NLR 56/19 - Automobile Insurance Regulations, 2019 under the Automobile Insurance Act

NEWFOUNDLAND AND LABRADOR REGULATION 56/19 Automobile Insurance Regulations, 2019 under the Automobile Insurance Act (O.C. 2019-213) Amended: 92/23 2024 cP-12.3 s81 2024 c23 s40 2024 cN-5.1 s74 NEWFOUNDLAND AND LABRADOR REGULATION 56/19 Automobile Insurance Regulations, 2019 under the Automobile Insurance Act (O.C. 2019-213) (Filed September 27, 2019) Under the authority of section 60 of the Automobile Insurance Act, the Lieutenant-Governor in Council makes the following regulations. Dated at St. John’s, September 27, 2019. Elizabeth Day Clerk of the Executive Council REGULATIONS Analysis 1. Short title 2. Definitions 3. Notice of cancellation or expiration 4. Requirements after notice to commence action 5. Persons who can conduct examination 6. Net loss of income 7. Net loss of earning capacity 8. Deductible on non-pecuniary damage 9. Filing of proposed rates 10. Review of proposed rates 11. Expedited review of proposed rates 12. Effective date of rate 13. Publication 14. Insurer to provide information 15. Usage based technology 16. Winter tire rate reduction 17. Repeal 18. Commencement Short title 1. These regulations may be cited as the Automobile Insurance Regulations, 2019 . 56/19 s1 Back to Top Definitions 2. In these regulations, (a) "Act" means the Automobile Insurance Act ; (b) "commercial vehicle" means a vehicle designed or used primarily to transport materials, goods, tools or equipment in connection with an occupation or business; (c) "fleet" means a group of at least 5 automobiles that meet the following criteria: (i) at least 5 of the automobiles in the group are (A) commercial vehicles, (B) public vehicles, or (C) vehicles used for a business purpose, and (ii) all automobiles in the group are either (A) under common ownership or management and any automobiles in the group that are subject to a lease agreement for a period in excess of 30 days are leased to the same insured person, or (B) available for hire through a common on-line enabled system for the prearrangement of transportation and insured under a contract of automobile insurance in which the automobile owner or lessee , as the case may be, has coverage as an insured named in the contract; (d) "former regulations" means the Automobile Insurance Regulations ; (e) "miscellaneous vehicles" means the following vehicles when used for personal use only: ( i ) motorcycles, (ii) all-terrain vehicles, (iii) mopeds, (iv) snowmobiles, (v) trailer homes, (vi) antique cars, and (vii) classic cars; (f) "private passenger automobile" means an automobile used for the purposes listed under the heading "Type of Use-Private Passenger" in the automobile insurance statistical plan prepared under section 82 of the Insurance Companies Act ; (g) "public vehicle" means ( i ) an automobile used primarily to provide transportation services to the public and includes ambulances, daily rental vehicles, funeral hearses, private buses, public buses, school buses and taxis, and (ii) an automobile used for a ride-sharing service; (h) " usage based technology" means technology that monitors automobile usage and driver behaviour; and ( i ) "year" means 12 months. 56/19 s2 ; 92/23 s1 Back to Top Notice of cancellation or expiration 3. An insurer shall notify the Registrar of Motor Vehicles within 24 hours of the cancellation or expiration of a policy issued by the insurer for private passenger vehicles. 56/19 s3 Back to Top Requirements after notice to commence action 4. (1) For the purposes of paragraph 25.1(1)(b) of the Act, a person who intends to commence an action for loss or damage from bodily injury or death arising from the use or operation of an automobile shall provide the insurer with the following information within 30 days after the notice prescribed in subsection 25.1(1)(a) of the Act is served: (a) the name of the person's insurer; and (b) where the person is making a claim for income loss, evidence of the person's income from all sources for the 52 weeks immediately preceding the accident. (2) A person referred to in subsection (1) shall provide the insurer with the following information within 30 days after the time period referred to in subsection (3): (a) a copy of every application for accident benefits that the person submitted to the person's insurer during the time period prescribed in subsection (3) as a result of the accident; (b) a copy of every application that the person submitted to another person during the time period prescribed in subsection (3) for benefits that may be available as a result of the accident; (c) a copy of every medical report prepared by every member of a health profession who cared for the person during the time period prescribed in subsection (3) respecting the person's injuries arising from the accident; and (d) a copy of any clinical notes and records prepared by every member of a health profession who cared for the person during the time period prescribed in subsection (3) respecting the person's injuries arising from the accident. (3) For the purposes of subsection (2), the time period is the period that begins at the time of the accident and ends on the later of (a) the day notice is served under paragraph 25.1(1)(a) of the Act; and (b) 120 days after the accident. (4) A person referred to in subsection (1) may provide written consent to the insurer to obtain a copy of the documents referred to in subsection (2) rather that providing a copy of the documents to the insurer. (5) An insurer may, where the insurer determines it necessary, request that the documents provided under subsection (2) be updated and the person referred to in subsection (1) shall provide the updated documents within 60 days of the insurer's request. (6) A person referred to in subsection (1) is not required to provide the documents referred to in paragraph 2(c) or (d) or an update of those documents unless the insurer pays all reasonable expenses incurred in obtaining those documents. (7) In this section, "insurer" means, unless the context indicates otherwise, the insurer of an insured against whom a person referred to in subsection (1) intends to commence an action. (8) This section applies to an action arising from the use or operation of an automobile on or after January 1, 2020. 56/19 s4 Back to Top Persons who can conduct examination 5. The following persons may conduct an examination under paragraph 25.1(1)(f) of the Act: (a) a chiropractor as defined in the Chiropractors Act, 2009 ; (b) a practitioner as defined in the Dental Act, 2008 ; (c) a denturist as defined in the Denturists Act, 2005 ; (d) a registered dietitian as defined in the Dietitians Act ; (e) a dispensing optician as defined in the Dispensing Opticians Act, 2005 ; (f) a member of a health profession designated under the Health Professions Act ; (g) a massage therapist as defined in the Massage Therapy Act, 2005 ; (h) a medical practitioner as defined in the Medical Act, 2011 ; ( i ) an occupational therapist as defined in the Occupational Therapists Act, 2005 ; (j) an optometrist as defined in the Optometry Act, 2012 ; (k) a pharmacist as defined in the Pharmacy Act, 2024 ; (l) a physiotherapist as defined in the Physiotherapy Act, 2006 ; (m) a registered nurse as defined in the Nurses Act ; (n) a nurse practitioner as defined in the Nurses Act ; and (o) a registered psychiatric nurse as defined in the Nurses Act . 56/19 s5 ; 2024 cP-12.3 s81 ; 2024 c23 s40 ; 2024 cN-5.1 s74 Back to Top Net loss of income 6. For the purpose of paragraph 26.4(1)(a) of the Act, net loss of income means total income lost less the following: (a) the premium otherwise payable on that income under the Employment Insurance Act ( Canada ); (b) the contribution otherwise payable on that income under the Canada Pension Plan (Canada); and (c) the income tax otherwise payable on that income under the Income Tax Act (Canada) and the Income Tax Act, 2000. 56/19 s6 Back to Top Net loss of earning capacity 7. For the purpose of paragraph 26.4(1)(b) of the Act, net loss of earning capacity means total loss of earning capacity or loss of future income less the following: (a) the premium otherwise payable on that income under the Employment Insurance Act (Canada); (b) the contribution otherwise payable on that income under the Canada Pension Plan (Canada); and (c) the income tax otherwise payable on that income under the Income Tax Act (Canada) and the Income Tax Act, 2000. 56/19 s7 Back to Top Deductible on non-pecuniary damage 8. For the purpose of section 39.1 of the Act, the amount by which the damages to which a plaintiff is entitled in relation to each cause of action for non-pecuniary loss or damage shall be reduced is (a) $2,500 in relation to loss or damage sustained on or after August 1, 2004 and before January 1, 2020; and (b) $5,000 in relation to loss or damage sustained on or after January 1, 2020. 56/19 s8 Back to Top Filing of proposed rates 9. (1) An insurer shall file the rates it proposes to charge for automobile insurance with the board as follows: (a) for rates relating to private passenger automobile insurance, within 3 years of the date it last filed rates relating to private passenger automobile insurance under the former regulations and at least every 3 years thereafter; (b) for rates relating to commercial vehicle insurance, within 3 years of the date it last filed rates relating to commercial vehicle insurance under the former regulations and at least every 3 years thereafter; (c) for rates relating to miscellaneous vehicle insurance, within the time periods set by the board; and (d) for rates relating to automobile insurance not referred to in paragraphs (a) to (c), within 3 years of the date it last filed rates relating to that type of automobile insurance under the former regulations and at least every 3 years thereafter. (2) Notwithstanding subsection (1), where an insurer has not filed rates under the former regulations in the 3 year period before the coming into force of these regulations, the board shall set the time period in which the insurer is required to files its rates under this section and the insurer shall file its rates within that time period and at least every 3 years thereafter. (3) The board shall not require an insurer to file rates under subsection (2) within 6 months of the coming into force of these regulations. (4) The board may extend the time period for filing its rates under subsection (1) or (2), where (a) the insurer requests an extension; and (b) the board is satisfied that (i) the insurer is not able to file its rates in the required time period due to exceptional circumstances; and (ii) extending the time period is not contrary to public interest. (5) The board may determine (a) the form and manner in which rates are required to be filed; and (b) the information and documentation that an insurer is required to include with its rates. (6) Notwithstanding subsection (1), an insurer is not required to file with the board the rates it proposes to charge for automobile insurance relating to a fleet. 56/19 s9 Back to Top Review of proposed rates 10. (1) The board shall consider the following factors when determining whether to approve, prohibit or vary rates filed in accordance with section 9: (a) the insurer's projected loss experience; (b) the insurer's expenses and investment income for its automobile insurance business for the province; and (c) financial and other information that directly or indirectly affects the insurer's proposed rates. (2) The board shall in its determination under subsection (1) ensure that the projected loss experience takes into account the insurer's loss experience in the province where that experience is relevant, adequate or otherwise reasonable for use in establishing rates. (3) Where the board determines that an insurer's loss experience in the province is not relevant, is inadequate or is otherwise unreasonable for use in establishing rates, the board shall determine the information upon which an insurer shall file its rates with the board. (4) The board shall prohibit rates filed in accordance with section 9 where the board determines that the proposed rates (a) are not just and reasonable in the circumstances; (b) would impair the solvency of the insurer; (c) are excessive in relation to the financial circumstances of the insurer; or (d) violate the Act, the Insurance Companies Act , these regulations or regulations under the Insurance Companies Act . (5) The board shall approve, prohibit or vary rates filed under section 9 within 90 days from the date the board received the filing. (6) The board may extend the time period referred to in subsection (5) to a maximum of 90 days. (7) Where the board approves or varies a rate filed under section 9, the board may impose terms and conditions on the approval or variation. 56/19 s10 Back to Top Expedited review of proposed rates 11. (1) An insurer may file the rates it proposes to charge for automobile insurance under this section where (a) no more than 3 years have passed since the insurer last filed its rates under the former regulations or section 9; and (b) the rate change does not result in an overall rate increase that (i) exceeds 3.0% in one year; or (ii) cumulatively exceeds 6.0% in 3 years. (2) The board shall approve, prohibit or vary rates filed under this section within 30 days from the date the board receives the filing. (3) The board may determine (a) the form and manner in which the rates are required to be filed; and (b) the information and documentation that an insurer is required to include with its rates. (4) The board shall prohibit rates filed under this section where the board determines that the rates (a) are not just and reasonable in the circumstances; (b) would impair the solvency of the insurer; (c) are excessive in relation to the financial circumstances of the insurer; or (d) violate the Act, the Insurance Companies Act , these regulations or regulations under the Insurance Companies Act . (5) Where the board approves or varies a rate filed under this section, the board may impose terms and conditions on the approval or variation. (6) The filing of rates under this section does not effect the requirement to file rates under section 9 in the time period prescribed in that section. 56/19 s11 Back to Top Effective date of rate 12. A rate approved by the board comes into effect on the date set by the board. 56/19 s12 Back to Top Publication 13. The board shall publish the following information within 30 days of approving, prohibiting or varying rates: (a) name of the insurer; (b) effective date of any changes to the rates; (c) average rate level change requested and approved; (d) the amount of the change per coverage type; (e) the type of automobile insurance as determined by the statistical plan prepared under section 82 of the Insurance Companies Act ; (f) the current average premium of the rate for the applicable vehicle class as determined by the statistical plan prepared under section 82 of the Insurance Companies Act ; (g) where relevant, the premiums for each risk profile as provided to the board; (h) whether a maximum rate change has applied to the rate; and (i) other information the board determines necessary. 56/19 s13 Back to Top Insurer to provide information 14. (1) For the purposes of paragraph 60(1)(d.3) of the Act, an insurer shall disclose to a person who is or alleges entitlement to recover from an insured covered by a motor vehicle liability policy or under a contract of automobile insurance the following: (a) that under the Personal Information Protection and Electronic Documents Act (Canada) an insurance company (i) is permitted to conduct surveillance of a claimant without the claimant’s consent or knowledge, (ii) does not have to disclose to a claimant that the claimant is or has been under surveillance, and (iii) is required to destroy personal information collected about a claimant through surveillance after it has fulfilled its usefulness; (b) that it is an offence under the Criminal Code to make a false claim; (c) that a person found guilty of making a false claim may be subject to a fine or imprisonment for a period of time , or to both a fine and imprisonment; (d) that a false claim includes inflating the true value of a claim or claiming for things that were not damaged in an accident; (e) that where the claimant is making a claim against another driver who allegedly caused the accident, that driver’s insurance company is obligated to (i) settle the claim as quickly as possible, (ii) make interim payments to the claimant pending the final settlement of the claim once the insurance company has determined that its insured is at-fault for the accident, (iii) pay the claimant the amount of the final claim settlement in a series of payments over a stated period of time instead of in one lump where the accident caused the claimant bodily injury and the claimant requests settlement in periodic payments, (iv) advise its insured that a claim has been made against the insured, and (v) advise its insured of the total amount paid to the claimant once the claim is settled; (f) that where the claimant was not wearing a seat belt at the time of the accident and by law was required to wear one, the claim will be reduced by 25% unless the claimant can prove that the claimant's injuries would be the same had the claimant been wearing a seat belt; (g) that a claim for loss of income or loss of ability to earn income will be reduced by Employment Insurance premiums, Canada Pension Plan contributions and income tax that would otherwise be payable if the claimant received the income from employment; and (h) that a claim for non-pecuniary loss or damage will have a (i) $2,500 deductible applied to it where the loss or damage was sustained on or after August 1, 2004 and before January 1, 2020, or (ii) $5,000 deductible applied to it where the loss or damage was sustained on or after January 1, 2020. (2) An insurer shall make reasonable efforts to ensure that confirmation of receipt of this disclosure is received back from the claimant and maintained on its files. (3) Subsections (1) and (2) do not apply to an insurer where a claim is made against the insurer for glass breakage under the comprehensive coverage of Section C of the Automobile Insurance Policy. (4) For the purpose of paragraph 60(1)(d.4) of the Act the disclosure required under subsection (1) (a) shall be in the form approved by the Superintendent of Insurance; (b) shall be made immediately upon the insurance company or its adjuster, representative, agent or broker becoming aware of the claimant’s name and contact information; and (c) shall include a requirement that the claimant confirm receipt of the disclosure to the insurance company, but, where the claimant refuses to or does not confirm receipt it shall not constitute an offence or affect the claim. (5) Notwithstanding subsection (4), disclosure may be made by electronic means provided the insurance company receives electronic confirmation of delivery of the disclosure from the claimant and that both the disclosure and confirmation are maintained in a system where it is retrievable. 56/19 s14 Back to Top Usage based technology 15. (1) Usage based technology may be used solely to (a) reduce the rate for automobile insurance; (b) review rating criteria; and (c) manage claims. (2) Usage based technology may only be used by an insurer with the written consent of the insured person and the insured person may withdraw consent at any time by providing written notice to the insurer. (3) Usage based technology shall not be used to (a) decline to provide automobile insurance; (b) cancel automobile insurance; (c) refuse to renew automobile insurance; or (d) determine a surcharge to be applied to a rate for automobile insurance. (4) Before providing an insured person with usage based technology the insurer shall provide the following information to the insured person: (a) the personal information and other information that will be collected by the usage based technology; (b) the persons who would use or have access to the personal information and other information collected by the usage based technology; (c) the purposes for which the personal information and other information will be used; (d) the circumstances under which the personal information and other information will or could be disclosed to other persons; (e) how the usage based technology could be used to set rate reductions, review rating criteria and manage claims; (f) how the rate reductions will be calculated; (g) the period of time being measured to calculate the rate reduction; and (h) the maximum or minimum amount of the rate reduction. (5) Any personal information collected by usage based technology shall not be disclosed to any other person except (a) as necessary for the purposes for which it was collected and as expressly consented to by the insured person; (b) for the purposes of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information; or (c) as required by law. (6) Where an insurer uses usage based technology to manage claims, the insurer may only use the information obtained from the usage based technology to manage a claim relating to (a) the person who provided consent under subsection (2); or (b) another person who consents to the use of the usage based technology for the management of that person's claim. (7) An insurer shall take steps that are reasonable in the circumstances to ensure that personal information in its custody or control is (a) protected against theft, loss and unauthorized collection, access, use or disclosure; (b) protected against unauthorized copying or modification; and (c) retained, transferred and disposed of in a secure manner. (8) For the purposes of paragraph (7)(c), "disposed of in a secure manner" in relation to the disposition of personal information does not include the destruction of the personal information unless the personal information is destroyed in a manner that the reconstruction of the record is not reasonably foreseeable in the circumstances. (9) Before an insurer makes any changes to the types of personal information or other information being collected or how the personal information or other information is collected, used or disclosed, the insurer shall notify the insured person and obtain written consent to the changes. 56/19 s15 Back to Top Winter tire rate reduction 16. (1) An insurer shall offer a reduction in the rate of insurance for an automobile that is insured as a private passenger automobile and equipped with winter tires. (2) Subsection (1) applies to an insurance contract issued or renewed on or after January 1, 2020. 56/19 s16 Back to Top Repeal 17. The Automobile Insurance Regulations , Newfoundland and Labrador Regulation 81/04, are repealed. 56/19 s17 Back to Top Commencement 18. These regulations come into force on January 1, 2020. 56/19 s18