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

Marginal note:Auditor’s attendance

• 353 (1) The auditor of a company is entitled to receive notice of every meeting of the audit committee and the conduct review committee of the company and, at the expense of the company, to attend and be heard at that meeting.

• Marginal note:Attendance

  (2) If so requested by a member of the audit committee, the auditor shall attend every meeting of the audit committee held during the member’s term of office.

Marginal note:Calling meeting

• 354 (1) The auditor of a company or a member of the audit committee may call a meeting of the audit committee.

• Marginal note:Right to interview

  (2) The chief internal auditor of a company or any officer or employee of the company acting in a similar capacity shall, at the request of the auditor of the company and on receipt of reasonable notice, meet with the auditor.

Marginal note:Notice of errors

• 355 (1) A director or an officer of a company shall forthwith notify the audit committee and the auditor of the company of any error or misstatement of which the director or officer becomes aware in an annual statement or other financial statement on which the auditor or any former auditor has reported.

• Marginal note:Error noted by auditor

  (2) If the auditor or a former auditor of a company is notified or becomes aware of an error or misstatement in an annual statement or other financial statement on which the auditor reported and in the auditor’s opinion the error or misstatement is material, the auditor or former auditor shall inform each director of the company accordingly.

• Marginal note:Duty of directors

  (3) Where under subsection (2) the auditor or a former auditor of a company informs the directors of an error or misstatement in an annual statement or other financial statement, the directors shall

  • (a) prepare and issue a revised annual statement or financial statement; or

  • (b) otherwise inform the shareholders and policyholders referred to in subsection 334(1) and the Superintendent of the error or misstatement.

Qualified Privilege

Marginal note:Qualified privilege for statements

356 Any oral or written statement or report made under this Act by the auditor or a former auditor of a company has qualified privilege.

DIVISION XIVActuaries

Appointment

Marginal note:Notice of appointment

357 A company shall, forthwith after the appointment of the actuary of the company, notify the Superintendent in writing of the appointment.

358 and 359 [Repealed, 1997, c. 15, s. 236]

Marginal note:Officer precluded

• 359.1 (1) The chief executive officer or chief operating officer or a person performing like functions may not be appointed or hold the position of actuary of a company unless authorized in writing by the Superintendent.

• Marginal note:Duration of authorization

  (2) An authorization under subsection (1) ceases to be in effect on the day specified therein but not later than the day that is six months after it is issued, and a person appointed or holding the position of actuary pursuant to the authorization shall not hold that position after that day.

Marginal note:Chief financial officer

• 359.2 (1) The chief financial officer or a person performing like functions may not be appointed as or hold the position of actuary of a company unless

  • (a) the audit committee of the company has provided the Superintendent with a written statement indicating that it is satisfied that the duties of both positions in the company will be adequately performed and that the actuarial duties will be performed in an independent manner; and

  • (b) the appointment or holding of the position is authorized by the Superintendent.

• Marginal note:Authorization

  (2) An authorization under paragraph (1)(b) may contain limitations and conditions, including a limitation on the time during which the person referred to in the authorization may hold the position of actuary of the company.

• Marginal note:Termination of holding of position

  (3) A person holding the position of actuary pursuant to an authorization under paragraph (1)(b) shall not hold that position after the time limit referred to in subsection (2).

Vacancies

Marginal note:Revocation of appointment

• 360 (1) The directors of a company may revoke the appointment of the actuary of the company.

• Marginal note:Notice of revocation

  (2) A company shall, forthwith after the revocation of the appointment of the actuary of the company, notify the Superintendent in writing of the revocation.

Marginal note:Ceasing to hold office

• 361 (1) A person ceases to hold office as the actuary of a company when

  • (a) the person resigns as actuary of the company;

  • (b) the person ceases to be an actuary;

  • (c) the person dies; or

  • (d) the appointment of the person as actuary of the company is revoked by the directors of the company.

• Marginal note:Effective date of resignation

  (2) The resignation of an actuary becomes effective at the time a written resignation is sent to the company or at the time specified in the resignation, whichever is later.

Marginal note:Filling vacancy

362 Where a vacancy occurs in the office of actuary of a company, the directors shall forthwith notify the Superintendent of and fill the vacancy.

Marginal note:Statement of actuary

363 An actuary of a company who resigns or whose appointment is revoked shall submit to the directors of the company and the Superintendent a written statement of the circumstances and reasons why the actuary resigned or why, in the actuary’s opinion, the actuary’s appointment was revoked.

Marginal note:Duty of replacement actuary

• 364 (1) Where an actuary of a company resigns or the appointment of an actuary of a company is revoked, no person shall accept an appointment or consent to be appointed as actuary of the company before requesting and receiving from the other actuary the written statement referred to in section 363.

• Marginal note:Exception

  (2) A person may accept an appointment or consent to be appointed as actuary of a company if no reply is received from the other actuary within fifteen days after a request under subsection (1) is made.

• Marginal note:Effect of non-compliance

  (3) Unless subsection (2) applies, an appointment as actuary of a company is void if subsection (1) is not complied with.

Valuations and Reports

Marginal note:Actuary’s valuation

• 365 (1) The actuary of a company shall value

  • (a) the actuarial and other policy liabilities of the company as at the end of a financial year; and

  • (b) any other matter specified in any direction that may be made by the Superintendent.

• Marginal note:Actuarial practices

  (2) The actuary’s valuation shall be in accordance with generally accepted actuarial practice with such changes as may be determined by the Superintendent and any additional directions that may be made by the Superintendent.

Marginal note:Superintendent may appoint actuary

• 365.1 (1) The Superintendent may appoint an actuary to value the matters referred to in paragraph 365(1)(a) or (b) in relation to a company if the Superintendent is of the opinion that the appointment is necessary. That actuary may not be an actuary of the company.

• Marginal note:Expenses payable by company

  (2) The expenses incurred in carrying out a valuation under subsection (1) are payable by the company on being approved in writing by the Superintendent.

Marginal note:Right to information

• 366 (1) On the request of the actuary of a company, the present or former directors, officers, employees or representatives of the company shall, to the extent that they are reasonably able to do so,

  • (a) permit access to such records held by the company, and

  • (b) provide such information and explanations

  as are, in the opinion of the actuary, necessary to enable the actuary to perform the duties of actuary of the company.

• Marginal note:No civil liability

  (2) A person who in good faith makes an oral or written communication under subsection (1) shall not be liable in any civil action arising from having made the communication.

Marginal note:Actuary’s report

• 367 (1) The actuary of a company shall, not less than twenty-one days before the date of the annual meeting of the shareholders and policyholders of the company, make a report in the prescribed form to them on the valuation made under section 365 and on any other matter that is prescribed.

• Marginal note:Idem

  (2) In each report required under subsection (1), the actuary shall state whether, in the actuary’s opinion, the annual statement presents fairly the results of the valuation made under section 365.

Marginal note:Report to directors

368 The actuary of a company shall meet either with the directors of the company or, where the directors so choose, with the audit committee of the company at least once during each financial year in order to report, in accordance with generally accepted actuarial practice and any direction that may be made by the Superintendent, on the financial position of the company and, where so specified in such a direction, the expected future financial condition of the company.

Marginal note:Report to officers

• 369 (1) The actuary of a company shall report in writing to the chief executive officer and chief financial officer of the company any matters that have come to the actuary’s attention in the course of carrying out the actuary’s duties and that in the actuary’s opinion have material adverse effects on the financial condition of the company and require rectification.

• Marginal note:Transmission of report

  (2) An actuary of a company who makes a report under subsection (1) shall forthwith provide a copy of it to the directors of the company.

• Marginal note:Failure to take action

  (3) Where, in the opinion of the actuary of the company, suitable action is not being taken to rectify the matters referred to in subsection (1), the actuary shall forthwith send a copy of the report to the Superintendent and advise the directors that the actuary has done so.

Qualified Privilege

Marginal note:Qualified privilege for statements

• 370 (1) Any oral or written statement or report made under this Act by the actuary or former actuary of a company has qualified privilege.

• Marginal note:No civil liability

  (2) The actuary or former actuary of a company who in good faith makes an oral or written statement or report under section 363 or 369 shall not be liable in any civil action seeking indemnification for damages attributable to the actuary or former actuary having made the statement or report.

DIVISION XVRemedial Actions

Marginal note:Derivative action

• 371 (1) Subject to subsection (2), a complainant or the Superintendent may apply to a court for leave to bring an action under this Act in the name and on behalf of a company or any of its subsidiaries, or to intervene in an action under this Act to which the company or a subsidiary of the company is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the company or the subsidiary.

• Marginal note:Conditions precedent

  (2) No action may be brought and no intervention in an action may be made under subsection (1) by a complainant unless the court is satisfied that

  • (a) the complainant has, not less than 14 days before bringing the application or as otherwise ordered by the court, given notice to the directors of the company or the company’s subsidiary of the complainant’s intention to apply to the court under subsection (1) if the directors of the company or the company’s subsidiary do not bring, diligently prosecute or defend or discontinue the action;

  • (b) the complainant is acting in good faith; and

  • (c) it appears to be in the interests of the company or the subsidiary that the action be brought, prosecuted, defended or discontinued.

• Marginal note:Notice to Superintendent

  (3) A complainant under subsection (1) shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.

Marginal note:Powers of court

• 372 (1) In connection with an action brought or intervened in under subsection 371(1), the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing,

  • (a) an order authorizing the Superintendent, the complainant or any other person to control the conduct of the action;

  • (b) an order giving directions for the conduct of the action;

  • (c) an order directing that any amount adjudged payable by a defendant in the action be paid, in whole or in part, directly to former and present security holders or policyholders of the company who are entitled to participate in its profits or of the subsidiary instead of to the company or to the subsidiary; and

  • (d) an order requiring the company or the subsidiary to pay reasonable legal fees incurred by the Superintendent or the complainant in connection with the action.

• Marginal note:Jurisdiction

  (2) Notwithstanding subsection (1), the court may not make any order in relation to any matter that would, under this Act, require the approval of the Minister or the Superintendent.

Marginal note:Status of shareholder approval

• 373 (1) An application made or an action brought or intervened in under this Division need not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the company or its subsidiary has been or might be approved by the shareholders or policyholders of the company or subsidiary or both, but evidence of approval by the shareholders or policyholders may be taken into account by the court in making an order under section 372.

• Marginal note:Court approval to discontinue

  (2) An application made or an action brought or intervened in under this Division shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on such terms as the court thinks fit and, if the court determines that the interests of any complainant might be substantially affected by any stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant.