2011 NBCA 2, 2011 NBCA 2

COURT OF APPEAL OF NEW BRUNSWICK 17-10-CA ATTORNEY GENERAL OF NEW BRUNSWICK APPELLANT PROCUREUR GÉNÉRAL DU NOUVEAU-BRUNSWICK APPELANT - and - - et - PEMBRIDGE INSURANCE COMPANY RESPONDENT PEMBRIDGE INSURANCE COMPANY INTIMÉE - and - - et - THE NEW BRUNSWICK INSURANCE BOARD INTERVENER COMMISSION DES ASSURANCES DU NOUVEAU-BRUNSWICK INTERVENANTE Attorney General of New Brunswick v. Pembridge Insurance Company, 2011 NBCA 2 Procureur général du Nouveau-Brunswick c.

Pembridge Insurance Company, 2011 NBCA 2 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the New Brunswick Insurance Board: January 11, 2010 Appel d’une décision de la Commission des assurances du Nouveau-Brunswick : Le 11 janvier 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: January 11, 2011 Appel entendu : Le 11 janvier 2011 Judgment rendered: January 17, 2011 Jugement rendu : Le 17 janvier 2011 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: For the appellant: William A. Anderson, Q.C. and Michael Hynes For the respondent: Robert G.

Grant, Q.C. Sacha D. Morisset and Tanya Butler For the Intervener: David N. Rogers Avocats à l’audience : Pour l’appelant : William A. Anderson, c.r., et Michael Hynes Fpour l’intimée : Robert G. Grant, c.r., Sacha D. Morisset et Tanya Butler Pour l’intervenante : David N. Rogers

THE COURT Following their pronouncement, the Court’s judgment and the reasons in support will be initially published in English, the language of the proceedings, and, thereafter, a French version will be published at the earliest opportunity, all in accordance with ss. 24 - 26 of the Official Languages Act , S.N.B. 2002, c. O-0.5. The New Brunswick Insurance Board committed reversible error in failing to provide motivated reasons for its rates-setting decision. As a general rule, a decision settling a dispute between the Attorney General and a filing insurer over what constitute “just and reasonable” insurance rates will withstand appellate scrutiny if it contains: (

a) a

summary of the issues; (

b) a review of the relevant evidence; (

c) essential findings of fact for which a rational connection to the evidence is articulated; (

d) a statement of the factors that weighed in the decision-making process; and (

e) an intelligible rational application of those factors to the findings of fact. In the result, the Court sets aside the Board decision under appeal and remits the matter for rehearing to a differently constituted panel and for determination in a manner consistent with the following reasons for judgment and those delivered in Attorney General of New Brunswick v. The Dominion of Canada General Insurance Company , 2010 NBCA 82 . There will be no order of costs.

LA COUR Dès leur prononcé, le jugement de la Cour et les motifs à l’appui seront initialement publiés en anglais, la langue des procédures, et par la suite, une version française sera publiée dans les plus brefs délais, le tout conformément aux articles 24 à 26 de la

Loi sur les langues officielles , L.N.-B. 2002, ch. O-0.5. La Commission des assurances du Nouveau-Brunswick a commis une erreur justifiant l’infirmation de sa décision en omettant de motiver sa décision en matière de fixation des tarifs. En règle générale, une décision réglant un litige qui oppose le Procureur général et un assureur ayant déposé une demande de hausse tarifaire au sujet de ce qui constitue des tarifs « justes et raisonnables » résistera à l’examen en appel si elle renferme :

a) un résumé des questions en litige;

b) un examen de la preuve pertinente;

c) les conclusions de fait essentielles pour lesquelles un lien rationnel avec la preuve est formulé;

d) un énoncé des facteurs qui ont pesé dans le processus de prise de décision; et

e) une application rationnelle intelligible de ces facteurs aux conclusions de fait. Il en découle que la Cour annule la décision de la Commission portée en appel et renvoie l’affaire devant une formation différemment constituée de la Commission pour qu’elle réentende l’affaire et rende une décision conforme tant aux motifs de jugement qui suivent qu’à ceux de l’arrêt Procureur général du Nouveau-Brunswick c. Dominion of Canada, Compagnie d’Assurance Générale , 2010 NBCA 82 . Aucune ordonnance n’est rendue quant aux dépens. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. (Delivered orally) I. Introduction

[ 1 ] The New Brunswick Insurance Board, which began operations in the fall of 2004, is charged by the Legislature with the general supervision of automobile insurance rates in this province. In fulfilling that important mandate, the Board exercises powers within the scheme provided by the Insurance Act , R.S.N.B. 1973, c. I-12, with a view to ensuring that only “just and reasonable” rates are charged to policyholders.

Under that scheme, each insurer carrying on the business of automobile insurance in this province must, at least once every 12 months from the date of its last filing, file with the Board the rates it proposes to charge for various coverages. The filing insurer must also specify the date on which those rates will be effective. If the proposed rates reflect an average increase greater than 3% of the rates charged in the previous 12 months, the insurer must appear before the Board.

It is a testament to the importance of the Attorney General’s role in the statutory rates-setting scheme that, while the Board may, by order, dispense with public notice of the hearing, it is statute-bound to notify the Attorney General who may request and is then entitled to obtain copies of all documents relevant to the hearing.

Ultimately, the Attorney General may intervene at the hearing and make any representation he or she deems in the public interest. [ 2 ] In late 2009, several automobile insurers filed with the Board the rates they proposed to charge for private passenger vehicles once authorization for the then current rates expired. Pembridge Insurance Company sought a 3.49% average increase for the period of March 10, 2010 to March 9, 2011 and, as a result, the Board was statutorily required to conduct a hearing.

It also decided to investigate the rates proposed by other filing insurers even though those rates did not reflect an increase sufficient to render a hearing obligatory. After giving notice of intervention, the Attorney General sought answers from a dozen filing insurers to questions designed to test the actuarial assumptions each proffered in support of its proposed rates. After indicating it would compel the insurers to provide the sought-after information in advance of the hearings, the Board reversed course.

It did so because, in its stated view, the answers sought would force the targeted insurers to generate “new” information, i.e. data not contained in the filing documentation.

Despite that setback, the Attorney General intervened at several hearings, including the hearing into Pembridge’s filing where he urged the Board to find a 7.8% average reduction in the then current rates would bring about “just and reasonable” rates for the period of March 10, 2010 to March 9, 2011 (the “effective period”). [ 3 ] The Board found the rates proposed by Pembridge for the effective period were “not fully supported” and “not within a range of reasonableness”. However, it went on to allow Pembridge “to continue using rates already in place and approved by the Board on December 10, 2008”.

The Board made this continuation order without explaining how the previously approved rates were “just and reasonable” for the effective period. [ 4 ] The Attorney General appeals against the Board’s decision, contending Attorney General of New Brunswick v.

The Dominion of Canada General Insurance Company , 2010 NBCA 82 , compels the following conclusions: (1) the Board unjustifiably impaired his right to a meaningful intervention at the hearing by denying him pre-hearing access to the data underlying Pembridge’s actuarial assumptions; and (2) the Board breached its duty of procedural fairness by denying that access and by failing to provide supporting reasons for its continuation order.

The Attorney General also contends the Board committed reversible error of law in making that order without first determining whether the rates “already in place” were “just and reasonable” for the effective period. [ 5 ] In its Respondent’s Submission, Pembridge argues Dominion is distinguishable on a number of bases. It would follow, so goes its argument, that Dominion has no bearing on the present appeal’s resolution.

Moreover, Pembridge submits the Board was not required to mention the “just and reasonable” criteria in its decision because that is the only standard applied by the Board in setting rates since it began operations in the middle of the last decade. [ 6 ] I respectfully agree with the last-mentioned submission. As will be seen, the Board decided in 2005 that all of its rates-setting decisions would be based on the “just and reasonable” criteria.

While it would be preferable, and indeed advisable, for the Board’s future decisions to feature an express finding that the rates it approves are “just and reasonable”, there is nothing in the record to suggest a different standard was applied in the present case, and I will say no more with respect to that particular allegation of Board error. However, I am of the view that none of the differences between the case at hand and Dominion comes close to tipping the scales against applying at least one feature of that precedent’s ratio decidendi .

In Dominion , the Court held the Board was required to provide “motivated” reasons for its rates-setting decision where, as here, the Attorney General intervenes and makes record-steeped representations in favor of rates significantly lower than those the Board ultimately settles upon. In the case at hand, the Board provided no such reasons. [ 7 ] At the hearing on appeal, Pembridge joined in the Board’s suggestion that the appropriate remedy is to refer the matter back for rehearing to the previously constituted panel with instructions to provide motivated reasons for the decision under appeal.

I respectfully disagree, being of the firm view that the disposition provided in Dominion remains apposite. Accordingly, I would allow the appeal, set aside the Board’s decision and remit the matter for rehearing to a differently constituted panel of the Board and a determination in a manner consistent with these reasons for judgment and those delivered in Dominion . II. Background

[ 8 ] There is substantial agreement regarding the primary facts and the events that transpired in the run-up to, and at, the hearing before the Board. That being so, the following account draws heavily from the parties’ written submissions. [ 9 ] The Insurance Act provides in sufficiently clear language that, where it decides to undertake a rates investigation pursuant to s. 267.5, as happened in Dominion , the Board is called upon to determine whether the rates at issue are “just and reasonable”.

The Board’s settled approach to rates-reviewing and rates-setting is to accord a central role to the net after tax return on equity that the rates under consideration will likely produce, the filing insurer bearing throughout the burden of satisfying the “just and reasonable” criteria. [ 10 ] Within its first year of operations, more precisely on April 15, 2005, the Board issued a notice of hearing to consider, among other questions, the rate of return on equity it ought to bring into the mix in deciding whether particular insurance rates are just and reasonable.

After hearing evidence and representations on point, the Board adopted the view of its expert economist, Dr. Richard McGaw, of the University of New Brunswick, who testified against the adoption of a specific rate of return on equity for all insurers. In its decision, the Board made the following observations: At the termination of his evidence, the Chairman asked Dr. McGaw if it would be a better way to look at the return on equity at the time of each particular rate application. Dr. McGaw gave the following reply: Yes, that’s what I would say.

And that you send a signal that you have some range in mind that might be, you know, 9 to 12, 13, something in that zone as what people – what are they targeting for. And require for people who are the outliers to justify. I think it would be a waste of resources to have everyone coming forward to justify well, we are doing 11 percent and here is why, and we are doing 11.5, and here is why and so on. But I think what the Board should be concerned with is the outliers. And, you know, that’s a good use of your time and also a better use of the times of the people submitting for rate claims.

The Board agrees with the recommendations of Dr. McGaw. The Board will not abdicate its responsibilities by creating a fixed rate or range of return on equity.

The Board will review the requested rate of return on equity on each application and decide what the rate should be based on the criteria of setting “just and reasonable rates” for the policy holders of New Brunswick. [Emphasis added.] [ 11 ] That said, and although it has not settled upon a fixed rate of return on equity for all insurers, the Board requires each filing to identify the insurance rates that would likely achieve a net after tax return on equity of 12%.

It is a helpful working target for those tasked with the preparation of the filing documentation in accordance with the Board’s RFR-1 Filing Requirements; it also assists the public at large, the Attorney General, the Superintendent, the Consumer Advocate for Insurance and the Board to assess whether the proposed rates are “in the ballpark”. However, the Board’s final decision must be based upon the “just and reasonable” standard. [ 12 ] On September 15, 2009, Pembridge submitted its filing for the effective period, which straddles 2010 and 2011.

It identified +9.8% as the average change in rates required for a net after tax return on equity of 12%. Nonetheless, Pembridge indicated its willingness to settle for an average increase in rates of only 3.49%. It would later amend its filing to acknowledge it could achieve a net after tax return on equity of 12% with an average increase in rates of 3.8%. [ 13 ] On November 13, 2009, the Attorney General received notification of the statutorily-required hearing into Pembridge’s proposed rates and, shortly thereafter, he advised the Board of his intention to intervene.

On November 21, 2009, the Board provided portions of Pembridge’s rates filing to the Attorney General’s consulting actuary. It also advised the Attorney General would have “an opportunity to review the finalized application and submit written information requests to [Pembridge] with respect to this application”. I note parenthetically that “written information requests”, which are commonly called “interrogatories” or “interrogs”, are akin to the list of written questions contemplated by Rule 34 of the Rules of Court (“Discovery […] Procedure on Written

Examinations”). At any rate, the Board went on to confirm Pembridge would be required to respond in writing within the timeframe specified in an attached filing schedule. [ 14 ] In late November 2009, the Attorney General’s consulting actuary e-mailed a list of questions to be answered by a dozen filing insurers. Those questions were designed to shed light upon and test the assumptions upon which the proposed rates were based.

Pembridge was not among the targeted insurers and it was not provided with a copy of that e-mail. [ 15 ] On November 30, 2009, the Board advised the Attorney General by e-mail that no insurer would need to respond to “all” of the questions posed by his consulting actuary and that he and the insurers would be provided, by noon the following day, a list of the questions requiring response.

Once again, Pembridge was not provided with a copy of that e-mail. [ 16 ] On December 1, 2009, the Board advised the Attorney General by e-mail that it would not require filing insurers to respond to any of his actuary’s questions in advance of the hearing. It so decided because the answers would “require the companies to create new information that is not currently contained within the filings under consideration”. The Board added it was “prepared to consider any written submission that the Intervener wishes to file”.

A copy of that e-mail was forwarded to Pembridge in the afternoon of December 1, 2009. [ 17 ] By letter dated December 3, 2009, the Attorney General drew the Board’s attention to the importance of the questions posed by his consulting actuary as they “address directly the underlying assumptions used by companies to justify rate applications and will greatly influence the rate level for private passenger automobile insurance in this Province”. The Attorney General insisted the answers to the questions posed were essential if his right to be heard were to be “meaningful”.

He also expressed the view that the Board “would correspondingly benefit from information affecting insurance rates in this Province” before stating he “strenuously [objected] to the position taken by the Board in this matter”.

When the Board refused to reconsider its ruling, the Attorney General concluded the door had been closed on the submission of interrogatories, and none were ever delivered to Pembridge. [ 18 ] In an attached letter, also dated December 3, 2009, the Attorney General’s consulting actuary offered the following insights into the loss ratio and rates of return on equity experienced by insurers carrying on the business of automobile insurance in this province during the years 2004-2008, all of which rates of return on equity substantially exceeded the Board’s 12% working guideline: As communicated by you, the Attorney General’s Office wishes to ensure that the premium levels in the Province are reasonable, and that profit levels earned by insurers are not excessive.

In this regard, we note that the New Brunswick loss ratio over the five accident years 2004 to 2008 for private passenger automobile, as compiled by the Insurance Bureau of Canada (IBC), was 52% with the loss ratio estimates increasing as follows: 42%, 50%, 52%, 57% and 62% for 2004 to 2008 respectively. IBC estimates the 2008 expense ratio to be 27.6%. Hence, even before consideration of investment income, on average, $20.40 dollars of every $100 dollars in premium was available as profits to the insurance industry over this five year period.

While the amount of equity for every dollar of premium required to support an insurer’s operation is subject to debate, at the low end of a reasonable rate, 1 to 1, the pre-tax return on equity (excluding consideration of investment income) would be in excess of 20%, and at the Board’s guideline of 2 to 1, the pre-tax return on equity (excluding consideration of investment income) would be in excess of 40%.

On any measure, the average profits over the last five years have exceeded the Board’s guideline 12% after-tax return on equity target (including consideration of investment income) . [Emphasis added.] [ 19 ] The actuary went on to underscore a truism: the justifiability of proposed rates hinges to a significant extent on the reliability of the filing insurer’s underlying loss trend rate assumptions.

The actuary’s observations on point bear reproducing: Loss trend rates are factors that are applied to recognize changes in cost levels that have occurred in the past and are expected to occur in the future during the policy period covered under the proposed rate program. The selection and application of trend rates is, essentially, a two-step process.

The insurer’s claim experience that occurred in the recent past (the “experience period”) under consideration must be adjusted to reflect changes in cost conditions that have taken place (i.e., “past trend”), and then the data must be further adjusted to reflect changes in cost conditions that are expected to take place between the present time and the time during [which] the new premiums will be in effect (i.e., “future trend”). Therefore, past trend rates should reflect the underlying trend patterns that occurred during the experience period, which in these rate

filings is generally the three to five years ending December 31, 2008 (and in some cases ending June 30, 2009). Future trend rates should reflect those same patterns that occurred during the experience period, as well as the likelihood that those patterns may change. […] Absent other information that may be provided, we would also expect the “future trend” rate selected by each insurer to be the same as or similar to the selected “past trend” rate. [ 20 ] On December 15, 2009, the Attorney General filed with the Board his consulting actuary’s submission regarding Pembridge’s filing. The submission’s concluding

summary reads as follows: It is our opinion that in determining whether the private passenger automobile rates proposed by Pembridge are just and reasonable, the Board should give consideration to the adjustments to Pembridge’s rate level indication calculations that we present in this report: (1) application of Pembridge’s selected loss cost tend rates,

(2) Pembridge’s treatment of fixed expenses, (3) updated income tax rate,

(4) Pembridge’s estimate of its “trended average earned premium @ current rate level,” and

(5) Pembridge’s combining of the comprehensive and specified perils coverages loss costs. We believe that making these adjustments reduces Pembridge’s overall rate level indication +0.1%. In addition, as we have noted, we find some of Pembridge’s selected loss trend rates to be relatively high and not fully supported based on the documentation presented in the rate filing, and find Pembridge’s combined return on investment rate for cash flow and equity to be among the lowest of all insurers.

For the purpose of this calculation, accepting Pembridge’s assumed loss trend rates and investment returns as reasonable expectations, we find Pembridge’s proposed rate level increase of +3.49% is expected to result in an after-tax return on equity of approximately 15.1%.

If Pembridge’s assumed loss trend rates are viewed as unreasonably high expectations of future changes in claim costs, and/or Pembridge’s assumed investment returns are viewed as unreasonably low expectations of future investment returns, then Pembridge’s proposed 3.49% rate level increase would be expected to result in an after-tax return on equity in excess of 15.1%.

If the Board were to require Pembridge to re-state its rate level indications based on the five adjustments noted above and by: • applying future loss cost trend rates that are the same as its past loss cost trend rates for the bodily injury, accident benefits and collision coverages, and • applying an average investment yield of 3.5% for all coverages (in line with other insurers), then we estimate Pembridge’s re-stated overall rate level indication would be -7.8%.

We note that if -7.8% is considered the best estimate of Pembridge’s overall rate level need (to achieve a target after-tax ROE of 12%), a 3.49% rate level increase would be expected to result in after-tax ROE of approximately 22.6%. We estimate Pembridge’s personal proposed rate increase of 3.49% will result in additional premiums of $327,000 that would be paid by its policyholders. Alternatively, if the Board was to decide an overall rate level decrease of 7.8% is appropriate, the premium paid by Pembridge’s policyholders would be reduced by $732,000.

This is a range of $1.1 million dollars of premium, from -$732,000 to +$327,000 . [Emphasis added.] [ 21 ] On December 16, 2009, Pembridge filed a responding submission. While maintaining its request for an average rate increase of 3.49%, Pembridge acknowledged the validity of a number of objections by the Attorney General’s consulting actuary to key assumptions in its filing. Significantly, Pembridge conceded it could achieve a net after tax return on equity of 12% without a 9.8%

average increase in its insurance rates, as posited in its original filing. More specifically, Pembridge agreed it would likely achieve a 12% net after tax return on equity with a rates increase of 3.8% (using its own, arguably overly pessimistic, assumptions and not those urged by the Attorney General’s consulting actuary). [ 22 ] At the hearing on December 17, 2009, both the Attorney General’s and the Board’s consulting actuaries questioned Pembridge’s representatives on the contents of its filing.

In his final representations, the Attorney General argued the application of what he contended were reasonable actuarial assumptions indicated a net after tax return on equity of 12% was achievable with a 7.8% average reduction in insurance rates. Additionally, he asked the Board to provide supporting reasons for its rates-setting decision. After noting the absence of any statutory obligation “to give written reasons”, the Board undertook to consider all of the evidence and to render “a written decision” in the event it was deemed “appropriate”.

The Board emphasized that only issues necessary to fulfill its mandate would be addressed and that “[t]his filing will not be used as a stage to address any particular issues”. [ 23 ] In its January 11, 2010 one-page decision, the Board determined that Pembridge’s proposed rates were “not fully supported” and were “not within a range of reasonableness”. It went on to “reject the Company’s rate revision application as amended” and to order Pembridge “to continue using rates already in place and approved by the Board on December 10, 2008”.

The Board did not provide any rational explanation for its rejection of the Attorney General’s rates-reduction submission and its decision to allow Pembridge to continue charging existing rates. III. Relevant legislative provisions [ 24 ] The pertinent provisions of the Insurance Act are reproduced in Appendix A. IV. Applicable filing requirements [ 25 ] The RFR-1 Filing Requirements in effect at the time of Pembridge’s filing is reproduced in Appendix B. V.

The position of the parties on the key issues [ 26 ] The Attorney General contends the Board committed reversible error in permitting Pembridge to charge rates during the effective period that will yield a net after tax return on equity well in excess of the 12% rate “established” by the Board. In Dominion , the Court found, at paras. 19-22, the Board had declined to bind its rates-setting decisions to such a level of return on equity (see paras. 19-22).

As mentioned, while the 12% level is viewed by the Board as an important benchmark, it remains a working target that may be departed from in appropriate circumstances. Nothing further need be said on topic. [ 27 ] The Attorney General also protests the rates authorized by the Board are higher than “just and reasonable” rates. In that regard, the Attorney General spotlights the Board’s apparent failure to take into consideration a critical fact percolating from the record: Pembridge’s net after tax rate of return on equity for the years 2004-2008 substantially exceeded the Board’s 12% guideline or target rate.

However, what rates are just and reasonable for a particular period is largely a question of fact, one over which original adjudicative jurisdiction has been entrusted to the Board by the Legislature. And where the Board makes such a determination within a statute-compliant legal framework, there is little doubt that appellate review would be conducted on a reasonableness standard (see Allstate Insurance Company v. Nova Scotia (Insurance Review Board) , 2009 NSCA 75 , [2009] N.S.J. No. 330 (QL), per L.L. Oland, J.A. at paras. 56-57).

Happily, we need not determine whether the Board’s rates-setting decision is reasonable, there being another basis upon which the appeal must be allowed. [ 28 ] The Attorney General’s fallback position is that the Board denied him procedural fairness in two respects: (1) it failed to provide any supporting reasons for its rates-setting decision, thus frustrating his right of appeal on the merits ; and (2) it denied him the opportunity to question Pembridge, in advance of the hearing, regarding its actuarial assumptions, thus impairing to an intolerable extent his undoubted right to intervene at the hearing and to make representations “in the public interest”. [ 29 ] After the Attorney General articulated the foregoing grounds of error in his Notice of Appeal and re-iterated them in his written submission, the Court released its decision in Dominion , which addresses many of the issues raised in the present appeal.

The Attorney General submits the Board errors identified in Dominion also tainted the process that led to the rates-setting decision under appeal. As might be expected, he urges a disposition that mirrors the one prescribed in Dominion .

[ 30 ] For its part, Pembridge contends the facts in Dominion are materially different. First, neither the Attorney General’s actuary, nor his counsel actually put any interrogatories to Pembridge prior to the December 17, 2009 hearing. It follows, according to Pembridge, that there has been no denial of any right to information in advance of the hearing. Second, the hearing with respect to Pembridge’s proposed rates was an oral hearing, whereas Dominion featured a written hearing, and the Attorney General’s actuary was given every opportunity to question Pembridge’s representatives at that oral hearing.

In Pembridge’s submission, the Board’s breach of procedural fairness in the pre-hearing period ended up being inconsequential. Third, Pembridge was not asked to consent to answering interrogatories, and it had no notice, prior to the hearing, that a request in that regard was refused by the Board with respect to other filing insurers. Pembridge says it ought not to be sanctioned for errors committed without its knowledge or approval.

Finally, in Dominion , the proposed rates were approved while, in the present case, they were rejected, the Board merely ordering Pembridge to continue using rates that had been previously approved. VI. Analysis and Decision [ 31 ] Both sides rightly acknowledge that issues of procedural fairness stand to be resolved on the correctness standard (see Moreau-Bérubé v. New Brunswick (Judicial Council) , 2002 SCC 11 , [2002] 1 S.C.R. 249, at para. 74 and Dominion , at para. 17).

I propose to dispose of the present appeal on the basis that the Board breached its duty of procedural fairness by failing to provide supporting reasons for its decision to allow Pembridge to continue charging previously approved rates. [ 32 ] Under s. 267.5, the Board may , at any time, investigate rates charged or proposed that it considers may not be “just and reasonable” (see s. 267.5).

However, when an insurer “files rates where the average rate increase is more than 3% greater than the rates charged by it in the 12 months before the date on which it proposes to begin to charge the rates”, a hearing must take place (see s. 267.51(1)( b )). While the Act does not expressly delineate the hearing’s terms of reference and the Board’s authority under s. 267.51(1) ( b ), indicators of legislative intention on point emerge, by necessary implication, from the context. Thus, it is the significance of the rates increase sought that triggers the application of s. 267.51(1)(

b) and its requirement that a hearing be held. Logically, the object of that hearing must be an assessment of the proposed rates. That conclusion is buttressed by s. 19.71(1), which provides for notice of any hearing “with respect to rates charged or proposed to be charged” and s. 267.11, which vests in the Board the general supervision of automobile insurance rates, both existing and proposed.

There remains the question of the standard applicable to the Board assessment contemplated by s. 267.51(1) in instances where the average increase sought exceeds 3%. [ 33 ] Where a hearing is not mandatory, but the Board decides nonetheless to investigate rates, the parties rightly agree the Board is statutorily bound to apply the “just and reasonable” standard in coming to a decision. No other standard is mentioned in the pertinent parts of the Act and I cannot imagine why the Legislature might have intended a different benchmark to apply to obligatory hearings under s. 267.51(1)( b ).

Moreover, having regard to the powers of the Board, both general (s. 19.3) and specific to the hearing process (s. 19.41), I unhesitatingly conclude that, where a hearing under s. 267.51(1)(

b) culminates with a finding that the proposed rates are not “just and reasonable”, the Board’s powers include the power to order the insurer to make any change or changes the Board considers proper. [ 34 ] That said, and as mentioned, what rates are just and reasonable is largely a question of fact and the Legislature has entrusted the determination of that question to the Board. In my respectful judgment, it is only exceptionally that this Court ought to get involved in the merits of any rates-setting decision where there are other valid grounds for reversal. A.

Failure to provide motivated reasons [ 35 ] Dominion is on point. In that case, Robertson, J.A., who delivered the Court’s decision, set out the circumstances under which the Board becomes duty-bound to provide a rational and adequately fleshed out explanation for a rates- setting decision: I do not wish these reasons for judgment to be misinterpreted. They do not stand for the bald proposition that the Board is required to provide reasons with respect to all of its decisions. Each year the Board is required to rule on hundreds of applications.

Many, if not most, do not involve the kinds of questions being raised in this appeal. What I am saying is that, in cases where the Board rules that the rate application is one which requires further investigation in the form of a hearing, thereby triggering the Attorney General's right to intervene, and where in fact he or she so elects, the Board is obligated to provide reasons with respect to issues properly raised before the Board and intelligently pursued by the parties.

If the case is one in which the issues raised are of precedential significance, the need for reasons is inevitable and it makes no difference whether the Board elects to proceed by electronic, paper or oral hearing. What matters is that two adversaries have posed factual and legal questions which require adjudication by an adjudicative tribunal. Within this narrow framework, it is not difficult to justify the imposition of an obligation to provide reasons. [para. 37]

[ 36 ] Justice Robertson also noted that “[w]ithout motivated reasons, there is no way of maintaining public confidence in an administrative scheme designed to ensure New Brunswick drivers are not paying excessive rates for car insurance” (para. 4). His further elaboration on this point bears repeating: Just as Baker was of immense precedential significance, so too was Lafontaine (Village) . The notion that a municipal council in New Brunswick could be required to produce reasons for its decision to reject a rezoning application might come as a surprise to many.

However, the finding that the New Brunswick Insurance Board may be under a duty to provide reasons for one of its decisions should not. My formal reasoning is as follows. In regard to private passenger vehicles, the primary function of the Board is to ensure that insurance premiums are just and reasonable. This objective came about as a result of the 2003 reforms to the Insurance Act which saw, for example, a cap being placed on the damages that could be awarded for certain types of personal injury.

That amendment alone had a significant impact on the existing right of all New Brunswickers to obtain compensation for personal injury based on common law principles. Eventually, the legislature wanted to ensure that the interests of all New Brunswickers would be further protected by permitting the Attorney General to intervene in cases where the Board decided to subject a rate application to further scrutiny by ordering a hearing. Hence, the Board’s failure to provide reasons undermines public confidence that the Board will attempt to balance the interests of insurers and policy-holders alike.

How is the public to be assured that the Board is not engaged in arbitrary decision-making? How does the Attorney General obtain a meaningful right of appeal to this Court if the Board has failed to demonstrate that it grasped the issues at hand? The answer to those questions is obvious. The Board must provide reasons for its decision. Otherwise, this Court would be effectively granting deference to the Board when there is no evidence of the Board actually engaging its expertise by deciding discrete issues of precedential significance.

Without reasons for decision, the public cannot be assured that Dominion’s proposed rate was just and reasonable. The Attorney General’s allegation that Dominion’s application did not meet this threshold test went unanswered and that is all that is required to undermine public confidence in the administrative scheme implemented for the purpose of ensuring that the rate approval process remains both fair and transparent to all concerned. There is one other reason why the Board’s failure to provide reasons should not be sanctioned.

Recall that s. 267.5(5) of the Insurance Act obligates the Board to consider those factors which are prescribed by regulation when determining whether a proposed rate is just and reasonable. Recall also that, to date, no such regulation has been adopted. In the circumstances, surely the obligation rests on the Board to fill that gap by ruling on what factors it considers relevant to the rate-decision-making process. Without reasons for decision the gap will never be filled.

Whether the Legislature is partially responsible for this lacuna is a question I need not address. [paras. 33-36] [ 37 ] Pembridge submits that, given the Board’s decision to deny its application and to merely order a continuation of previously approved rates, there is no duty on the Board to provide motivated reasons. I respectfully disagree. [ 38 ] In the case at hand, the Attorney General chose, as he did in Dominion , to exercise his statutory right of intervention.

He argued in his written and oral submissions before the Board that, having regard to the data collected in the record, Pembridge would achieve a net after tax return on equity of 12% during the effective period if its previously approved rates were reduced by an average of 7.8%. Those representations were far from frivolous, and indisputably in the public interest. Ultimately, and without providing any substantiating explanation, the Board settled on significantly higher rates for the effective period.

In those circumstances, the Board was required to provide motivated reasons for its rejection of the Attorney General’s submission and for its, albeit unstated, conclusion that the rates it accepted were just and reasonable for the effective period, i.e. from March 10, 2010 to March 9, 2011. In failing to provide the required motivated reasons, the Board breached its duty of procedural fairness and, on the authority of Dominion , the appeal must be allowed. In this regard, the Board’s decision compares quite unfavourably with the decision under appeal in Allstate Insurance Company v.

Nova Scotia (Insurance Review Board) , which the Nova Scotia Court of Appeal described as follows: […] the Board’s decision raised the issues, reviewed the evidence, and set out its findings and the analysis upon which its findings were based. Its reasons were intelligible, and its conclusions fell within the range of possible and acceptable outcomes. [para. 56] B. The denial of discovery by interrogatories [ 39 ] When it conducts a hearing, including one required by s. 267.51(1)( b ), the Board must ensure procedural fairness to “all affected persons”: s. 19.41( d ).

In my view, upon intervention, the Attorney General, who participates at the hearing as the guardian of the public interest, stands under the protective umbrella provided by s. 19.41( d ). In Dominion , the Court held the Attorney General had been denied procedural fairness when the Board, as also occurred here, disallowed discovery of relevant information in the possession of the filing insurer. The Court found the Board “should have exercised its discretion to demand evidence that on its face

appears relevant to a material issue” (para. 26). [ 40 ] However, Pembridge contends Dominion is distinguishable from the case at hand because it received no notice that the Attorney General had been denied the right to any discovery of its actuarial assumptions. There are two short answers to that contention:

(1) Pembridge received a copy of the December 1, 2009 Board e-mail advising the Attorney General it would not require filing insurers to respond to any of his actuary’s questions in advance of the hearing; and, in any event, (2) the Attorney General’s complaint takes issue with the Board’s ruling without alleging any objectionable act or omission on Pembridge’s part. [ 41 ] Pembridge also argues that any pre-hearing procedural unfairness arising from the denial of interrogatories was cured when its representatives at the oral hearing were questioned at length by the Attorney General’s actuary.

In Pembridge’s submission, this feature also distinguishes the present case from Dominion . As I understand the statutory scheme, the Attorney General’s key rights – to intervene and to make representations he or she considers in the public interest – are engaged from the moment the hearing begins. Those rights were granted with a view to protecting the motoring public against excessive insurance rates, and they can only be exercised meaningfully if the Attorney General comes to the hearing fully informed.

In my respectful judgment, that state of affairs requires us to read into the statute a general entitlement by the Attorney General, upon intervention, to access, in advance of the hearing, all relevant information in the possession of a filing insurer. [ 42 ] The Act invests the Board with the power to compel filing insurers to provide it with any and all relevant information.

In my view, it is duty bound to exercise that power whenever doing so and sharing the imparted information with the Attorney General may assist the latter in making an informed intervention and in formulating informed representations “in the public interest” from the outset of the hearing before the Board.

In a case such as the present one, it is essential that the Attorney General be provided, prior to the hearing, responsive answers to questions pertaining to the central issues for determination by the Board, namely whether the proposed rates are just and reasonable and, if not, what substitute rates meet that standard.

In disentitling the Attorney General to the answers he sought by way of interrogatories, the Board exercised its statutory powers in a manner disharmonious with its mandate and breached its obligation of procedural fairness to the Attorney General: Dominion , at paras. 23-26. [ 43 ] However, having concluded the appeal must be allowed on account of the Board’s failure to provide adequate reasons for its rates-setting decision, I need not determine whether the Board’s error in the pre-hearing phase turned out to be harmless once the Attorney General and his consulting actuary were allowed to question Pembridge’s representatives at the hearing itself.

That said, I would nonetheless make the following observations: experience teaches us that the less-than-fully informed advocate is rarely, if ever, effective and I would be prepared to overlook a pre-hearing Board error that entails a denial of procedural fairness to the Attorney General, the guardian of the public interest, if, and only if, lack of prejudice were apodictic. VII. Conclusion and Disposition [ 44 ] The Board committed reversible error in failing to provide motivated reasons for its decision.

In that regard, I draw from the foregoing discussion and analysis the following guidance in the articulation of reasons for decision in contested cases such as the present one. As a general rule, a decision purporting to fix “just and reasonable” rates will withstand appellate scrutiny if it contains: (

a) a

summary of the issues; (

b) a review of the relevant evidence; (

c) essential findings of fact for which a rational connection to the evidence is articulated; (

d) a statement of the factors that weighed in the decision-making process; and (

e) an intelligible rational application of those factors to the findings of fact. [ 45 ] I would allow the appeal, set aside the Board’s decision and remit the matter for rehearing to a differently constituted panel of the Board and determination in a manner consistent with these reasons for judgment and those delivered in Dominion . If, in the result, policyholders are entitled to a credit or even a reimbursement, so be it. [ 46 ] The Attorney General does not seek costs and, consequently, I would make no order of costs. ____________________________________ J. ERNEST DRAPEAU,

CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _____________________________________ J.T. ROBERTSON, J.A. ______________________________________ BRADLEY V. GREEN, J.A. APPENDIX /

ANNEXE A

PART I.1 NEW BRUNSWICK INSURANCE BOARD

Definitions 19.1 In this Part, “electronic hearing” means a hearing held by telephone conference or some other form of electronic technology allowing persons to hear one another; “fiscal year” means the period commencing on April 1 in one year and ending on March 31 the next year; “oral hearing” means a hearing at which the parties or their counsel or agents attend before the Board in person; “written hearing” means a hearing held by exchanging documents, whether in written

PARTIE I.1 COMMISSION DES ASSURANCES DU NOUVEAU-BRUNSWICK Définitions 19.1 Dans la présente partie, « année financière » désigne la période commençant le 1er avril d’une année donnée et qui se termine le 31 mars de l’année suivante; « audience écrite » désigne une audience tenue par échange de documents, qu’ils soient sur support papier ou électronique; « audience électronique » désigne une audience tenue par conférence téléphonique ou par tout autre moyen électronique permettant aux participants de communiquer oralement entre eux; « audience orale » désigne une audience à laquelle les parties ou leurs avocats ou mandataires comparaissent en personne

form or electronically. […] Powers and functions of the Board 19.3

(1) In addition to the powers, functions and duties of the Board prescribed elsewhere in this Act, the Board may investigate or inquire into any matter relating to rates of insurance for other classes or types of insurance as may be prescribed by regulation and shall make recommendations to the Minister as a result of its investigation or inquiry. 19.3

(2) Every member of the Board has the power and privileges of a commissioner under the Inquiries Act and the regulations under that Act. 19.3

(3) The Board may make rules governing its procedures. 19.3

(4) The Board has full jurisdiction to hear and determine all matters, whether of law or fact. […] Powers of inquiry 19.41 The Board, when inquiring into, hearing or determining any matter or thing under this Act (

a) may determine its own procedure, and may give directions about process and procedure that it considers appropriate in the circumstances, including a direction for an electronic hearing, a written hearing, an oral hearing or a pre-hearing conference, (

b) may request from anyone, and require anyone to gather, evidence or studies relevant devant la Commission. […] Pouvoirs et fonctions de la Commission 19.3

(1) En sus des pouvoirs, des fonctions et des attributions de la Commission qui sont prescrits par ailleurs dans la présente loi, la Commission peut enquêter sur toute question qui se rapporte aux tarifs d’assurance pour toutes autres catégories ou types d’assurances qui peuvent être prescrites par règlement et s’en enquérir. Elle doit par la suite faire des recommandations au Ministre. 19.3

(2) Chacun des membres de la Commission est investi des pouvoirs et privilèges des commissaires sous le régime de la

Loi sur les enquêtes et de ses règlements. 19.3

(3) La Commission peut établir des règles qui régissent sa procédure. 19.3

(4) La Commission a pleine compétence pour entendre et trancher toutes questions de fait ou de droit. [...] Pouvoirs d’enquête 19.41 La Commission, alors qu’elle fait enquête sur une affaire, une question ou sur quoi que ce soit

a) peut déterminer sa propre procédure, et peut donner des directives concernant la procédure qu’elle estime indiquée dans les circonstances, notamment quant à la tenue d’une audience électronique, écrite ou orale, ou d’une conférence préalable à l’audience;

b) peut demander à quiconque et exiger de quiconque de colliger les éléments de preuve ou les études pertinentes et accessoires aux questions qui relèvent de sa compétence en vertu de la présente loi;

c) n’est pas tenue de tenir une audience orale,

and incidental to the matters over which it has jurisdiction under this Act, (

c) is not required to hold an oral hearing unless it considers it necessary to do so in order to act in a procedurally fair manner, (

d) shall ensure procedural fairness to all affected persons, (

e) is not bound by any common law rule of evidence except that the evidence it considers shall be relevant, material and trustworthy as it determines, and (

f) may make orders allowing evidence to be taken outside the Province and used in its proceedings. […] Information to be provided to Board 19.7

(1) An insurer to whom the Board makes a request for documents or information of any kind shall furnish the required information to the Board. 19.7

(2) The Minister and any other minister, Service New Brunswick, a Crown corporation or other agency of the Province shall furnish the Board with such certificates and certified copies of documents as the Board may in writing require, without charge, and the Board may at any time search in the public records of Service New Brunswick without charge. Notice of hearings 19.71

(1) The Board shall, unless it orders sauf si elle l’estime nécessaire afin d’agir de manière équitable au regard de la procédure;

d) doit faire preuve d’équité procédurale à l’égard de toutes les personnes concernées;

e) n’est pas liée par les règles de preuve de common law, sauf que les éléments de preuve qu’elle examine doivent être pertinents, déterminants et dignes de foi selon ce qu’elle détermine; et

f) peut rendre des ordonnances permettant que des éléments de preuve soient recueillis à l’extérieur de la province et utilisés dans le cadre de ses instances. […] Renseignements doivent être fournis à la Commission 19.7

(1) Un assureur à qui la Commission demande des documents ou des renseignements quels qu’ils soient, doit les lui fournir. 19.7

(2) Le Ministre et tout autre ministre, Services Nouveau-Brunswick, les corporations de la Couronne ou les organismes de la province doivent fournir gratuitement à la Commission les certificats et les copies certifiées conformes des documents à la demande écrite de celle-ci; la Commission peut gratuitement faire à tout moment des recherches dans les registres publics de Services Nouveau-Brunswick. Avis d’audience 19.71

(1) La Commission doit, à moins qu’elle n’ordonne autrement, donner un avis de l’audience portant sur les tarifs demandés par un assureur qui pratique des opérations d’assurance automobile dans la province ou les tarifs qu’il se propose demander. Cet avis est donné par la publication, pendant une période d’au moins vingt jours, d’une annonce dans un ou plusieurs journaux publiés dans la province. 19.71

(2) La Commission doit donner un avis d’audience au surintendant, au procureur général de la province et au défenseur du

otherwise, give notice of a hearing with respect to rates charged or proposed to be charged by an insurer who carries on the business of automobile insurance in the Province by advertisement for a period of not less than twenty days in one or more newspapers published in the Province. 19.71

(2) The Board shall notify the Superintendent, the Attorney General of the Province and the Consumer Advocate for Insurance for New Brunswick of a hearing. 19.71

(3) Where requested by the Attorney General, the Board shall provide him or her with copies of all documents relevant to the hearing. 19.71

(4) The Attorney General may intervene at the hearing and make representations that he or she considers to be in the public interest. Appeals 19.8

(1) A person who is a party to a hearing, or who is authorized to appear before the Board at a hearing, may appeal an order or decision of the Board to The Court of Appeal of New Brunswick. […] 19.8

(4) The Court of Appeal of New Brunswick may confirm, modify, vary or reverse the order or decision of the Board. […] RATES FOR AUTOMOBILE INSURANCE 267.1

(1) In sections 267.2 to 267.9 consommateur en matière d’assurances pour le Nouveau-Brunswick. 19.71

(3) La Commission doit, à la demande du procureur général, lui fournir des copies des documents pertinents à l’audience. 19.71

(4) Le procureur général peut intervenir à l’audience et faire les représentations qu’il estime être d’intérêt public. Appels 19.8

(1) La personne qui est

partie à une audience de la Commission ou qui autorisée à comparaître devant la Commission lors d’une audience, peut interjeter appel devant la Cour d’appel du Nouveau-Brunswick. […] 19.8

(4) La Cour d’appel du Nouveau- Brunswick peut confirmer, modifier ou infirmer l’ordonnance ou la décision de la Commission. […] TARIFS EN MATIÈRE D’ASSURANCE AUTOMOBILE 267.1

(1) Dans les articles 267.2 à 267.9 « tarifs » désigne les tarifs, primes, surprimes ou tout autre montant que l’assuré doit payer pour une assurance automobile. 267.1

(2) Les articles 267.1 à 267.9 s’appliquent à tous les assureurs qui pratiquent des opérations d’assurance automobile au Nouveau-Brunswick. 267.11 La Commission exerce un droit de contrôle sur les tarifs qu’un assureur pratique ou se propose de pratiquer en matière d’assurance automobile. 267.2

(1) Chaque assureur doit déposer auprès de la Commission les tarifs qu’il se propose de pratiquer en matière d’assurance automobile au moins une fois à tous les douze

“rates” means rates, surcharges, premiums or any other amount payable by an insured for automobile insurance. 267.1

(2) Sections 267.1 to 267.9 apply to every insurer carrying on the business of automobile insurance in the Province. 267.11 The Board has the general supervision of the rates an insurer charges or proposes to charge for automobile insurance. 267.2

(1) Every insurer shall file with the Board the rates it proposes to charge for automobile insurance at least once every 12 months from the date of last filing. 267.2

(1.1) When an insurer files rates under subsection (1), it shall (

a) provide to the Board any information required by the Board, the Superintendent or the regulations, and (

b) specify the date on which it proposes to begin to charge those rates. 267.2

(1.2) The date specified under paragraph (1.1)(

b) shall be no less than thirty days after the insurer files the rates in accordance with subsections (1) and (1.1). 267.2

(2) Except as otherwise provided in

section 267.5, an insurer may charge the rates filed in accordance with this

section as of the date specified under paragraph (1.1)(b). 267.3

(1) No automobile insurer shall charge rates that are not permitted to be charged in accordance with the provisions of this Act. 267.3 (2) Subsection (1) does not prevent an insurer from continuing to charge the rates the insurer was charging on the commencement of this

section if those rates were approved or deemed to have been approved by the Board in accordance with mois à partir de la date du dernier dépôt. 267.2

(1.1) Lorsqu’un assureur dépose les tarifs en vertu du paragraphe (1), il doit

a) fournir à la Commission tous renseignements que la Commission, le surintendant ou les règlements exigent, et

b) indiquer la date à laquelle il se propose de commencer à pratiquer ces tarifs. 267.2

(1.2) La date indiquée en vertu de l’alinéa

(1.1) b) doit être au moins trente jours après que l’assureur dépose les tarifs conformément aux paragraphes (1) et (1.1). 267.2

(2) Sauf indication contraire prévue à l’article 267.5, un assureur peut pratiquer les tarifs déposés conformément au présent

article à la date indiquée en vertu de l’alinéa (1.1)b). 267.3

(1) Nul assureur d’automobiles ne peut pratiquer les tarifs qui ne sont pas permis conformément aux dispositions de la présente loi. 267.3

(2) Le paragraphe (1) n’empêche pas un assureur de continuer à pratiquer les tarifs qui étaient pratiqués à l’entrée en vigueur du présent

article si ces tarifs ont été approuvés ou sont réputés avoir été approuvés par la Commission conformément à la présente loi telle qu’elle se lit immédiatement avant l’entrée en vigueur du présent article. […] 267.41 La Commission peut à tout moment exiger d’un assureur la production des renseignements se rapportant aux tarifs déposés en vertu du paragraphe 267.2(1). 267.5

(1) À tout moment, lorsque la Commission estime que les tarifs qu’un assureur pratique ou se propose de pratiquer peuvent ne pas être justes et raisonnables, elle peut enquêter sur ces tarifs. 267.5

(2) Lorsque la Commission envisage la possibilité d’enquêter sur les tarifs en vertu du paragraphe (1), elle doit aviser le

this Act as it read immediately before the commencement of this section. […] 267.41 The Board may at any time require an insurer to provide information relating to rates filed under subsection 267.2(1). 267.5

(1) Where at any time the Board considers that the rates charged or proposed to be charged by an insurer may not be just and reasonable, the Board may investigate those rates. 267.5

(2) Where the Board is considering whether to investigate rates under subsection (1), it shall advise the Superintendent and shall consider any information provided to the Board by the Superintendent. 267.5

(3) Where, within thirty days after an insurer files rates in accordance with

section 267.2, the Board notifies the insurer that it intends to investigate those rates under this section, the insurer shall not charge those rates unless the Board notifies the insurer that the insurer may do so, or unless the rates are the same rates as filed within the past 12 months. 267.5

(3.1) Where the Board decides to investigate the rates under this section, the burden of proof is upon the insurer to prove that the rates are just and reasonable. 267.5

(4) Where, after an investigation under this section, the Board determines that the rates charged or proposed to be charged by an insurer are not just and reasonable, the Board may, by order, require the insurer to make any change or changes the Board considers proper. 267.5

(5) Where the Board investigates the rates charged or proposed to be charged by an insurer, the Board shall consider the factors surintendant et prendre en considération les renseignements que celui-ci lui fournit. 267.5

(3) Lorsque, dans les trente jours après qu’un assureur a déposé des tarifs conformément à l’article 267.2, la Commission avise l’assureur qu’elle a l’intention d’enquêter sur ces tarifs en vertu du présent article, l’assureur ne peut pratiquer ces tarifs que si la Commission l’avise par la suite qu’il peut le faire, sauf si les tarifs sont les mêmes que ceux déposés au cours des douze derniers mois. 267.5

(3.1) Lorsque la Commission décide d’enquêter sur des tarifs en application du présent article, le fardeau de prouver que les tarifs sont justes et raisonnables incombe à l’assureur. 267.5

(4) Lorsqu’à la suite d’une enquête conduite en vertu du présent article, la Commission détermine que les tarifs qu’un assureur pratique ou se propose de pratiquer sont justes et raisonnables, la Commission peut, par ordonnance, exiger que l’assureur y apporte une ou des modifications qu’elle estime appropriées. 267.5

(5) Lors de l’enquête portant sur les tarifs demandés par un assureur ou les tarifs qu’il se propose de demander, la Commission doit tenir compte des facteurs prescrits par règlement lorsqu’elle détermine si les tarifs sont justes et raisonnables. 267.51

(1) Un assureur doit comparaître devant la Commission lorsqu’il […]

b) dépose un tarif qui représente une augmentation moyenne de trois pour cent supérieure aux tarifs pratiqués dans les douze mois avant la date à laquelle il propose pratiquer les nouveaux tarifs. 267.51

(2) Un assureur ne peut pratiquer le tarif proposé au paragraphe (1) que si la Commission l’avise qu’il peut le faire.

prescribed by regulation when determining whether the rates are just and reasonable. 267.51

(1) An insurer shall appear before the Board where the insurer […] (

b) files rates where the average rate increase is more than 3% greater than the rates charged by it in the 12 months before the date on which it proposes to begin to charge the rates. 267.51

(2) An insurer shall not charge the proposed rates referred to in subsection (1) unless the Board notifies the insurer that the insurer may do so. APPENDIX B /

ANNEXE B