Third Session, 46th

General Assembly

59 Elizabeth II,

BILL 21

AN ACT TO AMEND THE INSURANCE

ADJUSTERS, AGENTS AND BROKERS ACT

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE KEVIN

O'BRIEN

Minister of

Government Services

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Insurance Adjusters, Agents and Brokers Act to

clarify that where a judge

issues a warrant authorizing the superintendent or a person authorized by the

superintendent to enter and search a place, that place may include a private

residence;

provide authority for the

seizure of documents or records further to a search warrant;

provide authority for a judge

to issue a production order requiring a person to produce documents in his or her

possession concerning a violation of or non-compliance with the Act;

provide authority for the

superintendent or a person authorized by the superintendent to summon and

enforce the attendance of a person and to compel him or her to testify under

oath or affirmation, and to summon and compel a person or company to produce

documents and other things;

make it an offence to obstruct

or interfere with the superintendent or a person authorized by the

superintendent in the performance of his or her duty; and

increase penalties that the

court may impose on persons who violate the Act.

A BILL

AN ACT TO AMEND THE INSURANCE ADJUSTERS,

AGENTS AND BROKERS ACT

Analysis

S.43 Amdt.

Investigations

2. Ss.43.01 & 43.02 Added

43.01 Powers

43.02 Production order

S.45 Amdt.

Offence

S.46 R&S

Penalty

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cI-9

as amended

1. (1) Subsection 43(3) of the Insurance Adjusters, Agents and Brokers Act

is repealed and the following substituted:

(3) A judge of the Provincial Court or the Trial

Division who is satisfied by information upon oath or affirmation that there

are reasonable grounds for believing that there is in a place anything that

will give evidence with respect to a contravention of this Act or the

regulations or an unfair trade practice, unconscionable act or practice

relating to insurance may issue a warrant authorizing the superintendent, or a

person authorized by the superintendent named in the warrant, to enter and

search that place and to make those inquiries and to seize those books,

documents, correspondence and records that are considered necessary, subject to

those conditions that may be specified in the warrant, and to bring them before

the judge granting the authorization or another judge to be dealt with by him

or her according to the law.

(3.1) Where a thing is seized and brought before a

judge under subsection (3), he or she shall, by order,

(

a) detain it or direct it to be detained in the

care of a person named in the order; or

(

b) direct it to be returned,

and the judge may in the order authorize

the examination, testing, inspection or reproduction of the thing seized upon

the conditions that are reasonably necessary and directed in the order, and may

make another provision that in the opinion of the judge is necessary for its

preservation.

(3.2) Nothing shall be detained under an order made

under subsection (3.1) for a period of more than 3 months after the time of seizure

unless, before the expiration of that period,

(

a) upon motion, a judge is satisfied that having

regard to the nature of the investigation, its further detention for a specified

period is warranted and he or she so orders; or

(

b) a proceeding is instituted in which the thing

detained may be required.

(3.3) Upon the motion of the person having an

interest in a thing detained under subsection (3.1), a judge may make an order

for the examination, testing, inspection or reproduction of a thing detained

upon the conditions that are reasonably necessary and directed in the order.

(3.4) Upon the motion of a person having an interest

in a thing detained under subsection (3.1), and upon notice to the person or company

in respect of which the investigation is being made, the person from whom the

thing was seized, the person to whom the order under subsection (3.1) was

issued and a person who has an interest in the thing detained, a judge may make

an order for the release of a thing detained to the person from whom the thing

was seized where it appears that the thing detained is no longer necessary for

the purpose of the investigation.

(2) Section 43 of the Act is amended by adding

immediately after subsection (5) the following:

(6) For the purpose of subsections (2) and (3),

"place" includes a private dwelling place.

2. The Act is amended by adding immediately after

section 43 the following:

Powers

43.01

(1) The

superintendent or a person authorized by the superintendent who is making an investigation

under

section 43 has the same power to summon and enforce the attendance of a person

and to compel him or her to testify on oath or otherwise, and to summon and compel

a person or company to produce documents and other things, that is vested in a

judge of the Trial Division, and the refusal of the person to attend or to

answer questions or of a person or company to produce documents or other things

that are in his, her or its custody or possession makes the person or company

liable to be committed for contempt by a judge of the Trial Division as if in

breach of an order of that court.

(2) A person or company giving evidence under

subsection (1) may be represented by counsel and may claim a privilege to which

the person or company is entitled.

Production order

43.02

(1) A

judge of the Provincial Court or a judge of the Trial Division may order a

person, other than a person who is the subject of an investigation,

(

a) to produce a document or a copy of a document,

certified by affidavit to be a true copy, or to produce data; or

(

b) to prepare a document based on a document or

data already in existence and to produce it.

(2) An order referred to in subsection (1) shall

require the document or data to be produced within the time, at the place and

in the form specified and to be given to the superintendent or a person designated

by the superintendent.

(3) A judge may make an order referred to in

subsection (1) where he or she is satisfied on the basis of an application made

in writing on oath or affirmation and without notice that there are reasonable

grounds to believe that

(

a) a person has contravened or is contravening

this Act or the regulations or is suspected to have contravened this Act or the

regulations;

(

b) the document or data will provide evidence

respecting a contravention or suspected contravention of this Act or the regulations;

and

(

c) the person who is subject to the order has

possession or control of the document or data.

(4) An order referred to in subsection (1) may

communication between a lawyer and his or her client.

(5) The order referred to in subsection (1) may be

revoked, renewed or varied.

(6) A copy of a document produced under this

section, on proof by affidavit that it is a true copy, is admissible in

evidence in proceedings under this Act and has the same probative force as the

original document would have if it had been proved in the ordinary way.

(7) Copies of documents produced under this

section are not required to be returned to the person who provided them.

Section 45 of the Act is amended by adding immediately

after subsection (13) the following:

(13.1) A person who obstructs or interferes with the

superintendent or a person authorized by the superintendent who is carrying out

a duty under this Act or the regulations is guilty of an offence.

Section 46 of the Act is repealed and the

following substituted:

Penalty

(1) On

conviction for an offence under this Act, the person convicted is liable on

summary conviction to a fine of not more than $1,000,000 or to a period of

imprisonment of not more than 2 years or to both a fine and imprisonment.

(2) Every director or officer of a corporation and

every person acting in a similar capacity or performing similar functions in an

unincorporated association and every member of a partnership, who,

(

a) caused, authorized, permitted or participated

in an individual, corporation, unincorporated association or partnership

committing an offence referred to in

section 45; or

(

b) failed to take reasonable care to prevent an

individual, corporation, unincorporated association or partnership from

committing an offence referred to in

section 45,

is guilty of an offence and liable on

summary conviction to a fine of not more than $1,000,000 or to a period of

imprisonment of not more than 2 years or to both a fine and imprisonment whether

or not the individual, corporation, unincorporated association or partnership

has been prosecuted for or convicted of the offence.

(3) Where a person is convicted of an offence

under this Act, the court making the conviction may, in addition to another

penalty, order the person convicted to make compensation or restitution.

Earl G. Tucker, Queen's Printer