CBA Personal Injury Subsection: Summer Wind Up Meeting

Transcription

1 CBA Personal Injury Subsection: Summer Wind Up Meeting Remaining Amendments to Alberta s Insurance Act Prepared by: Craig Gillespie Cuming Gillespie Date: June 14, 2012

2 2 Remaining Amendments to Alberta s Insurance Act On July 1, 2012, the final legislative amendments made to Alberta s Insurance Act, R.S.A. 2000, c. I-3, and its accompanying regulatory structure will take effect. Legislative changes have been implemented to amend the provisions of the Insurance Act applicable to the various types of insurance contracts such as: life, accident and sickness, liability, business and property. These changes some of the most significant the statute has seen are designed to modernize the framework for insurance contracts, strengthen consumer protection, and address issues identified by stakeholders, including consumers, legal counsel and insurers 1 and will have an immediate impact on the handling of claims. The major changes to the Insurance Act can be summarized as follows: (1) Limitation Period The timeframe to initiate an action has been increased from the current one-year timeframe to two years to promote consistency with the Alberta Limitation Act. For instance, section 526(1) of the Insurance Amendment Act 2008 ( the IAA ) 2 extends the limitation period for an action by the insured against the insurer on a property policy to two years after the insured knew or should have known that the loss has occurred. Where losses other than those to property are involved, section 526(1) extends the limitation period to two years after the cause of action arose. Significantly, the discoverability principle has been imported into the property limitation period. 1 Government of Alberta, Treasury Board and Finance, Insurance Legislation: Alberta s New Insurance Act, online at: and 2 Insurance Amendment Act 2008, c. 19

3 3 Section 527 of the IAA stipulates that section 5 of the Limitation Act, which suspends the operation of a limitation period during the time that the plaintiff was a minor or was under a disability, is now applicable to actions on insurance contracts. Similarly, sections 558(1) and 636 confirm the operation of the two-year limitation period to actions against insurers under automobile insurance policies and actions brought by the insured against the insurer in regard to hail insurance respectively. Additional reference should be had to sections 593 (permitting limitation periods for actions against the insurer to be set out in the policy but prescribing a minimum limitation period of two years from the date of the accident), 677 and 708 (which impose limitation periods for actions against the insurer to recover insurance monies payable upon a person s death under a life insurance or accident and sickness insurance policy). 3 (2) Dispute Resolution The dispute resolution process, currently referred to in the Insurance Act as the Appraisal Procedure, will be amended to strengthen consumer protection in a claims dispute. More specifically, the current appraisal procedure will be replaced with a dispute resolution process whose characteristics are identified in section 519 of the IAA and in Statutory Condition #11 under section 540. In this regard, it is significant that this new dispute resolution process is broad enough to address disputes regarding the nature and extent of repairs to, or replacement of, property and thus will provide a more efficient and cost effective means of resolving disputes outside of the Courts. 4 3 Parlee McLaws LLP, Insurance Litigation Legal Alert: Remaining Changes to Alberta s Insurance Act to Come into Force on July 1, 2012, October 5, 2011, online at: at pp. 1-2

4 4 (3) Multi Peril Property Contracts The legislation will require that statutory conditions be incorporated into multiperil property contracts. Section 540 of the IAA outlines numerous statutory conditions that will, as of July 1, 2012, be deemed to be part of every insurance contract in Alberta. The provision also requires that these conditions be incorporated into every contract. While the wording of a number of the Statutory Conditions will remain unchanged, some of the more noteworthy amendments are those made to Statutory Conditions #2 (Property of Others), 5 (Termination of Insurance), 9 (Salvage), 10 (Entry, Control, Abandonment) and 13 (Repair or Replacement). 5 According to the government s primer on these legislative amendments, it is hoped that this will provide clarity for future insurance claims. 6 (4) Electronic Transactions Electronic transactions will be allowed, permitting insurers and policyholders to use modern business practices and technology. Section 547 of the IAA provides legislative authority to policyholders and insurers to utilize electronic transactions as a means of communication. It permits any records required or allowed to be exchanged to be provided in electronic form and stipulates that a record provided in electronic form is deemed to have been sent by registered mail for the purposes of the Act. 4 Risk Management Counsel of Canada, Celeste M. Small, Scott Venturo LLP, Reforms to Insurance Legislation: Alberta s Response to the Supreme Court of Canada s Call for Change, March 2012, online at: at p. 5 5 Ibid, at p Supra note 1

5 5 There are, however, some exceptions where written transactions will still be required to protect consumer interest (ie. the cancellation of an insurance policy or the change of a beneficiary). 7 (5) Group Life Policy Disclosure There is expanded and easier access to documents for those insured under the Group Life, or Accident and Sickness policy under section 642 of the IAA. 8 More particularly, subsections 642(5) and (8) of the IAA, will permit an individual insured under a group life or accident and sickness policy to obtain a copy of the group insurance policy excluding any parts containing confidential information. This is a departure from the current situation wherein the individual can only access a certificate with very limited information about the insurance. (6) Re-designation of the Subrogation Provisions Section 553 of the current Insurance Act will be replaced by section 546 of the IAA as the provision applying to subrogation generally. 9 Pursuant to section 546, the right of subrogation will apply to all insurance policies other than those specifically excepted. (7) Standard Policy Terms Now Presumed, New Rules for Insurance Applications Pursuant to section 517(1) of the IAA a provision designed to address situations in which insurance is effective before the policy is issued an insurance contract is deemed to include the standard policy terms and conditions for the particular type of insurance. 7 Fair Practices Amendment Regulation, Alta. Reg. 145/2011, s Supra note 3, at p. 4 9 Ibid

6 6 In addition, the contract is deemed to include any other terms or conditions that the insured is advised of by way of written notice. 10 Section 517(2) stipulates limits to the terms and conditions that will be deemed to be included in the insurance contract under section 517(1). Furthermore, section 518 of the IAA expands upon the former section 547 with respect to the policy of insurance reflecting the contents of the application. 11 (9) Hail Insurance The regulatory process will be streamlined for hail insurers with the removal of the requirement to file hail insurance commission and premium rates. The corresponding changes coming to the regulatory structure of the Insurance Act ought also to be briefly mentioned. These amendments are aptly summarized on the website of the province s Treasury Board and Finance Department as follows: (1) Classes of Insurance Regulation 12 : This regulation repeals and replaces the current Classes of Insurance Regulation. The change harmonizes Alberta s enumerated classes of insurance with those listed in other jurisdictions. (2) Enforcement and Administration Amendment Regulation 13 : This amendment regulation currently outlines the various classes of insurance covered by the insurance industry s Compensation Corporation when an insurance company is 10 Supra note 3, at p Supra note 3, at p Classes of Insurance Regulation, Alta. Reg. 144/ Enforcement and Administration Amendment Regulation, Alta. Reg. 147/2011

7 7 liquidated. Amendment to the current regulation is required as a result of the changes to some of the classes of insurance in the Classes of Insurance Regulation. (3) Fair Practices Amendment Regulation: This amendment regulation arguably one of the more significant includes new consumer protection provisions that will require insurance companies, their agents and adjusters to provide full and clear disclosure of dispute resolution processes and limitation periods to clients who have initiated insurance claims. More specifically, section 5.1(1) of this regulation requires lawyers to provide notice to the defendant s insurer that the lawyer has been retained within 30 days following court filing of an action arising out of an automobile accident. Section 5.2(2) will then require the insurer receiving the notice to disclose both the existence and policy limits of an automobile liability policy issued by the insurer that covers the defendant vehicle. Disclosing this does not adversely affect an insurer s ability to dispute liability and the information is not to be disclosed to a judge or jury until after judgment is given in the action. 14 Similarly, pursuant to subsections 5.3(2) and (3), insurers are required to provide a claimant with written notification of any applicable limitation period unless the claimant is represented by legal counsel. Significantly, subsection 5.3(7) stipulates that an insurer s failure to abide by the notice of limitation provisions entitles the claimant to apply to the Court to seek either an order that the applicable limitation period be extended or any other remedy that the Court considers appropriate. 14 Supra note 3

8 8 This regulation also identifies the permitted exclusions that can be included in property insurance policy wordings to exclude coverage for damages caused by a fire (s. 5.7) and includes a provision permitting a person to apply to a court for an order for an advance payment on a personal injury claim being negotiated with an insurance company (s. 5.6). (4) Miscellaneous Provisions Amendment Regulation 15 : This amendment regulation will name the additional insurance perils which, if written by an insurance company in Alberta, trigger a requirement that the company become a member of the General Insurance OmbudService. The regulation also outlines the kind of confidential or commercial information, within a group life and accident and sickness insurance policy, an insurance company may withhold when a person, insured by the policy, requests a copy of the policy wordings. (5) Transitional (Insurance Amendment Act, 2008 Part 5) Regulation 16 : This regulation will provide guidance to the insurance industry and the legal community as to how existing and new insurance contract insurance claims are handled under the previous and new provision of the Act. This regulation is still to be finalized Miscellaneous Provisions Amendment Regulation, Alta. Reg. 146/ Transitional (Insurance Amendment Act, 2008 Part 5) Regulation, Alta. Reg. 185/ Supra note 3