Automobile Insurance Rate Stability Act, 1996
EXPLANATORY NOTE
The Bill amends the Insurance Act, the Compulsory Automobile Insurance Act and the Health Insurance Act. The amendments include the following changes:
Insurance Act
1. Court actions arising from automobile accidents:
The existing law protects the owner of an automobile, an occupant of an automobile and a person present at an automobile accident from being sued for pecuniary loss arising from the use or operation of the automobile. The Bill would permit actions for pecuniary loss against these people, subject to the following conditions:
i. Damages for income loss suffered in the seven days after the incident would not be recoverable.
ii. Damages for income loss and loss of earning capacity suffered before trial would be recoverable only up to 80 per cent of the net loss suffered during that period. There would be no limit on recovery of losses suffered after trial.
iii. Damages for health care expenses incurred before or after trial would not be recoverable unless the injured person sustained a catastrophic impairment.
iv. Collateral benefits payable to the plaintiff before trial would be deducted from the damages awarded for pecuniary loss. Collateral benefits payable after trial would be paid to the persons from whom damages were recovered. (See section 29 of the Bill; proposed subsections 267.5 (1) to (4) and proposed section 267.8 of the Insurance Act.)
The existing law protects the owner of an automobile, an occupant of an automobile and a person present at an automobile accident from being sued for non-pecuniary loss arising from the use or operation of the automobile unless the injured person dies or sustains serious disfigurement or serious impairment of an important physical, mental or psychological function. The Bill would limit these actions for non-pecuniary loss to situations where the serious disfigurement or serious impairment is permanent. The Bill would also increase the deductible applicable to damages for non-pecuniary loss from approximately $10,000 to $15,000, subject to further increases by regulation. In the case of non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the deductible would be increased from approximately $5,000 to $7,500, subject to further increases byregulation. (See section 29 of the Bill; proposed subsections 267.5 (5) and (7) of the Insurance Act.)
The protection from liability provided by the Bill would not be available to a defendant insured by an out-of-province insurer unless the insurer has filed an undertaking with the Ontario Insurance Commission to provide the minimum insurance coverage required by Ontario law. (See section 29 of the Bill; proposed subsection 267.5 (6) of the Insurance Act.)
The Bill would prevent the owner or lessee of a motor vehicle from suing for injuries suffered in an automobile accident if, at the time of the accident, the owner or lessee was contravening the Compulsory Automobile Insurance Act's requirement to have liability insurance on the vehicle. (See section 29 of the Bill; proposed section 267.6 of the Insurance Act.)
The Bill would make procedural changes to actions arising from automobile accidents. For example:
i. An action could not be commenced unless the plaintiff first applied for statutory accident benefits, gave notice of the intention to commence the action within a specified period after the accident, provided the defendant with information prescribed by the regulations and, if requested by the defendant, underwent health-related examinations, provided the defendant with a statutory declaration related to the claim and provided the defendant with evidence of the plaintiff's identity. No prejudgment interest would be payable for the period prior to the service of the notice of the intention to commence the action. (See section 22 of the Bill; proposed section 258.3 of the Insurance Act.)
ii. Insurers that receive a notice of the intention to commence an action would be obligated to inform the plaintiff of the liability limits under any policy issued to the defendant and to attempt to settle the claim as expeditiously as possible. (See section 22 of the Bill; proposed sections 258.4 and 258.5 of the Insurance Act.)
iii. A plaintiff or defendant would be required, on the request of either of them, to participate in a mediation of the claim. (See section 22 of the Bill; proposed section 258.6 of the Insurance Act.)
iv. In the circumstances prescribed by the regulations, the court would be required to order that the award for damages be paid periodically. (See section 29 of the Bill; proposed section 267.10 of the Insurance Act.)
v. An award for income loss or loss of earning capacity could not include any amount to compensate the plaintiff forincome tax payable on the award, except in the case of an award under subsection 61 (1) of the Family Law Act. (See section 29 of the Bill; proposed section 267.11 of the Insurance Act.)
2. Ontario Insurance Commission:
The Bill would require the appointment of an employee of the Ontario Insurance Commission as Insurance Ombudsman, with responsibility to inquire into complaints about insurers' business practices. (See section 2 of the Bill; proposed section 5.1 of the Insurance Act.)
The Bill would make changes to the Ontario Insurance Commission procedures for resolving disputes between insured persons and their insurers related to the payment of statutory accident benefits. For example:
i. If mediation fails, the parties jointly or the mediator could, for the purpose of assisting in the resolution of the dispute, refer the dispute for a neutral evaluation of the probable outcome of a proceeding in court or an arbitration. (See section 36 of the Bill; proposed section 280.1 of the Insurance Act.)
ii. If mediation fails, the parties to a dispute could submit it to a private arbitrator in accordance with the Arbitration Act, 1991. (See section 37 of the Bill; proposed clause 281 (1) (c) of the Insurance Act.)
iii. Appeals to the Director of Arbitrations would be permitted only on questions of law. (See section 39 of the Bill; proposed subsection 283 (1) of the Insurance Act.)
The Bill provides that an application to the Ontario Insurance Commission for approval of proposed automobile insurance rates would be deemed to be approved 30 days after the application is made if the average of the proposed rates does not exceed the average of the existing rates by more than a prescribed percentage and the proposed rates meet other prescribed criteria, unless the Commissioner of Insurance advises the applicant that the application has not been approved. (See section 44 of the Bill; proposed section 411 of the Insurance Act.)
3. Other changes:
The Bill would permit automobile insurers to be assessed for amounts prescribed by regulation that are incurred by the Ministry of Health under an Act or program administered by that ministry. (See section 10 of the Bill; proposed section 14.1 of the Insurance Act.)
The Bill would create new offences for making false statements to insurers in connection with entitlements to benefits, failing to inform insurers of material changes in connection with entitlements to benefits and making false statements to insurers in order to obtain payment for goods or services provided to insured persons. (See section 49 of the Bill; proposed clauses 447 (2) (a.1) to (a.3) of the Insurance Act.)
Compulsory Automobile Insurance Act
The obligation to ensure that a motor vehicle is covered by liability insurance would be extended to a person who leases a vehicle for 30 days or more. The fines for offences under the Act would be increased. A new offence would be created relating to the possession, use or distribution of false or invalid insurance cards. (See section 50 of the Bill.)
Health Insurance Act
After the amendments to the Insurance Act take effect, the Ontario Health Insurance Plan would not have subrogation rights against persons insured under motor vehicle liability policies issued in Ontario in respect of injuries caused by automobile accidents that occur in Ontario or other designated jurisdictions. (See section 51 of the Bill.)
Bill1996
An Act to provide Ontario drivers
with fair, balanced and stable
automobile insurance and to make other
amendments related to insurance matters
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
INSURANCE ACT
1. The definition of "Minister" in section 1 of the Insurance Act is repealed and the following substituted:
"Minister" means the Minister of Finance. ("ministre")
2. The Act is amended by adding the following section:
Insurance Ombudsman
5.1 (1) The Commissioner shall appoint an employee of the Commission as Insurance Ombudsman.
Duties
(2) The Insurance Ombudsman shall inquire into complaints about insurers' business practices.
Complaints
(3) A person may submit a written complaint about an insurer's business practices to the Insurance Ombudsman if the person has submitted the complaint to the insurer and the complaint has not been resolved within a reasonable time.
Response
(4) The Insurance Ombudsman shall give the insurer an opportunity to respond to any complaint submitted under subsection (3).
Authority of Insurance Ombudsman
(5) After considering the complaint and any response, the Insurance Ombudsman may attempt to resolve the complaint or may recommend to the Superintendent that the Superintendent inquire into the complaint.
3. The French version of subsection 6 (1) of the Act is amended by striking out "directeur de l'arbitrage" in the second line and substituting "directeur des arbitrages".
4. Section 7 of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 10, section 3, is repealed and the following substituted:
Committees
7. (1) The Minister shall appoint one or more committees for the purposes of this Act.
Name
(2) The Minister shall assign a name to each committee.
Duties
(3) Each committee shall,
(a) perform such functions as are assigned to the committee by the Minister or the Commissioner; and
(b) perform such other functions as are prescribed by the regulations.
Same
(4) The Minister shall assign to one of the committees the function of recommending persons to conduct arbitrations under this Act.
5. Subsection 8 (1) of the Act is repealed and the following substituted:
Arbitrators
(1) The Commissioner shall establish and maintain a roster of candidates chosen by the Commissioner from the persons recommended to conduct arbitrations under this Act by the committee appointed under section 7.
6. Section 10 of the Act is repealed.
7. Section 11 of the Act is amended by adding the following subsections:
Mediators
(5) A mediator shall not be required to testify in a civil proceeding or in a proceeding before any tribunal respecting any mediation conducted under this Act or respecting information obtained in the discharge of the mediator's duties under this Act.
Neutral evaluation
(6) A person who performs an evaluation under section 280.1 shall not be required to testify in a civil proceeding or in a proceeding before any tribunal respecting the evaluation or respecting information obtained in the discharge of the person's duties under this Act.
8. The Act is amended by adding the following sections:
Priorities
12.1 (1) The Commission shall, not later than nine months before the start of each fiscal year, deliver to the Minister and publish in The Ontario Gazette a statement of the Commissioner setting out the proposed priorities of the Commission for the fiscal year in connection with the administration of this Act, the Acts referred to in the Schedule to subsection 11 (1) and such other Acts as may be prescribed by the regulations, together with a summary of the reasons for the adoption of the priorities.
Same
(2) The Commission shall, at least 60 days before the publication date of the statement, publish a notice in The Ontario Gazette inviting interested persons to make written representations as to the matters that should be identified as priorities.
Policy statements
12.2. (1) The Minister may issue policy statements on matters related to this Act, the Acts referred to in the Schedule to subsection 11 (1) and such other Acts as may be prescribed by the regulations.
When effective
(2) A policy statement takes effect on the day it is published in The Ontario Gazette.
Effect of statement
(3) The Commissioner and the Superintendent shall have regard to the policy statements in making decisions.
9. (1) Subsection 14 (1) of the Act is repealed and the following substituted:
Assessment of insurers
(1) The Lieutenant Governor in Council may assess all insurers with respect to all expenses incurred and expenditures made by the Ministry of Finance in respect of the administration of this Act, the Acts referred to in the Schedule to subsection 11 (1) and such other Acts as may be prescribed by the regulations, including all expenses incurred and expenditures made in the conduct of their affairs by the Commission and by the committees appointed under section 7.
(2) Section 14 of the Act is amended by adding the following subsections:
Insurer's duty to pay
(4) An insurer shall pay the amount assessed against it.
Same
(5) If an insurer fails to pay an assessment made under subsection (1), the Commissioner may suspend or cancel the insurer's licence.
Same
(6) The Commissioner may revive the licence of an insurer whose licence was suspended or cancelled under subsection (5) if the insurer pays all amounts owing by the insurer under this section.
10. The Act is amended by adding the following section:
Assessment of health system costs
14.1 (1) The Lieutenant Governor in Council may, in accordance with the regulations, assess all insurers that have issued motor vehicle liability policies in Ontario for amounts prescribed by the regulations that are incurred by the Ministry of Health under an Act or program administered by that ministry.
Same
(2) If an assessment is made under subsection (1), the share of a particular insurer shall be determined in the manner prescribed by regulation.
Insurer's duty to pay
(3) An insurer shall pay the amount assessed against it.
Same
(4) If an insurer fails to pay an assessment made under subsection (1), the Commissioner may suspend or cancel the insurer's licence.
Same
(5) The Commissioner may revive the licence of an insurer whose licence was suspended or cancelled under subsection (4) if the insurer pays all amounts owing by the insurer under this section.
11. Section 21 of the Act is repealed and the following substituted:
Rules
21. Subject to the regulations made under paragraph 25 of subsection 121 (1), the Director may make rules for the practice and procedure to be observed in mediations under section 280, in performing evaluations under section 280.1, and in proceedings under this Act before the Director or an arbitrator.
12. Paragraph 2 of subsection 45 (1) of the Act is repealed and the following substituted:
2. In any action in another province or territory of Canada, a jurisdiction in the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule against the licensed insurer, or its insured, arising out of an automobile accident in that jurisdiction, the insurer shall appear and shall not set up any defence to a claim under a contract evidenced by a motor vehicle liability policy issued in Ontario, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in that jurisdiction.
13. The Act is amended by adding the following section:
Information on claims
101.1 Every insurer shall provide the Commission or an agency designated by the Commissioner with information prescribed by the regulations about applications for insurance and claims made to the insurer at such times and subject to such conditions as are prescribed by the regulations.
14. (1) Subsection 121 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 12 and 1994, chapter 11, section 338, is further amended by adding the following paragraph:
2.1 prescribing Acts for the purpose of subsections 12.1 (1), 12.2 (1) and 14 (1).
(2) Paragraph 10 of subsection 121 (1) of the Act is amended by inserting after "paragraph 9" in the third line "prescribing the circumstances in which the optional benefits are to be offered".
(3) Paragraph 10.3 of subsection 121 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 12, is amended by striking out "an accident benefits advisory committee" in the second and third lines and substituting "a committee".
(4) Subsection 121 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 12 and 1994, chapter 11, section 338, is further amended by adding the following paragraphs:
11.1 prescribing the information to be provided under section 101.1 and any conditions that apply to the provision of the information;
. . . . .
15.0.1 governing the inspection of automobiles for the purpose of section 232.1;
. . . . .
20.1 prescribing information to be provided under clause 258.3 (1) (c) and the time period within which the information must be provided for the purpose of that clause;
20.2 prescribing procedures and time limits applicable to mediations required by section 258.6;
20.3 prescribing circumstances in which a contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof must contain a clause described in subsection 261 (1.1);
20.4 prescribing a minimum or maximum sum to be deducted under a clause described in clause 261 (1) (b) or subsection 261 (1.1);
. . . . .
22.2 prescribing circumstances in which a contract belonging to a class prescribed under paragraph 22.1 must contain a provision described in subsection 263 (5.2.1);
22.3 prescribing the minimum or maximum amount of a reduction required by a provision described in clause 263 (5.1) (b) or subsection 263 (5.2.1);
. . . . .
23.1 defining serious impairment of an important physical, mental or psychological function for the purpose of section 267.1 and defining permanent serious impairment of an important physical, mental or psychological function for the purpose of section 267.5;
23.2 respecting the evidence that must be adduced to prove that a person has sustained serious impairment of an important physical, mental or psychological function for the purposes of section 267.1 or permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5;
23.3 prescribing the method for determining net income loss and net loss of earning capacity for the purpose of paragraphs 2 and 3 of subsection 267.5 (1);
23.4 defining catastrophic impairment for the purpose of subsection 267.5 (4)
23.5 prescribing amounts for the purpose of sub-subparagraph B of subparagraph i of paragraph 3 of subsection 267.5 (7) and sub-subparagraph B of subparagraph ii of paragraph 3 of subsection 267.5 (7);
23.6 prescribing circumstances in which the court shall order that an award for damages be paid periodically under section 267.10;
23.7 prescribing the information to be provided under section 273.1 and the conditions governing the provision of the information.
(5) Paragraph 25 of subsection 121 (1) of the Act is repealed and the following substituted:
25. prescribing rules of procedure and setting time limits in respect of mediation, arbitration, appeal and variation proceedings under sections 280 to 284 and in respect of evaluations under section 280.1.
(6) Paragraph 26 of subsection 121 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 12, is repealed and the following substituted:
26. prescribing expenses that may be awarded to insured persons and insurers under subsections 282 (11) and (11.1), prescribing criteria governing the awarding of the expenses, and setting maximum amounts that may be awarded for the expenses.
(7) Paragraph 34 of subsection 121 (1) of the Act is amended by striking out "sections 412 to 417" in the fourth and fifth lines and substituting "sections 410 to 417".
(8) Subsection 121 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 12 and 1994, chapter 11, section 338, is further amended by adding the following paragraphs:
34.1 prescribing percentages, criteria and elements of risk classification systems for the purposes of subsection 411 (1);
34.2 prescribing circumstances in which the Commissioner is required to hold a hearing on an application under section 410 to which section 411 does not apply;
. . . . .
37.0.1 prescribing amounts incurred by the Ministry of Health that may be subject to an assessment under section 14.1 and governing assessments under that section.
(9) Section 121 of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 12 and 1994, chapter 11, section 338, is further amended by adding the following subsections:
General or particular
(2.1) A regulation made under subsection (1) may be general or particular.
Adoption by reference
(2.2) A regulation made under subsection (1) may adopt by reference, in whole or in part, with such changes as the Lieutenant Governor in Council considers necessary, any code, standard or guideline, as it reads at the time the regulation is made or as amended from time to time, whether before or after the regulation is made.
(10) Subsection 121 (3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 12, is repealed.
(11) Clause 121 (4) (b) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 12, is amended by striking out "and arbitration proceedings related to benefits" in the third and fourth lines and substituting "related to benefits and in arbitrations under section 282".
(12) Clauses 121 (4) (c), (d) and (e) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 12, are repealed and the following substituted:
(c) may require that a person be examined or assessed,
(i) by an assessment centre designated by a committee appointed under section 7, in accordance with procedures, standards and guidelines established by that committee or by the Minister, or
(ii) by any other person specified by the regulations.
(13) Subsection 121 (4) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 12, is amended by striking out "and" at the end of clause (f), by adding "and" at the end of clause (g) and by adding the following clause:
(h) may designate jurisdictions for the purpose of any provision of this or any other Act that refers to jurisdictions designated in the Statutory Accident Benefits Schedule.
(14) Clauses 121 (4) (c), (d) and (e) of the Act, as they read immediately before subsection (12) of this section came into force, continue to apply to regulations made under paragraphs 9 and 10 of subsection 121 (1) of the Act in respect of benefits arising from the use or operation, after December 31, 1993 and before section 29 of this Act comes into force, of an automobile.
15. (1) The definition of "contract" in subsection 224 (1) of the Act is repealed and the following substituted:
"contract" means a contract of automobile insurance that,
(a) is undertaken by an insurer that is licensed to undertake automobile insurance in Ontario, or
(b) is evidenced by a policy issued in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule by an insurer that has filed an undertaking under section 226.1. ("contrat")
(2) Subsection 224 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 1, is further amended by adding the following definition:
"health care" includes all goods and services for which payment is provided by the medical, rehabilitation and attendant care benefits provided for in the Statutory Accident Benefits Schedule. ("soins de santé")
(3) Clause (b) of the definition of "spouse" in subsection 224 (1) of the Act is repealed and the following substituted:
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act, or
. . . . .
16. The Act is amended by adding the following section:
Out-of-province insurers
226.1 An insurer that issues motor vehicle liability policies in another province or territory of Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule may file an undertaking with the Commission, in the form provided by the Commission, providing that the insurer's motor vehicle liability policies will provide at least the coverage described in sections 251, 265 and 268 when the insured automobiles are operated in Ontario.
17. Subsection 227 (1) of the Act is repealed and the following substituted:
Approval of forms
(1) An insurer shall not use a form of any of the following documents in respect of automobile insurance unless the form has been approved by the Commissioner:
1. An application for insurance.
2. A policy, endorsement or renewal.
3. A claims form.
4. A continuation certificate.
Application for insurance
(1.1) Paragraph 1 of subsection (1) does not apply if, in accordance with the regulations, the insurer uses a form of application for insurance that is prescribed by the regulations.
18. Section 230 of the Act is repealed and the following substituted:
Information from brokers
230. (1) A broker shall provide to an applicant for insurance the names of all the insurers with whom the broker has an agency contract relating to automobile insurance and all information obtained by the broker relating to quotations on automobile insurance for the applicant.
Request for written information
(2) The broker shall provide the information referred to in subsection (1) in writing if the applicant so requests.
19. The Act is amended by adding the following section:
Inspection requirements
232.1 Before issuing a policy in respect of an automobile, an insurer shall comply with the inspection requirements prescribed by the regulations.
20. Section 243 of the Act is repealed and the following substituted:
Territorial limits
243. (1) Insurance under sections 239 and 241 applies to the ownership, use or operation of the insured automobile in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel plying between ports of Canada, the United States of America or a designated jurisdiction.
Same
(2) Statutory accident benefits provided under section 268 apply to the use or operation of any automobile in Canada, the United States of America and any other jurisdiction designated in the Statutory Accident Benefits Schedule, and on a vessel plying between ports of Canada, the United States of America or a designated jurisdiction.
21. Subsection 252 (1) of the Act is repealed and the following substituted:
Stipulation in motor vehicle liability policy
(1) Every motor vehicle liability policy issued in Ontario shall provide that, in the case of liability arising out of the ownership or, directly or indirectly, out of the use or operation of the automobile in any province or territory of Canada, in a jurisdiction of the United States of America or in any other jurisdiction designated in the Statutory Accident Benefits Schedule,
(a) the insurer is liable up to the minimum limits prescribed for that province, territory or jurisdiction if those limits are higher than the limits prescribed by the policy;
(b) the insurer will not set up a defence to a claim that could not be set up if the policy were a motor vehicle liability policy issued in that province, territory or jurisdiction; and
(c) the insured, by acceptance of the policy, constitutes and appoints the insurer as the insured's irrevocable attorney to appear and defend in any province or territory of Canada, any jurisdiction of the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule in which an action is brought against the insured arising out of the ownership, use or operation of the automobile.
22. The Act is amended by adding the following sections:
Notice of accident
258.1 (1) If an automobile insured under a contract is involved in an incident that is required to be reported to the police under the Highway Traffic Act or in respect of which the insured intends to make a claim under the contract, the insured shall give the insurer written notice of the incident, with all available particulars.
Same
(2) Subject to subsection (3), the notice required by subsection (1) shall be given to the insurer within seven days of the incident.
Same
(3) If the insured is unable because of incapacity to comply with subsection (1) within seven days of the incident, the insured shall comply as soon as possible thereafter.
Application of ss. 258.3 to 258.6
258.2 Sections 258.3 to 258.6 apply only in respect of a claim for loss or damage from bodily injury or death arising from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule.
Notice and disclosure before action
258.3 (1) An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,
(a) the plaintiff has applied for statutory accident benefits;
(b) the plaintiff served written notice of the intention to commence the action on the defendant within 120 days after the incident or within such longer period as a court in which the action may be commenced may authorize, on motion made before or after the expiry of the 120-day period;
(c) the plaintiff provided the defendant with the information prescribed by the regulations within the time period prescribed by the regulations;
(d) the plaintiff has, at the defendant's expense, undergone examinations by one or more persons selected by the defendant who are members of Colleges as defined in the Regulated Health Professions Act, 1991, if the defendant requests the examinations within 90 days after receiving the notice under clause (b);
(e) the plaintiff has provided the defendant with a statutory declaration describing the circumstances surrounding the incident and the nature of the claim being made, if the statutory declaration is requested by the defendant; and
(f) the plaintiff has provided the defendant with evidence of the plaintiff's identity, if evidence of the plaintiff's identity is requested by the defendant.
Notice to insurer
(2) An insured who receives a notice under clause (1) (b) shall give a copy of the notice to the insurer within seven days of receiving the notice.
Same
(3) If the insured is unable because of incapacity to comply with subsection (2) within seven days of receiving the notice, the insured shall comply as soon as possible thereafter.
Contents of notice
(4) The notice under clause (1) (b) shall inform the person to whom it is given of the obligation under subsection (2).
Limits on examination
(5) An examination under clause (1) (d) shall not be unnecessarily repetitious and shall not involve a procedure that is unreasonable or dangerous.
Examiner may ask questions
(6) A person examined under clause (1) (d) shall answer the questions of the examiner relevant to the examination.
Copy of report
(7) If a person who performs an examination under clause (1) (d) gives a report on the examination to the defendant, the defendant shall ensure that the plaintiff receives a copy of the report within 60 days after the defendant receives the report.
Prejudgment interest
(8) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, no prejudgment interest shall be awarded under section 128 of the Courts of Justice Act for any period of time before the plaintiff served the notice under clause (1) (b).
Failure to comply
(9) Despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the non-compliance in awarding costs.
Service
(10) Section 33 applies, with necessary modifications, to the service of a notice under clause (1) (b).
Duty to disclose limits
258.4 An insurer that receives a notice under clause 258.3 (1) (b) shall promptly inform the plaintiff whether there is amotor vehicle liability policy issued by the insurer to the defendant and, if so,
(a) the liability limits under the policy; and
(b) whether the insurer will respond under the policy to the claim.
Duty of insurer re settlement of claim
258.5 (1) An insurer that is defending an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile on behalf of an insured or that receives a notice under clause 258.3 (1) (b) from an insured shall attempt to settle the claim as expeditiously as possible.
Advance payment
(2) If the insurer admits liability in respect of all or part of a claim for income loss, the insurer shall make payments to the person making the claim pending the determination of the amount owing.
Amount of payments
(3) The amount of the payments under subsection (2) shall be based on the insurer's estimate of the amount owing in respect of the claim for income loss, having regard to any information provided to the insurer by the person making the claim.
Application of subss. 256 (1-3)
(4) Subsections 256 (1), (2) and (3) apply, with necessary modifications, to advance payments made under this section.
Failure to comply
(5) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, an insurer's failure to comply with this section shall be considered by the court in awarding costs.
Mediation
258.6 (1) A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect of the claim on behalf of an insured or that receives a notice under clause 258.3 (1) (b) in respect of the claim shall, on the request of either of them, participate in a mediation of the claim in accordance with the procedures prescribed by the regulations.
Failure to comply
(2) In an action in respect of the claim, a person's failure to comply with this section shall be considered by the court in awarding costs.
23. (1) Section 261 of the Act is amended by adding the following subsection:
Mandatory deductible
(1.1) Despite subsection (1), in the circumstances prescribed by the regulations, a contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof shall contain a clause to the effect that, in the event of loss, the insurer shall pay only the amount of the loss after deduction of a sum specified in the policy not exceeding the amount of the insurance.
(2) Subsection 261 (2) of the Act is amended by striking out "subsection (1)" in the second line and substituting "subsection (1) or (1.1)".
24. (1) Subsection 263 (5) of the Act is amended by adding the following clause:
(a.1) an insured has no right of action against a person under an agreement, other than a contract of automobile insurance, in respect of damages to the insured's automobile or its contents or loss of use, except to the extent that the person is at fault or negligent in respect of those damages or that loss.
(2) Section 263 of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 21, is further amended by adding the following subsections:
Mandatory deductible
(5.2.1) In the circumstances prescribed by the regulations, a contract belonging to a class prescribed for the purpose of subsection (5.1) shall provide that, in the event that a claim is made by the insured under this section, the insurer shall pay only the amount that the insured would otherwise be entitled to recover, reduced by a sum specified in the contract.
Application of subs. (5.2)
(5.2.2) Subsection (5.2) does not apply to a contract that contains a provision required by subsection (5.2.1).
(3) Subsection 263 (5.3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 21, is amended by inserting "or a provision required by subsection (5.2.1)" after "subsection (5.1)" in the second line.
25. Section 264 of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 22, is repealed.
26. Subsection 266 (8) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 23, is repealed and the following substituted:
Application
(8) This section does not apply to an action for loss or damage arising from the use or operation, after December 31, 1993, of an automobile.
27. Subsection 267 (6) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 24, is further amended by striking out "the day section 267.1 comes into force" in the amendment of 1993 and substituting "January 1, 1994".
28. (1) Subsection 267.1 (13) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 25, is repealed.
(2) Subsection 267.1 (15) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 25, is repealed and the following substituted:
Application
(15) This section applies only to a proceeding for loss or damage arising from the use or operation, after December 31, 1993 and before section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile.
29. The Act is amended by adding the following sections:
Court Proceedings for Accidents after
the Automobile Insurance Rate Stability Act, 1996
Definitions
267.3 In sections 267.4 to 267.11,
"owner" includes an operator as defined in subsection 16 (1) of the Highway Traffic Act; ("propriétaire")
"protected defendant" means a person who is protected from liability by subsections 267.5 (1), (3) and (5). ("défendeur exclu")
Application of ss. 267.5 to 267.11
267.4 Sections 267.5 to 267.11 apply only to proceedings for loss or damage from bodily injury or death arising from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule.
Protection from liability; income loss and loss of earning capacity
267.5 (1) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile:
1. Damages for income loss suffered in the seven days after the incident.
2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of 80 per cent of the net income loss, as determined in accordance with the regulations, suffered during that period.
3. Damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 80 per cent of the net loss of earning capacity, as determined in accordance with the regulations, suffered during that period.
Application
(2) Subsection (1) applies to all actions, including actions under subsection 61 (1) of the Family Law Act.
Protection from liability; health care expenses
(3) Despite any other Act and subject to subsections (4) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile.
Exception for catastrophic impairment
(4) Subsection (3) does not apply if the injured person has sustained a catastrophic impairment, as defined in the regulations, arising directly or indirectly from the use or operation of the automobile.
Protection from liability; non-pecuniary loss
(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of theuse or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
Application of subss. (1), (3) and (5)
(6) Subsections (1), (3) and (5) do not protect a person from liability if the person is defended in the action by an insurer that is not licensed to undertake automobile insurance in Ontario unless the insurer has filed an undertaking under section 226.1.
Amount of damages for non-pecuniary loss
(7) Subject to subsections (5), (12), (13) and (15), in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against a protected defendant in accordance with the following rules:
1. The court shall first determine the amount of damages for non-pecuniary loss for which the protected defendant would be liable without regard to this Part.
2. The determination under paragraph 1 shall be made in the same manner as a determination of the amount of damages for non-pecuniary loss in an action to which this section does not apply and, in particular, without regard to,
i. the statutory accident benefits provided for under subsection 268 (1),
ii. the provisions of this section that protect protected defendants from liability for damages for pecuniary loss, and
iii. the provisions of paragraph 3.
3. The amount of damages for non-pecuniary loss to be awarded against the protected defendant shall be determined by reducing the amount determined under paragraph 1 by,
i. in the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of,
A. $15,000, and
B. the amount prescribed by the regulations, and
ii. in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of,
A. $7,500, and
B. the amount prescribed by the regulations.
4. If fault or negligence on the part of the person entitled to damages for non-pecuniary loss contributed to those damages, the award for damages shall be reduced under paragraph 3 before the damages are apportioned under section 3 of the Negligence Act.
Same
(8) Subsection (7) applies in respect of each person who is entitled to damages for non-pecuniary loss.
Costs
(9) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party's entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss.
Liability of other persons
(10) Subsections (1), (3) and (5) do not relieve any person from liability other than a protected defendant.
Motion to determine if threshold met; health care expenses
(11) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsection (4) whether the injured person has sustained a catastrophic impairment arising directly or indirectly from the use or operation of the automobile.
Motion to determine if threshold met; non-pecuniary loss
(12) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsection (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
Determination binding
(13) The determination of a judge on a motion under subsection (11) or (12) is binding on the parties at the trial.
Determination at trial; health care expenses
(14) If no motion is made under subsection (11), the trial judge shall determine for the purpose of subsection (4) whether the injured person has sustained a catastrophic impairment arising directly or indirectly from the use or operation of the automobile.
Determination at trial; non-pecuniary loss
(15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsection (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
No action by uninsured owner or lessee
267.6 (1) Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.
Prosecution not necessary
(2) Subsection (1) applies whether or not the person was prosecuted for or convicted of an offence under the Compulsory Automobile Insurance Act.
Joint and several liability with other tortfeasors
267.7 (1) If, in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, one or more protected defendants and one or more other persons are found to be liable for damages,
(a) the other persons,
(i) are jointly and severally liable with the protected defendants for the damages for which the protected defendants are liable, having regard to section 267.5, and
(ii) are solely liable for any amount by which the amount mentioned in subclause (i) is less than the amount that the other persons would have been liable to make contribution and indemnify the protected defendants in respect of damages in the absence of section 267.5;
(b) the other persons are liable to make contribution and indemnify the protected defendants in respect of damages to the same extent as if section 267.5 did not apply, up to the amount for which the protected defendants are liable having regard to section 267.5; and
(c) the protected defendants are liable to make contribution and indemnify the other persons for the amount that the protected defendants are liable, having regard to section 267.5, reduced by the amount that the other persons are liable to make contribution and indemnify the protected defendants under clause (b).
Separate determinations
(2) Liability shall be determined under subsection (1) separately for each of the following categories of damages:
1. Damages for income loss and loss of earning capacity.
2. Damages for expenses that have been incurred or will be incurred for health care.
3. Damages for pecuniary loss, other than damages referred to in paragraphs 1 and 2.
4. Damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act.
Determination of liability
(3) For the purposes of subsection (1), the liability of all persons involved in the incident from which the action arose shall be determined as though all persons wholly or partly responsible for the damages were parties to the action even though any of those persons is not actually a party.
Collateral benefits; income loss and loss of earning capacity
267.8 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.
2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff's occupation or employment.
Exception
(2) No reduction shall be made under subsection (1) for payments in respect of income loss if the payments are in respect of income loss suffered in the seven days after the incident.
Priority with other tortfeasors
(3) If persons other than protected defendants are liable for damages for income loss or loss of earning capacity, the reduction required by subsection (1) shall first be applied to the damages for which the protected defendants and the other persons are jointly and severally liable under subclause 267.7 (1) (a) (i), and any excess shall be applied to the amount for which the other persons are solely liable under subclause 267.7 (1) (a) (ii).
Collateral benefits; health care expenses
(4) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts:
1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care.
2. All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
Exception
(5) Paragraph 2 of subsection (4) does not apply to a payment made by the Ministry of Health if the action is brought under section 30 of the Health Insurance Act.
Collateral benefits; other pecuniary loss
(6) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for pecuniary loss, other than the damages for income loss or loss of earning capacity and the damages for expenses that have been incurred or will be incurred for health care, shall be reduced by all payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Collateral benefits; non-pecuniary loss
(7) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages in respect of non-pecuniary loss to which a plaintiff is entitled shall not be reduced because of any payments or benefits that the plaintiff has received or is entitled to receive.
Contributory negligence
(8) The reductions required by subsections (1), (4) and (6) shall be made after any apportionment of damages required by section 3 of the Negligence Act.
Future collateral benefits
(9) A plaintiff who recovers damages for income loss, loss of earning capacity, expenses that have been or will be incurred for health care, or other pecuniary loss in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall hold the following amounts in trust:
1. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of income loss or loss of earning capacity.
2. All payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
3. All payments in respect of the incident that the plaintiff receives after the trial of the action undera sick leave plan arising by reason of the plaintiff's occupation or employment.
4. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of expenses for health care.
5. All payments in respect of the incident that the plaintiff receives after the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
6. All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Payments from trust
(10) A plaintiff who holds money in trust under subsection (9) shall pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages.
Disputes
(11) Any dispute concerning a plaintiff's liability to make payments under subsection (10) shall, on the request of a person who claims to be entitled to a payment under that subsection, be submitted to arbitration in accordance with the Arbitration Act, 1991.
Assignment of future collateral benefits
(12) The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just,
(a) the plaintiff who recovered damages in the action assign to the defendants or the defendants' insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action,
(i) for statutory accident benefits in respect of income loss or loss of earning capacity,
(ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan,
(iii) under a sick leave plan arising by reason of the plaintiff's occupation or employment,
(iv) for statutory accident benefits in respect of expenses for health care,
(v) under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and
(vi) for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care; and
(b) the plaintiff who recovered damages in the action co-operate with the defendants or the defendants' insurers in any claim or proceeding brought by the defendants or the defendants' insurers in respect of a payment assigned pursuant to clause (a).
Application of subs. (9)
(13) Subsection (9) no longer applies if an order is made under subsection (12).
Pension Benefits Act
(14) Subsections (9) to (13) prevail over sections 65, 66 and 67 of the Pension Benefits Act in the event of a conflict.
Workers' Compensation Act
(15) Payments or benefits received or that were, are or may become available to a person under the Workers' Compensation Act shall not be applied under subsection (1), (4) or (6) to reduce the damages awarded.
Same
(16) A reduction made under subsection (1), (4) or (6) does not apply for the purpose of determining a person's entitlement to compensation under subsection 10 (2) of the Workers' Compensation Act.
Limitation on subrogation
(17) A person who has made a payment described in subsection (1), (4) or (6) is not subrogated to a right of recovery of the insured against another person in respect of that payment.
Exception
(18) Subsection (17) does not apply if,
(a) the Ministry of Health made the payment; and
(b) the right of recovery is against a person other than a person insured under a motor vehicle liability policy issued in Ontario.
Workers' Compensation Board
(19) The Workers' Compensation Board is not subrogated to a right of recovery of the insured against another person in respect of a payment or benefit paid by the Workers' Compensation Board to the insured or in respect of a liability to make such payment or benefit.
Determination of liability
(20) For the purposes of subsections (1), (3), (4) and (6), the damages payable by a person who is a party to the action shall be determined as though all persons wholly or partly responsible for the damages were parties to the action even though any of those persons is not actually a party.
Interpretation
(21) For the purpose of subsection (1), (4) or (6), a payment shall be deemed not to be available to a plaintiff if the plaintiff made an application for the payment and the application was denied.
Same
(22) Subsection (21) does not apply if the court is satisfied that the plaintiff impaired his or her entitlement to the payment by,
(a) failing to give any notice required by law of the application for the payment;
(b) failing to make himself or herself reasonably available for any examination that was requested by the person to whom the application was made and that was required by law; or
(c) settling in bad faith his or her entitlement to the payment to the detriment of a person found liable for damages in the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile.
Proceedings by action
267.9 A proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall be brought only by way of an action.
Structured judgments
267.10 In the circumstances prescribed by the regulations, the court shall order that an award for damages in an action for loss or damage from bodily injury or death arising directly orindirectly from the use or operation of an automobile shall be paid periodically on such terms as the court considers just.
No gross-up for income tax
267.11 (1) An award against a protected defendant for income loss or loss of earning capacity in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not include any amount to compensate the plaintiff for income tax payable on the award.
Exception
(2) Subsection (1) does not apply to an award for income loss or loss of earning capacity under subsection 61 (1) of the Family Law Act.
30. (1) Subsections 268 (1.1), (1.2), and (1.3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 26, are repealed.
(2) Subsection 268 (1.4) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 26, is amended by striking out "on or after the day section 267.1 comes into force" in the sixth and seventh lines and substituting "after December 31, 1993 and before section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force".
(3) The French version of subparagraph iv of paragraph 1 of subsection 268 (2) of the Act is amended by striking out "Fonds d'indemnisation des victimes d'accidents d'automobiles" in the fifth and sixth lines and substituting "Fonds d'indemnisation des victimes d'accidents de véhicules automobiles".
(4) The French version of subparagraph iv of paragraph 2 of subsection 268 (2) of the Act is amended by striking out "Fonds d'indemnisation des victimes d'accidents d'automobiles" in the fifth and sixth lines and substituting "Fonds d'indemnisation des victimes d'accidents de véhicules automobiles".
31. Section 268.2 of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 27, is amended by striking out "paragraph 10.1" in the third line and substituting "paragraph 10.2".
32. The Act is amended by adding the following section:
Information to Ministry of Community and Social Services, etc.
273.1 (1) Every insurer shall provide the Ministry of Community and Social Services, a municipality, a board established under the District Welfare Administration Boards Act or a band approved under section 15 of the General Welfare Assistance Act with such information as may be prescribed by theregulations, including personal information, subject to such conditions as may be prescribed by the regulations.
Definitions
(2) In this section,
"insurer" includes the Facility Association; ("assureur")
"municipality" has the same meaning as in the General Welfare Assistance Act. ("municipalité")
33. (1) Clause 274 (a) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 30, is amended by striking out "the day section 267.1 comes into force" in the fourth and fifth lines and substituting "January 1, 1994".
(2) Clause 274 (b) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 30, is amended by striking out "the day section 267.1 comes into force" in the fourth line and substituting "January 1, 1994".
(3) Section 274 of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 10, section 30, is amended by adding the following subsection:
Same; accidents after Automobile Insurance Rate Stability Act, 1996
(2) Payments made or available to a person under the Statutory Accident Benefits Schedule in respect of a claim arising directly or indirectly from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile constitute, to the extent of the payments, a release by the person, the person's personal representatives, the person's insurer and anyone claiming through or under the person or by virtue of Part V of the Family Law Act,
(a) of any claim under subsection 268 (1); and
(b) to the extent that the payments are made in respect of lost income, of any claim under subsection 265 (1).
34. (1) Subsection 279 (2) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 32, is repealed and the following substituted:
Opting out
(2) Any restriction on a party's right to mediate, litigate, appeal or apply to vary an order as provided in sections 280 to 284, or on a party's right to arbitrate under section 282, is void except as provided in the regulations.
(2) Subsection 279 (4) of the Act is amended by inserting "appointed by the Director" after "arbitrator" in the first line.
(3) Subsection 279 (4.1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 32, is amended by inserting "appointed by the Director" after "arbitrator" in the first line.
(4) Subsection 279 (5) of the Act is repealed and the following substituted:
Power to bind parties
(5) If an insurer or an insured is represented in a mediation under section 280, an evaluation under section 280.1, an arbitration under section 282, an appeal under section 283 or a variation proceeding under section 284, the mediator, person performing the evaluation, arbitrator or Director, as the case may be, may adjourn the proceeding, with or without conditions, if the representative is not authorized to bind the party he or she represents.
35. (1) The English version of subsection 280 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 1, is further amended by striking out "matter" in the second and third lines and substituting "issue".
(2) Subsection 280 (8) of the Act is repealed and the following substituted:
Report
(8) If mediation fails, the mediator, in addition to any notice required to be given, shall prepare and give to the parties a report,
(a) setting out the insurer's last offer and the mediator's description of the issues that remain in dispute;
(b) containing a list of materials requested by the parties that have not been produced and that, in the opinion of the mediator, were required for the purpose of discussing a settlement of the issues; and
(c) containing a recommendation as to whether or not the issues in dispute should be referred for an evaluation under section 280.1.
Same
(9) The mediator may give his or her report to a person performing an evaluation under section 280.1 or an arbitrator conducting an arbitration under section 282.
36. The Act is amended by adding the following section:
Neutral evaluation
280.1 (1) If mediation fails, the parties jointly or the mediator who conducted the mediation may, for the purpose of assisting in the resolution of the issues in dispute, refer the issues in dispute to a person appointed by the Director for an evaluation of the probable outcome of a proceeding in court or an arbitration under section 282.
Evaluator's appointment
(2) The Director shall ensure that a person is appointed promptly to perform the evaluation.
Information
(3) The insurer and the insured person shall provide the person performing the evaluation with any information that he or she requests.
Opinion and report
(4) The person performing the evaluation shall give the parties,
(a) an oral opinion on the probable outcome of a proceeding in court or an arbitration under section 282; and
(b) a written report,
(i) stating that the issues in dispute were evaluated by the person,
(ii) identifying the issues that were evaluated,
(iii) identifying the issues that remain in dispute,
(iv) setting out the insurer's last offer, and
(v) containing a list of materials requested by the person performing the evaluation that were not provided by the parties.
Same
(5) The person who performed the evaluation may give his or her written report to an arbitrator conducting an arbitration under section 282.
37. Section 281 of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 1, is repealed and the following substituted:
Litigation or arbitration
281. (1) Subject to subsection (2),
(a) the insured person may bring a proceeding in a court of competent jurisdiction;
(b) the insured person may refer the issues in dispute to an arbitrator under section 282; or
(c) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991.
Limitation
(2) No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282 or agree to submit an issue for arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties.
Payment pending dispute resolution
(3) Subject to subsection (4), if mediation fails, the insurer shall pay statutory accident benefits in accordance with the last offer of settlement that it had made before the failure until otherwise agreed by the parties or until otherwise ordered by a court, by an arbitrator acting under this Act or the Arbitration Act, 1991, or by the Director.
Same
(4) If a dispute involves a statutory accident benefit that the insurer is required to pay under subsection 268 (8) and no step authorized by subsection (1) has been taken within 45 days after the day mediation failed, the insurer shall pay the insured in accordance with the last offer made by the insurer before the failure until otherwise agreed by the parties or until otherwise ordered by a court, by an arbitrator acting under this Act or the Arbitrations Act, 1991, or by the Director.
Limitation period
(5) A step authorized by subsection (1) must be taken within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the Statutory Accident Benefits Schedule.
38. (1) Subsection 282 (1) of the Act is amended by inserting "under this section" after "arbitration" in the second line.
(2) Subsection 282 (3) of the Act is repealed and the following substituted:
Determination of issues
(3) The arbitrator shall determine all issues in dispute, whether the issues are raised by the insured person or the insurer.
(3) Subsections 282 (5), (6), (7), (8) and (9) of the Act are repealed.
(4) Subsection 282 (11) of the Act is repealed and the following substituted:
Expenses
(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
(5) Subsection 282 (13) of the Act is amended by striking out "the reasons therefor to" in the third and fourth lines and substituting "a copy of the arbitrator's written reasons, if any, to".
(6) Subsections 282 (14) and (15) of the Act are repealed.
39. (1) Subsection 283 (1) of the Act is repealed and the following substituted:
Appeal
(1) A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law.
(2) Subsections 283 (3) and (4) of the Act are repealed and the following substituted:
Extension of time for appeal
(3) The Director may extend the time for requesting an appeal, before or after the time for requesting the appeal has expired, if the Director is satisfied that there are reasonable grounds for granting the extension, and the Director may give such directions as he or she considers proper as a condition of granting the extension.
Nature of appeal
(4) The Director may determine the appeal on the record or in such other manner as the Director may decide, with or without a hearing.
(3) Subsection 283 (5) of the Act is amended by striking out "Upon hearing an appeal" in the first line.
(4) Subsection 283 (7) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 34, is further amended by striking out "282 (5)" in the first line and substituting "282 (10)".
(5) Subsections 283 (9) and (10) of the Act are repealed.
40. (1) Subsection 284 (1) of the Act is amended by striking out "an arbitrator or the Director" in the third and fourth lines and substituting "the Director or an arbitrator appointed by the Director".
(2) Subsection 284 (5) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 35, is repealed and the following substituted:
Application of subss. 282 (11-11.2)
(5) Subsections 282 (11) to (11.2) apply with necessary modifications to an application under this section.
41. Section 286 of the Act is amended by inserting "appointed by the Director" after "arbitrator" in the first line.
42. Section 287 of the Act is amended by inserting "appointed by the Director" after arbitrator" in the second line.
43. Section 288 of the Act is amended by striking out "arbitration or appeal from an arbitration reveals" in the fifth and sixth lines and substituting "one or more arbitrations or appeals from arbitrations reveal".
44. The Act is amended by adding the following sections:
Application re risk classification system, rates
410. (1) Every insurer shall apply to the Commissioner for approval of,
(a) the risk classification system it intends to use in determining the rates for each coverage and category of automobile insurance; and
(b) the rates it intends to use for each coverage and category of automobile insurance.
Exception
(2) An insurer is not required to apply for approval of a risk classification system that the insurer is required to use under the regulations.
Material to be furnished
(3) An application for approval of a risk classification system or rates shall be in a form approved by the Commissionerand shall be filed together with such information, material and evidence as the Commissioner may specify.
Additional information
(4) The Commissioner may require an applicant to provide such information, material and evidence as the Commissioner considers necessary in addition to the information, material and evidence required to be provided in or with the application.
Definition
(5) In this section,
"insurer" includes the Facility Association.
Expedited applications
411. (1) An applicant under section 410 may choose to have this section apply to the application if the application meets the following criteria:
1. The average of the proposed rates for each coverage and category of automobile insurance does not exceed the average of the existing rates by more than a percentage prescribed by the regulations for that class of applicant, coverage and category, and the proposed rates meet such other criteria as are prescribed by the regulations for the purposes of this section.
2. The proposed risk classification system for each coverage and category of automobile insurance does not contain elements prescribed by the regulations for the purposes of this section.
Deemed approval after 30 days
(2) An application to which this section applies shall be deemed to have been approved by the Commissioner 30 days after it is filed, unless the Commissioner within that 30-day period advises the applicant orally or otherwise that the Commissioner has not approved the application.
Earlier approval
(3) The Commissioner may approve the application before the expiry of the 30-day period.
Notice
(4) If the Commissioner notifies an insurer orally that he or she has not approved the application, the Commissioner shall promptly mail a written notice to the applicant confirming that fact.
Effect of notice
(5) If the Commissioner notifies the insurer that he or she has not approved the application, the insurer may,
(a) submit a new application to the Commissioner; or
(b) resubmit the same application to the Commissioner, in which case section 412 applies to the application and this section does not apply.
45. Section 412 of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 39, is repealed and the following substituted:
Other applications
412. (1) An application under section 410 to which section 411 does not apply shall be deemed to have been approved by the Commissioner 60 days after it is filed, unless the Commissioner within that 60-day period advises the applicant orally or otherwise that the Commissioner has not approved the application.
Same
(2) The Commissioner may approve the application before the expiry of the 60-day period.
Extension of time
(3) The Commissioner may extend the period for approval for a period not exceeding 60 days.
Notice
(4) If the Commissioner notifies an applicant orally that he or she has not approved an application, the Commissioner shall promptly mail a written notice to the applicant confirming that fact.
No approval if hearing required
(5) The Commissioner shall not approve the application if a hearing is required by the regulations or the Commissioner considers that it is in the public interest to hold a hearing on the application.
Hearing
(6) If the Commissioner notifies an applicant that he or she has not approved the application, the Commissioner shall hold a hearing.
Powers of the Commissioner
(7) Following the hearing, the Commissioner may approve or refuse to approve the application or may vary the risk classification system or the rates, and the approval may be subject to such conditions or restrictions as the Commissioner considers appropriate in the circumstances.
Refusal to approve
412.1 (1) The Commissioner shall refuse to approve an application under section 410 if the Commissioner considers that the proposed risk classification system or rates are not just and reasonable in the circumstances.
Same
(2) The Commissioner shall refuse to approve an application under section 410 respecting a proposed risk classification system that the Commissioner considers,
(a) is not reasonably predictive of risk; or
(b) does not distinguish fairly between risks.
Same
(3) The Commissioner shall refuse to approve an application under section 410 respecting proposed rates that the Commissioner considers would impair the solvency of the applicant or are excessive in relation to the financial circumstances of the insurer.
Relevant information
(4) In deciding on an application under section 410, the Commissioner may take into account financial and other information and such other matters as may directly or indirectly affect the applicant's proposed rates or the applicant's ability to underwrite insurance using the proposed risk classification system.
46. (1) Subsection 413 (1) of the Act is amended by striking out "section 412" in the third and fourth lines and substituting "section 410".
(2) Subsection 413 (3.4) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 40, is repealed and the following substituted:
Hearing
(3.4) If the Commissioner notifies an insurer under subsection (3) or (3.3) that he or she intends to hold a hearing, the Commissioner shall hold a hearing and, for that purpose, subsections 410 (3) and (4) and 412 (7) and section 412.1 apply, with necessary modifications, as if the insurer had made an application under section 410.
(3) Subsection 413 (4) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 40, is further amended by striking out "section 412" in the fourth line and substituting "section 410".
47. Subsection 414 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 42, is further amended by striking out "section 412, 413 or 413.1" in the fourth line and in the amendment of 1993 and substituting "section 410, 413 or 413.1".
48. (1) Subsection 415 (1) of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 10, section 43, is amended by striking out "section 412 or 413" in the second line and substituting "section 411, 412 or 413".
(2) Section 415 (2) of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 10, section 43, is amended by striking out "section 412" in the last line and substituting "section 410".
(3) Section 415 of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 10, section 43, is amended by adding the following subsection:
Application of s. 411
(2.1) Section 411 does not apply to an application required by the Commissioner under subsection (2).
49. Subsection 447 (2) of the Act, as amended by the Statutes of Ontario, 1994, chapter 11, section 347, is further amended by adding the following clauses:
(a.1) knowingly makes a false or misleading statement or representation to an insurer in connection with the person's entitlement to a benefit under a contract of insurance;
(a.2) wilfully fails to inform an insurer of a material change in circumstances in connection with the person's entitlement to a benefit under a contract of insurance within 14 days of the material change;
(a.3) knowingly makes a false or misleading statement or representation to an insurer in order to obtain payment for goods or services provided to an insured, whether or not the insured received the goods or services.
PART II
AMENDMENTS TO OTHER ACTS
Compulsory Automobile Insurance Act
50. (1) Clause (c) of the definition of "insurance card" in subsection 1 (1) of the Compulsory Automobile Insurance Act is repealed and the following substituted:
(c) a document prescribed by the regulations.
(2) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 52, is further amended by adding the following definition:
"lessee" means, in respect of a motor vehicle, a person who is leasing the motor vehicle for a period of 30 days or more. ("locataire")
(3) Subsection 2 (1) of the Act, as re-enacted by the Statutes of Ontario, 1994, chapter 11, section 383, is amended by inserting "or lessee" after "owner" in the first line.
(4) Subsection 2 (3) of the Act is amended by,
(a) inserting "or lessee" after "owner" in the first line; and
(b) striking out "on conviction is liable to a fine of not less than $500 and not more than $2,500" in the eleventh, twelfth and thirteenth lines and substituting "is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000".
(5) Subsection 2 (6) of the Act is amended by striking out "$100" in the last line and substituting "$200".
(6) Subsection 2 (9) of the Act is amended by striking out "owner" in the eighth line and substituting "person convicted".
(7) Subsection 3 (3) of the Act is amended by striking out "$200" in the third line and substituting "$400".
(8) Subsection 4 (3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 10, section 52, is amended by striking out "$200" in the third line and substituting "$400".
(9) Section 5 of the Act is amended by,
(a) inserting "or lessee" after "owner" in the first line of clause (a); and
(b) inserting "or lessee" after "owner" in the second last line.
(10) Subsection 7 (3) of the Act is amended by striking out "owners" in the fourth line and substituting "owners, lessees".
(11) The Act is amended by adding the following section:
Possession, use, sale, etc., of false or invalid insurance card
13.1. (1) No person shall knowingly,
(a) have a false or invalid insurance card in his or her possession;
(b) use a false or invalid insurance card; or
(c) sell, give, deliver or distribute a false or invalid insurance card.
Offence
(2) A person who contravenes this section is guilty of an offence and is liable on a first conviction to a fine of not less than $10,000 and not more than $50,000 and on a subsequent conviction to a fine of not less than $20,000 and not more than $100,000.
(12) Clause 15 (1) (c) of the Act is repealed and the following substituted:
(c) prescribing documents for the purpose of the definition of "insurance card" in subsection 1 (1).
(13) Subsection 15 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 52, is further amended by adding the following clause:
(c.2) requiring an insurer, a class of insurers or the Association to provide the Minister of Transportation with such information as may be prescribed by the regulations, including personal information, subject to such conditions as may be prescribed by the regulations.
Health Insurance Act
51. Section 30 of the Health Insurance Act, as amended by the Statutes of Ontario, 1993, chapter 10, section 53, is further amended by adding the following subsections:
Exception
(5) Despite subsection (1), the Plan is not subrogated to the rights of the insured person, as against a person who is insured under a motor vehicle liability policy issued in Ontario, in respect of personal injuries arising directly or indirectly from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force, of an automobile in Ontario or in any other jurisdiction designated in the Statutory Accident Benefits Schedule under the Insurance Act.
Definition
(6) In subsection (5),
"motor vehicle liability policy" has the same meaning as in the Insurance Act.
PART III
COMMENCEMENT AND SHORT TITLE
Commencement
52. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
53. The short title of this Act is the Automobile Insurance Rate Stability Act, 1996.