List of Tables and Diagrams... xxiii Acronyms and Abbreviations... xxv Introduction... 1

Transcription

1 xiii Table of contents List of Tables and Diagrams... xxiii Acronyms and Abbreviations... xxv Introduction... 1 Chapter 1 Legislative Framework Governing Damage Insurance and Claims Adjustment in Québec... 3 Introduction The Civil Code of Québec Natural persons, partnerships and legal persons Natural persons Partnerships Legal persons Married, de facto (common-law) or civil union spouses and dependent children Married spouses De facto spouses (or common-law spouses) Civil union Dependent children Successions with or without a will and liquidator of the succession Legal successions: devolution of property Liquidator of a succession Property Movable property Immovable property Divided and undivided co-ownership Lessors and lessees Obligations General Contracts Civil liability Mandates Types of mandates Obligations of the parties Mandate in anticipation of incapacity Insurance contracts Prescription Extinctive prescription Other important Québec legislation The Charter of Human Rights and Freedoms An Act respecting insurance Scope... 22

2 xiv Regulation under the Act respecting insurance An Act respecting the protection of personal information in the private sector Rules relating to the protection of privacy Scope Collection of personal information Holding and use of personal information Communication of personal information Rights of access and rectification An Act respecting the Autorité des marchés financiers An Act respecting the distribution of financial products and services Regulations relating to the distribution of financial products and services Automobile Insurance Act Scope Public compensation plan Property damage compensation scheme The Groupement des assureurs automobiles The Direct Compensation Agreement for the Settlement of Automobile Claims Powers of the Autorité des marchés financiers in matters of automobile insurance Regulations An Act to establish a legal framework for information technology Other relevant legislation Environmental laws Construction laws Municipal laws Professional liability laws Relevant Canadian (federal) legislation The Criminal Code The Personal Information Protection and Electronic Documents Act The Telecommunications Act Canada s Anti-Spam Legislation Other sources of law Case law Doctrine Custom and usage Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity... 51

3 xiii Table of contents List of Tables and Diagrams... xxiii Acronyms and Abbreviations... xxv Introduction... 1 Chapter 1 Legislative Framework Governing Damage Insurance and Claims Adjustment in Québec... 3 Introduction The Civil Code of Québec Natural persons, partnerships and legal persons Natural persons Partnerships Legal persons Married, de facto (common-law) or civil union spouses and dependent children Married spouses De facto spouses (or common-law spouses) Civil union Dependent children Successions with or without a will and liquidator of the succession Legal successions: devolution of property Liquidator of a succession Property Movable property Immovable property Divided and undivided co-ownership Lessors and lessees Obligations General Contracts Civil liability Mandates Types of mandates Obligations of the parties Mandate in anticipation of incapacity Insurance contracts Prescription Extinctive prescription Other important Québec legislation The Charter of Human Rights and Freedoms An Act respecting insurance Scope... 22

4 xiv Regulation under the Act respecting insurance An Act respecting the protection of personal information in the private sector Rules relating to the protection of privacy Scope Collection of personal information Holding and use of personal information Communication of personal information Rights of access and rectification An Act respecting the Autorité des marchés financiers An Act respecting the distribution of financial products and services Regulations relating to the distribution of financial products and services Automobile Insurance Act Scope Public compensation plan Property damage compensation scheme The Groupement des assureurs automobiles The Direct Compensation Agreement for the Settlement of Automobile Claims Powers of the Autorité des marchés financiers in matters of automobile insurance Regulations An Act to establish a legal framework for information technology Other relevant legislation Environmental laws Construction laws Municipal laws Professional liability laws Relevant Canadian (federal) legislation The Criminal Code The Personal Information Protection and Electronic Documents Act The Telecommunications Act Canada s Anti-Spam Legislation Other sources of law Case law Doctrine Custom and usage Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity... 51

5 xv Chapter 2 General Principles of Damage Insurance Contracts Introduction Insurance contracts General rules Definition of contract Definition of insurance contract Definition of damage insurance contract Stakeholders in insurance contracts The insurer The policyholder The insured The representative The other persons concerned Constituting elements of insurance contracts The risk Uncertainty of risk Independence of risk The premium The benefit Characteristics of insurance contracts Insurable interest A contract of the utmost good faith The compensatory nature of damage insurance Other characteristics Conditions for the formation of insurance contracts General conditions Consent Capacity Incapacity and mandates given in anticipation of incapacity Incapacity and minors Object Cause Effects of insurance contracts General Binding force and content of contracts Contracts of adhesion External clauses Illegible or incomprehensible clauses Abusive clauses... 68

6 xv Chapter 2 General Principles of Damage Insurance Contracts Introduction Insurance contracts General rules Definition of contract Definition of insurance contract Definition of damage insurance contract Stakeholders in insurance contracts The insurer The policyholder The insured The representative The other persons concerned Constituting elements of insurance contracts The risk Uncertainty of risk Independence of risk The premium The benefit Characteristics of insurance contracts Insurable interest A contract of the utmost good faith The compensatory nature of damage insurance Other characteristics Conditions for the formation of insurance contracts General conditions Consent Capacity Incapacity and mandates given in anticipation of incapacity Incapacity and minors Object Cause Effects of insurance contracts General Binding force and content of contracts Contracts of adhesion External clauses Illegible or incomprehensible clauses Abusive clauses... 68

7 xvi 2.7 Rules of interpretation General The rule of the common intention of the parties The rule of the useful effect The rule of the overall effect The contra proferentem rule The theory of the reasonable expectation of the insured The interpretation given by the insurance representative Principles relevant to civil liability General principles Contractual liability Extracontractual liability No option to choose between the two recourses Elements of liability The notion of harm Bodily harm Moral harm Material harm Punitive damages Moratory damages Liability for the act or fault of another person The holder of parental authority The person in charge of the custody or supervision of a child The person with custody of a person of full age who is not endowed with reason The principal (employer) Liability for the act of a thing The autonomous act of a thing The ruin of an immovable Injury caused by an animal Product liability and the notion of legal warranty Contractual liability or the warranty of quality Extracontractual liability Burden of proof General rule: Balance of probabilities Simple fault and gross or intentional fault Presumption of fault or liability Grounds of defence and grounds for exoneration of the wrongdoer Superior force The good Samaritan defence Disclosure of a trade secret Limitation and disclaimer of liability clause and notice Assumption of risk Apportionment of liability Contributory fault of the victim... 90

8 xvii Obligation to mitigate the harm Liability for joint participation in a wrongful act Solidarity Provisions pertaining to prescription General rules Prescription periods Prior notice for bodily injury Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity Chapter 3 Specific Provisions of Damage Insurance Introduction Provisions relating to damage insurance contracts Formation of the contract The insurance application and its acceptance The insurance policy Effective date: General rule Provisional insurance contract Content of the policy: General rules Inconsistencies Changes to the contract and endorsements (riders) Representations and warranties of the client The initial representation of risk Warranty Specific provisions relating to public order Duration of an insurance contract Expiry date Annulment Cancellation Renewal of the contract Provisions relating to damage insurance coverage The compensatory nature of insurance: Principle The wrongful conduct of the insured Intentional fault committed by a person for whom the insured is responsible Consequences of an intentional fault: Principle Aggravation of risk in damage insurance The obligation to declare any aggravation of risk: Principle Consequences of an aggravation of risk Payment of the premium

9 xviii Assignment of insurance contracts Property insurance Content of the policy Insurable interest: Principle Insurance contracts on behalf of whomever it may concern Extent of coverage Exclusions The insurance amount Liability insurance: General rules Content of the policy The insurer s obligations The victim s recourse Transaction by the insured Settlement of claims and appraisal of the damage Notice of loss Nature and scope of the obligation Sanction Proof of loss Nature and scope of the obligation Sanction Insurer s waiver Payment of the indemnity Valuation of damage in property insurance Unvalued policy Valued policy Determination of the indemnity in property insurance The deductible Multiple insurers Underinsurance Overinsurance Payment of the indemnity Nature of the payment Recipient of the indemnity Subrogation: Principle Scope Rules of subrogation Protection of the right of subrogation Exercising the insurer s recourse Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity

10 xix Chapter 4 Consumer Protection Organizations and other Relevant Organizations Introduction The Autorité des marchés financiers Mission Functions The Chambre de l assurance de dommages Mission Functions The syndic The most common grounds for complaints The discipline committee The Property and Casualty Insurance Compensation Corporation Mission Role The Fonds d indemnisation des services financiers The Insurance Bureau of Canada The Office of the Superintendent of Financial Institutions The Canadian Council of Insurance Regulators The Canadian Insurance Services Regulatory Organizations (CISRO) The Joint Forum of Financial Market Regulators The Commission d accès à l information (Québec) The Groupement des assureurs automobiles The General Insurance OmbudService The Regroupement des cabinets de courtage d assurance du Québec Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity Chapter 5 Representatives: Registration, Obligations and Responsibilities, Ethics and Professional Conduct Introduction Representatives Damage insurance agent Damage insurance broker Claims adjuster

11 xx 5.2 Certification Eligibility requirements Exemptions Certificate renewal Ways to carry on business Registration Registration conditions Registration conditions for firms and independent partnerships Registration conditions for independent representatives Refusal of registration Registration validity period Registration of a firm Constitution Activities Titles Sharing of commissions Franchising Registration of an independent partnership Constitution Activities Titles Sharing of commissions Registration of independent representatives Constitution Activities Titles Sharing of commissions Obligations of registrants General obligations of firms and independent partnerships General obligations of independent representatives The pursuit of activities as a representative General provisions Representation and solicitation Advertising, representations and client solicitation Mandatory information Written representations Statistics Approval Keeping of books, registers and records General Use of computers Retention period for books and registers Document destruction Client records Register for separate account

12 xxi Commissions register Complaint examination Definition of complaint Complaint procedure Semi-annual complaints report Protection of personal information Rules respecting access to client records by representatives Mandatory consent Professional liability insurance Mandatory coverage Deductible Distribution without a representative Insurance products relating to goods Distribution guide Liability of representatives in connection with their mandates The mandate Special or general nature of a mandate Nature of mandates Gratuitous or onerous mandate Obligations of the mandatary towards the mandator Obligations of the mandator towards the mandatary Obligations towards third parties Real mandate Apparent mandate Representation contract The representative, mandatary of the insurer The representative, mandatary of the insured Representative s liability Civil and professional liability Fault Injury Causal link Recourses and the parties involved Ethical and disciplinary liability The syndic Recourses and the parties involved Penal liability Definition of penal law Basic elements of an offence Penal provisions of the Distribution Act Potential sanctions Recourses and the parties involved Criminal liability Definition of criminal law Basic elements of an offence Recourses and the parties involved

13 xxii The proceedings Ethics and professional conduct Professional ethics Definition of ethics Rules applicable to the activities of representatives Professional conduct Purpose of a code of ethics Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity Chapter 6 Professional Conduct of Damage Insurance Representatives Introduction Maintaining discipline The Code of ethics of damage insurance representatives Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity Chapter 7 Professional Conduct of Claims Adjusters Introduction Maintaining discipline The Code of ethics of claims adjusters Recap Self-Evaluation Exercise Answer Sheet for the Self-Evaluation Exercise Review Activity Appendix A: Study Schedule Appendix B: Study Plan Bibliography Index Glossary