Insurance Companies Act (S.C. 1991, c. 47)

Remedial Powers

Prudential Agreements

Marginal note:Prudential agreement

675.1 The Superintendent may enter into an agreement, called a “prudential agreement”, with

• (a) a company, society or provincial company for the purposes of implementing any measure designed to maintain or improve its safety and soundness or establishing adequate policies and procedures to protect it against threats to its integrity or security; or

• (b) a foreign company for the purposes of implementing any measure designed to protect the interests of its policyholders and creditors in relation to its insurance business in Canada or establishing adequate policies and procedures to protect it against threats to its integrity or security in relation to its business in Canada.

Directions of Compliance

Marginal note:Superintendent’s directions to companies, etc.

• 676 (1) Where, in the opinion of the Superintendent, a company, society, foreign company or provincial company, or a person with respect to a company, society, foreign company or provincial company,

  • (a) is committing, or is about to commit, an act that is an unsafe or unsound practice in conducting the business of the company, society, foreign company or provincial company, or

  • (b) is pursuing or is about to pursue any course of conduct that is an unsafe or unsound practice in conducting the business of the company, society, foreign company or provincial company,

  the Superintendent may direct the company, society, foreign company, provincial company or person to

  • (c) cease or refrain from committing the act or pursuing the course of conduct, and

  • (d) perform such acts as in the opinion of the Superintendent are necessary to remedy the situation.

• Marginal note:Directions — policies and procedures

  (1.1) If, in the opinion of the Superintendent, a company, society, or provincial company does not have adequate policies and procedures to protect itself against threats to its integrity or security, or a foreign company does not have adequate policies and procedures to protect itself against threats to its integrity or security in relation to its business in Canada, the Superintendent may direct the company, society, foreign company or provincial company to take any measures that in the opinion of the Superintendent are necessary to remedy the situation.

• Marginal note:Opportunity for representations

  (2) Subject to subsection (3), no direction shall be issued to a company, society, foreign company, provincial company or person under subsection (1) or (1.1) unless the company, society, foreign company, provincial company or person is provided with a reasonable opportunity to make representations in respect of the matter.

• Marginal note:Temporary direction

  (3) If, in the opinion of the Superintendent, the length of time required for representations to be made under subsection (2) might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) and (b) or subsection (1.1) having effect for a period of not more than 15 days.

• Marginal note:Idem

  (4) Subject to section 677, a temporary direction under subsection (3) continues to have effect after the expiration of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the company, society, foreign company, provincial company or person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.

677 [Repealed, 1996, c. 6, s. 94]

Marginal note:Court enforcement

• 678 (1) Where a company, society, foreign company, provincial company or person

  • (a) is contravening or has failed to comply with a prudential agreement entered into under section 675.1 or a direction of the Superintendent issued to the company, society, foreign company, provincial company or person under subsection 676(1), (1.1.) or (3),

  • (b) is contravening this Act, or

  • (c) has omitted to do any thing under this Act that is required to be done by or on the part of the company, society, foreign company, provincial company or person,

  the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the company, society, foreign company, provincial company or person to comply with the prudential agreement or direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.

• Marginal note:Appeal

  (2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court.

Disqualification and Removal

Meaning of senior officer

678.01 In sections 678.1 and 678.2, senior officer means the chief executive officer, secretary, treasurer, controller or actuary of a company, society or provincial company, or any other officer reporting directly to its board of directors or chief executive officer.

Marginal note:Application

• 678.1 (1) This section applies only in respect of a company, society or provincial company

  • (a) that has been notified by the Superintendent that this section applies to it where the company, society or provincial company is subject to measures designed to maintain or improve its safety and soundness, which measures

    • (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of its business, or

    • (ii) are contained in a prudential agreement entered into under section 675.1 or an undertaking given by the company, society or provincial company to the Superintendent; or

  • (b) that is the subject of a direction made under section 676 or an order made under subsection 515(3).

• Marginal note:Information to be provided

  (2) A company, society or provincial company shall provide the Superintendent with the name of

  • (a) each person who has been nominated for election or appointment as a member of its board of directors,

  • (b) each person who has been selected by the company, society or provincial company for appointment as a senior officer, and

  • (c) each person who is newly elected as a director of the company, society or provincial company at a meeting of shareholders and policyholders and who was not proposed for election by anyone involved in the management of the company, society or provincial company,

  together with such other information about the background, business record and experience of the person as the Superintendent may require.

• Marginal note:When information to be provided

  (3) The information required by subsection (2) shall be provided to the Superintendent

  • (a) at least thirty days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or

  • (b) in the case of a person referred to in paragraph (2)(c), within fifteen days after the date of the election of the person.

• Marginal note:Disqualification or removal

  (4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order

  • (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of the company, society or provincial company or from being appointed as a senior officer; or

  • (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the company, society or provincial company.

• Marginal note:Risk of prejudice

  (4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the policyholders and creditors of the company, society or provincial company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.

• Marginal note:Representations may be made

  (5) The Superintendent must in writing notify the person concerned and the company, society or provincial company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

• Marginal note:Prohibition

  (6) Where an order has been made under subsection (4)

  • (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the company, society or provincial company shall not permit the person to be, elected or appointed to the position; or

  • (b) removing a director from office, the person shall not continue to hold, and the company, society or provincial company shall not permit the person to continue to hold, office as a director.

Marginal note:Removal of directors or senior officers

• 678.2 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a company, society or provincial company if the Superintendent is of the opinion that the person is not suitable to hold that office

  • (a) on the basis of the competence, business record, experience, conduct or character of the person; or

  • (b) because the person has contravened or, by action or negligence, has contributed to the contravention of

    • (i) this Act or the regulations made under it,

    • (ii) a direction made under section 676,

    • (iii) an order made under subsection 515(3),

    • (iv) a condition or limitation in respect of the order approving the commencement and carrying on of business by the company, society or provincial company, or

    • (v) a prudential agreement entered into under section 675.1 or an undertaking given by the company, society or provincial company to the Superintendent.

• Marginal note:Risk of prejudice

  (2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the policyholders and creditors of the company, society or provincial company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.

• Marginal note:Representations may be made

  (3) The Superintendent must in writing notify the person concerned and the company, society or provincial company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

• Marginal note:Suspension

  (4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.

• Marginal note:Notice of order

  (5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the company, society or provincial company of a removal order or suspension order.

• Marginal note:Consequences of removal order

  (6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.

• Marginal note:Appeal

  (7) The director or senior officer, as the case may be, or the company, society or provincial company, as the case may be, may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.

• Marginal note:Powers of Federal Court

  (8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.

• Marginal note:Order not stayed by appeal

  (9) A removal order is not stayed by an appeal.

Marginal note:Application

• 678.3 (1) This section applies only in respect of a foreign company

  • (a) that has been notified by the Superintendent that this section applies to it where the foreign company is subject to measures designed to protect the interests of its policyholders and creditors in respect of its insurance business in Canada, which measures

    • (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order made under subsection 574(1) in respect of the foreign company, or

    • (ii) are contained in a prudential agreement entered into under section 675.1 or an undertaking given by the foreign company to the Superintendent; or

  • (b) that is the subject of a direction made under section 676 or an order made under subsection 608(4) or 609(2).

• Marginal note:Information to be provided

  (2) A foreign company shall provide the Superintendent with the name of any person who has been selected by the foreign company for appointment as chief agent together with such other information about the background, business record and experience of the person as the Superintendent may require.

• Marginal note:When information to be provided

  (3) The information required by subsection (2) shall be provided to the Superintendent at least 30 days prior to the date of the appointment or within any shorter period that the Superintendent may allow.

• Marginal note:Disqualification

  (4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold the position of chief agent, the Superintendent may, by order, disqualify the person from being appointed to that office.

• Marginal note:Risk of prejudice

  (5) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the policyholders and creditors of the foreign company in respect of its insurance business in Canada would likely be prejudiced if the person were to take office.

• Marginal note:Representations may be made

  (6) The Superintendent must in writing notify the person concerned and the foreign company of an order that the Superintendent proposes to make under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

• Marginal note:Prohibition

  (7) If an order is made under subsection (4) disqualifying a person from being appointed as chief agent, the person shall not be, and the foreign company shall not permit the person to be, appointed to that position.

Marginal note:Removal

• 678.4 (1) The Superintendent may, by order, remove a person from office as the chief agent of a foreign company if the Superintendent is of the opinion that the person is not suitable to hold that office

  • (a) on the basis of the competence, business record, experience, conduct or character of the person; or

  • (b) because the person has contravened or, by action or negligence, has contributed to the contravention of

    • (i) this Act or the regulations made under it,

    • (ii) a direction made under section 676,

    • (iii) an order made under subsection 608(4) or 609(2),

    • (iv) a condition or limitation in respect of the order made under subsection 574(1) in respect of the foreign company, or

    • (v) a prudential agreement entered into under section 675.1 or an undertaking given by the foreign company to the Superintendent.

• Marginal note:Risk of prejudice

  (2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the policyholders and creditors of the foreign company in respect of its insurance business in Canada have been or are likely to be prejudiced by the person’s holding office as chief agent.

• Marginal note:Representations may be made

  (3) The Superintendent must in writing notify the chief agent and the foreign company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

• Marginal note:Suspension

  (4) If the Superintendent is of the opinion that the public interest is likely to be prejudiced by the chief agent continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the chief agent. The suspension may not extend beyond 10 days after the expiration of that period.

• Marginal note:Notice of order

  (5) The Superintendent shall, without delay, notify the chief agent and the foreign company of a removal order or suspension order.

• Marginal note:Consequences of removal order

  (6) The chief agent ceases to hold that office as of the date the removal order is made or any later date specified in the order.

• Marginal note:Appeal

  (7) The chief agent or the foreign company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.

• Marginal note:Powers of Federal Court

  (8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.

• Marginal note:Order not stayed by appeal

  (9) A removal order is not stayed by an appeal.