 [s. 33]...21 vii. Section 21 [s. 34]...21 viii. Section 22 [s. 35]...21 ix. Section 23 [ss. 37 and 37.1]...22 x. Section 24 [s. 38]...22 xi. Section 26 [s. 40]...22 xii. Section 27 [s. 41]...22 xiii. Section 28 [s. 42]...23

3 iii xiv. Section 30 [s. 47]...23 xv. Section 31 [s. 47.1]...23 xvi. Section 32 [s. 48]...23 xvii. Section 35 [s. 52]...24 xiii. Section 38 [s. 55]...24 xix. Section 41 [s. 58]...25 xx. Section 42 [s. 59.1]...25 xxi. Section 45 [s. 63]...25 xxii. Section 47 [s. 65]...25 xiii. Section 50 [s. 71]...26 xxiv. Section 53 [s. 77]...26 d. Changes to Accident and Sickness Insurance Provisions...26 i. Section 56 [s. 81]...26 ii. Section 57 [s. 81.1]...26 iii. Section 58 [s. 82]...26 iv. Section 59 [s. 84]...27 v. Section 60 [s. 85]...27 vi. Section 61 [s. 86]...27 vii. Section 62 [s. 87]...28 viii. Section 63 [s. 88]...28 ix. Section 64 [s. 89]...28 x. Section 65 [s. 90]...28 xi. Section 67 [s and 91.2]...28 xii. Section 68 [s. 92]...29 xiii. Section 70 [s. 94 and 95.1]...29 xiv. Section 71 [s. 95.2]...29 xv. Section 72 [s. 96]...29 xvi. Section 73 [s. 97]...29 xvii. Section 74 [s. 98]...29 xviii. Section 75 [s. 100]...30 xix. Section 76 [s. 101]...30 xx. Section 77 [s ]...30 xxi. Section 78 [s. 102]...30 xxii. Section 79 [s and 102.2]...30 xxiii. Section 80 [s. 103]...30 xxiv. Section 81 [s. 104 and 102.4]...31 xxv. Section 82 [s ]...31 xxvi. Section 83 [s. 105 and 102.3(1)]...31 xxvii. Section 84 [s. 106]...31 xxviii. Section 86 [s to 107.3]...31 xxix. Section 88 [s ]...32 xxx. Section 90 [s. 110]...32 xxxi. Section 91 [s. 111]...32 xxxii. Section 93 [s. 113]...32

4 iv e. Changes to Miscellaneous Provisions...33 i. Section 99 [s ]...33 ii. Section 100 [s. 192]...33 iii. Section 101 [s ]...33 iv. Section 102 [s ]...33 v. Section 103 [Transitional Regulations]...33 vi. Section 104 [ss and 107.3]...33 vii. Section 105 [Financial Institutions Act, s.1]...34 viii. Section 106 [FIA, s. 76]...34 ix. Section 107 [FIA, s to 80.3]...34 x. Section 108 [FIA, s. 289]...34 xi. Section 109 [Insurance (Captive Company) Act, s. 3]...34 xii. Section 110 [ICCA, s. 13]...34 xiii. Section 111 [Insurance Corporation Act, s. 8]...35 xiv. Section 113 [Insurance Premium Tax Act, s. 1]...35 xv. Section 114 [Securities Act, s. 43]...35 xvi. Section 115 commencement of act by regulation CONCLUSION...36

5 OVERVIEW OF SUBSTANTIVE CHANGES TO THE INSURANCE ACT I. INTRODUCTION Major changes to the British Columbia Insurance Act, R.S.B.C. 1996, c. 226 (the Act ), are set to take effect in the near future. When the Act was created in 1925, it was designed to regulate insurance policies issued for specific types of risks or perils; however, modern day policies generally provide coverage for a multitude of risks, which results in a disconnect between the law and insurance policies. The B.C. Legislature has not comprehensively reviewed or substantively modified the Act since the 1960s. The Supreme Court of Canada took notice of this fact in KP Pacific Holdings Ltd. v. Guardian Insurance Co. of Canada, when it criticized the Act for its antiquated paradigms and principles that ineffectively address modern multi-risk insurance policies and consumer needs, and expressly called on the Legislature for reform: The outmoded category-based Act contains rules based on the old classes of insurance. The newer comprehensive policies are difficult if not impossible to fit into the old categories. The result is continued uncertainty about what rules apply. Claims stall. Litigation ensues. Courts struggle with tortuous alternative interpretations. The rulings that have emerged have been likened to a judicial lottery It would be highly salutary for the Legislature to revisit these provisions and indicate its intent with respect to all-risks and multi-peril policies. 1 In November 2005, the Provincial Government heeded the Supreme Court s advice when it began an extensive review process of the Act, which culminated on April 30, 2008 with the first reading of the proposed new Act: Bill 40, the Insurance Amendment Act, According to the Insurance Act Review Discussion Paper published by the Ministry of Finance in March 2007, the Legislature considered three policy objectives for regulating insurance contracts: (1) consumer protection and clarity of contractual provisions, (2) harmonization, and (3) justifiable intervention. The Legislature s intention is that policies will be fair, transparent, and innovative, which will protect consumers, provide for fast and effective dispute resolution, and permit insurers to develop new insurance products to meet the 1 [2003] 1 S.C.R. 433, paras. 4 5.

6 2 changing needs of consumers. While the Legislature's objective is to harmonize insurance legislation across the provinces, the proposed changes to the Act will likely create some disharmony among the provinces, except for perhaps Alberta which has enacted similar amending legislation, Bill 11, which received royal assent on November 4, Finally, the Legislature s third objective is to minimize superfluous government intervention in private contracts in order to meet the above objectives. Although it is not clear when these changes will come into force because the Legislature has not specified when it will proceed with the second or third readings and ultimately enact the changes by way of regulation, it is important to understand and prepare for the changes in the interim. This paper outlines all of the proposed revisions and their relevance to insurers by first focusing on the changes by topic that will, arguably, have the most significance for property and casualty insurers and then analyzing the changes on a section-by-section approach. II. MAJOR CHANGES BY TOPIC a. Restructuring of the Act Currently, the Act is divided into 8 parts (but actually 7 because Part 6 was repealed in June 2007). The key parts include Part 2 (General Provisions), Part 3 (Life Insurance), Part 4 (Accident and Sickness Insurance) and Part 5 (Fire Insurance). Again, the Act was drafted in the 1920 s at a time when it was thought property insurance could be categorized in two ways, fire insurance and everything else. The Act reflected this thinking in that fire insurance was given its own set of provisions in Part 5, whereas all other forms of property insurance were governed by a general set of provisions in Part 2. The new Act eliminates the Act s categorical approach to property insurance. Part 5 of the Act will be eliminated. Part 2 will not apply to life insurance, Accident and Sickness ( A&S ) insurance, reinsurance policies, or those contracts enumerated in Part 7, which remain unchanged. Consequently, virtually all forms of property and casualty insurance will be governed by a substantially revamped Part 2, which will be entitled General Insurance Provisions. For instance, the new Part 2 will set out a single limitation period for all property and casualty claims, and will also provide one set of statutory conditions that apply to all

7 3 property and casualty claims. Life insurance and A&S insurance remain governed by Parts 3 and 4, respectively. b Limitation Periods i. Extension from 1 to 2 year Limitation Period The current Act contains four different limitation periods, the application of which is dependant upon the classification of the insurance contract. The new Act clarifies the application of limitation periods by uniformly extending the limitation period for most types of loss from 1 to 2 years. In the case of loss or damage to property, a revised s. 22(1) of the new Act prescribes that an action against an insurer will need to be commenced within 2 years from the date the insured knew or ought to have known the loss or damage occurred. In all other Part 2 cases, an insured will need to commence an action within two years after the date the cause of action against the insurer arose. Unfortunately, the new Act does not elucidate whether the triggering date is the date of loss or the date of denial. Arguably, in the case of an insured seeking coverage for defence and indemnity under a liability policy, this will mean the insured must commence a coverage action within two years from the date of being notified of the insurer s denial. In the case of life insurance, a revised s. 65 of the new Act extends that limitation for all cases from 1 year to 2 years (or 6 years in the case of death where a proof of loss is not provided). Section 65 also establishes new triggering dates to which the 2 year limitation applies for actions not from death or declaration of death to the later of (1) the date the event that caused the loss occurred, (2) the date the claimant ought to have known the event occurred, or (3) in the case of money payable on a periodic basis, the date the insurer failed to make a payment. With respect to A&S insurance, s of the new Act provides that in the case of death an action must be commenced within 2 years after the proof of claim is furnished or 6 years after the date of the death, which ever comes first. In all other cases, the action must also be commenced not later than two years after the date the claimant knew or ought to have known of the first instance of the loss or occurrence giving rise to the claim for insurance money.

8 4 ii. Postponement of Limitation Period Section 7 of the Limitation Act Section 2.4(1) of the new Act makes the two-year limitation period for bringing an action against an insurer subject to the postponement provision in s. 7 of the Limitation Act. In other words, if the insured is a minor, the running of the limitation period will be postponed until the time the minor reaches age 19, or if the insured is under a legal disability, the running of the limitation period will be postponed until the insured is no longer under such a disability. Moreover, s. 2.4(2) of the new Act authorizes extension by contract to provide for a longer limitation period than the new Act will provide. iii. Notice of Limitation Period Requirement Like the current Act, insurers must still expressly state in all insurance contracts that actions must be commenced within the limitation period prescribed by the Act. For example, s. 8(j) of the new Act mandates that the following wording be included in insurance contracts: Every action or proceeding against an insurer for the recovery of insurance money payable under the contract is absolutely barred unless commenced within the time set out in the Insurance Act. The same is true for life insurance and A&S insurance, as required by the revisions to sections and 85-87, respectively. Insurers will be required to update their policies to reflect this new language. Moreover, a revised s. 192 of the Act gives the Legislature regulation making authority respecting an insurer s duty to give notice to an insured of an expiring limitation period. It is possible that insurers will soon be required to give said notice, considering the B.C. Ministry of Finance proposed the notice requirement in its Insurance Act Review Discussion Paper. c. Subrogation At common law, no subrogated rights arise until the insured is fully indemnified for its loss. Once full indemnity is made, the insurer has the right to commence proceedings against the wrongdoer in the insured s name and make all decisions in the litigation. The insured has a duty to co-operate in the litigation in matters such as giving evidence at trial. The insurer is entitled to recover no more than it paid out, and any excess goes to the insured: Yorkshire Insurance Co. Ltd. v. Nisbet Shipping Co. Ltd., [1962] 2 Q.B In the event that the insured, after receiving

9 5 full or partial indemnity, commences an action and makes a recovery in respect of the loss, the insured must account to the insurer. The principles of subrogation were modified to some extent by statute and also by the wording of insurance policies. The current Act alters the operation of the doctrine of subrogation on fire insurance policies by removing the requirement that the insured be fully indemnified before the insurer gains a subrogated interest. Section 130 of that current Act provides: 130 (1) The insurer, on making any payment or assuming liability therefor under a contract of fire insurance 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. (2) If the net amount recovered after deducting the costs of recovery is not sufficient to provide a complete indemnity for the loss or damage suffered, that amount must be divided between the insurer and the insured in the proportions in which the loss or damage has been borne by them respectively. This provision, however, only applies to fire insurance claims. Accordingly, unless the insurance policy in question provides to the contrary, subrogation in non-fire claims is governed by the common law, which does not allow for a pro-rata sharing, but rather requires that the insured be fully indemnified for its loss before any proceeds go to the insurer. In the new Act, s. 130 of the current Act will be re-enacted as s. 28.6, which will have the practical effect of extending the pro-rata sharing scheme to all subrogated claims, so that it no longer applies only to subrogated fire claims. d. Coverage for Innocent Co-insured Section 28.5 of the new Act will enable an innocent insured to have coverage for loss or damage to property, even where the criminal or intentional act of a co-insured caused the loss. The genesis of this amendment is from the scenario where a house is insured in the name of two spouses, their relationship breaks down, and in an act of vengeance, one spouse intentionally sets fire to the house. Depending on the language of the policy, the criminal act of one spouse can result in there being no coverage whatsoever for the loss. The issue was considered by the Supreme Court of Canada in Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445, where a 15 year old boy intentionally set fire to his

10 6 parents house without their knowledge or complicity. In that case, the policy excluded coverage for a wilful act of the Insured. The word Insured included the Named Insured (i.e. the father) and residents of his household, his spouse, the relative of either, and any person under the age of 21 in the care of an Insured (i.e. the child). The Court stated that the policy language was clear and unambiguous and, accordingly, ruled that there was no coverage in the circumstances. In doing so, the majority of the Court laid down a three step approach to determine if coverage is afforded in cases of a criminal act of an individual potentially insured under a policy. First, the court must examine the policy wording to determine if the language clearly excludes an insurer s liability. Second, if the words do not clearly exclude the innocent co-insured s claim, then the court must examine the intention of the parties to determine if a different interpretation is warranted. Finally, if the policy is neutral on the point, then a presumption arises that the innocent co-insured s insurance is contaminated regarding property in which both insureds have an inseparable interest. The dissent in Scott, however, would eliminate this last step holding that an innocent co-insured should not lose his or her coverage for the wrongdoing of another unless the policy clearly provides for such loss of coverage. This is the so-called modern or new approach. British Columbia courts prefer the new approach. 2 At present, if the policy wording excludes coverage for the wrongdoing of any insured, coverage will generally be excluded. For example, the court in Riordan v. Lombard Insurance Co. (2003), 13 B.C.L.R. (4th) 335, 2003 BCCA 267, could not find coverage for the foster parents of a child who intentionally set fire to the house because the child was considered an insured under the policy and the policy expressly excluded the intentional or criminal acts of any person insured by this policy. The addition of s to the new Act will render the common law inapplicable, as an insurer can no longer deny coverage to an innocent co-insured for the criminal or intentional acts of another insured under an insurance policy. 2 Inland Kenworth Ltd. v. Insurance Corp. of British Columbia (1990), 43 B.C.L.R. (2d) 95 (S.C.).

11 7 e. Revisions to Statutory Conditions The new Act will revise the statutory conditions relating to fire insurance and previously found at s. 126 of Part 5, and will re-enact them as s of Part 2. The statutory conditions have been reduced from the current 15 to 14 conditions, 5 of which apply to all types of insurance policies contemplated by Part 2 except contracts of surety insurance, whereas the remaining 9 pertain only to contracts providing for loss or damage to property. Statutory condition 14 (Action) of the current Act respecting limitation periods will be revised to reflect the two year limitation period and dropped from the list of statutory conditions, but will be effectively re-enacted as s. 8(j) of Part 2 of the new Act. The statutory conditions for A&S insurance have also been revised. Section 89 of the new Act no longer contains condition 4 (Relation of earnings to insurance) and 12 (Limitation of actions) and the remaining statutory conditions have been updated and clarified. Akin to statutory condition 14 under the current Act relating to fire, statutory condition 12 under the current Act relating to A&S insurance will be revised to reflect the proposed extension of the limitation period to two years and will be effectively re-enacted into ss of the new Act. Statutory conditions must be reproduced verbatim in policies. Insurers will be required to revise the statutory conditions sections of their policies to ensure compliance with the new Act. f. Expansion of Relief from Forfeiture Section 10 of the new Act will broaden the current relief from forfeiture provision to provide that s. 24 of the Law and Equity Act, R.S.B.C. 1996, c. 253 is also applicable to insurance contracts. The new s. 10 will also apply to Part 4 (A&S insurance), but not to Part 3 (Life insurance) of the new Act. Section 24 is a general equitable provision that gives the court the discretion to relieve against all penalties and forfeitures and reads as follows: [t]he court may relieve against all penalties and forfeitures, and in granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit.

12 8 Under the current Act, a debate has emerged in the case law as to whether or not the equitable relief available under s. 24 of the Law and Equity Act applies to insurance policies. It is clear that s. 24 of the Law and Equity Act cannot provide relief for missed limitation periods for commencing an action against an insurer. 3 Conversely, it is unclear whether a court may apply its general powers of equitable relief against forfeiture to contracts regulated by the Act. The question was before the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance, [1994] 2 S.C.R. 490, 115 D.L.R. (4th) 478, with respect to s. 10 of the Judicature Act, which is similar to s. 24 of the Law and Equity Act. The Court provided some guidance in obiter dicta on the issue, but refused to answer the question because the plaintiffs were not eligible for relief against forfeiture in the circumstances. In that case, the plaintiffs failed to make timely premium payments allowing the insured s life insurance policy to lapse. After the grace period expired, the insurer made a late payment offer, to which the plaintiffs did not respond. The insurer was obligated to reinstate the policy only upon payment and proof of insurability. The plaintiffs eventually made a payment approximately one year after payment was required, but by that time the insured was uninsurable because of a terminal illness. Relying on Shiloh Spinners Ltd. v. Harding (1972), [1973] A.C. 691 (U.K. H.L.) and Snell's Equity, 29th ed. (London: Sweet & Maxwell, 1990), at pp , the Court enunciated governing factors a court must consider when exercising its discretion for relief against forfeiture as follows: (1) the conduct of the applicant; (2) the gravity of the breach(s); and (3) the value of the property forfeited and the damage caused by the breach. 4 The Court held that the plaintiffs acted unreasonably, and, accordingly, did not meet the first part of the test. The Court, therefore, did not have to consider the issue of the application of equitable statutory relief to insurance contracts, but provided the following guidance : 3 4 Roe v. Insurance Corp. of British Columbia, [1979] I.L.R (B.C.S.C.); Hutchinson v. A.G. of Canada and The Maritime Life Assurance (2002), 45 C.C.L.I. (3d) 318, 2002 BCSC (1994), 115 D.L.R. (4th) 478 at 487. The test has been cited with approval numerous times by British Columbia courts (see e.g. Lieber v. Canadian Group Underwriters Insurance Co. (2000), 18 C.C.L.I. (3d) 284 at para. 24 (B.C. S.C.); Webber v. Canadian Aviation Insurance Managers Ltd. (2002), 42 C.C.L.I. (3d) 124, 2002 BCSC 1415; Hutchinson v. A.G. of Canada and The Maritime Life Assurance (2002), 45 C.C.L.I. (3d) 318 at para. 30, 2002 BCSC 1803.

13 9 the existence of a statutory power to grant relief where other types of insurance are forfeited does not preclude application of the Judicature Act [which is similar legislation to the British Columbia Law and Equity Act] to contracts of life insurance. The Insurance Act does not "codify" the whole law of insurance; it merely imposes minimum standards on the industry. The appellant's argument that the "field" of equitable relief is occupied by the Insurance Act must therefore be rejected. 5 Although this dicta has been applied in numerous Ontario cases, 6 it has not been expressly adopted in subsequent British Columbia cases, yet British Columbia courts currently appear willing to leave open the possibility of applying s. 24 of the Law and Equity Act for relief from forfeiture for non-compliance with an insurance contract regulated by the Act. example, in Hutchinson v. A.G. of Canada and The Maritime Life Assurance (2002), 45 C.C.L.I. (3d) 318, 2002 BCSC 1803, the Court conducted a s. 24 analysis for relief from forfeiture for failing to make an application for a change in the insured s disability status within the timeframe required by the policy. The Court, ultimately, held that the insured failed to bring the claim within the required limitation period and was therefore time-barred. In case the Court was incorrect in its conclusion, the Court listed several reasons, including, inter alia, an inexcusable delay and prejudice to the insurer, for why relief from forfeiture under s. 10 of the Act or s. 24 of the Law and Equity Act was inappropriate. At no point, did the Court state that it did not have the jurisdiction to apply s. 24 to the insurance policy, which suggests that it remains open for a court to do so, otherwise the Court would not likely have engaged in the s.24 analysis in the first instance. It is clear, however, that s. 24 of the Law and Equity Act will not apply to relief from statutory forfeiture. In Martin Mine v. British Columbia (1985), 62 B.C.L.R. 107 (C.A.), the British Columbia Court of Appeal held that s. 21 (now s. 24) of the Law and Equity Act did not empower a court to relieve against statutory forfeiture. In doing so, the Court stated: For I respectfully disagree with the view that s. 21 of the Law & Equity Act gives a court the power to relieve against statutory forfeiture. I think that the views expressed by the Supreme Court of Canada and the Privy Council in the case of The Canadian Northern Railway Co. and The Canadian National Railways v. His Majesty the King and the Provincial Treasurer of Alberta (1922) 64 S.C.R. 264 and [1923] A.C. 714 clearly establish that s. 21 does not give a court the power to relieve against "statutory" forfeiture. A provision in the Supreme Court Act of Alberta 5 6 Ibid. at 487. See e.g. Feature Foods v. Landau (1995), 27 C.C.L.I. (2d) 179 (Ont. Gen. Div).

14 10 gave the Court the power to relieve "against all penalties in forfeiture" (like s. 21 of the Law & Equity Act). The main issue in the case was whether the Court had power to relieve against financial penalties imposed upon the railway companies under the terms of provincial legislation. The Appellate Division of the Supreme Court of Alberta unanimously held that the power to relieve against penalties in forfeitures did not authorize relief against statutory penalties. The Supreme Court of Canada unanimously agreed with this view, including Idington, J. and Anglin, J. who dissented. At page 269 Idington, J. said: The contention founded upon the power of the Court to relieve from such penalties... seems to me to be applicable only to such contractual penalties and forfeitures as the Court of Chancery had exercised jurisdiction in regard to. Duff, J. said at page 272: I am unable to accept the contention that the authority to relieve from forfeitures expressed in general terms and conferred upon the Supreme Court by the statute of 1907 extends to penalties and forfeitures declared by a public enactment and thereby made exigible upon the non-performance of a general duty created by such enactment, such as a duty to pay taxes or to make a return under a taxing statute. The Privy Council agreed with this view. In giving the judgment of the Privy Council, Lord Parmoor said at page 722: The Chief Justice (Chief Justice Harvey of the Appellate Division) expresses the opinion that if the power given to the Court to relieve against penalties applied to statutory penalties, this would, in effect, be giving an authority to enable the Court to repeal statutes. This decision was unanimously confirmed in the Supreme Court of Canada. Idington, J. says in his judgment 'that the power in the Court to relieve from penalties seemed to him to be applicable only to such contractual penalties, and forfeitures as those to which the Court of Chancery had exercised jurisdiction.' I think that these views are determinative of this issue and that a court cannot relieve against penalties or forfeitures which are statutory in origin. 7 In Brown v. Insurance Corp. of British Columbia (2004), 28 B.C.L.R. (4th) 93, 2004 BCCA 255, the majority of the Court referred to s. 24 of the Law and Equity Act, but left open the question as to "whether the court can grant equitable relief when the statute gives I.C.B.C. the discretion to do so. Another question left open is whether the court can grant equitable relief from a statutory penalty or forfeiture" 8 The Court suggested that The Canadian Northern Railway Co. and The Canadian National Railways, supra, (referred to in Martin Mine, supra) and Saskatchewan River Bungalows Ltd., supra, would be relevant to resolving the issue. 7 8 at paras at para. 31.

15 11 More recently, the issue of relief from statutory forfeiture was considered by the British Columbia Provincial Court in Saress v. Insurance Corp. of British Columbia, [2006] B.C.W.L.D. 5508, 2006 BCPC In that case, the insured failed to disclose the existence of a car rental agreement to ICBC, contrary to the motor vehicle regulations. The claimant was not covered under the policy for a motor vehicle accident because the governing legislation mandated that the failure to disclose amounted to a forfeiture of the policy. The Court reluctantly held that it was bound by similar precedents, including Martin Mine, supra, insofar as it did not have the jurisdiction to provide relief from statutory forfeiture. By incorporating s. 24 of the Law and Equity Act into the new Act, the debate as to its application to insurance contracts governed by the Act will be settled. That is, the current relief provisions of the Act will provide broader equitable relief for non-compliance with an insurance policy, except for life insurance policies. The degree to which a court will exercise its increased discretion under this proposal remains to be seen. g. Restrictions on Exclusions in the Event of Loss by Fire The current Act, by way of ss. 122 and 129, places some restrictions on what risks can be excluded from a fire insurance policy. Despite these provisions, and depending on the particular policy wording, there can be situations where there is no coverage for a fire loss where the fire follows an otherwise excluded risk, such as vandalism or an earthquake. With respect to the former, a leading case in British Columbia regarding the interpretation of a vandalism provision in a homeowner s policy is Morton v. Canadian Northern Shield Co. [1998], 50 B.C.L.R. (3d) 57 (C.A.). In that case, the insured s rental building was destroyed by fire on May 17, Prior to the fire, in March 1993, the insured had applied for a development permit with the intention of demolishing the building to re-develop the property. On April 28, 1993, the tenant of the premises vacated and at the time of the fire the premises were unoccupied. The insured had not notified his broker or insurer that the premises were no longer occupied, nor had he notified the insurer or broker of his intention to demolish the premises. At the time of the fire, the city had not yet issued a development permit.

16 12 The Court of Appeal concluded that the premises were vacant at the time of the fire and therefore the vacancy exclusion set out in the vandalism provision did apply. The Court emphasized that the primary and overriding intention of the insured at the time of the loss was to demolish the premises. The Court of Appeal s reasoning is set out at paragraphs of the decision as follows: In my opinion, the Chambers judge fell into error in concluding the premises were not vacant because of "the intention of Mr. Morton to re-occupy if the development permit did not issue". There is no evidence here to suggest that the development permit would not issue. In my opinion, the evidence is such that the only reasonable inference on the facts as at the time of the loss is that the permit would have issued in due course I think the facts lean heavily to the conclusion that these premises were vacant at the time of the loss. So heavily do they lean to this conclusion that in my opinion a contrary conclusion would be clearly wrong. As I view it, the primary and overriding intention of the respondent at the time of the loss was to demolish the dwelling. His plans were to that end and I see nothing in the evidence to suggest that that end would not have been accomplished. In finding that the vacancy exclusion was reasonable, the Court of Appeal further noted that the length of vacancy did not matter, and it was possible for the vacancy exclusion to apply even if the premises had been vacant for only one day. Ultimately, the Court did not find coverage for the loss due to the arson fire. With respect to the latter, the reasoning in Morton, supra, is likely analogous to the situation where an earthquake causes damage to property and then results in a fire that causes further damage. Based on the reasoning in Morton, supra, such a loss arises from the peril of earthquake, and any ensuing fire damage is also deemed to have arisen from the earthquake. Accordingly, there will only be coverage for such loses where earthquake is included as an insured peril. Support for this proposition is found in a judgment of Madam Justice Southin in KP Pacific Holdings Ltd. v. Guardian Insurance Co. of Canada (2001), 92 B.C.L.R. (3d) 26 (C.A.) rev d (2003), 14 B.C.L.R. (4th) 1 (S.C.C.) in which she confirmed that fire and earthquake are separate perils and that fire can be an incidental peril to the peril of earthquake (at para. 10): fire can be an incidental peril to such perils as earthquake, flood, explosion, wind storm and hail. Policies were written for the latter two perils in the early part of the last

17 13 century as appears from the Canadian Abridgement, vol. 23, which was published in Whether they were written for flood, earthquake and explosion, I cannot say, but a fire can occur even now as an incident of other perils. Curiously, in this policy, although, for instance, earthquake is an excluded peril, a consequent loss by fire is excepted from the exclusion. In the new Act, ss. 122 and 129 will be replaced by section 28.4, which will enable the Legislature to make regulations at a later date to identify the permissible exclusions. While no indication of those exclusions is provided in the new Act, it is noted that in the Insurance Act Review Discussion Paper, the B.C. Ministry of Finance enunciated several proposals as to what changes should be made to the list of permissible exclusions applicable to fire insurance. It was proposed that earthquake not be added to the list of permitted exclusions, but that terrorism should be added to the list. It was further proposed that contract provisions providing coverage for fire resulting from any cause be retained and clarified to protect consumers from misguided expectations. Moreover, to address the circumstances in cases like Morton, supra, it was proposed that the regulation include a statutory grace period of 30 days during which coverage would be in place for fire loss and for vandalism resulting from fire loss, while the premises were vacant. These proposed restrictions would no doubt increase the risk to insurers in circumstances involving fire loss. h. Complaint Resolution Process As a result of the new Act, various consequential amendments will be made to related legislation. Among these will be an amendment to the Financial Institutions Act, R.S.B.C. 1996, c. 141, to add section This new provision will require insurers to establish a process for dealing with customer complaints. Insurers will be required to designate one or more people to implement and operate the process, and insurers will be required to publish their established procedures on their website, and provide the procedures in writing to anyone upon request. The procedures do not apply to a matter to which s. 9 of the new Act [Dispute resolution] applies (see below), complaints made to a mutual company, or complaints made to a prescribed class of insurers. Although the Legislature has authority to exclude a specific class of insurers from the complaint process, it has yet to do so under any regulation.

18 14 i. Dispute Resolution Process The new Act will expand the current appraisal process in s. 9 of the Act, and will give it the new name Dispute resolution. The new process will allow for the resolution of disagreements between insurer and insured over the value of the property damaged or saved, the nature and extent of repairs or replacement required, the adequacy of repairs or replacement carried out, and the amount of loss or damage. It is noted that the new dispute resolution process involves a broader scope of subjects, as the current Act does not include the phrase the nature and extent of repairs or replacement required, or, if made, their adequacy. The mechanics of the dispute resolution process will be similar to the current appraisal process in that each side will appoint a representative, and the two representatives will appoint a single umpire to determine quantum. j. Electronic Delivery of Documents Section 2.5 of the new Act will enable insurers to use to deliver records that they are required by the Act to provide to a person. The record must be sent in accordance with the Electronic Transactions Act, S.B.C. 2001, c. 10. Section 2.5(2) of the new Act defines a record as including a declaration or an insurance policy in addition, of course, to its ordinary meaning. Presumably, an insurer may send any document, including a blank proof of loss form, to an insured or beneficiary by provided that the document is sent in accordance with the Electronic Transactions Act and is not excluded by other acts or regulations. III. CHANGES BY SECTION This section canvasses all of the proposed changes to the new Act and discusses their significance where appropriate. The headings are listed first by the revising provision of the Insurance Amendment Act, 2008, followed by the corresponding section(s) of the new Act or other corresponding statute, which is expressly named (e.g. Section 36 [s. 53] or Section 105 [Financial Institutions Act, s.1]. Many sections are not discussed in detail below because they

19 15 simply update and/or clarify the statutory language of the Act or, alternatively, repeal a current section, rendering the section of no force. 9 a. Changes to Introductory Provisions i. Section 1 [Part 1 Heading] The Part 1 heading of the Act is changed to Interpretation, Application of Act and Introductory Provisions. ii. Section 2 [s. 1] The definitions of prescribed and vehicle are repealed so that the former is now defined by the Interpretation Act, R.S.B.C. 1996, c. 238, and the latter is no longer relevant to the Act. The section also repeals the Legislature s authority to define classes of insurance for the Act and the Financial Institutions Act. iii. Section 3 [s.2] This section concerns the application of the Act. The meaning of except as provided is clarified to include except as provided under an enactment. The new Act will not apply to a contract of marine insurance or vehicle insurance because they are dealt with under their own respective statutes. iv. Section 4 [ss. 2.1 to 2.5] This section adds new content to the Application to insurers and contracts section of the Act. First, it simply moves ss. 4 [Contract not avoided by default of insurer under Act], 27 [Liability of continuing insurer], and 28 [Effect of contracts on violation of law] of the current 9 The sections that update and clarify provisions of the Act include Section 25 [s. 39]; Section 29 [s. 44]; Section 34 [s. 50]; Section 36 [s. 53]; Section 37 [s. 54]; Section 39 [s. 56]; Section 40 [s. 57]; Section 46 [s. 64]; Section 51 [s. 72]; Section 52 [s. 73]; Section 54 [s. 78]; Section 55 [s. 79]; Section 66 [s. 91]; Section 85 [s. 107]; Section 96 [s. 118]. The sections that only update provisions of the Act include Section 43 [s. 60]; Section 49 [ss. 68, 70, 75 and 76]; Section 48 [s. 66]; Section 87 [s. 108]; and Section 92 [s. 112]; Section 94 [s. 114]. The sections that only clarify provisions of the Act include Section 33 [s. 49]; Section 89 [s. 109]; and Section 95 [s. 115]. The sections that repeal sections of the Act include Section 9 [s. 15]; Section 11 [ss. 19 and 21]; Section 44 [s. 61]; Section 69 [s. 93]; Section 97 [Part 5]; Section 98 [s. 189] Section 112 [Insurance (Marine) Act]. The only noteworthy repeal is Part 5, which is discussed above.

20 16 Act into the introductory provision as ss. 2.2, 2.3, and 2.4, respectively, so that they apply to all types of insurance contracts contemplated by the Act. Section 2.4 incorporates s. 7 of the Limitation Act into the new Act and authorizes the extension by contract of limitation periods prescribed by the Act, all of which is discussed in detail above. As discussed above, s. 2.5 authorizes insurers to provide documents that under the Act must or may be provided to another person electronically in accordance with the Electronic Transactions Act. b. Changes to General Insurance Provisions i. Section 5 [Part 2 Heading] This section changes the heading from General Provisions to General Insurance Provisions. ii. Section 6 [s. 3] This section clarifies the types of contracts to which Part 2 applies. As discussed above, Part 2 applies to every type of contract except a contract of life insurance, A&S insurance, reinsurance, or those contemplated under Part 7 (e.g. livestock insurance, home warranty insurance, deposit protection). iii. Section 7 [s. 4, 7 to 11 and 11.1] This section repeals and replaces ss. 4 and 7 to 11 with ss. 8 to Section 4 [Contract not avoided by default of insurer under Act] is simply repealed and moved to section 2.1(2) of the new Act. Section 8 [Contents of policy] is simply revised to improve readability. Section 9 [Dispute resolution] re-enacts the appraisal process as a broader dispute resolution process, as discussed above.

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