PART VICorporate Governance (continued)
DIVISION XIVActuaries (continued)
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of the circumstances and reasons why the actuary resigned or why, in the actuary’s opinion, the actuary’s appointment was revoked.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.
(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
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.
- 1996, c. 6, s. 77
- 1997, c. 15, s. 238
Marginal note:Right to information
(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.
(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.
Marginal note:Qualified privilege for statements
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.
- 1991, c. 47, s. 371
- 2005, c. 54, s. 290
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.
(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.
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