BILL 33

An Act to Amend the Insurance Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Insurance Act, chapter I-12 of the Revised Statutes, 1973, is amended

aby repealing the definition “broker”;

bby repealing the definition “adjuster” and substituting the following: 

“adjuster” (expert or expert en sinistres)

ameans

( i) a person who on behalf of an insurer or an insured, for compensation,

( A) directly or indirectly solicits the right to negotiate the settlement of or investigate a loss or claim under a contract or a fidelity, surety or guarantee bond issued by an insurer, or

( B) investigates, adjusts, negotiates or settles the loss or claim, or

( ii) a person who holds themselves out as an adjuster, investigator, consultant or adviser with respect to the adjustment, negotiation or settlement of the loss or claim, and

bdoes not include

( i) a barrister or solicitor while acting in the usual and regular scope of their employment,

( ii) a trustee or agent of the property insured,

( iii) a liquidator or trustee in bankruptcy while acting in the usual and regular scope of their employment,

( iv) a testamentary executor, director, trustee or fiduciary in the performance of their duties,

( v) an engineer, architect, appraiser, assessor or other expert who is employed solely for the purpose of giving expert advice or evidence,

( vi) a member of a police force, fire department or office of a fire marshal while acting in the usual and regular scope of their employment, and

( vii) any other person prescribed by regulation;

cby repealing the definition “agent” and substituting the following:  

“agent” means a person, other than an insurer, who, for compensation, (agent)

asolicits insurance on behalf of an insurer, insured or applicant for insurance,

btransmits an application for insurance from an insured or applicant for insurance to an insurer,

ctransmits a policy of insurance from an insurer to an insured, or

dnegotiates or offers to negotiate insurance on behalf of an insurer, insured or applicant for insurance or the continuance or renewal of insurance on behalf of an insurer or insured;

dby repealing the definition “damage appraiser” and substituting the following: 

“damage appraiser” (estimateur de dommages)

ameans a person who, for compensation or for promise or expectation of compensation, engages in the business of establishing the amount of loss resulting from any damage to the real or personal property of another person, and

bdoes not include

( i) an employee of a garage, body shop or other repair facility who estimates damage to a motor vehicle while acting in the usual and regular scope of their employment,

( ii) a liquidator or trustee in bankruptcy while acting in the usual and regular scope of their employment,

( iii) a testamentary executor, director, trustee or fiduciary while acting in the usual and regular scope of their employment,

( iv) an engineer, architect, appraiser, assessor or other expert who is employed solely for the purpose of giving expert advice or evidence,

( v) an adjuster while acting in the usual and regular scope of their employment,

( vi) a person not employed by an insurance company, adjusting firm or appraisal firm, who, while in the scope of employment because of technical or expert knowledge, is called on to estimate the damage to or the value of property, either their own, their employer’s or their employer’s customers, and

( vii) any other person prescribed by regulation;

eby adding the following definitions in alphabetical order: 

“Minister” means the Minister of Finance and Treasury Board and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule; (règlement)

“rule” means a rule made under this Act, or, if the context requires, a rule made under the Financial and Consumer Services Commission Act; (règle)

2 The Act is amended by adding after section 3 the following: 

Superintendent may exempt persons from the application of this Act

3.1( 1) If the Superintendent considers it appropriate to do so, the Superintendent may exempt, by order and subject to any terms and conditions the Superintendent considers appropriate, any person or class of persons from the application of this Act, the regulations or any provision of this Act or the regulations.

3.1( 2) An order under subsection (1) may be made on the Superintendent’s own motion or on the application of an interested person.

3.1( 3) An order under subsection (1) may be retroactive in its operation.

3.1( 4) A person to whom an order under subsection (1) applies shall comply with the terms and conditions imposed by the Superintendent under that subsection.

3 The heading “BOOKS AND RECORDS” preceding section 8 of the Act is repealed and the following is substituted:  

BOOKS, RECORDS, CERTIFICATES AND REGISTER OF LICENCE HOLDERS

4 Paragraph 8(1)(d) of the Act is repealed and the following is substituted: 

da record of adjusters, adjusting firms, agencies, agents, managing general agents, restricted insurance representatives, third party administrators and special insurance brokers licensed or authorized under this Act.

5 The Act is amended by adding after section 8 the following: 

List of persons to whom licences have been issued

8.1( 1) The Superintendent may publish and distribute, or cause to be published and distributed, annually or at more frequent intervals, and in any manner or format the Superintendent considers appropriate, a list of persons to whom licences have been issued under this Act.

8.1( 2) The list of persons referred to in subsection (1) may contain any other information or documents that the Superintendent considers appropriate.

6 The heading “Certificate of Superintendent” preceding section 9 of the Act is repealed and the following is substituted: 

Certificate evidence

7 Section 9 of the Act is repealed and the following is substituted: 

9 A certificate purporting to be signed by the Superintendent certifying any one or more of the following facts shall be admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the appointment, authority or signature of the person who signed the certificate:

athat a person named in the certificate was or was not licensed on a particular date;

bthat a licence was issued to a person on a date set out in the certificate;

cthat the licence of a person was renewed, suspended, reinstated, revived, revoked or cancelled at a particular date;

dthat a licence issued to a person was made subject to terms and conditions; and

eany other facts prescribed by regulation.

8 Subsection 11(2) of the Act is repealed.

9 Section 14 of the Act is repealed and the following is substituted: 

14 The Superintendent shall have, at all reasonable times, access to all the books, accounts, records, securities and documents of any person licensed or authorized under this Act or the regulations that relate to contracts of insurance, and any officer or person in charge, possession, custody or control of the books, accounts, records, securities or documents who refuses or neglects to allow access is guilty of an offence.

10 The Act is amended by adding after section 14 the following: 

Record keeping and retention period for client information

14.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of adjusters, adjusting firms, agencies, agents, damage appraisers, insurers, managing general agents, restricted insurance representatives, special insurance brokers and third party administrators. (organisme de réglementation)

14.1( 2) All books, accounts, records, securities and documents required under this Act or the regulations to be kept by an adjuster, adjusting firm, agency, agent, damage appraiser, insurer, managing general agent, restricted insurance representative, special insurance broker or third party administrator shall be kept by those persons in a safe location and in a durable form.

14.1( 3) The persons referred to in subsection (2) shall keep client information for a minimum period of seven years after the latest of the following dates:

athe final closing of the client record;

bthe date the last service was rendered to the client; and

cthe expiration without renewal or the replacement of the last product sold to the client, as the case may be.

14.1( 4) An adjuster, adjusting firm, agency, agent, damage appraiser, employee of a restricted insurance representative engaged in the business of insurance, insurer, managing general agent, special insurance broker or third party administrator shall deliver to the Superintendent, at any time that the Superintendent requires,

aany of the books, accounts, records, securities and documents that are required to be kept by that person under this Act or the regulations, and

bany filings, reports or other communications made to any other regulatory authority.

11 The heading “Information relative to a contract” preceding section 15 of the Act is repealed and the following is substituted: 

Duty to provide information

12 Section 15 of the Act is repealed and the following is substituted: 

15( 1) On the request of the Superintendent, any person who holds or held a licence under this Act or, in the opinion of the Superintendent, is or was required to hold a licence under this Act, a damage appraiser, an employee of a restricted insurance representative engaged in the business of insurance or an officer or representative of an insurer shall give the Superintendent full information and provide records about the following matters:

aa contract issued by an insurer;

ba settlement or adjustment under a contract;

cactivities related to the business of insurance;

dactivities related to employees of a restricted insurance representative engaged in the business of insurance;

eactivities related to damage appraisers;

factivities related to the business of a person who holds or held a licence under this Act;

gactivities related to the business of any other person who, in the opinion of the Superintendent, is or was required to hold a licence under this Act;

hthe financial affairs of an insurer;

iany other matters prescribed by regulation; and

jany other matters specified by the Superintendent.

15( 2) On the request of the Superintendent, an insured person or a purported insured person, a policy owner or a person claiming to be entitled to payment under an insurance contract shall give the Superintendent full information about the following matters:

aa contract issued to the insured person or the purported insured person;

ba settlement or adjustment under a contract, if the settlement or adjustment relates to the insured;

cthe acts or practices of a person who holds or held a licence under this Act that are relevant to the purposes of this Act;

dthe acts or practices of any other person who, in the opinion of the Superintendent, is or was required to hold a licence under this Act that are relevant to the purposes of this Act;

ethe acts or practices of a person who, in the opinion of the Superintendent, may have committed unfair or deceptive acts or practices in the business of insurance;

fthe acts or practices of a damage appraiser or an employee of a restricted insurance representative engaged in the business of insurance;

gany other matters prescribed by regulation; and

hany other matters specified by the Superintendent.

13 Subsection 15.1(1) of the Act is repealed and the following is substituted: 

15.1( 1) The Superintendent may conduct investigations in relation to agencies, agents, insurers, managing general agents, restricted insurance representatives and special insurance brokers concerning the premiums charged for contracts of insurance and the availability of contracts of insurance.

14 The heading “Copies to be filed with the Superintendent” preceding section 17.1 of the Act is repealed.

15 Section 17.1 of the Act is repealed.

16 Paragraph 21(4)(d) of the Act is repealed and the following is substituted:  

dany other organization prescribed by regulation.

17 The heading “Classes of insurance” preceding section 24 of the Act is repealed and the following is substituted: 

Classes of insurance and terms and conditions

18 Section 24 of the Act is amended by adding after paragraph (3) the following:

24( 3.1) The Superintendent may restrict, at any time, a licence issued to an insurer by imposing any terms and conditions that the Superintendent considers appropriate on the licence.

24( 3.2) A holder of a licence issued to an insurer shall comply with the terms and conditions of the licence.

24( 3.3) The Superintendent shall not impose terms and conditions on a licence issued to an insurer without giving the applicant for the licence or the holder of the licence an opportunity to be heard.

24( 3.4) An applicant for a licence issued to an insurer or a holder of the licence may appeal to the Tribunal a decision of the Superintendent to impose a term and condition on a licence within 30 days after the date of the decision.

24( 3.5) Despite subsection (3.4), the Tribunal may extend the period for appealing the imposition of any terms and conditions on a licence, before or after the expiration of the time, if it is satisfied that there are reasonable grounds for an extension.

24( 3.6) The Superintendent may accept a written undertaking made by an applicant for an insurer’s licence or the holder of an insurer’s licence or an officer, representative or employee of an insurer.

24( 3.7) A person providing an undertaking under subsection (3.6) shall comply with the undertaking.

19 The Act is amended by repealing the heading “Fire loss” preceding section 83 and substituting the following: 

Prohibition against entering into contract of insurance with unlicensed insurer

20 Section 83 of the Act is repealed and the following is substituted: 

83( 1) No person in the Province shall enter into a contract of insurance with an unlicensed insurer to undertake insurance in the Province, except through a special insurance broker holding a valid licence.

83( 2) A person who knowingly violates the provisions of this section is guilty of an offence.

21 The heading “FEES AND REGULATIONS” preceding section 94 of the Act is repealed and the following is substituted:

APPLICATION FEES, REGULATIONS AND RULES

22 The heading “Fees” preceding section 94 of the Act is repealed and the following is substituted:

Application fees and assessments against licensed insurers

23 Section 94 of the Act is amended

aby repealing subsection (1) and substituting the following: 

94( 1) An insurer applying for a licence or renewal of a licence under this Act shall pay a fee prescribed by regulation before the licence or renewal of the licence is issued.

bby repealing subsection (2);

cin subsection (6.1) by striking out “of Finance and Treasury Board”.

24 The heading “Regulations” preceding section 95 of the Act is repealed and the following is substituted:

Regulations and rules

25 Section 95 of the Act is repealed and the following is substituted: 

95 The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules

aextending the provisions of this Act or any provision of this Act to a system or class of insurance not specifically mentioned in this Act;

bproviding 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;

cprescribing any other fact for the purposes of paragraph 9(e);

dprescribing any other matter for the purposes of paragraphs 15(1)(i) and 15(2)(g);

eprescribing an organization for the purposes of paragraph 21(4)(d);

fdesignating bodies corporate or unincorporated associations as compensation associations and designating them as compensation associations for one or more classes of insurance;

gprescribing the form of a balance sheet or other statement under section 80;

hauthorizing persons or classes of persons for the purposes of subsection 84.1(2);

idesignating classes of insurance for the purposes of paragraph 92.2(1)(o);

jdesignating insurers for the purposes of subsection 92.2(3);

kprescribing an amount for the purposes of paragraph 94(5)(a);

lrespecting the marketing, solicitation, sale or arranging of insurance through a website, online service or other electronic means;

mrequiring the payment of fees for the purposes of this Part or the regulations and prescribing the amounts of the fees, including fees in relation to:

( i) applications made under this Part,

( ii) the filing, late filing, examination or copying and certification of any document under this Part,

( iii) any action that the Superintendent is required or authorized to take under this Part or the regulations, and

( iv) any service that the Superintendent is required or authorized to provide under this Part or the regulations; and

nrespecting an insured’s right to rescind a contract of insurance, including prescribing the obligations of an insurer to refund premiums if a contract of insurance is rescinded.

26 Subsection 113(3) of the Act is repealed and the following is substituted: 

113( 3) No agency, agent, insurer, managing general agent or special insurance broker shall pay, allow or give any commission or other remuneration or benefit to a mortgagee or to any person in their employ or on their behalf, in consideration of entering into or renewing a contract of insurance under which contract loss, if any, is payable to the person as mortgagee.

27 Subsection 120.1(1) of the Act is amended

aby repealing paragraph (d) and substituting the following: 

dtaking actions that directly or indirectly result in termination of contracts between the insurer and the agencies, agents or managing general agents who solicit or negotiate contracts of automobile insurance on behalf of the insurer;

bby repealing paragraph (e) and substituting the following: 

ereducing the ability of the agencies, agents and managing general agents to solicit or negotiate contracts of automobile insurance on behalf of the insurer;

28 The heading “Regulations” preceding section 120.3 of the Act is repealed and the following is substituted: 

Regulations and rules

29 Section 120.3 of the Act is repealed and the following is substituted: 

120.3 The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules prescribing any activity or failure to act for the purposes of paragraph 120.1(1)(h).

30 Paragraph 121.1(a) of the Act is repealed and the following is substituted:

ain accordance with that aspect of the Plan of Operation referred to in paragraph 121(2)(a), ensure that automobile insurance is provided with respect to every application for automobile insurance submitted under the Plan of Operation to an insurer by an agency, agent, managing general agent or representative on behalf of any person, and

31 Section 176 of the Act is repealed and the following is substituted: 

176( 1) When an insurer admits liability for insurance money and it appears to the insurer that any of the following occur, the insurer may apply ex parte for an order under this section: 

athere are adverse claimants; or

bthere is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so.

176( 2) The insurer may apply to the court ex parte for an order for payment of the money into court under this section at any time after 30 days from the date of the happening of the event on which the insurance money becomes payable, and the court may on notice, if any, as it thinks necessary, make an order accordingly.

32 The Act is amended by adding the following after section 176: 

Transfer of insurance money under the Unclaimed Property Act

176.1 When an insurer admits liability for insurance money and the insurance money is unclaimed property as that term is defined in the Unclaimed Property Act, the insurer shall submit a report and deliver to the Director of Unclaimed Property the unclaimed property referred to in the report in accordance with the Unclaimed Property Act.

33 Subsection 182(3) of the Act is amended by striking out “of Finance and Treasury Board”.

34 Section 214 of the Act is repealed and the following is substituted: 

214( 1) When an insurer admits liability for the insurance money, and it appears to the insurer that any of the following occur, the insurer may apply for an ex parte order under this section:

athere are adverse claimants; or

bthere is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so.

214( 2) An insurer may apply ex parte to the court for an order for payment of money into court under this section, and the court may on notice, if any, as it deems necessary, make an order accordingly.

214( 3) The court may fix without taxation the costs incurred on or in connection with any application or order made under this section, and may order the costs to be paid out of the insurance money or by the insurer or otherwise as it deems just.

214( 4) A payment made in accordance with an order under this section discharges the insurer to the extent of the payment.

35 The Act is amended by adding the following after section 214: 

Transfer of insurance money under Unclaimed Property Act

214.1 When an insurer admits liability for insurance money and the insurance money is unclaimed property as that term is defined in the Unclaimed Property Act, the insurer shall submit a report and deliver to the Director of Unclaimed Property the unclaimed property referred to in the report in accordance with the Unclaimed Property Act.

36 Subsection 215(3) of the Act is amended by striking out “of Finance and Treasury Board”.

37 Section 227 of the Act is repealed and the following is substituted: 

227 No person carrying on the business of financing the sale or purchase of automobiles and no automobile dealer or insurance agent and no officer or employee of a person, dealer or insurance agent shall act as the agent of an applicant for the purpose of signing an application for automobile insurance.

38 Subsection 242.3(4) of the Act is amended in the portion preceding paragraph (a) by striking out “of Finance and Treasury Board”.

39 Subsection 242.4(3) of the Act is amended by striking out “of Finance and Treasury Board”.

40 Subsection 242.6(1) of the Act is amended by striking out “of Finance and Treasury Board”.

41 Section 261 of the Act is repealed and the following is substituted: 

261( 1) When an insurer admits liability for insurance money payable under section 255, 256 or 257 and it appears to the insurer that any of the following occur, the insurer may apply for an ex parte order under this section: 

athere are adverse claimants, or

bthere is no person capable of giving and authorized to give a valid discharge for the insurance money who is willing to do so.

261( 2) An insurer may apply to a judge of the court ex parte for an order for payment of the money into the court under this section at any time after 30 days after the date on which the insurance money becomes payable, and the court may on notice, if any, as it thinks necessary, make an order accordingly.

261( 3) The receipt of the proper officer of the court is sufficient discharge to an insurer for the insurance money paid into the court, and the insurance money shall be dealt with as the judge of the court orders.

42 The Act is amended by adding after section 261 the following: 

Transfer of insurance money under Unclaimed Property Act

261.1 When an insurer admits liability for insurance money payable under section 255, 256 or 257 and the insurance money is unclaimed property as that term is defined in the Unclaimed Property Act, the insurer shall submit a report and deliver to the Director of Unclaimed Property the unclaimed property referred to in the report in accordance with the Unclaimed Property Act.

43 Section 267.9 of the Act is amended

ain subsection (1)

( i) by adding after paragraph (b.2) the following: 

b.3defining “common collision injury” and “common collision impairment”;

b.4prescribing categories of common collision injuries or common collision impairments;

( ii) by repealing paragraph (f);

( iii) by adding after paragraph (g) the following: 

g.01establishing or governing a system or process for the examination, assessment and treatment or rehabilitation of bodily injuries suffered by an insured as a result of an accident in respect of which an insurer makes payments under a contract of insurance referred to in section 256, including, without limitation, regulations

( i) establishing procedures, guidelines, criteria, requirements or standards to be followed or met, as applicable, by claimants, insurers and health care providers,

( ii) establishing time limits for the purposes of obtaining an examination, assessment, diagnosis or treatment, and

( iii) establishing protocols for the purposes of examining, assessing, treatment or rehabilitation of bodily injuries;

g.02governing the payment of any fees, levies or other assessments in respect of a system or process established under paragraph (g.01), including, without limitation, regulations prescribing

( i) the amount of the fees, levies or other assessments or the manner in which and by whom any of those amounts are to be determined, and

( ii) to whom and by whom the fees, levies or other assessments are to be paid;

bby adding after subsection (1.01) the following: 

267.9( 1.02) The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules prescribing the manner of gathering statistics and other information.

267.9( 1.03) A regulation made under paragraph (1)(g.02) may authorize the Superintendent to prescribe the fees and disbursements or the maximum fees and disbursements to be paid for any service, activity, function or thing authorized under the regulation, including any of the following: 

adiagnostic imaging;

blaboratory testing;

cspecialized testing;

dsupplies;

etreatment plans;

fvisits with a health care provider;

gtherapies;

hassessments;

ireports and other claim forms prescribed in the regulation; and

jany other service, activity, function or thing prescribed in the regulation.

267.9( 1.04) When the Superintendent prescribes fees and disbursements or maximum fees and disbursements to be paid under the authority of subsection (1)(g.02), the Superintendent shall issue a bulletin setting out the fees and disbursements or maximum fees and disbursements and publish the bulletin as soon as practicable, in any manner the Superintendent considers appropriate.

267.9( 1.05) The Superintendent may issue and publish from time to time, in any manner the Superintendent considers appropriate, a bulletin respecting guidelines for the management of injuries and care pathways and any other matter the Superintendent considers appropriate.

267.9( 1.06) The Regulations Act does not apply to a bulletin issued by the Superintendent under subsection (1.04) or (1.05).

44 Section 277 of the Act is repealed and the following is substituted: 

277( 1) Except as otherwise provided in this Act or the regulations, the provisions of this Part apply to all fraternal societies duly licensed and carrying on the business of life insurance in the Province, and to clubs, societies or associations, incorporated or unincorporated, that receive, either as trustees or otherwise, contributions or money from its members out of which gratuities or benefits are paid, directly or indirectly, on the death of any of its members.

277( 2) The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules restricting, qualifying or prescribing exceptions to the application of subsection (1).

45 The heading “AGENTS, BROKERS, ADJUSTERS AND DAMAGE APPRAISERS” preceding section 351 of the Act is repealed and the following is substituted: 

ADJUSTERS, ADJUSTING FIRMS, AGENCIES, AGENTS, MANAGING GENERAL AGENTS, RESTRICTED INSURANCE REPRESENTATIVES, SPECIAL INSURANCE BROKERS AND THIRD PARTY ADMINISTRATORS

46 The heading “Agents, brokers, adjusters and damage appraisers” preceding section 351 of the Act is repealed and the following is substituted: 

Prohibition against carrying on business without a licence

47 Section 351 of the Act is repealed and the following is substituted: 

351 No person shall carry on business, act or offer or undertake to act or represent themselves in the Province as an adjuster, agent, special insurance broker or restricted insurance representative, unless the person

aholds the appropriate licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

48 The Act is amended by adding after section 351 the following: 

Prohibition on acting without a licence

351.01 No business acting or carrying on business or offering or undertaking to act or carry on business shall represent itself in the Province, or allow itself to be represented, as an adjusting firm, an agency, a managing general agent, a restricted insurance representative or a third party administrator, as the case may be, unless the business

aholds the appropriate licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

Prohibition against using services of an unlicensed agent, adjuster or restricted insurance representative

351.02 No insurer and no officer, agent or employee of the insurer and no adjusting firm, agency or managing general agent shall allow an agent, adjuster or restricted insurance representative to act on their behalf, unless the agent, adjuster or restricted insurance representative, as the case may be,

aholds the appropriate licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

Insurer prohibited from allowing an unlicensed adjusting firm, agency, managing general agent or third party administrator to act on its behalf

351.03 An insurer shall not allow an adjusting firm, an agency, a managing general agent or a third party administrator to act on its behalf, unless the adjusting firm, agency, managing general agent or third party administrator, as the case may be,

aholds the appropriate licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

Managing general agent prohibited from allowing unlicensed agent to act on its behalf

351.04 A managing general agent shall not allow an agency to act on its behalf, unless the agency

aholds an agency licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

No commission, compensation, consideration

351.05( 1) No insurer and no officer, representative or employee of an insurer, and no managing general agent or agency 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 agency, agent, restricted insurance representative, managing general agent or special insurance broker 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 the agency, agent, restricted insurance representative, managing general agent or special insurance broker, as the case may be,

aholds the appropriate licence issued under this Act, or

bis exempted under this Act or the regulations from the requirement to hold the licence.

351.05( 2) Nothing in subsection (1) affects the payment or allowance by an agent of part of the agent’s commission to agents or brokers licensed in another Province or territory.

351.05( 3) An unlicensed agency, agent, special insurance broker, restricted insurance representative or managing general agent shall not be entitled to withhold anything paid on account of a premium and, if a premium is received, shall remit the full amount received to the insurer.

351.05( 4) Nothing in this Act prevents an insurer from compensating a bona fide salaried employee of its head or branch office in respect of insurance issued by the employing insurer on the life of the employee, or requires that the employee be licensed as an agent to effect the insurance.

Agent or agency prohibited from holding itself out as a broker or brokerage

351.06 An agent or agency shall not hold itself out as a broker or brokerage, unless

athe agent or agency is a party to two or more subsisting agency contracts with different insurers, and

bnone of the agency contracts require the agent or agency to exclusively sell insurance offered by one insurer.

49 The heading “Agents, brokers, adjusters and damage appraisers” preceding section 352 of the Act is repealed and the following is substituted: 

Licensing

50 Section 352 of the Act is repealed and the following is substituted: 

352( 1) The Superintendent shall issue or renew a licence to act and carry on business as an adjuster, agent, restricted insurance representative or special insurance broker, as the case may be, to a person if the person

ahas submitted an application in a form provided by the Superintendent,

bhas paid the application fee prescribed by regulation,

chas satisfied all of the requirements for the issuance of the licence under this Act and the regulations,

dhas satisfied the Superintendent

( i) that the person is suitable to hold the licence, and

( ii) that the proposed licence is not for any reason objectionable, and

eintends to represent themselves and carry on business as an adjuster, an agent, a restricted insurance representative or a special insurance broker, as the case may be.

352( 2) The Superintendent shall issue or renew an adjusting firm licence, an agency licence, a managing general agent licence, a restricted insurance representative licence or a third party administrator licence to a partnership, a corporation or a sole proprietorship if the partnership, corporation or sole proprietorship, as the case may be,

ahas submitted an application in a form provided by the Superintendent,

bhas paid the application fee prescribed by regulation,

chas satisfied all of the requirements for the issuance of the licence under this Act and the regulations,

dhas satisfied the Superintendent

( i) that it is suitable to hold a licence, and

( ii) that the proposed licence is not for any reason objectionable, and

eintends to represent itself and carry on business as an adjusting firm, an agency, a managing general agent or a third party administrator, as the case may be.

352( 3) An applicant for a licence or renewal of a licence under this Part shall not make a material misstatement or omission in the application.

352( 4) Subject to the regulations and to any terms and conditions imposed on a licence, a restricted insurance representative licence authorizes the holder and the holder’s employees to solicit, negotiate, sell or arrange the classes or types of insurance prescribed by regulation and specified on the licence and that are offered in the course of the business activity specified on the licence.

352( 5) The Superintendent may issue an agent licence for the class or classes of licence prescribed by regulation.

352( 6) All officers, partners or employees of an agency, managing general agent or third party administrator that act or carry on business as an agent shall hold an agent licence, separate from the licence held by the agency, managing general agent or third party administrator, as the case may be.

352( 7) All officers, partners or employees of an adjusting firm that act as an adjuster shall hold an adjuster licence, separate from the licence held by the adjusting firm.

352( 8) If an applicant for a licence under this Part is a partnership, each member of the partnership shall be named in the application.

352( 9) If a partnership that holds a licence under this Part is terminated before the expiration of the licence, the licence shall be cancelled and the partners shall immediately give notice in writing to the Superintendent.

352( 10) If an applicant for a licence under this Part is a partnership, a corporation or a sole proprietorship, the licence shall be issued in the name of the partnership, corporation or sole proprietorship, as the case may be.

352( 11) If a partnership that holds a licence under this Part commits an offence under this Act or the regulations, any member of the partnership may be charged with, convicted of and sentenced for that offence.

352( 12) An agency licence or a managing general agent licence shall not be issued to a corporation if it appears to the Superintendent that the application is made for the purpose of acting as agent wholly or chiefly in the insurance of property owned by the corporation or by its shareholders or members, or in the placing of insurance for one person, firm, corporation, estate or family.

352( 13) Except as otherwise provided in this section, an adjusting firm and an agency are subject to the provisions of this Act and the regulations with respect to adjusters and agents.

352( 14) If the charter of a corporation that holds a licence under this Part is dissolved or revoked, on the dissolution or revocation, the licence shall be cancelled and the corporation shall immediately give written notice of the dissolution or revocation to the Superintendent. 

352( 15) Every director or officer of a corporation who holds a licence under this Part who assents to or acquiesces in conduct that the director or officer knows or reasonably ought to know amounts to the corporation committing an offence referred to in this Act or the regulations also commits the offence.

352( 16) A holder of a licence issued under this Part is exempt from payment of any licence fee or special tax imposed by a local government for the transaction of the business of insurance.

352( 17) The Superintendent may restrict, at any time, a licence issued under this Part or the regulations by imposing any terms and conditions that the Superintendent considers appropriate on the licence.

352( 18) The holder of a licence shall comply with the terms and conditions imposed on the licence under this Part by the Superintendent.

352( 19) The Superintendent shall not impose terms and conditions on a licence under this Part without giving the applicant for the licence or the holder of the licence an opportunity to be heard.

352( 20) On consent, the Superintendent may accept a written undertaking requiring any of the following persons to do any act, or refrain from doing any act, specified by the Superintendent and the person shall comply with the undertaking: 

aan applicant;

ba licensee under this Part;

ca sponsoring insurer;

dan employee of a restricted insurance representative;

ea designated representative;

fa damage appraiser;

g a supervising agent or adjuster; and

hany other person prescribed by regulation.

352( 21) The holders of any of the following licences shall be sponsored, for the term of the licence, by an insurance company that holds a valid licence for the same class of insurance as the holder: 

aan agent licence;

ban agency licence;

c a managing general agent licence; and

da third party administrator licence.

352( 22) A restricted insurance representative shall be sponsored for the term of a licence by an insurer that has an agreement with the business that allows the business to act on behalf of the insurer and is licensed in New Brunswick

afor the class of insurance for which the restricted licence is issued, or

bfor the class of insurance which includes the type of insurance for which the restricted licence is issued.

352( 23) A holder of the following licences may hold more than one class of licence if the holder complies with the requirements of this Act and the regulations with respect to the licence: 

aan agent licence;

ban agency licence;

ca managing general agent licence; and

da third party administrator licence.

352( 24) If the sponsorship of a licensee is terminated by an insurer, the licence shall be immediately cancelled and the sponsor shall provide notice to the Superintendent in a manner required by the Superintendent and within the time prescribed by regulation.

352( 25) A licence issued under this Part may be revoked or suspended by the Superintendent, or refused renewal or reinstatement by the Superintendent, if the Superintendent is of the opinion that the holder of the licence

aviolated a provision of this Act or the regulations,

bmade a material misstatement or omission in the application for the licence,

ccommitted a fraudulent act or practice,

dfailed or refused to comply with the terms and conditions to which the licence is subject,

eviolated or failed to comply with a written undertaking made by that person under this Act or the regulations,

fdemonstrated incompetency or untrustworthiness to transact the insurance business for which the licence has been granted,

gemployed on salary or otherwise a person whose application for licence as an agent or an adjuster has been refused or whose licence has been revoked or suspended, without having first obtained the written approval of the Superintendent, or

his otherwise unsuitable to hold the licence.

352( 26) The Superintendent may prohibit an individual from soliciting, negotiating, selling or arranging insurance on behalf of a restricted insurance representative if the Superintendent is of the opinion that the individual

aviolated a provision of this Act or the regulations,

bviolated or failed to comply with a written undertaking made by that person under this Act or the regulations,

ccommitted a fraudulent act or practice,

ddemonstrated incompetency or untrustworthiness in soliciting, negotiating, selling or arranging insurance on behalf of a restricted insurance representative, or

e is otherwise unsuitable to solicit, negotiate, sell or arrange insurance on behalf of a restricted insurance representative.

352( 27) The Superintendent shall not refuse to issue a licence without giving the applicant or licence holder an opportunity to be heard.

352( 28) No licence shall be revoked, suspended, or refused renewal or reinstatement under subsection (25) or no individual shall be prohibited from soliciting, negotiating, selling or arranging insurance on behalf of a restricted insurance representative under subsection (26) without giving the holder or individual an opportunity to be heard.

352( 29) Subject to subsection (25), a licence issued under this Part shall expire at a time fixed by regulation, unless it is automatically cancelled under subsection (9), (14) or (24) or is revoked or suspended by the Superintendent.

51 The heading “BROKER’S LICENCES FOR BUSINESS WITH UNLICENSED INSURERS” preceding section 354 of the Act is repealed and the following is substituted: 

SPECIAL INSURANCE BROKER’S LICENCE

52 The heading “Licence to act as special insurance broker” preceding section 354 of the Act is repealed and the following is substituted:

Special insurance broker’s licence

53 Section 354 of the Act is repealed and the following is substituted: 

354( 1) The Superintendent may issue to any suitable person a licence to act as a special insurance broker to negotiate, continue or renew contracts of insurance with insurers not authorized to transact the business of insurance in the Province.

354( 2) Before being issued a licence under subsection (1), an applicant shall execute and deliver to the Superintendent security to the satisfaction of the Superintendent in an amount not less than $5,000 that the licensee will faithfully comply with all the requirements of this Act and the regulations or any other Act of the Legislature.

54 The Act is amended by adding after section 354 the following :

Negotiation, continuation or renewal of insurance by a special insurance broker

354.1 A holder of a special insurance broker licence may negotiate, continue or renew all classes of insurance, other than life insurance, accident insurance, sickness insurance, automobile insurance or a class of insurance prescribed by regulation.

55 The heading “Special insurance broker may effect insurance with unlicensed insurers” preceding section 355 of the Act is repealed and the following is substituted: 

Arranging insurance with unlicensed insurers

56 Section 355 of the Act is repealed and the following is substituted: 

355( 1) Subject to subsection (2), a special insurance broker may assist or act on behalf of a person who wishes to enter into or renew an insurance contract with an unlicensed insurer if

asufficient insurance cannot be arranged with an insurer licensed to do business in the Province,

bsufficient insurance cannot be arranged at reasonable rates with an insurer licensed to do business in the Province, or

csufficient insurance cannot be arranged on the terms required by the insured with an insurer licensed to do business in the Province.

355( 2) Before a person enters into or renews an insurance contract, a special insurance broker shall obtain from the applicant a written statement that

ais dated and signed by the applicant,

bdescribes fully the nature and the amount of the insurance the applicant requires,

cstates that

( i) the insurance cannot be obtained from licensed insurers in the Province, obtained at reasonable rates from licensed insurers in the Province or obtained on the terms required by the insured from licensed insurers in the Province, and

( ii) the application for the insurance at the stated rate of premium was previously made to and refused by named insurers licensed in the Province, and

dcontains any further information that the Superintendent may require.

355( 3) Before a person enters into or renews an insurance contract, a special insurance broker shall advise the applicant, in writing, of the following: 

athat the unlicensed insurer is not regulated under this Act;

bthat the Superintendent has no authority under this Act with respect to the unlicensed insurer;

cthat the orderly payment of claims may be more difficult than it would be if the applicant obtained insurance from an insurer licensed under this Act;

dthat the applicant may not have the protection of any compensation plan operated by a compensation association designated under the regulations;

ethat the applicant may have to take legal proceedings in a foreign jurisdiction to enforce the contract of insurance; and

fany other information that the Superintendent considers necessary.

355( 4) Every special insurance broker shall keep a separate record of insurance entered into or renewed by the special insurance broker under the licence in the form the Superintendent requires and shall make those records available for inspection by the Superintendent.

355( 5) Within 10 days after the end of each month, every special insurance broker shall make a return to the Superintendent, in the form and manner the Superintendent requires, containing particulars of all insurance effected by the special insurance broker during the month and provide any other information required by the Superintendent.

355( 6) In respect of all premiums on insurance effected under a special insurance broker’s licence, the special insurance broker shall pay to the Province any taxes as would be payable if the premiums had been received by a licensed insurer, and payment for the taxes shall accompany the monthly return under subsection (5).

57 The heading “Release or cancellation of security of broker” preceding section 356 of the Act is repealed and the following is substituted: 

Release or cancellation of security

58 Section 356 of the Act is repealed and the following is substituted: 

356 When the Superintendent is satisfied 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 special insurance broker is entitled to a release or cancellation of the security referred to in subsection 354(2).

59 Section 357 of the Act is repealed and the following is substituted: 

357( 1) A special insurance broker licensed under this Act shall accept applications for insurance with unlicensed insurers only from the insured, a licensed agent or another licensed special insurance broker and shall not pay or allow compensation or anything of value in respect of the application to any person not licensed as an agent or special insurance broker under this Act.

357( 2) A contract of insurance with an unlicensed insurer made by or through an agent not licensed as a special insurance broker under this Act shall be considered unlawfully made within the meaning of section 369.

357( 3) If an insurance contract is not made or cancelled due to a special insurance broker’s failure or neglect to remit a premium to the insurer, the special insurance broker shall be personally liable to the insured or intended insured in the same manner as if the insurance contract had been made or not cancelled and the special insurance broker was the insurer.

60 The heading “LICENCES OF INSURANCE ADJUSTERS” preceding section 358 of the Act is repealed and the following is substituted: 

TEMPORARY AUTHORIZATIONS

61 The heading “Licences of insurance adjusters” preceding section 358 of the Act is repealed and the following is substituted: 

Temporary authorization

62 Section 358 of the Act is repealed and the following is substituted: 

358 Subject to the terms and conditions that the Superintendent considers appropriate, the Superintendent may issue a temporary authorization to an adjuster from another jurisdiction to act within the Province when, in the opinion of the Superintendent, an emergency situation requires that the adjuster be granted the authorization.

63 The heading “LICENCES OF DAMAGE APPRAISERS” preceding section 358.1 of the Act is repealed and the following is substituted: 

DAMAGE APPRAISERS

64 The heading “Licences of damage appraisers” preceding section 358.1 of the Act is repealed and the following is substituted:

Damage appraisers

65 Section 358.1 of the Act is repealed and the following is substituted: 

358.1( 1) An insurance company or an adjusting firm that uses the services of a damage appraiser shall ensure that the damage appraiser has the appropriate qualifications and competency to appraise any insurance claim that the damage appraiser is involved in on behalf of the insurance company or adjusting firm, as the case may be, and shall oversee the activities of the damage appraiser with respect to any insurance claim.

358.1( 2) If the Superintendent is of the opinion, on reasonable grounds, that a damage appraiser does any of the following, the Superintendent, after providing the damage appraiser an opportunity to be heard, may prohibit the damage appraiser from acting as a damage appraiser under this Act: 

aviolated or failed to comply with a written undertaking made by the damage appraiser under this Act or the regulations;

bcommitted a fraudulent act or practice;

ccommitted any of the prohibited acts referred to in subsection (3);

ddemonstrated incompetency or untrustworthiness; or

eis otherwise unsuitable.

358.1( 3) In the appraisal of any insurance claim, a damage appraiser shall not

apossess any interest in the property the damage appraiser is engaged to appraise,

bseek to make a profit or seek or acquire an interest, other than fees or salary, in the property the damage appraiser is engaged to appraise,

cknowingly report the need to replace parts when the parts are repairable in a satisfactory manner, or agree or conspire with a garage, body shop or other repair facility to replace parts when the parts are repairable in a satisfactory manner,

dact or attempt to act as an adjuster in connection with a property the damage appraiser is appraising,

efail or refuse to comply with any standards of practice and duties prescribed by regulation for damage appraisers, or

ffail or refuse to comply with or contravene a provision of this Act or the regulations.

66 The Act is amended by adding the following after section 358.1: 

APPEALS

Appeals

358.2( 1) A decision of the Superintendent referred to below may be appealed to the Tribunal within 30 days after the date of the decision: 

arefusing to issue, renew or reinstate a licence under this Part;

bsuspending or revoking a licence under this Part;

cimposing a term and condition on a licence under this Part;

dprohibiting an individual from soliciting, negotiating, selling or arranging insurance on behalf of a restricted insurance representative under subsection 352(26);

eprohibiting a damage appraiser from acting as a damage appraiser under this Act; or

fany other decision prescribed by regulation.

358.2( 2) Despite subsection (1), the Tribunal may extend the period for appealing a decision, before or after the expiration of the time, if it is satisfied that there are reasonable grounds for an extension.

67 The heading “LICENCES TO PARTNERSHIPS” preceding section 359 of the Act is repealed.

68 The heading “Licences to partnerships” preceding section 359 of the Act is repealed.

69 Section 359 of the Act is repealed.

70 The heading “LICENCES TO CORPORATIONS” preceding section 360 of the Act is repealed.

71 The heading “Licences to corporations” preceding section 360 of the Act is repealed.

72 Section 360 of the Act is repealed.

73 The heading “AGENTS, BROKERS, ADJUSTERS AND DAMAGE APPRAISERS GENERALLY” preceding section 361 of the Act is repealed and the following is substituted:  

ADJUSTERS, AGENTS AND OTHER PERSONS GENERALLY

74 The heading “Payment to insurer” preceding section 361 of the Act is repealed and the following is substituted: 

Effect of payment to representative

75 Section 361 of the Act is repealed and the following is substituted: 

361 Despite any condition or stipulation to the contrary, payments in cash, in whole or in part, to a representative of an insurer of the amount of a premium or assessment due in respect of a contract of insurance, other than life insurance, issued by the insurance insurer is a payment to the insurer.

76 The Act is amended by adding after section 361 the following: 

Insurer to maintain compliance system

361.1 An insurer that authorizes the following persons to act on the insurer’s behalf shall establish and maintain a system that is reasonably designed to ensure that each person complies with this Act, the regulations or any terms and conditions of their licence: 

aan adjuster;

ban adjusting firm;

can agency;

dan agent;

ean employee of a restricted insurance representative engaged in the business of insurance;

fa managing general agent;

ga restricted insurance representative; and

ha third party administrator.

Insurer shall report to Superintendent

361.2( 1) An insurer that authorizes any of the persons referred to in paragraphs 361.1(a) to (h) to act on the insurer’s behalf shall notify the Superintendent in writing if the insurer has reasonable grounds to believe that a person who acts on behalf of the insurer is not suitable to carry on business authorized under the licence.

361.2( 2) The notice referred to in subsection (1) shall be given within 15 days after the insurer determines that there are reasonable grounds to believe that the person is not suitable to carry on business authorized under the licence.

77 The heading “Person not duly licensed or carries on business in any other name” preceding section 362 of the Act is repealed.

78 Section 362 of the Act is repealed.

79 The heading “List of persons to whom licences have been issued” preceding section 363 of the Act is repealed.

80 Section 363 of the Act is repealed.

81 The heading “Trust account, premium” preceding section 364 of the Act is repealed and the following is substituted: 

Money in trust to be held in trust account

82 Section 364 of the Act is repealed and the following is substituted: 

364( 1) When the following persons receive trust money, the person shall have at least one account for deposits and the account shall be designated as a trust account both in the books of the person and in the records of the institution: 

aan adjuster or adjusting firm;

ban agency;

can agent;

da managing general agent;

ea restricted insurance representative; and

fa special insurance broker.

364( 2) Despite subsection (1), if a licence of a person referred to in subsection (1) is suspended or cancelled under this Act, the Superintendent may order the institution in which the person’s trust account is held to refrain from paying out all or any part of the money in the account for the period of the suspension or cancellation.

83 The heading “Books, records and accounts” preceding section 364.1 of the Act is repealed.

84 Section 364.1 of the Act is repealed.

85 Section 365 of the Act is repealed and the following is substituted:  

365 Every agent, managing general agent, restricted insurance representative and third party administrator and every insurer shall make a return to the Superintendent, in the form and at the times the Superintendent requires,

aidentifying all persons duly authorized as its or their agents in the Province,

b identifying all persons to whom it or they have 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 of the contract, or for attempting to do so, and

cincluding any information required by the Superintendent.

86 The heading “No commission, compensation, consideration” preceding section 368 of the Act is repealed and the following is substituted: 

No agreement or rebate as to premium to be paid for a policy

87 Section 368 of the Act is repealed and the following is substituted:

368( 1) No insurer or officer, employee or representative of the insurer and no agency, agent, managing general agent, restricted insurance representative or special insurance broker shall, directly or indirectly, do any of the following to any person insured or applying for insurance in respect of life, person or property in the Province: 

amake or attempt to make any agreement as to the premium to be paid for a policy other than as set out in the policy; or

b pay, allow or give, or offer or agree to pay, allow or give,

( i) any rebate of the whole or part of the premium stipulated by the policy, or

( ii) any other consideration or thing of value intended to be in the nature of a rebate of premium.

368( 2) Nothing in subsection (1) affects any payment by way of dividend, bonus, profit or savings that is provided for by the policy.

88 The heading “Offence re life insurance” preceding section 369 of the Act is repealed and the following is substituted:

Agent or restricted insurance representative personally liable to insured

89 Section 369 of the Act is repealed and the following is substituted: 

369 An agent or restricted insurance representative shall be personally liable to the insured on all contracts of insurance unlawfully made by or through the agent or restricted insurance representative directly or indirectly with an unlicensed insurer, in the same manner as if the agent or the restricted insurance representative were the insurer.

90 The Act is amended by adding after section 371 the following: 

REGULATIONS AND RULES

Regulations and rules

371.1( 1) The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules

aprescribing any other person for the purposes of the definition “adjuster” in section 1;

bprescribing any other person for the purposes of the definition “damage appraiser” in section 1;

cprescribing the classes, types or levels of licences that may be issued under this Part;

dprescribing the form and content of licences issued under this Part;

eprescribing requirements and qualifications pertaining to the issuance and renewal of each class, type or level of licence prescribed under paragraph (c);

fprescribing the terms and conditions to which each class, type or level of licence prescribed under paragraph (c) is subject;

gprescribing obligations on insurers, any person licensed under this Act or other person with respect to persons or classes of persons who are exempt from the requirement to hold a licence or any provision of this Part or the regulations;

hrespecting the expiration, renewal or reinstatement of licences issued under this Part;

irespecting the verification or confirmation of information or materials submitted as part of an application for a licence under this Part;

jprescribing persons or entities that are or are not eligible to apply for and hold a restricted insurance representative licence and specifying and defining classes or types of insurance for which a restricted insurance representative licence can be issued for the purposes of section 352;

kprescribing any other persons for the purpose of paragraph352(20)(h);

lprescribing any decision for the purposes of paragraph 358.2(1)(f);

mexempting any person or class of persons from the requirement to hold a licence or any of the provisions of this Part or the regulations and prescribing terms and conditions for an exemption;

nprescribing the manner and form in which applications under this Part are made and the information to be included in the application;

oprescribing the circumstances in which the Superintendent may refuse to issue or renew a licence under this Part without affording the applicant or holder of the licence an opportunity to be heard;

prespecting the respective responsibilities of agencies, adjusting firms, restricted insurance representatives, managing general agents and third party administrators;

qprescribing training or continuing education requirements for the purposes of licence holders under this Part;

rprescribing training or continuing education requirements for the purposes of the employees of restricted insurance representatives engaged in the business of insurance;

srespecting the rights and obligations of insurers with respect to licensees and others who act on the insurer’s behalf;

trequiring insurers that appoint licensees to act on their behalf to establish and maintain a system to screen each licensee and supervise activities of each licensee;

urespecting the termination of the sponsorship of a licence;

vrespecting the appointment, requirements, eligibility, qualifications and responsibilities of a designated representative for agencies, adjusting firms, restricted insurance representatives, managing general agents and third party administrators;

wrequiring licence holders to furnish a fidelity bond or other security and the form, terms and the amount of the security;

xrespecting errors and omissions insurance, or requiring membership in a compensation fund, including prescribing the minimum amount of errors and omissions insurance and the form, requirements and terms of the insurance or the fund to which they are required to be a member;

yprescribing financial security requirements for licence holders and the manner in which financial security is to be forfeited;

zprescribing provisions of this Part and the regulations that apply to special insurance brokers and restricted insurance representatives, with the modifications, if any, that the regulations specify;

aaprescribing classes of insurance that cannot be negotiated, continued or renewed by a special insurance broker with an unlicensed insurer;

bbprescribing, for each class, type or level of licence issued under this Part, standards of practice and duties of licence holders, including prescribing a code of conduct or ethics;

ccprescribing standards of practice and duties of restricted insurance representative engaged in the business of insurance, including prescribing a code of conduct or ethics;

ddprescribing standards of practice and duties for damage appraisers, including prescribing a code of conduct or ethics;

eerespecting the marketing, soliciting, sale or arranging of insurance through a website, online service or other electronic means;

ffprescribing disclosure requirements for licence holders and employees of restricted insurance representatives engaged in the business of insurance;

ggprescribing the manner in which trust money shall be dealt with by an adjuster, adjusting firm, agency, agent, managing general agent, restricted insurance representative, special insurance broker or third party administrator, including prescribing the records to be kept by them with respect to trust money and trust accounts;

hhprescribing the accounts and records to be maintained by licence holders under this Part;

iirequiring licence holders to supply information and make returns to the Superintendent;

jjprescribing the duties of insurers and agents in connection with the replacement of insurance contracts;

kkrequiring the payment of fees for the purposes of this Part or the regulations and prescribing the amounts of such fees, including fees in relation to:

( i) applications made under this Part,

( ii) late fees,

( iii) any action that the Superintendent is required or authorized to take under this Part or the regulations, or

( iv) any service that the Superintendent is required or authorized to provide under this Part or the regulations;

llrespecting the suspension, cancellation, and revocation of licences or the non-renewal or non-reinstatement of a licence issued under this Part;

mmauthorizing the establishment of an advisory board with whom the Superintendent may consult concerning the issuance, renewal, suspension or revocation of a licence under this Part, and the constitution, functions, powers and procedures of the advisory board;

nnprescribing forms and providing for their use;

oopermitting the Superintendent to approve forms or a class of forms, and to revoke approval of a form or a class of forms;

ppprescribing offences for the purposes of paragraph 386(1)(f);

qqdefining any term or expression used in this Act but not defined in this Act, for the purposes of this Act, the regulations, or both, including defining, enlarging or restricting the meaning of any word or expression differently for different provisions in this Act; and

rrgenerally for the better administration of this Act.

371.1( 2) A regulation made under paragraph (1)(q) or (r) may authorize the Superintendent to establish, on criteria determined by the Superintendent to be appropriate, all or some of the training or educational requirements for the purposes of licence holders under this Part and for employees of restricted insurance representatives engaged in the business of insurance.

Regulations and rules generally

371.2( 1) The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Financial and Consumer Services Commission.

371.2( 2) Subject to the approval of the Minister, the Financial and Consumer Services Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Financial and Consumer Services Commission under this subsection that in the opinion of the Financial and Consumer Services Commission is necessary or advisable to effectively implement the rule.

371.2( 3) A regulation made under subsection (2) is not effective before the rule referred to in that subsection comes into force.

371.2( 4) Subject to subsection (5), a regulation made under subsection (2) may be retroactive in its operation.

371.2( 5) A regulation or rule authorized by this Act may incorporate by reference, in whole or in part, any laws, any by-laws or other regulatory instruments or any codes, standards, procedures or guidelines as they are amended from time to time before or after the making of the regulation or the rule or as they read at a fixed time and may require compliance with any law, any by-law or other regulatory instrument or any code, standard, procedure or guideline so incorporated.

371.2( 6) Regulations or rules may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.

371.2( 7) A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.

371.2( 8) The Regulations Act does not apply to the rules made under this Act.

371.2( 9) If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made by the Financial and Consumer Services Commission under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.

Notice and publication of rules

371.3( 1) As soon as practicable after a rule is made under this Act, the Financial and Consumer Services Commission shall

apublish the rule electronically, and

bpublish in The Royal Gazette notice of the rule in accordance with the regulations made under the Financial and Consumer Services Commission Act.

371.3( 2) Without delay after the Financial and Consumer Services Commission makes a rule under this Act, it shall make a copy of the rule available for public inspection at each of the Financial and Consumer Services Commission’s offices during the normal business hours of the Financial and Consumer Services Commission.

371.3( 3) When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).

Changes by Secretary of the Financial and Consumer Services Commission

371.4 The Secretary of the Financial and Consumer Services Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Financial and Consumer Services Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 371.3(1)(a).

Consolidated rules

371.5( 1) The Secretary of the Financial and Consumer Services Commission may maintain a consolidation of the rules made by the Financial and Consumer Services Commission.

371.5( 2) In maintaining a consolidation of the rules, the Secretary of the Financial and Consumer Services Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.

371.5( 3) The Financial and Consumer Services Commission may publish the consolidated rules in the frequency that it considers appropriate.

371.5( 4) A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.

371.5( 5) In the event of an inconsistency between a consolidated rule published by the Financial and Consumer Services Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.

91 The heading “Records” preceding section 372 of the Act is repealed.

92 Section 372 of the Act is repealed.

93 Section 373 of the Act is amended 

aby repealing subsection (3) and substituting the following: 

373( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

aenter the premises of any insurer or other person licensed under this Act during normal business hours,

brequire an insurer or other person licensed under this Act or an officer or employee of either of them to produce for inspection, examination, auditing or copying any books, accounts, records or documents relating to the business or affairs of the insurer or other person licensed under this Act,

cinspect, examine, audit or copy the books, accounts, records or documents relating to the business or affairs of an insurer or other person licensed under this Act, and

dquestion an insurer or other person licensed under this Act or an officer or employee of either of them in relation to the business or affairs of the insurer or other person licensed under this Act.

bby repealing subsection (8) and substituting the following: 

373( 8) The Financial and Consumer Services Commission may, in circumstances prescribed by regulation, require an insurer or other person licensed under this Act in respect of which a compliance review was carried out to pay the Financial and Consumer Services Commission any fee prescribed by regulation and to reimburse the Financial and Consumer Services Commission for any expenses prescribed by regulation.

cby repealing subsection (9) and substituting the following: 

373( 9) The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules prescribing circumstances, fees and expenses for the purposes of subsection (8).

94 Subsection 384(4) of the Act is repealed and the following is substituted: 

384( 4) The Lieutenant-Governor in Council may make regulations and the Financial and Consumer Services Commission may make rules authorizing disclosures for the purposes of subsection (2).

95 The heading “Superintendent may restrict licences” preceding section 390 of the Act is repealed.

96 Section 390 of the Act is repealed.

97 Schedule A of the Act is amended

aby adding before

13

the following:

3.1(4)

bby adding after

14

the following:

14.1(2)

14.1(3)

14.1(4)

cby striking out

15

and substituting

15(1)

15(2)

dby striking out

17.1

eby adding after

21(5)

the following:

24(3.2)

24(3.7)

fby adding after

351

the following:

351.01

351.02

351.03

351.04

351.05(1)

351.05(3)

351.06

gby striking out

352(7)

and substituting

352(3)

352(9)

352(14)

352(18)

352(20)

352(24)

hby adding after

355(4)

the following:

355(5)

355(6)

iby striking out

357

and substituting

357(1)

357(2)

357(3)

358.1(1)

358.1(3)

jby striking out

359(2)

359(3)

360(4)

360(6)

and substituting

361.1

361.2

kby striking out

362

lby striking out

364(2)

364(3)

364(4)

364(5)

mby striking out

364.1

nby striking out

368(2)

368(4)

368(5)

oby striking out

369(1)

pby striking out

372(2)

372(3)

372(4)(a)

372(4)(b)

qby striking out

390(2)

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transitional provisions

98( 1) A licence to act as a damage appraiser or a licence to act as a student damage appraiser that was in force immediately before the commencement of this section shall be revoked on the coming into force of this section.

98( 2) The holder of a damage appraiser licence or a licence to act as a student damage appraiser revoked under subsection (1) is not entitled to a refund of any fee paid or to receive compensation of any kind as a result of the revocation.

Consumer Advocate for Insurance Act

99( 1) Section 1 of the Consumer Advocate for Insurance Act, chapter C-17.5 of the Acts of New Brunswick, 2004, is amended by repealing the definition “broker”.

99( 2) Subsection 7(1) of the Act is amended

ain paragraph (a) by striking out “brokers” and substituting “agencies, managing general agents, third party administrators”;

bin paragraph (b) in the portion preceding subparagraph (i) by striking out “broker” and substituting “agencies, managing general agents, third party administrators”.

99( 3) Section 9 of the Act is amended

ain subsection (4) by striking out “broker” and substituting “agency, managing general agent, third party administrator”;

bin subsection (5) by striking out “broker” and substituting “agency, managing general agent, third party administrator”;

cin subsection (7) by striking out “broker” and substituting “agency, managing general agent, third party administrator”;

din subsection (8) by striking out “broker” and substituting “agency, managing general agent, third party administrator”;

ein subsection (9) in the portion preceding paragraph (a) by striking out “broker” and substituting “agency, managing general agent, third party administrator”;

fin subsection (10) by striking out “broker” and substituting “agency, managing general agent, third party administrator”.

Credit Unions Act

100 Paragraph 26(4)(d) of the Credit Unions Act, chapter 25 of the Acts of New Brunswick, 2019, is amended by striking out “broker or adjuster as defined in” and substituting “adjuster, adjusting firm, agency, insurance agent or managing general agent under”.

Repeal of Damage Appraisers Regulation - Insurance Act

101 New Brunswick Regulation 85-11 under the Insurance Act is repealed.

Commencement

102 Paragraphs 1(a), (b) and (c), sections 4, 13, 21 and 22, paragraphs 23(a) and (b), sections 26, 27, 30 to 32, 34, 35, 37, 41, 42, 45 to 53, 58, 60 to 62, 72 to 74, 77, 78, and 81 to 89, paragraphs 93(a) and (b), sections 95 and 96, paragraphs 97(f), (g), (k) to (o) and (q), and sections 98 to 100 of this Act come into force on a day or days to be fixed by proclamation.