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RSNL1990 CHAPTER A-22

AUTOMOBILE INSURANCE ACT

Amended

1991 c43 s2; 1992 c39 s2; 1992 c48 s3; 1993 c53 s2; 1994 c4;
2001 cN-3.1 s2; 2002 c6; 2002 cI-0.1 s55; 2004 c27 ss1-11; 2005 c29; 2010 c15 ss6-8; 2013 c16 s25; 2016 cM-5.01 s56

CHAPTER A-22

AN ACT RESPECTING AUTOMOBILE INSURANCE

Analysis


       
1.   Short title

       
2.   Definitions

       
3.   Application of Act

       
4.   Forms

       
5.   Persons forbidden to act as agent

       
6.   Copy of application in policy

     
6.1   Applicant to be given reasons

     
6.2   Information relating to insurance

     
6.3   Monthly premium payments

       
7.   Misrepresentation of conditions

       
8.   Statutory conditions

       
9.   Exceptions respecting statutory conditions

     
10.   Coverage of owner's policy

   
10.1   Insurer not liable respecting excluded driver

     
11.   Coverage of non-owner's policy

     
12.   Persons considered not owners

     
13.   Territorial limits

     
14.   Rights of unnamed insured

     
15.   Additional agreements

     
16.   Contamination of property in automobile

     
17.   Exceptions from liability

     
18.   Further exceptions

     
19.   Exemptions from liability

   
19.1   Excluded driver endorsement

     
20.   Further exemptions from liability

     
21.   Minimum liability under policy

     
22.   Stipulation in policy

     
23.   Excess insurance

     
24.   Agreement for partial payment of claim

     
25.   Nuclear energy contract

     
26.   Advance payments and release

   
26.1   Insurer to give notice of claim

   
26.2   Application for periodic payment

   
26.3   Settlement of claims

   
26.4   Benefits related to loss of income

   
26.5   Damages for income loss reduced

     
27.   Defence where more than 1 contract

     
28.   Application of insurance money under policy

   
28.1   Award reduced for failure to wear seat belt

     
29.   Insured to give notice

     
30.   Physical damage cover

     
31.   Partial payment of loss clause

     
32.   Claims to be adjusted

     
33.   Uninsured motorist coverage

     
34.   Medical expense coverage

     
35.   Accident benefits

     
36.   Demand for particulars

     
37.   Rights of unnamed insured

     
38.   Occupants of motor vehicles and pedestrians

     
39.   Claim for expenses and benefits

   
39.1   Reduction in damages for non-pecuniary loss

     
40.   Payment into Supreme Court

     
41.   Limitation of action

     
42.   Demand on claimant

     
43.   Terms of certain insurances

     
44.   Other insurance

     
45.   Subrogation

   
45.1   Application

   
45.2   Application to Facility Association

   
45.3   Application after judgment

   
45.4   Payment

   
45.5   Objection to application

   
45.6   Application to Trial Division

   
45.7   Directed payment

   
45.8   Failure to defend

   
45.9   Applicant to assign judgment

 
45.10   Party Unknown

 
45.11   Action against Party Unknown

 
45.12   Facility Association pleadings

 
45.13   Dismissal where driver unknown

 
45.14   Party Unknown added as defendant

 
45.15   Application for declaratory judgment

 
45.16   Reasonable effort required

 
45.17   Exemption from payment

 
45.18   Costs not payable

 
45.19   Supreme Court procedure applies

 
45.20   Prohibition re damages

 
45.21   Consent considered given

 
45.22   Regulations

     
46.   Rep. by 2005 c29 s1

     
47.   General penalty

     
48.   Power of board

     
49.   Insurer to file rates

     
50.   Prohibition

     
51.   Change in rates

     
52.   Additional details or information

     
53.   Approval of rates

   
53.1   Investigation by board

     
54.   Offence and penalty

     
55.   Superintendent sent copy of decisions

     
56.   Report of board

     
57.   General powers of board

     
58.   Application of Public Utilities Act

     
59.   Assessment

     
60.   Regulations

     
61.   Consumer advocate

     
62.   Rate reduction

   
62.1   Rate reduction

   
62.2   Rates based on age, sex or marital status to be reduced

     
63.   Rates frozen


Short title

        1. This Act may be cited as the Automobile Insurance Act.

RSN1970 c17 s1

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Definitions

        2. (1) In this Act

             (a)  "agent" means an agent as defined in the Insurance Adjusters, Agents and Brokers Act ;

         (a.1)  "automobile" includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails or watercraft or aircraft;

             (b)  "automobile insurance" means automobile insurance as defined in the Insurance Companies Act ;

             (c)  "board" means the Board of Commissioners of Public Utilities established under the Public Utilities Act;

          (c.1)  "broker" means a broker as defined in the Insurance Adjusters, Agents and Brokers Act ;

             (d)  "contract" means a contract of automobile insurance;

       (d.01)  "excluded driver" means a person named as an excluded driver in an endorsement under section 19.1;

         (d.1)  "Facility Association" means the Facility Association referred to in section 97 of the Insurance Companies Act;

             (e)  "insured" means a person insured by a contract whether named or not;

             (f)  "insurer" means a person licensed under the Insurance Companies Act to carry on the business of automobile insurance in the province;

             (g)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (h)  "motor vehicle liability policy" means a policy or part of a policy evidencing a contract insuring

                      (i)  the owner or driver of an automobile, or

                     (ii)  a person who is not the owner or driver of an automobile where the automobile is being used or operated by his or her employee or agent or another person on his or her behalf

against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation of it;

              (i)  "non-owner's policy" means a motor vehicle liability policy insuring a person solely in respect of the use or operation by him or her or on his or her behalf of an automobile that is not owned by him or her;

              (j)  "owner's policy" means a motor vehicle liability policy insuring a person in respect of the ownership, use or operation of an automobile owned by him or her and within the description or definition of it in the policy and, if the contract so provides, in respect of the use or operation of another automobile;

             (k)  "policy" means the instrument evidencing a contract;

              (l)  "rates" means rates, surcharges, premiums or another amount payable by an insured for automobile insurance;

           (l.1)  "representative" means a representative as defined in the Insurance Adjusters, Agents and Brokers Act ; and

           (m)  "superintendent" means the Superintendent of Insurance, or, where there is no superintendent, the official appointed by the Lieutenant-Governor in Council to carry out the duties of the superintendent under this Act.

             (2)  The insured under a contract shall be considered not to include a person who sustains loss or damage while an automobile insured under the contract is being used or operated by an excluded driver.

RSN1970 c17 s2; 1975 No75 s1; 1975-76 No57 s2; 1977 c82 s1; 1987 c41 s3; 1989 c19 Sch B; 1989 c37 s121; 1994 c4 s1; 2004 c27 s1; 2010 c15 s6

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Application of Act

        3. (1) This Act applies to contracts providing automobile insurance made or renewed in the province.

             (2)  This Act does not apply to contracts insuring only against

             (a)  loss of or damage to an automobile while in or on described premises;

             (b)  loss of or damage to property carried in or upon an automobile; or

             (c)  liability for loss of or damage to property carried in or upon an automobile.

             (3)  This Act does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Act.

             (4)  This Act does not apply to a contract insuring solely the interest of a person who has a lien upon or has as security legal title to an automobile and who does not have possession of the automobile.

RSN1970 c17 s3

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Forms

        4. (1) An insurer shall not use a form of application, policy, endorsement or renewal or continuation certificate in respect of automobile insurance other than a form approved by the superintendent.

         (1.1)  Subsection (1) applies to the Facility Association with respect to the insurance placed through the association.

             (2)  An insurer may require additional information in an approved application form, but the additional information does not constitute part of the application for the purpose of section 7.

             (3)  Where, in the opinion of the superintendent, a provision of this Act, including a statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable because of the requirements of an Act, he or she may approve a form of policy, or part of it, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be insured, and the contract evidenced by the policy or endorsement in the form so approved is effective and binding according to its terms notwithstanding that those terms are inconsistent with, vary, omit or add to a provision or condition of this Act.

             (4)  Except as to matters mentioned in section 17, the superintendent may, where he or she considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement to it that extends the insurance beyond that prescribed in this Act.

             (5)  The superintendent, in granting an approval under subsection (4), may require the insurer to charge an additional premium for the extension and to state that fact in the policy or in an endorsement.

             (6)  The superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, an insurer shall not use or deliver a form that contravenes the notification.

             (7)  The superintendent shall, on request of an interest insurer, specify in writing his or her reasons for granting, refusing or revoking an approval of a form.

             (8)  An insurer that issues or delivers an owner's policy in the province, or a renewal of it, or evidence of the continuation of the policy, shall issue to the insured a card evidencing the insurance, and the card shall be in a form approved by the superintendent.

             (9)  Subsection (8) applies to the Facility Association with respect to the insurance placed through the association.

RSN1970 c17 s4; 2004 c27 s2

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Persons forbidden to act as agent

        5. A person carrying on the business of financing the sale or purchase of automobiles and an automobile dealer, insurance agent or broker and an officer or employee of a person, dealer, agent or broker shall not act as the agent of an applicant for the purpose of signing an application for automobile insurance.

RSN1970 c17 s5

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Copy of application in policy

        6. (1) A copy of the written application, signed by the insured or his or her agent, or, where no signed application is made, a copy of the purported application or a copy of the part of the application or purported application that is material to the contract, shall be embodied in, endorsed upon or attached to the policy when issued by the insurer.

             (2)  Where a signed, written application is not received by the insurer prior to the issue of the policy, the insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, a form of application to be completed and signed by the insured and returned to the insurer.

             (3)  The insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, the policy or a true copy of it and an endorsement or other amendment to the contract.

             (4)  Where a written application signed by the insured or his or her agent is made for a contract, the policy evidencing the contract shall be considered to be in accordance with the application unless the insurer points out in writing to the insured named in the policy in what respect the policy differs from the application, and, in that event, the insured shall be considered to have accepted the policy unless within 1 week from the receipt of the notification he or she informs the insurer in writing that he or she rejects the policy.

             (5)  Notwithstanding subsection (3), where an insurer adopts the standard owner's policy, it may, instead of issuing the policy, issue a certificate in a form approved by the superintendent which when issued has the same effect as if it were in fact the standard owner's policy, subject to the limits and coverages shown on it by the insurer and any endorsements issued concurrently or subsequently to it but, at the request of an insured, the insurer shall provide a copy of the standard owner's policy the wording of which shall be as approved by the superintendent.

             (6)  Where a certificate is issued under subsection (5), then subsection (8) and subsection 31(2) apply with the necessary changes.

             (7)  Where an insurer issues a certificate under subsection (5), proof of the terms of the policy may be given by production of a copy of the Gazette containing the form of standard owner's policy approved by the superintendent.

             (8)  Upon an application form and policy, there shall be printed or stamped in conspicuous type a copy of subsection 7(1).

RSN1970 c17 s6; 1975 No75 s3

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Applicant to be given reasons

      6.1 (1) An agent, a broker or a representative shall, in writing, inform a person to whom it provides automobile insurance through the Facility Association

             (a)  of the reasons why the insurance is being placed through the association;

             (b)  how long the person is anticipated to be provided with insurance through the association based on the person's driving record; and

             (c)  what steps the person may take to qualify for insurance other than through the association,

and shall provide a copy to the association.

             (2)  An agent, a broker or a representative shall annually, while it provides automobile insurance to a person through the Facility Association, inform the person, in writing,

             (a)  of the reasons why the insurance is placed through the association;

             (b)  how long the person is anticipated to be provide with insurance through the association based on the person's driving record; and

             (c)  what steps the person may take to qualify for insurance other than through the association,

and shall provide a copy to the association.

2004 c27 s3

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Information relating to insurance

      6.2 (1) An agent, a broker or a representative shall, on request, provide a person with the names of all the insurers with whom the agent, broker or representative has an agency contract, or who the agent, broker or representative represents, relating to automobile insurance, and all information obtained by the agent, broker or representative relating to quotations on automobile insurance for the person.

             (2)  An agent, a broker or a representative shall, when providing the information required by subsection (1), identify an affiliation an insurer has with another insurer where there is one.

             (3)  Section 7 of the Corporations Act applies, with the necessary changes, to the determination of whether there is an affiliation between 2 or more insurers.

             (4)  An agent, a broker or a representative shall provide the information referred to in subsections (1) and (2) in writing if the person so requests.

2004 c27 s3

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Monthly premium payments

      6.3 (1) An insured may pay the premium required under a contract, without penalty, in equal monthly payments totalling the amount of the premium.

             (2)  Where an insured pays a premium in equal monthly payments, an insurer may charge interest not exceeding the rate the minister may approve by regulation.

             (3)  An insurer is not required to permit an insured to pay the premium in instalments unless all of the following conditions are met:

             (a)  the insurer, together with its affiliates, insured in the province during the previous year at least 5,000 automobiles used for the purposes listed under the heading "Type of Use-Private Passenger" in the automobile insurance statistical plan prepared under section 82 of the Insurance Companies Act ;

             (b)  the contract is limited to automobiles used for the purposes listed under the heading "Type of Use-Private Passenger" in the automobile insurance statistical plan prepared under section 82 of the Insurance Companies Act ;

             (c)  the contract does not insure 5 or more automobiles that are under common ownership or management;

             (d)  the total annual premium payable under the contract exceeds $300; and

             (e)  the insured has not had more than one contract terminated by an insurer for non-payment of the premium during the 36 months before the contract takes effect.

             (4)  As a condition for permitting an insured to pay the premium in instalments, an insurer may require that the insured,

             (a)  make an initial payment equal to 2 monthly instalments of the premium; and

             (b)  agree to make all payments under the contract by pre-authorized payment from the insured's account at a financial institution.

             (5)  The amount of each instalment payment shall be calculated as blended principal and interest.

             (6)  An insurer who is not required to permit its insureds to pay their premiums in instalments but who chooses to do so is subject to the same requirements as those insurers who are required to permit their insureds to pay their premiums in instalments.

             (7)  This section applies to the Facility Association with respect to the insurance placed through the association.

             (8)  Section 7 of the Corporations Act applies, with the necessary changes, to the determination of whether 2 or more insurers are affiliates for the purpose of paragraph (3)(a).

2004 c27 s3

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Misrepresentation of conditions

        7. (1) Where

             (a)  an application for a contract

                      (i)  gives false particulars of the described automobile to be insured to the prejudice of the insurer, or

                     (ii)  knowingly misrepresents or fails to disclose in the application a fact required to be stated in it;

             (b)  the insured contravenes a term of the contract or commits a fraud; or

             (c)  the insured wilfully makes a false statement in respect of a claim under the contract,

a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited.

             (2)  A statement of the applicant shall not be used in defence of a claim under the contract unless it is contained in the signed written application or, where no signed written application is made, in the purported application, or part of it, that is embodied in, endorsed upon or attached to the policy.

             (3)  A statement contained in a purported copy of the application, or part of it, other than a statement describing the risk and the extent of the insurance, shall not be used in defence of a claim under the contract unless the insurer proves that the applicant made the statement attributed to him or her in the purported application, or part of it.

RSN1970 c17 s7

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Statutory conditions

        8. (1) The conditions set out in this section are statutory conditions and shall be considered to be part of a contract and shall be printed in a policy with the heading "Statutory Conditions".

             (2)  A variation or omission of or addition to a statutory condition is not binding on the insured.

             (3)  In this section "policy" does not include an interim receipt or binder.

STATUTORY CONDITIONS

In these statutory conditions, unless the context otherwise requires, the word "insured" means a person insured by this contract whether named or not.

Material Change in Risk

        1. (1) The insured named in this contract shall promptly notify the insurer or its local agent in writing of a change in the risk material to the contract and within his or her knowledge.

             (2)  The words "change in the risk material to the contract" include:

             (a)  a change in the insurable interest of the insured named in this contract in the automobile by sale, assignment or otherwise, except through change of title by succession, death or proceedings under theBankruptcy Act (Canada);

and in respect of insurance against loss of or damage to the automobile,

             (b)  a mortgage, lien or encumbrance affecting the automobile after the application for this contract;

             (c)  other insurance of the same interest, whether valid or not, covering loss or damage insured by this contract or a portion of it.

Prohibited Use by Insured

        2. (1) The insured shall not drive or operate the automobile

             (a)  unless he or she is either authorized by law or qualified to drive or operate the automobile; or

             (b)  while his or her licence to drive or operate an automobile is suspended or while his or her right to obtain a licence is suspended or while prohibited under order of a court from driving or operating an automobile; or

             (c)  while he or she is under the age of 16 years or under the age that is prescribed by the law of the province in which he or she lives at the time the contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued; or

             (d)  for an illicit or prohibited trade or transportation; or

             (e)  in a race or speed test.

Prohibited Use by Others

             (2)  The insured shall not permit, suffer, allow or connive at the use of the automobile,

             (a)  by a person,

                      (i)  unless that person is for the time being either authorized by law or qualified to drive or operate the automobile, or

                     (ii)  while that person is under the age of 16 years or under the age that is prescribed by the law of the province in which he or she lives at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued; or

             (b)  by a person who is a member of the household of the insured while his or her licence to drive or operate an automobile is suspended or while his or her right to obtain a licence is suspended or while prohibited under order of a court from driving or operating an automobile; or

             (c)  for an illicit or prohibited trade or transportation; or

             (d)  in a race or speed test.

Requirements on Damage to Persons or Property

        3. (1) The insured shall,

             (a)  promptly give to the insurer written notice, with all available particulars, of an accident involving loss or damage to persons or property and of a claim made on account of the accident;

             (b)  verify by statutory declaration, where required by the insurer, that the claim arose out of the use or operation of the automobile and that the person operating or responsible for the operation of the automobile at the time of the accident is a person insured under this contract; and

             (c)  forward immediately to the insurer letters, documents, advice or writs received by him or her from or on behalf of the claimant.

             (2)  The insured shall not,

             (a)  voluntarily assume liability or settle a claim except at his or her own cost; or

             (b)  interfere in a negotiation for settlement or in a legal proceeding.

             (3)  The insured shall, where requested by the insurer, help in securing information and evidence and the attendance of a witness and shall cooperate with the insurer, except in a monetary way, in the defence of an action or proceeding or in the prosecution of an appeal.

Requirements Where Loss or Damage to Automobile

        4. (1) Where loss of or damage to the automobile occurs, the insured shall, if the loss or damage is covered by this contract,

             (a)  promptly give written notice of it to the insurer with the fullest information obtainable at the time;

             (b)  at the expense of the insurer, and as far as reasonably possible, protect the automobile from further loss or damage; and

             (c)  deliver to the insurer within 90 days after the date of the loss or damage a statutory declaration stating, to the best of his or her knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in it, the encumbrances on it, all other insurance, whether valid or not, covering the automobile and that the loss or damage did not occur through a wilful act or neglect, procurement, means or connivance of the insured.

             (2)  A further loss or damage accruing to the automobile directly or indirectly from a failure to protect it as required under subcondition (1) is not recoverable under this contract.

             (3)  Repairs, other than those that are immediately necessary for the protection of the automobile from further loss or damage, shall not be undertaken and no physical evidence of the loss or damage shall be removed,

             (a)  without the written consent of the insurer; or

             (b)  until the insurer has had a reasonable time to make the examination for which provision is made in statutory condition 5.

Examination of Insured

             (4)  The insured shall submit to examination under oath or affirmation, and shall produce for examination at a reasonable place and time designated by the insurer or its representative all documents in his or her possession or control that relate to the matter in question, and he or she shall permit extracts and copies to be made.

Insurer Liable for Cash Value of Automobile

             (5)  The insurer shall not be liable for more than the actual cash value of the automobile at the time loss or damage occurs, and the loss or damage shall be ascertained or estimated according to that actual cash value with proper deduction for depreciation, however caused, and shall not exceed the amount that it would cost to repair or replace the automobile, or a part of it, with material of the same kind and quality, but, if a part of the automobile is obsolete and out of stock, the liability of the insurer in respect of it shall be limited to the value of that part at the time of loss or damage, not exceeding the maker's latest list price.

Repair or Replacement

             (6)  Except where an appraisal has been made, the insurer, instead of making payment, may, within a reasonable time, repair, rebuild or replace the property damaged or lost with other of the same kind and quality if, within 7 days after the receipt of the proof of loss, it gives written notice of its intention to do so.

No Abandonment; Salvage

             (7)  There shall be no abandonment of the automobile to the insurer without the insurer's consent. Where the insurer exercises the option to replace the automobile or pays the actual cash value of the automobile, the salvage shall vest in the insurer.

In Case of Disagreement

             (8)  In the event of disagreement as to the nature and extent of the repairs and replacements required, or as to their adequacy, if effected, or as to the amount payable in respect of a loss or damage, those questions shall be determined by appraisal as provided under theInsurance Contracts Act before there can be recovery under this contract, whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand is made in writing and until after proof of loss has been delivered.

Inspection of Automobile

        5. The insured shall permit the insurer at reasonable times to inspect the automobile and its equipment.

Time and Manner of Payment of Insurance Money

        6. (1) The insurer shall pay the insurance money for which it is liable under this contract within 60 days after the proof of loss has been received by it or, where an appraisal is made under subcondition 4(8), within 15 days after the award is made by the appraisers.

When Action May be Brought

             (2)  The insured shall not bring an action to recover the amount of a claim under this contract unless the requirements of statutory conditions 3 and 4 are complied with or until the amount of the loss has been ascertained as provided or by a judgment against the insured after trial of the issue or by agreement between the parties with the written consent of the insurer.

Limitations of Actions

             (3)  An action or proceeding under this contract against the insurer in respect of a claim for indemnification for liability to the insured for loss or damage to property of another person or for personal injury to or death of another person shall be started within 2 years after the liability of the insured is established by a court and not afterwards. All other actions or proceedings against the insurer, under this contract, in respect of loss or damage to the automobile shall be started within 2 years from the time the loss or damage was sustained and not afterwards.

Who May Give Notice and Proofs of Claim

        7. Notice of claim may be given and proofs of claim may be made by the agent of the insured named in this contract in case of absence or inability of the insured to give the notice or make the proof, that absence or inability being satisfactorily accounted for or, in the like case or if the insured refuses to do so, by a person to whom a part of the insurance money is payable.

Termination

        8. (1) This contract may be terminated,

             (a)  by the insurer giving to the insured 15 days' notice of termination by registered mail or 5 days' written notice of termination personally delivered;

             (b)  by the insured on request.

             (2)  Where this contract is terminated by the insurer,

             (a)  the insurer shall refund the excess of premium actually paid by the insured over the proportional premium of the expired time, but in no event shall the premium for the expired time be considered to be less than a minimum retained premium specified; and

             (b)  the refund shall accompany the notice unless the premium is subject to adjustment or determination as to the amount, in which case the refund shall be made as soon as practicable.

             (3)  Where this contract is terminated by the insured, the insurer shall refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time, but in no event shall the short rate premium for the expired time be considered to be less than a minimum retained premium specified.

             (4)  The refund may be made by money, postal or express company money order or cheque payable at par.

             (5)  The 15 days mentioned in paragraph (1)(a) starts to run on the day following the receipt of the registered letter at the post office to which it is addressed.

Notice

        9. (1) A written notice to the insurer may be delivered at, or sent by registered mail to, the chief agency or head office of the insurer in the province.

             (2)  Written notice may be given to the insured named in this contract by letter personally delivered to him or her or by registered mail addressed to him or her at the latest post office address as notified to the insurer.

             (3)  In this condition, the expression "registered" means registered in or outside Canada.

RSN1970 c17 s8; 1971 No74 s2; 1974 No10 s2; 1974 No111 s2; 1975 No31 s5; 1975-76 No57 s2; 1978 c60 s1; 1982 c60 ss1&2; 1992 c48 s3

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Exceptions respecting statutory conditions

        9. (1) Except as otherwise provided in the contract, the statutory conditions set out in section 8 do not apply to insurance coming within section 33, 34 or 35.

             (2)  Where a contract does not insure against liability for loss or damage to persons and property, statutory condition 3 is not a part of the policy and may be omitted from the printing of the conditions in the policy.

             (3)  Where a contract does not insure against loss of or damage to the automobile, statutory condition 4 is not a part of the policy and may be omitted from the printing of the conditions in the policy.

RSN1970 c17 s9; 1978 c35 s2

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Coverage of owner's policy

      10. (1) A contract evidenced by an owner's policy insures the person named in it and other persons who with his or her consent personally drive an automobile owned by the insured named in the contract and within the description or definition of it in the contract against liability imposed by law upon the insured named in the contract or those other persons for loss or damage,

             (a)  arising from the ownership, use or operation of the automobile; and

             (b)  resulting from bodily injury to or the death of a person and damage to property.

             (2)  Where the contract evidenced by an owner's policy also provides insurance against liability in respect of an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to the persons specified in the contract.

             (3)  Where the insured named in an owner's policy dies, the following persons shall be considered to be the insured under the policy:

             (a)  the spouse of the deceased insured if living in the same dwelling premises at the time of death; and

             (b)  in respect of the described automobile, a newly-acquired automobile that was acquired by the deceased insured prior to death and a temporary substitute automobile, all as defined by the policy,

                      (i)  a person having proper temporary custody of it until grant of probate or administration to the personal representative of the deceased insured,

                     (ii)  the personal representative of the deceased insured.

RSN1970 c17 s10

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Insurer not liable respecting excluded driver

   10.1 Where a contract evidenced by a motor vehicle liability policy names an excluded driver, the insurer is not liable to a person under the contract or under this Act or the regulations for loss or damage that occurs while the excluded driver is driving an automobile insured under the contract.

2004 c27 s4

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Coverage of non-owner's policy

      11. A contract evidenced by a non-owner's policy insures the person named in it and another person specified in the policy against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

             (a)  arising from the use or operation of an automobile within the definition of it in the policy, other than an automobile owned by him or her or registered in his or her name; and

             (b)  resulting from bodily injury to or the death of a person, and damage to property.

RSN1970 c17 s11

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Persons considered not owners

      12. A person shall not be considered to be the owner of an automobile for the reason only that he or she has a lien on the automobile or has legal title to the automobile as security.

RSN1970 c17 s12

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Territorial limits

      13. Insurance under sections 10 and 11 applies to the ownership, use or operation of the insured automobile within Canada and the United States of America and upon a vessel plying between ports of those countries.

RSN1970 c17 s13

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Rights of unnamed insured

      14. A person insured by but not named in a contract to which section 10 or 11 applies may recover indemnity in the same manner and to the same extent as if named in it as the insured, and for that purpose shall be considered to be a party to the contract and to have given consideration for it.

RSN1970 c17 s14

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Additional agreements

      15. A contract evidenced by a motor vehicle liability policy shall provide that, where a person insured by the contract is involved in an accident resulting from the ownership, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall

             (a)  upon receipt of notice of loss or damage caused to persons or property, make investigations, conduct negotiations with the claimant and effect settlements of resulting claims that are considered expedient by the insurer;

             (b)  defend in the name and on the behalf of the insured and at the cost of the insurer a civil action that is brought against the insured on account of loss or damage to persons or property;

             (c)  pay all costs taxed against the insured in a civil action defended by the insurer and interest accruing after entry of judgment upon that part of the judgment that is within the limits of the insurer's liability; and

             (d)  where the injury is to a person, reimburse the insured for outlay for medical aid that is immediately necessary at the time.

RSN1970 c17 s15

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Contamination of property in automobile

      16. Liability arising from contamination of property carried in an automobile shall not be considered to be liability arising from the ownership, use or operation of the automobile.

1971 No74 s3

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Exceptions from liability

      17. The insurer is not liable under a contract evidenced by a motor vehicle liability policy for liability

             (a)  imposed by a worker's compensation law upon a person insured by the contract;

             (b)  resulting from bodily injury to or the death of an employee of a person insured by the contract while engaged in the operation or repair of the automobile.

RSN1970 c17 s16; 1982 c33 s4

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Further exceptions

      18. The insurer may provide under a contract evidenced by a motor vehicle liability policy that it shall not be liable

             (a)  to indemnify a person engaged in the business of selling, repairing, maintaining, servicing, storing or parking automobiles for loss or damage sustained while engaged in the use or operation of or while working upon the automobile in the course of that business unless the person is the owner of the automobile or is his or her employee; or

             (b)  for loss of or damage to property carried in or upon the automobile or to property owned or rented by or in the care, custody or control of the insured.

RSN1970 c17 s17

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Exemptions from liability

      19. Subject to the limitations and exclusions of the endorsement, the insurer may provide by endorsement to a contract evidenced by a motor vehicle liability policy that it shall not be liable for loss or damage resulting from the ownership, use or operation of machinery or apparatus, including its equipment, mounted on or attached to the automobile while the automobile is at the site of the use or operation of that machinery or apparatus.

1974 No111 s3

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Excluded driver endorsement

   19.1 A named insured may stipulate by endorsement to a contract evidenced by a motor vehicle liability policy that a person named in the endorsement is an excluded driver under the contract.

2004 c27 s5

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Further exemptions from liability

      20. (1) The insurer may provide under a contract evidenced by a motor vehicle liability policy that it shall not be liable while

             (a)  the automobile is rented or leased to another person;

             (b)  the automobile is used to carry explosives or to carry radioactive material for research, education, development or industrial purposes or for incidental purposes;

             (c)  the automobile is used as a taxi-cab, public omnibus, livery, jitney or sightseeing conveyance or for carrying passengers for compensation or hire;

             (d)  where the insured vehicle is an automobile, other than a trailer, it is used for towing a trailer owned by the insured unless the same indemnity is also provided by the insurer in respect of the trailer; or

             (e)  where the insured vehicle is a trailer, it is towed by an automobile owned by the insured unless the same indemnity is also provided by the insurer in respect of the automobile.

             (2)  In paragraph (1)(b), "radioactive material" means

             (a)  spent nuclear fuel rods that have been exposed to radiation in a nuclear reactor;

             (b)  radioactive waste material;

             (c)  unused enriched nuclear fuel rods; or

             (d)  other radioactive material of a quantity and quality that would be harmful to persons or property if its container were destroyed or damaged.

             (3)  Paragraph (1)(a) does not include the use by an employee of his or her automobile on the business of his or her employer and for which he or she is paid.

             (4)  Paragraph (1)(c) does not include

             (a)  the use by a person of his or her automobile for the carrying of another person in return for the former's being carried in the automobile of the latter;

             (b)  the occasional and infrequent use by a person of his or her automobile for the carrying of another person who shares the cost of the trip;

             (c)  the occasional and infrequent use by the insured of his or her automobile for the transportation of children to or from school or school activities conducted within the educational program;

             (d)  the use by a person of his or her automobile for the carrying of a temporary or permanent domestic servant of the insured or his or her spouse; or

             (e)  the use by a person of his or her automobile for the carrying of a client or customer or a prospective client or customer.

RSN1970 c17 s19; 1971 No74 s4

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Minimum liability under policy

      21. (1) A contract evidenced by a motor vehicle liability policy insures, in respect of an accident, to the limit of $200,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of 1 or more persons and loss of or damage to property.

             (2)  The contract shall be interpreted to mean that where because of an accident liability results from bodily injury or death and from loss of or damage to property,

             (a)  claims against the insured arising out of bodily injury or death have priority to the extent of $180,000 over claims arising out of loss of or damage to property; and

             (b)  claims against the insured arising out of loss of or damage to property have priority to the extent of $20,000 over claims arising out of bodily injury or death.

             (3)  The insurer may, instead of specifying a limit in the policy for an inclusive amount, specify a limit of liability of at least $200,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of 1 or more persons and a limit of liability of at least $200,000, exclusive of interest and costs, against liability for loss of or damage to property.

             (4)  Nothing in this Act precludes an insurer, with respect to a limit in excess of those specified in subsection (1) or (3), from increasing or reducing the limit specified in the contract with respect to the use or operation of the automobile by a named person, but no reduction is effective for a limit less than that required under subsection (1) or (3).

             (5)  The Lieutenant-Governor in Council may by order amend the limits set out in subsections (1), (2) and (3), and references in the Highway Traffic Act to limits set out in subsections (1), (2) and (3) shall be read in light of these amendments.

1982 c31 s1

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Stipulation in policy

      22. (1) A motor vehicle liability policy issued in the province shall provide that, in the case of liability arising out of the ownership, use or operation of the automobile in a province or territory of Canada ,

             (a)  the insurer shall be liable up to the minimum limits prescribed for that province or territory where those limits are higher than the limits prescribed by the policy;

             (b)  the insurer shall not set up a defence to a claim that might not be set up if the policy were a motor vehicle liability policy issued in that province or territory; and

             (c)  the insured, by acceptance of the policy, constitutes and appoints the insurer his or her irrevocable attorney to appear and defend in a province or territory of Canada in which an action is brought against the insured arising out of the ownership, use or operation of the automobile.

             (2)  A provision in a motor vehicle liability policy in accordance with paragraph (1)(c) is binding on the insured.

RSN1970 c17 s21

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Excess insurance

      23. (1) Nothing in this Act precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided by another designated contract evidenced by a motor vehicle liability policy, whether the designated contract is a first loss insurance or an excess insurance.

             (2)  Where the contract designated in the excess contract terminates or is terminated, the excess contract is also automatically terminated.

RSN1970 c17 s22

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Agreement for partial payment of claim

      24. Nothing in this Act precludes an insurer from entering into an agreement with its insured under a contract evidenced by a motor vehicle liability policy providing that the insured will reimburse the insurer in an agreed amount in respect of a claim by or judgment in favour of a 3rd party against the insured, and the agreement may be enforced against the insured according to its meaning.

RSN1970 c17 s23

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Nuclear energy contract

      25. (1) In this section, "nuclear energy hazard" means the radioactive, toxic, explosive or other hazardous properties of prescribed substances under the Atomic Energy Control Act (Canada).

             (2)  Where an insured is covered, whether named or not, under a contract evidenced by a motor vehicle liability policy for loss or damage resulting from bodily injury to or the death of a person or damage to property arising directly or indirectly out of a nuclear energy hazard and is also covered, whether named or not, against the loss or damage under a contract evidenced by a policy of nuclear energy hazard liability insurance issued by a group of insurers and in force at the time of the event giving rise to the loss or damage,

             (a)  the motor vehicle liability insurance is excess to the nuclear energy hazard liability insurance, and the insurer under the contract of motor vehicle liability insurance is not liable to pay beyond the minimum limit provided by section 21; and

             (b)  the unnamed insured under the contract of nuclear energy liability insurance may, in respect of the loss or damage, recover indemnity under that contract in the same manner and to the same extent as if named in it as the insured, and for that purpose he or she shall be considered to be a party to the contract and to have given consideration for it.

             (3)  For the purpose of this section, a contract of nuclear energy hazard liability insurance shall be considered to be in force at the time of the event giving rise to the loss or damage, notwithstanding that the limits of liability under it have been exhausted.

RSN1970 c17 s24; 1973 No108 s3; 1982 c31 s2

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Advance payments and release

      26. (1) Where an insurer makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person who is or alleges to be entitled to recover from the insured covered by the policy, the payment constitutes, to the extent of the payment, a release by the person or his or her personal representative of a claim that the person or his or her personal representative or a person claiming through or under him or her or under the Fatal Accidents Act may have against the insured and the insurer.

             (2)  Nothing in this section precludes the insurer making the payment from demanding, as a condition precedent to the payment, a release from the person or his or her personal representative or another person to the extent of the payment.

             (3)  Where the person starts an action, the court shall adjudicate upon the matter first without reference to the payment but in giving judgment the payment shall be taken into account and the person shall only be entitled to judgment for the net amount.

             (4)  The intention of this section is to permit payments to a claimant without prejudice to the defendant or his or her insurer, either as an admission of liability or otherwise, and the fact of a payment shall not be disclosed to the judge or jury until after judgment but before formal entry of the judgment.

1971 No74 s5

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Insurer to give notice of claim

   26.1 (1) Where an insurer receives a claim from a person who is or alleges to be entitled to recover from an insured covered by a motor vehicle liability policy, the insurer shall, in writing, inform the named insured of the receipt of the claim.

             (2)  An insurer who makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person making a claim shall, in writing, inform the named insured of the total amount paid with respect to the claim.

2004 c27 s6

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Application for periodic payment

   26.2 (1) An injured person, or the administrator or a beneficiary of the estate of a deceased person, to whom or on whose behalf compensation is payable under a contract evidenced by a motor vehicle liability policy for bodily injury or death caused by an automobile or the use or operation of an automobile may apply to a judge of the Trial Division for an order directing an insurer to pay the compensation periodically.

             (2)  A judge to whom an application is made under subsection (1) may make an order directing an insurer to pay compensation periodically on the terms the judge considers just.

2004 c27 s6

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Settlement of claims

   26.3 (1) An insurer who is defending an action on behalf of an insured arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation of an automobile shall attempt to settle the claim as expeditiously as possible.

             (2)  Where an insurer admits liability in respect of all or part of a claim, the insurer shall make payments to the person making the claim pending the determination of the amount owing.

             (3)  The amount of the payment under subsection (2) shall be based on the insurer's estimate of the amount owing in respect of the claim having regard to information provided to the insurer by the person making the claim.

             (4)  Subsections 26(1), (2) and (3) apply, with the necessary changes, to an advance payment made under this section.

             (5)  An insurer's failure to comply with this section shall be considered by the court in awarding costs.

2004 c27 s6

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Benefits related to loss of income

   26.4 (1) Notwithstanding another Act or a rule of law, the owner, operator or occupants of an automobile, a person present at an incident and a person who is or may be vicariously liable with respect to either of them, are not liable in an action in the province for the following damages for income loss or loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of an automobile:

             (a)  damages for loss of income suffered in excess of the net loss of income, as defined by the regulations; and

             (b)  damages for loss of earning capacity suffered in excess of the net loss of earning capacity, as defined by the regulations.

             (2)  Subsection (1) applies to all actions, including actions under the Fatal Accidents Act .

2004 c27 s6

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Damages for income loss reduced

   26.5 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for loss of income and loss of earning capacity shall be reduced by all payments in respect of the incident that the plaintiff has received or to which the plaintiff is entitled, for loss of income, or loss of earning capacity, under the laws of this province or another jurisdiction, or under an income continuation benefit plan where, under the law or the plan, the provider of the benefit retains no right of subrogation.

             (2)  Damages shall not be reduced under subsection (1) by a payment that a plaintiff has received or to which a plaintiff is entitled under the Workplace Health, Safety and Compensation Act.

2004 c27 s6

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Defence where more than 1 contract

      27. (1) Where a person is insured under more than 1 contract evidenced by a motor vehicle liability policy, whether the insurance is first loss insurance or excess, and a question arises under paragraph 15(b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not an insurer denies liability under its contract, the insured or an insurer may apply to the Trial Division, and the court shall give the directions that may appear appropriate with respect to the performance of the obligation.

             (2)  On an application under subsection (1), the only parties entitled to notice of it and to be heard are the insured and his or her insurers, and no material or evidence used or taken upon an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided.

             (3)  An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of an indemnity under their respective policies.

             (4)  Where indemnity is provided to the insured under 2 or more contracts and 1 or more of them is excess insurance, the insurers shall, as between themselves, contribute to payment of expenses, costs and reimbursement for which provision is made in section 15 in accordance with their respective liabilities for damages awarded against the insured.

RSN1970 c17 s25

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Application of insurance money under policy

      28. (1) A person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, notwithstanding that the person is not a party to the contract, may, upon recovering a judgment for it in a province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of the judgment and of other judgments or claims against the insured covered by the contract and may, on behalf of himself or herself and persons having those judgments or claims, maintain an action against the insurer to have the insurance money so applied.

             (2)  An action shall not be brought against an insurer under subsection (1) after the expiration of 1 year from the final determination of the action against the insured, including appeals.

             (3)  A creditor of the insured is not entitled to share in the insurance money payable under a contract unless his or her claim is one for which indemnity is provided for by that contract.

             (4)  The right of a person who is entitled under subsection (1) to have insurance money applied upon his or her judgment or claim is not prejudiced by

             (a)  an assignment, waiver, surrender, cancellation or discharge of the contract, or of an interest in it or of the proceeds, made by the insured after the happening of the event giving rise to a claim under the contract;

             (b)  an act or default of the insured before or after that event in contravention of this Act or of the terms of the contract; or

             (c)  a contravention of the Criminal Code (Canada) or a statute of a province or territory of Canada or of a state or the District of Columbia of the United States of America by the owner or driver of the automobile,

and nothing mentioned in paragraph (a), (b) or (c) is available to the insurer as a defence in an action brought under subsection (1).

             (5)  It is not a defence to an action under this section that an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be the policy is not a motor vehicle liability policy, and this section applies with the necessary changes to the instrument.

             (6)  The insurer may require other insurers liable to indemnify the insured in whole or in part in respect of judgments or claims to which reference is made in subsection (1) to be made parties to the action and contribute according to their respective liabilities, whether the contribution is rateably or by way of first loss or excess insurance, and the insured shall on demand provide the insurer with particulars of other insurance covering the subject-matter of the contract.

             (7)  Where a person has recovered a judgment against the insured and is entitled to bring action under subsection (1), and the insurer admits liability to pay the insurance money under the contract and the insurer considers that

             (a)  there are or may be other claimants; or

             (b)  there is no person capable of giving and authorized to give a valid discharge for payment who is willing to do so,

the insurer may apply to the court without giving notice to other parties for an order for payment of the money into court, and the court may, upon the notice that it thinks necessary, make an order accordingly.

             (8)  The receipt of the appropriate officer of the court is sufficient discharge to the insurer for the insurance money paid into court under subsection (7), and the insurance money shall be dealt with as the court may order upon application of an interested person.

             (9)  Notwithstanding anything contained in the contract to the contrary, a contract evidenced by a motor vehicle liability policy shall, for the purpose of this section, be considered to provide all the types of coverage mentioned in section 20, but the insurer is not liable to a claimant with respect to the coverage in excess of the limit provided by section 21.

          (10)  Where 1 or more contracts provide for coverage of a type mentioned in section 18 or 19, except as provided in subsection (12), the insurer may,

             (a)  with respect to that type of coverage; and

             (b)  as against a claimant,

avail itself of a defence that it is entitled to set up against the insured, notwithstanding subsection (4).

          (11)  Where 1 or more contracts provide for coverage in excess of the limit provided by section 21, except as provided in subsection (12), the insurer may

             (a)  with respect to the coverage in excess of those limits; and

             (b)  as against a claimant,

avail itself of a defence that it is entitled to set up against the insured, notwithstanding subsection (4).

          (12)  Where a contract provides coverage of a type mentioned in paragraph 19(a) in respect of an automobile operated in the business of carrying passengers for compensation or hire and insured for that purpose, the insurer may

             (a)  with respect to that type of coverage; and

             (b)  as against a claimant,

only avail itself of a defence that it is entitled to set up against the insured in respect of that part of the coverage that exceeds

             (c)  the limit provided by section 21; or

             (d)  the minimum limits required for that type of coverage under another Act,

whichever is greater.

          (13)  The insured shall reimburse the insurer upon demand in the amount that the insurer has paid because of this section and that it would not otherwise be liable to pay.

          (14)  Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court, be made a 3rd party in an action to which the insured is a party and in which a claim is made against the insured by a party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action.

          (15)  Upon being made a 3rd party, the insurer may

             (a)  contest the liability of the insured to a party claiming against the insured;

             (b)  contest the amount of a claim made against the insured;

             (c)  deliver pleadings in respect of the claim of a party claiming against the insured;

             (d)  have production and discovery from a party adverse interest; and

             (e)  examine and cross-examine witnesses at the trial,

to the same extent as if it were a defendant in the action.

          (16)  An insurer may avail itself of subsection (15) notwithstanding that another insurer is defending in the name and on behalf of the insured an action to which its insured is a party.

RSN1970 c17 s26; 1973 No108 s4; 1982 c31 s3; 1982 c60 s3

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Award reduced for failure to wear seat belt

   28.1 (1) Where a person who is required by section 178 of the Highway Traffic Act to wear a seat belt assembly sustains bodily injury or dies in an accident while the person is not wearing a seat belt assembly, the amount recoverable by the person, or, in the event of the death of the person, the administrator or a beneficiary of the estate of the deceased person, as damages for bodily injury or death in an action arising out of the accident shall be reduced by 25%, unless the person or the administrator or the  beneficiary establishes that the failure to wear the seat belt assembly did not contribute to the bodily injury or death.

             (2)  Where a person to whom subsection (1) applies contributed to his or her bodily injury or death by other acts or omissions in addition to the failure to wear a seat belt assembly, and the person, or, in the event of the death of the person, the administrator or a beneficiary of the estate of the deceased person, does not establish that the failure to wear a seat belt assembly did not contribute to the bodily injury or death, the reduction in the amount of damages shall be determined with regard to all circumstances but shall not be less than 25%.

             (3)  Subsection (1) does not apply to a person who sustains bodily injury or dies in an accident while the person is wearing a seat belt assembly but is not wearing it in a properly adjusted and securely fastened manner as required under section 178 of the Highway Traffic Act .

2004 c27 s7

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Insured to give notice

      29. (1) An insured against whom an action is started for damages occasioned by an automobile shall give written notice of it to the insurer within 5 days after service of a notice or process in the action.

             (2)  An insured against whom an action is started for damages occasioned by an automobile shall upon recovery of a judgment against the insured disclose to a judgment creditor entitled to the benefit of a motor vehicle liability policy particulars of the contract within 10 days after written demand for it.

RSN1970 c17 s27

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Physical damage cover

      30. The insurer may provide in a contract the exclusions and limitations, in respect of loss of or damage to or the loss of use of the automobile, that it considers necessary.

RSN1970 c17 s28

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Partial payment of loss clause

      31. (1) A contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use of it may contain a clause to the effect that, in the event of loss, the insurer shall pay only

             (a)  an agreed portion of a loss that may be sustained; or

             (b)  the amount of the loss after deduction of a sum specified in the policy,

and in either case not exceeding the amount of the insurance.

             (2)  Where a clause is inserted in accordance with subsection (1), there shall be printed or stamped upon the face of the policy in conspicuous type the words: "This policy contains a partial payment of loss clause.".

RSN1970 c17 s29

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Claims to be adjusted

      32. (1) Where a claim is made under a contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, notwithstanding an agreement, adjust the amount of the claim with the insured named in the contract as well as with a person having an interest indicated in the contract.

             (2)  Where notice is given or proof of loss is made by a person other than the insured, because the insured cannot be located or neglects or refuses or is unable to give notice and make claim under statutory conditions 4 and 7, the insurer may, notwithstanding subsection (1) but not earlier than 60 days from delivery of the proof required under paragraph (1)(c) of statutory condition 4, adjust and pay the claim to the other person having an interest indicated in the contract.

RSN1970 c17 s30

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Uninsured motorist coverage

      33. (1) In this section

             (a)  "insured automobile" means the automobile defined or described in the contract;

             (b)  "person insured under the contract" means,

                      (i)  in respect of a claim for damage to the insured automobile, the owner of the automobile,

                     (ii)  in respect of a claim for damage to the contents of the insured automobile, the owner of the contents, and

                    (iii)  in respect of a claim for bodily injuries or death,

                            (A)  a person while driving, being carried in or upon or entering or getting on to or alighting from the insured automobile,

                            (B)  the insured named in the contract and if residing in the same dwelling premises as the insured named in the contract, his or her spouse and any dependant relative, while driving, being carried in or upon or entering or getting on to or alighting from an uninsured automobile, or, who is struck by an uninsured or unidentified automobile, and

                            (C)  if the insured named in the contract is a corporation, unincorporated association or partnership, any director, officer, employee or partner of the insured named in the contract, for whose regular use the insured automobile is furnished and, if residing in the same dwelling place, his or her spouse or a dependant relative, while driving, being carried in or upon or entering or getting on to or alighting from an uninsured automobile, or, who is struck by an uninsured or unidentified automobile, if that director, officer, employee or partner or his or her spouse is not the owner of an automobile insured under a contract;

             (c)  "unidentified automobile" means an automobile with respect to which the identity of either the owner or driver cannot be ascertained; and

             (d)  "uninsured automobile" means an automobile with respect to which neither the owner nor driver of it has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse.

         (1.1)  Notwithstanding the definition of "person insured under the contract" in subsection (1), a person who sustains loss or damage while the insured automobile is being used or operated by an excluded driver is considered not to be a person insured under the contract in which the excluded driver is named.

             (2)  Every contract evidenced by a motor vehicle liability policy shall provide for payment by the insurer of all sums that

             (a)  a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile;

             (b)  a person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or death of a person insured under the contract resulting from an accident involving an automobile; and

             (c)  a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,

subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation.

             (3)  A dependant relative referred to in the definition "person insured under the contract" in paragraph (1)(b)

             (a)  who is the owner of an automobile insured under a contract; or

             (b)  who sustains bodily injuries or dies as a result of an accident while driving, being carried in or upon or entering or getting on to or alighting from his or her own uninsured automobile,

shall be considered not to be a dependant relative for the purposes of this section.

             (4)  The Lieutenant-Governor in Council may make regulations

             (a)  prescribing, amending or altering the terms, conditions, provisions, exclusions and limits with respect to payments under subsection (2);

             (b)  considering a term, condition, provision, exclusion, or limit as prescribed, amended or altered by a regulation made under paragraph (a) to be included in a motor vehicle liability policy made or renewed on or after the effective date of the regulation and in any motor vehicle liability policy that is subsisting on the effective date of the regulation; and

             (c)  requiring that terms, conditions, provisions, exclusions and limits as prescribed, amended or altered by a regulation made under paragraph (a) be attached to or included in every motor vehicle liability policy as a schedule in or to the policy.

             (5)  Payments made or available to a person under a contract of insurance referred to in subsection (2) constitute, to the extent of those payments, a release by the person or the person's personal representative or a person claiming through or under the person or by virtue of the Fatal Accidents Act , of a claim that the person may have under subsection (2), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or the person's personal representative or another person.

             (6)  A release under subsection (5) shall not enure to the benefit of the person or persons against whom the insurer has a right to subrogation under this Act.

             (7)  This section applies to all contracts evidenced by motor vehicle liability policies made or renewed on or after the commencement of this subsection, and all contracts evidenced by motor vehicle liability policies that existed on the commencement of this subsection shall be considered to provide for the payments referred to in subsection (2) in respect of an accident arising out of the use or operation of an automobile occurring on or after the commencement of this subsection.

1994 c4 s2; 2004 c27 s8

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Medical expense coverage

      34. (1) Where in a contract an insurer provides insurance against expenses for medical, surgical, dental, ambulance, hospital, professional nursing or funeral services, the insurance applies only in respect of reasonable expenses

             (a)  of or insured for a person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance against liability arising out of bodily injury to, or the death of, a person caused by an automobile or the use or operation of an automobile is provided under the contract; and

             (b)  of the insured named in the contract and his or her spouse and a dependent relative living in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by another automobile that is defined in the contract for the purposes of that insurance.

             (2)  Where an insurer makes a payment under a contract of insurance referred to in subsection (1), the payment constitutes, to the extent of the payment, a release by the insured person or his or her personal representatives or a claim that the insured person or his or her personal representatives or a person claiming through or under him or under the Fatal Accidents Act may have against the insurer and another person who may be liable to the insured person or his or her personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his or her personal representative or another person.

             (3)  The insurance mentioned in paragraph (1)(a) is a first loss insurance, and another automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

             (4)  The insurance mentioned in paragraph (1)(a) is excess insurance to another insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses.

             (5)  The insurance mentioned in paragraph (1)(b) is excess insurance to other insurance indemnifying the injured person or in respect of a deceased person for the expenses.

RSN1970 c17 s32; 2010 c15 s7

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Accident benefits

      35. (1) Where in a contract an insurer provides accident insurance benefits in respect of the death of or injury to an insured person arising out of an accident involving an automobile, the insurance applies only in respect of

             (a)  a person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance against liability arising out of bodily injury to, or the death of, a person caused by an automobile or the use or operation of an automobile is provided under the contract; and

             (b)  the insured named in the contract and his or her spouse and a dependent relative living in the same dwelling premises as the named insured who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by another automobile that is defined in the policy for the purposes of the insurance.

             (2)  Where an insurer makes a payment under a contract of insurance to which subsection (1) refers, the payment constitutes, to the extent of the payment, a release by the insured person or his or her personal representatives of a claim that the insured person or his or her personal representatives or a person claiming through or under him or her or under the Fatal Accidents Act may have against the insurer and another person who may be liable to the insured person or his or her personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his or her personal representatives or another person.

             (3)  The insurance mentioned in paragraph (1)(a) is a first loss insurance, and other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

             (4)  The insurance mentioned in paragraph (1)(b) is excess insurance over other automobile insurance of the same type available to the injured person or in respect of a deceased person.

             (5)  Notwithstanding subsections (3) and (4), where a person is entitled to benefits under more than 1 contract providing insurance of the type mentioned in this section, the person or his or her personal representative or a person claiming through or under him or her or under the Fatal Accidents Act may recover only an amount equal to

             (a)  1 benefit, if the benefits under the contracts are of the same limit; or

             (b)  the highest benefit, if the benefits under the contracts are not of the same limit.

RSN1970 c17 s33; 2010 c15 s8

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Demand for particulars

      36. (1) Where a person is injured or killed in an accident in the province involving an automobile, that person or his or her personal representative may serve

             (a)  a demand by registered mail on the owner of the automobile; or

             (b)  a demand by registered mail on the insurer of the owner of the automobile,

requiring the owner or insurer to state in writing to the person making the demand whether or not that owner has insurance of the type mentioned in section 34 or 35 and, where the demand is made under paragraph (a), requiring the owner, if he or she has insurance, to state the name of the insurer.

             (2)  An owner or insurer who does not, within 10 days after receiving a demand made under subsection (1), comply with the demand is guilty of an offence.

RSN1970 c17 s34

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Rights of unnamed insured

      37. A person insured by but not named in a contract to which section 33, 34 or 35 applies may recover under the contract in the same manner and to the same extent as if named in it as the insured, and for that purpose shall be considered to be a party to the contract and to have given consideration for it.

RSN1970 c17 s35; 1971 No74 s6

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Occupants of motor vehicles and pedestrians

      38. (1) Where a person entitled to benefits provided by insurance under section 34 or 35

             (a)  is an occupant of a motor vehicle involved in an accident, the insurer of the owner of the motor vehicle shall, in the first instance, be liable for payment of the benefits provided by the insurance; or

             (b)  is a pedestrian and is struck by a motor vehicle, the insurer of the owner of that motor vehicle shall, in the first instance, be liable for the payment of the benefits provided by the insurance.

             (2)  Nothing in this section shall affect the operation of subsections 34(2) to (5) and 35(2) to (5).

1971 No74 s7

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Claim for expenses and benefits

      39. Where a person entitled to benefits provided by insurance under section 34 or 35, instead of claiming the benefits, claims for the expenses referred to in section 34 or the benefits referred to in section 35 against a person, the person forfeits his or her claim for the insurance benefits provided in the sections.

1971 No74 s7

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Reduction in damages for non-pecuniary loss

   39.1 In an action in the province for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for non-pecuniary loss or damage shall be reduced by the amount the Lieutenant-Governor in Council may set by regulation.

2004 c27 s9

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Payment into Supreme Court

      40. (1) Where an insurer admits liability for insurance money payable under section 33, 34 or 35 and it appears that

             (a)  there are adverse claimants;

             (b)  the whereabouts of an insured person entitled is unknown; or

             (c)  there is no person capable of giving and authorized to give a valid discharge who is willing to do so,

the insurer may, after 30 days after the date upon which the insurance money becomes payable, apply to the court without giving notice to other parties for an order for payment of the money into the Trial Division, and the court may upon the notice that it thinks necessary make an order accordingly.

             (2)  The receipt of the appropriate officer of the court is sufficient discharge to the insurer for the insurance money paid into the Trial Division, and the insurance money shall be dealt with as the court orders.

RSN1970 c17 s36; 1986 c42 Sch A

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Limitation of action

      41. An action or proceeding against an insurer under a contract in respect of insurance provided under section 33, 34 or 35 shall be started within the limitation period specified in the contract, but in no event shall the limitation period be less than 1 year after the happening of the accident.

RSN1970 c17 s37

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Demand on claimant

      42. Where a person makes a claim for damages in respect of bodily injury or death sustained by the person or another person while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being stuck by an automobile, he or she shall, where required by the person against whom the claim is made or by someone acting on his or her behalf, provide to or for that person full particulars of all insurance available to the claimant under contracts falling within the scope of section 34 or 35, and of payments of insurance money made or to be made under it.

RSN1970 c17 s38

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Terms of certain insurances

      43. An insurer may in a policy,

             (a)  provide insurance that is less extensive in scope than the insurance mentioned in section 33, 34 or 35; and

             (b)  provide the terms of the contract that relate to the insurance mentioned in section 33, 34 or 35.

RSN1970 c17 s39

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Other insurance

      44. (1) Insurance under a contract evidenced by a valid owner's policy of the kind mentioned in paragraph 2(j) is, in respect of liability arising from or occurring in connection with the ownership, use or operation of an automobile owned by the insured named in the contract and within the description or definition in the policy, a first loss insurance, and insurance attaching under another valid motor vehicle liability policy is excess insurance only.

             (2)  Where the insured named in a contract has or places another valid insurance, whether against liability for the ownership, use or operation of, or against loss of or damage to an automobile or otherwise, of his or her interest in the subject-matter of the contract or a part of it, the insurer is liable only for its rateable proportion of liability, expense, loss or damage.

             (3)  "Rateable proportion" used in subsection (2) means

             (a)  where there are 2 insurers liable and each has the same policy limits, that each of the insurers shall be liable to share equally in liability, expense, loss or damage;

             (b)  where there are 2 insurers liable with different policy limits, that the insurers shall be liable to share equally up to the limit of the smaller policy limit; and

             (c)  where there are more than 2 insurers liable, paragraphs (a) and (b) shall apply with the necessary changes.

RSN1970 c17 s40; 1971 No74 s8

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Subrogation

      45. (1) An insurer who makes a payment or assumes liability for a payment under a contract is subrogated to all rights of recovery of the insured against a person and may bring action in the name of the insured to enforce those rights.

             (2)  Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the recovery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the proportion in which the loss or damage has been borne by them.

             (3)  Where the interest of an insured in a recovery is limited to the amount provided under a clause in the contract to which section 31 applies, the insurer shall have control of the action.

             (4)  Where the interest of an insured in a recovery exceeds that referred to in subsection (3) and the insured and the insurer cannot agree as to

             (a)  the solicitors to be instructed to bring the action in the name of the insured;

             (b)  the conduct and carrying of the action or matters pertaining to it;

             (c)  an offer of settlement or the apportionment of it, whether action has been started or not;

             (d)  the acceptance of money paid into court or the apportionment of the money;

             (e)  the apportionment of costs; or

             (f)  the launching or prosecution of an appeal,

either party may apply to the Trial Division for the determination of the matters in question, and the court shall make the order that it considers reasonable having regard to the interest of the insured and the insurer in a recovery in the action or proposed action or in an offer of settlement.

             (5)  On an application under subsection (4), the only parties entitled to notice and to be heard on it are the insured and the insurer, and no material or evidence used or taken upon the application is admissible upon the trial of an action brought by or against the insured or the insurer.

             (6)  A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer unless they have concurred.

RSN1970 c17 s41; 1986 c42 Sch A

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Application

   45.1 (1) Sections 45.2 to 45.21 apply only to matters arising out of accidents involving an automobile occurring on or after the commencement of this subsection.

             (2)  Sections 45.2 to 45.21 apply only to a claim for damages by a person who is not insured under a contract within the meaning of section 33 and who has no other insurance, or has insurance that is inadequate, with respect to the damages claimed, and subject to subsection (4), no person other than one who is not insured under a contract under section 33 and who has no other insurance, or who has other insurance that is inadequate, with respect to the damages claimed, shall apply to the Facility Association for payment of damages under sections 45.2 to 45.21.

             (3)  Notwithstanding another provision of this Act, a person shall not apply to the Facility Association under sections 45.2 or 45.3 for payment of damages in respect of damage to an automobile owned by or registered in the name of the person, notwithstanding that the person may have had no applicable and collectible insurance with respect to that automobile at the time of the accident in which the damage was incurred, if at the time of the accident, the person was driving the automobile or had the care or control of it, whether it was in motion or not.

             (4)  Where a question arises between a person's insurer and the Facility Association as to whether a person is insured under a contract of insurance under section 33 or has other insurance with respect to the damages claimed, the person may, at his or her option, make a claim for damages against the insurer or apply to the Facility Association for payment of damages under sections 45.2 to 45.21.

             (5)  Where under subsection (4) a person elects to make a claim for damages against the person's insurer and liability is denied on the grounds that the person is not insured under a contract under section 33 and has no other insurance with respect to the damages claimed, the person may, under sections 45.2 to 45.21, apply to the Facility Association for payment of damages.

             (6)  Where under subsection (4) or (5) a person makes a claim for damages under sections 45.2 to 45.21 by applying to the Facility Association for payment of damages and the Facility Association makes a payment to the person under those sections, the Facility Association is subrogated to the extent of those payments to the rights of the person to whom the payments are made and, where, in the opinion of the Facility Association, the person is insured under a contract under section 33 or has other insurance with respect to the damages claimed, the Facility Association may bring an action in its name or in the name of that person against the insurer to recover the amount of the payment.

             (7)  A payment made by the Facility Association under subsection (6) shall not bar the person to whom it is made from making a claim against the person's insurer for damages in excess of the amount of the payment by the Facility Association.

             (8)  For the purpose of this section a person shall not be considered to have insurance coverage or inadequate insurance coverage only because he or she receives or is entitled to receive compensation or benefits under the Medical Care and Hospital Insurance Act , the Income and Employment Support Act or the Workers' Compensation Act for injuries or damages arising out of an accident involving an automobile.

1994 c4 s3; 2002 cI-0.1 s55; 2016 cM-5.01 s56

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Application to Facility Association

   45.2 (1) A person who would have a cause of action against an owner or a driver of an automobile, other than an automobile owned by or under the care and control of that person, for damages for personal injuries to or the death of a person or damage to property, arising out of the operation, care or control of the automobile in the province, except a person entitled to apply under section 45.3, may apply on a form provided by the Facility Association for payment by the Facility Association of the damages respecting that death, personal injury or property damage.

             (2)  Upon receipt of an application under subsection (1), the Facility Association shall, by registered or certified mail, forward a notice of the application for payment by the Facility Association to the owner and the driver of the automobile against whom liability for the damages caused by the operation of the automobile is alleged, to their latest known addresses or their latest addresses as recorded by the Registrar of Motor Vehicles.

             (3)  The Facility Association may, respecting an application made under subsection (1), make payment, subject to the same conditions, limits, deductions and exclusions which would apply to an application by a judgment creditor under sections 45.3 to 45.21, with the necessary changes, of an amount that it considers proper in all the circumstances if

             (a)  the applicant executes a release of all claims arising out of the automobile accident, subject to subsections 45.1(6) and (7), that caused the damages to be paid by the Facility Association; and

             (b)  subject to paragraph (c), the owner and driver of the automobile against whom liability for the damages caused by the operation of the automobile is alleged, execute a consent to the payment of the sum for damages by the Facility Association and also execute an undertaking in a form provided by the Facility Association to repay to the Facility Association the amount to be paid by the Facility Association; or

             (c)  the person to whom a notice is sent in accordance with subsection (2) does not reply within 30 days of the date upon which the notice was sent either,

                      (i)  by mail, or

                     (ii)  by attending in person at the place named in the notice,

and disputes liability to the person applying under subsection (1).

             (4)  Where an amount is paid out by the Facility Association under subsection (3) or (5), the Facility Association shall, to the extent of the amount paid out, be considered to be a creditor of every person against whom liability for the damages caused by the operation of the automobile is alleged and who was given notice under subsection (2), and upon filing with the Trial Division of a certificate of the Facility Association in a form prescribed by regulation stating the amount paid out, judgment may be entered in that amount in the name of the Facility Association as a judgment of the Trial Division, and, without the consent of the Facility Association, no execution under a judgment obtained respecting those damages shall be made by a person other than the Facility Association against the property of the judgment debtor until the judgment debt of the Facility Association is satisfied.

             (5)  The Facility Association may in its discretion make interim payments to claimants claiming damages for personal injury where the responsible person or persons do not dispute their liability after a notice is sent to them under subsection (2).

1994 c4 s3; 2013 c16 s25

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Application after judgment

   45.3 Subject to section 45.8, where a person obtains in a court in the province a judgment

             (a)  against an owner or a driver of an automobile, other than an automobile owned by or under the care or control of the person, for damages for injuries to or the death of a person or damage to property, arising out of the operation, care or control of the automobile in the province; or

             (b)  against a party unknown as described in section 45.10, for damages for injury to or the death of a person arising out of the operation, care or control of an automobile in the province,

upon the determination of all proceedings, including appeals, the person may apply to the Facility Association for payment of the amounts in respect of the judgment to which the person is entitled under sections 45.2 to 45.21.

1994 c4 s3

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Payment

   45.4 The Facility Association shall pay out to the person the amount of the judgment including the costs included in the judgment, or that part of the judgment including the costs to which the person is entitled, if

             (a)  the person makes an affidavit

                      (i)  as to what amount the person has recovered or is or was entitled to recover, from any source, for or in respect of an injury, death or damage to a person or property arising out of the operation, care or control of the automobile by the owner or driver of it against whom the judgment was obtained whether or not in the action damages were claimed for or in respect of the injury, death or damage and as to what compensation or services or benefits with a pecuniary value the person has recovered or received or is or was entitled to recover or receive for the injury, death or damage, and

                     (ii)  that the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance and that, subject to subsection 45.1(4), no part of the amount is sought to be paid by the Facility Association in place of making a claim or receiving a payment that is or was payable by reason of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance, and

             (b)  the solicitor for the person makes an affidavit

                      (i)  that the judgment is a judgment under section 45.3,

                     (ii)  giving particulars of the amount of damages for or in respect of injury or death, damage to property and the costs, included in the judgment,

                    (iii)  that in so far as the solicitor was advised by a person and learned of any facts during the litigation

                            (A)  the solicitor, subject to subsection 45.1(4), has commenced action against all persons against whom the person might reasonably be considered as having a cause of action for or in respect of the injury, death or damage to person or property as described in subparagraph (a)(i),

                            (B)  the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance and that, subject to subsection 45.1(4), no part of the amount sought to be paid by the Facility Association is sought in place of making a claim or receiving a payment which is or was payable by reason of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer in respect of any amount paid or payable by the insurer by reason of the existence of a contract of insurance, and

                            (C)  that except as disclosed in the applicant's affidavit, the person is and was not entitled to recover, from any source, nor to receive compensation or services or benefits with a pecuniary value, for or in respect of an injury, death or damage to person or property as described in subparagraph (a)(i), and

                    (iv)  that the action was defended throughout to judgment or that there was a default or a consent or agreement by or on behalf of the defendant and that the solicitor complied with section 45.8, and

             (c)  the affidavits, together with

                      (i)  a copy of the statement of claim,

                     (ii)  a certified copy of the judgment,

                    (iii)  the assignment of judgment, and

                    (iv)  where applicable, the solicitor's taxed bill of costs,

are forwarded to the Facility Association.

1994 c4 s3

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Objection to application

   45.5 (1) Where, on an application to the Facility Association,

             (a)  all the documents required under section 45.4 are not forwarded;

             (b)  a matter required to be in an affidavit is omitted;

             (c)  the amount requested to be paid by the Facility Association is, in its opinion, greater than the amount to which the applicant is entitled under sections 45.2 to 45.21; or

             (d)  for any reason, the Facility Association wishes the application for payment to go before a judge of the Trial Division for an order for payment by the Facility Association,

the Facility Association shall, within 30 days of receipt of the application, advise the person of its objections to the application for payment and, subject to subsection (2), advise the person that he or she must obtain an order of a judge of the Trial Division for payment by the Facility Association.

             (2)  The Facility Association shall advise the person to remedy an objection it may have against payment and if the objection is remedied to the satisfaction of the Facility Association, it shall then make payment as provided in sections 45.2 to 45.4.

1994 c4 s3

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Application to Trial Division

   45.6 When a person is advised that payment shall not be made except by order of a judge of the Trial Division, the person may apply to a judge of the Trial Division, upon notice to the Facility Association, for an order directing payment by the Facility Association of the amount in respect of the judgment to which the person is entitled under sections 45.2 to 45.21.

1994 c4 s3

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Directed payment

   45.7 (1) The judge may order the Facility Association, subject to sections 45.2 to 45.21, to pay the amount with respect to the judgment to which the judgment creditor is entitled in accordance with those sections, if the applicant in his or her application satisfies the judge

             (a)  that the applicant has obtained a judgment under section 45.3, stating, whether against an owner, driver or a Party Unknown, the amount of the judgment, and the amount owing on the judgment, at the date of the application;

             (b)  that, subject to subsection 45.1(4), the applicant has commenced an action against all persons whom he or she might reasonably be considered as having a cause of action for an injury, death or damage to a person or property arising from the operation, care or control of the automobile by the owner or driver against whom the judgment was obtained;

             (c)  that the applicant has prosecuted every action in good faith to judgment or dismissal;

             (d)  that with respect to the amount to be paid, the applicant has not recovered and is and was not entitled to recover, from any source, an amount for or in respect of the injury, death or damage to person or property described in paragraph (b);

             (e)  that with respect to the amount to be paid, the applicant has not received and is and was not entitled to receive, from any source, compensation or services or benefits with a monetary value for or in respect of the injury, death or damage to a person or property described in paragraph (b);

             (f)  that the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer because of the existence of a contract of insurance, and that, subject to subsection 45.1(4), the amount or part of the amount sought to be paid out by the Facility Association shall not be sought in place of making a claim or receiving a payment that is or was payable because of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer respecting an amount paid or payable by the insurer because of the existence of a contract of insurance; and

             (g)  that the amount sought to be paid out by the Facility Association does not exceed the maximum amount payable under section 45.17.

             (2)  The Facility Association may appear and be heard on the application and may show cause why the order should not be made.

1994 c4 s3

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Failure to defend

   45.8 (1) Where an action is commenced and the defendant

             (a)  fails to file and serve a defence;

             (b)  fails to appear in person or by counsel at an examination for discovery, trial or appeal or notifies the plaintiff that such failure is likely; or

             (c)  consents to the entering of judgment,

an order may not be made under section 45.7, and money is not required to be paid by the Facility Association respecting a judgment obtained on those proceedings, unless, before proceeding further, the plaintiff gives written notice, as prescribed by regulation, to the Facility Association of that failure, notification, consent or agreement and affords it not less than 30 days to investigate the circumstances of the claim and an opportunity to take the action it considers advisable under subsection (2).

             (2)  Notwithstanding subsection (1), a judge may upon application by the Facility Association, extend the time within which the Facility Association may investigate the circumstances of the claim but that extension shall be for not more than 60 additional days.

             (3)  Where the Facility Association receives notice under subsection (1), it may, if it considers it advisable, on behalf and in the name of the defendant, take any step to enforce the defendant's right to compensation or indemnity arising from the claim available to the defendant, and take a step in the proceedings, including a consent to judgment in an amount that it considers proper in the circumstances, and all acts done under this subsection shall be considered to be the acts of the defendant.

1994 c4 s3

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Applicant to assign judgment

   45.9 (1) Money is not required to be paid by the Facility Association to comply with an order under section 45.7 until the judgment of the applicant or the portion of the judgment for which the Facility Association is liable or the applicant's interest in the judgment is assigned to the Facility Association.

             (2)  Upon filing a copy of the assignment of judgment, certified by the Facility Association to be a true copy, with the court in which the judgment was obtained, the Facility Association shall, to the extent of the amount of the assignment, be considered to be the judgment creditor.

             (3)  Where execution is issued in the name of the judgment creditor and a copy of the assignment of judgment, certified under subsection (2), is filed with the sheriff having the order of seizure and sale, subsection (2) shall apply with the necessary changes.

1994 c4 s3; 2013 c16 s25

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Party Unknown

45.10 Where injury to or the death of a person arises out of the operation, care or control of an automobile in the province but the identity of the automobile, the owner and the driver of it cannot be established, a person who would have a cause of action against the owner or driver in respect of that injury or death may, upon notice to the Facility Association, apply to a judge of the Trial Division for an order permitting the person to bring an action in the Trial Division against a nominal defendant designated as a Party Unknown.

1994 c4 s3

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Action against Party Unknown

45.11 The judge may make an order permitting the applicant to bring an action against a Party Unknown if he or she is satisfied that

             (a)  there are reasonable grounds for bringing the action;

             (b)  all reasonable efforts have been made to ascertain the identity of the automobile involved and of the owner and driver of it;

             (c)  the identity of the automobile involved and of the owner and driver of it cannot be established; and

             (d)  the application is not made by or on behalf of an insurer in respect of an amount paid or payable because of the existence of a contract of insurance, and that, subject to subsection 45.1(4), no part of the amount sought to be recovered in the intended action is sought in place of making a claim or receiving a payment that is or was payable because of the existence of a contract of insurance, and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify the insurer respecting an amount paid or payable by it because of the existence of a contract of insurance.

1994 c4 s3

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Facility Association pleadings

45.12 In an action brought against a Party Unknown under sections 45.10 and 45.11 the Facility Association

             (a)  has all the rights of a defendant in the action, but nothing in this section imposes liability upon the Facility Association; and

             (b)  may plead the general issue and give the special matter in evidence.

1994 c4 s3

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Dismissal where driver unknown

45.13 (1) Where an action for damages for injury to or the death of a person, arising out of the operation, care or control of an automobile in the province has been dismissed and the judge in dismissing the action states in writing that the injury or death arose out of the operation, care or control of an automobile

             (a)  the identity of which and the owner and driver of which is not established; or

             (b)  at a time when that automobile was, without the consent of the owner, in the possession of a person other than the owner and the identity of the driver is not established,

sections 45.10 and 45.11 shall be available for a period of 3 months from the date of the dismissal, notwithstanding an Act limiting the time within which an action may be brought.

             (2)  Where, under subsection (1), an application is made under section 45.10, paragraph 45.11(c) does not apply.

1994 c4 s3

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Party Unknown added as defendant

45.14 (1) Where an action for damages for injury to or the death of a person arising from the operation, care or control of an automobile in the province is commenced and the defendant by the pleadings alleges that the plaintiff's damage was caused by a Party Unknown, the plaintiff may apply to add the Party Unknown as a defendant and section 45.11 shall apply with the necessary changes.

             (2)  This section does not limit or restrict a right to add or join a person as a party to an action under the Rules of the Supreme Court.

1994 c4 s3

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Application for declaratory judgment

45.15 (1) Where judgment has been obtained against a Party Unknown, the Facility Association may bring an action against a person for a declaratory judgment, declaring that person to have been, at the time of the accident, the owner or driver of the automobile in respect of the operation, care or control of which the judgment was obtained, and the court may give judgment accordingly.

             (2)  An action under subsection (1) may be commenced in the Trial Division.

             (3)  When a declaratory judgment has been given under this section,

             (a)  the person declared in the judgment to be the owner or driver shall be considered to have been the defendant in the action in which judgment was obtained against the Party Unknown and the judgment against the Party Unknown shall be considered to be a judgment against that person; and

             (b)  the Facility Association shall be considered to have obtained a judgment against that person for the amount of all money paid by it in respect of the judgment against the Party Unknown and shall accordingly have all the rights of a judgment creditor, including the right to recover money that would have been payable in respect of the death or injury under a contract of insurance that was in force at the time of the accident, notwithstanding an Act limiting the time within which an action may be brought.

             (4)  Where the injury or death arose out of the operation, care or control of the automobile at a time when the automobile was, without the owner's consent, in the possession of some person other than the owner, that action shall be disposed of in the same manner as though the identity of the owner had not been established.

1994 c4 s3

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Reasonable effort required

45.16 In an action against a Party Unknown, a judgment against a Party Unknown shall not be granted unless the court in which the action is brought is satisfied that all reasonable efforts have been made by the claiming party to ascertain the identity of the automobile and the owner and driver of it and that that identity cannot be established.

1994 c4 s3

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Exemption from payment

45.17 (1) The Facility Association is not required to pay

             (a)  an amount in respect of a judgment in favour of a person who ordinarily resides outside the province, unless that person resides in a jurisdiction that provides substantially the same benefits to persons who ordinarily reside in the province, but a payment shall not include an amount that would not be payable by the law of the jurisdiction in which that person resides; or

             (b)  more than $200,000, exclusive of costs for injury to or death of 1 or more persons or damage to property resulting from a single accident occurring on or after the commencement of this paragraph except that payments with respect to damages for damage to property shall be limited to claims for damages greater than $250,

but, where the judgment creditor recovers or is or was entitled to recover, from any source, for or in respect of an injury, death or damage to person or property arising out of the operation, care or control of the automobile by the owner or driver against whom the judgment was obtained, whether or not in the action damages were claimed for, or, in respect of the injury, death or damage, or where the judgment creditor receives, or is or was entitled to receive, from any source, compensation or services or benefits with a monetary value for or in respect of the injury, death or damage, the amount recovered or received and the amount that the judgment creditor is or was entitled to recover or receive and the amount of the compensation and monetary value of any service or benefits received or that the judgment creditor is or was entitled to receive shall be deducted from the amount of damages included in the judgment and only the amount of damages included in the judgment after those deductions, or the maximum amount payable under paragraph (b), whichever is less, is required to be paid by the Facility Association.

             (2)  Notwithstanding subsection (1), in computing the amount payable by the Facility Association, a reduction shall not be made

             (a)  with respect to an amount recovered or recoverable by the judgment creditor under a contract of life insurance, where the amount is payable in respect of the death of the person;

             (b)  with respect to compensation or the monetary value of services or benefits which the judgment creditor received, or is or was entitled to receive, under the Hospital Insurance Agreement Act , the Medical Care Insurance Act , the Income and Employment Support Act or theWorkers' Compensation Act ; and

             (c)  with respect to

                      (i)  an amount recovered by the judgment creditor, or which the judgment creditor is entitled to recover, from those sources prescribed by regulation, or

                     (ii)  an amount of compensation, or the monetary value of benefits or services, received by the judgment creditor, or which the judgment creditor is entitled to receive, from those sources prescribed by regulation or where the compensation, benefits or services are of a kind prescribed by regulation.

             (3)  In this section "residence" shall be determined as of the date of the accident as a result of which the damages are claimed.

1994 c4 s3; 2002 cI-0.1 c55

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Costs not payable

45.18 (1) Subject to section 45.2, costs, other than costs taxed on a party and party basis, are not required to be paid by the Facility Association.

             (2)  Where an action has been maintained in part by an insurer and a part only of the amount of the judgment in the action is payable by the Facility Association, there shall not be paid by the Facility Association more than that part of the party and party costs of the action that bears the same ratio to the whole of those costs as the part of the judgment payable by the Facility Association bears to the whole amount of the judgment.

1994 c4 s3

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Supreme Court procedure applies

45.19 The practice and procedure of the Supreme Court of Newfoundland and Labrador or the court in which the application or action is brought, including the right of appeal and the practice and procedure relating to appeals, apply to an application or action under sections 45.2 to 45.21.

1994 c4 s3; 2001 cN-3.1 s2

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Prohibition re damages

45.20 (1) An application for the payment of damages shall not be made to the Facility Association by or on behalf of a government of a country or state including the governments of Canada, the United States of America or a province, state or political subdivision, corporation or agency of those governments.

             (2)  Subsection (1) shall not apply to applications under the Medical Care and Hospital Insurance Act , the Income and Employment Support Act or the Workers' Compensation Act .

1994 c4 s3; 2002 cI-0.1 s55; 2016 cM-5.01 s56

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Consent considered given

45.21 For the purposes of sections 45.2 to 45.20 all actions against owners and drivers whose liability results in payment by the Facility Association shall be considered to have been taken in their own right and all actions taken by the Facility Association in the settlement of claims and actions on their behalf shall be considered to have been taken upon their instructions and with their full consent.

1994 c4 s3

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Regulations

45.22 The Lieutenant-Governor in Council may make regulations

             (a)  respecting forms to be used for the purposes of sections 45.2 to 45.21;

             (b)  prescribing sources for the purposes of subparagraph 45.17(2)(c)(i); and

             (c)  prescribing sources of compensation, benefits and services, and kinds of compensation, benefits and services under subparagraph 45.17(2)(c)(ii).

1994 c4 s3

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Rep. by 2005 c29 s1

      46. [Rep. by 2005 c29 s1]

2005 c29 s1

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General penalty

      47. (1) A person who contravenes this Act or the requirements of obligations imposed on him or her under this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $200.

             (2)  The conviction of a person in accordance with subsection (1) or in accordance with another section of this Act does not operate as a bar to further prosecution for the continued contravention on the part of the person in accordance with subsection (1) or another section of this Act.

RSN1970 c17 s43

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Power of board

      48. The board has the general supervision of the rates an insurer charges or proposes to charge for automobile insurance.

1977 c82 s2

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Insurer to file rates

      49. (1) An insurer shall file the rates it proposes to charge for automobile insurance with the board.

             (2)  The board shall, in accordance with the regulations, approve, prohibit or vary the rates filed under subsection (1).

2005 c29 s2

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Prohibition

      50. An insurer shall not charge rates that have not been filed and, where they are required to, been approved by the board or considered to have been approved under this Act.

2005 c29 s2

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Change in rates

      51. Where an insurer wishes to make a change with respect to the rates filed with the board, the insurer shall file the rates it proposes to charge with the board and the board, where required to by the regulations, shall approve, prohibit or vary the change.

2005 c29 s 3

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Additional details or information

      52. Where the board is not satisfied that an insurer has filed all the matters necessary under sections 49, 50 and 51, or requires additional details or information, the board may, by order directed to the insurer, require the additional details or information.

1977 c82 s2

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Approval of rates

      53. Notwithstanding subsection 49(2), where the board, in accordance with the regulations, does not approve, prohibit or vary, in whole or in part, the rates referred to in subsection 49(1), or the change in rates filed under section 51, within the time limits set by the regulations, the proposed rates shall be considered to have been approved.

2005 c29 s4

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Investigation by board

   53.1 (1) Where at any time the board considers that rates charged or proposed to be charged by an insurer are too high the board may investigate those rates.

             (2)  Where, after an investigation under subsection (1), the board determines that the rates charged or proposed to be charged by an insurer are too high, the board may order the insurer to make a change to the rates the board considers appropriate.

2005 c29 s4

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Offence and penalty

      54. (1) An insurer who fails to comply with sections 49 to 53 or the regulations is guilty of an offence and is liable on summary conviction to a fine of not more than $5,000.

             (2)  Where an insurer is convicted of an offence under sections 49 to 53 or the regulations the minister may suspend or cancel the licence of the insurer.

1977 c82 s2

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Superintendent sent copy of decisions

      55. The board shall forward to the superintendent a copy of all decisions or orders made under sections 49 to 60.

1977 c82 s2

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Report of board

      56. (1) The board shall forward to the minister by May 1 in each year an annual report on the operation of the board under this Act for the preceding fiscal year.

             (2)  The minister shall lay the report before the House of Assembly within 15 days after he or she receives it or, if the House of Assembly is not then sitting, within the 1st 15 days that the House of Assembly is sitting.

1977 c82 s2; 1992 c39 s2

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General powers of board

      57. The provisions of the Public Utilities Act relating to the constitution, powers, procedures and practices of the board apply to and in respect of the board when acting under this Act.

1977 c82 s2; 1989 c37 s121

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Application of Public Utilities Act

      58. The provisions of the Public Utilities Act relating to investigations generally, appeals and stated cases shall apply to and in respect of the board or commissioners of the board when acting under this Act or the regulations.

1977 c82 s2; 1989 c37 s121

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Assessment

      59. The board shall, with the approval of the minister, levy an assessment on insurers in the same manner as if the insurers were public utilities under section 13 of the Public Utilities Act.

1977 c82 s2; 1989 c37 s121

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Regulations

      60. (1) The Lieutenant-Governor in Council may make regulations

             (a)  prescribing the basic rating groups, classes and other things that are necessary to the establishment of minimal requirements for a common rating structure that all insurers will be required to observe in the development of rates;

             (b)  respecting rate reductions in the case of automobiles owned by the same person;

             (c)  permitting insurers in the case of special risks, as defined by the regulations, to charge rates that have not been approved;

             (d)  respecting the filing of rates or an application for a change in rates by a rating bureau, as defined by the regulations, on behalf of 1 or more insurers;

         (d.1)  respecting the approval, prohibition or variation by the board of rates filed by an insurer under section 49 or 62.1 or with respect to changes to rates filed under section 51;

         (d.2)  delegating to the board power to make rules or policies respecting the manner and timing of filing of rates with the board;

         (d.3)  requiring an insurer to provide the types of information set out in the regulations to a claimant, who is, or alleges he or she is, entitled to recover from an insured covered by a motor vehicle liability policy or under a contract;

         (d.4)  respecting the time and manner of providing information referred to in paragraph (d.3);

             (e)  prescribing the manner of gathering statistics and other information;

             (f)  prescribing the exclusions, restrictions, terms and conditions with respect to a motor vehicle liability policy referred to in section 21;

             (g)  for the better administration of section 21 and sections 49 to 60;

          (g.1)  defining net loss of income and net loss of earning capacity for the purpose of section 26.4;

          (g.2)  setting the amount by which damages for non-pecuniary loss or damage shall be reduced for the purpose of section 39.1; and

             (h)  generally, to give effect to the purpose of this Act.

             (2)  A regulation made under paragraph (1)(d) does not relieve an insurer on whose behalf a rating bureau is acting for a failure by the insurer to comply with sections 49 to 60.

1977 c82 s2; 1983 c23 s4; 2004 c27 s10; 2005 c29 s5

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Consumer advocate

      61. (1) The Lieutenant-Governor in Council may appoint, upon the terms and conditions the Lieutenant-Governor in Council may determine, a consumer advocate for the purpose of a matter before the board under this Act.

             (2)  The costs relating to the consumer advocate shall be borne by the board.

2002 c6 s1

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Rate reduction

      62. (1) Notwithstanding paragraph 2(l), in this section

             (a)  "base rate" means the rate approved by the board for each coverage in each territory and specified in an order of the board and from which all other rates are derived by way of the application of differentials; and

             (b)  "rates" means base rates.

             (2)  On the day this section comes into force, the rates charged by an insurer for private passenger automobile insurance as approved by the board shall be reduced

             (a)  with respect to third party liability coverage, by 9% in all territories;

             (b)  with respect to collision coverage, by

                      (i)  27% in the Avalon district territory,

                     (ii)  37% in the Bonavista and Burin district territory and the remainder of the province other than the areas referred to in subparagraph (i) and (iii), and

                    (iii)  29% in the Labrador district territory;

             (c)  with respect to comprehensive coverage, by 19% in all territories;

             (d)  with respect to specified perils coverage, by 16% in all territories;

             (e)  with respect to all perils coverage, by the amount contained in paragraph (b) for the collision portion and by the amount contained in paragraph (c) for the comprehensive portion; and

             (f)  with respect to uninsured motorist coverage, by 11% in all territories.

             (3)  Subsection (2) applies to all contacts of insurance in effect on the date this section comes into force and to all contracts entered into from that date.

             (4)  An insurer shall refund to a person with whom it has entered into a contract of insurance the difference between the rates agreed to with the person at the time the contract was entered into and paid by him or her to the insurer and the rates the insurer is permitted to charge for the same coverage as a result of subsection (2) and, where the time remaining under the contract is less than a year, the refund shall be reduced proportionally.

             (5)  Notwithstanding subsection (4), where a contract that is in effect on the day this section comes into force expires within 3 months of that day, the insurer may credit the amount of the refund, calculated under subsection (1), to the insured on the premium to be paid for renewal of the contract, but the insured is entitled to the refund if he or she requests it or if he or she does not renew the contract with that insurer.

             (6)  Notwithstanding subsections (4) and (5), where a person is paying the premium under his or her contract in monthly payments, the insurer may credit the amount of the refund against the payments remaining on the contract.

             (7)  In this section and section 63,

             (a)  "private passenger automobile" refers to vehicles used for the purposes listed under the heading "Type of Use-Private Passenger"; and

             (b)  "territory" means the areas of the province set out under the heading of "Statistical Territory ",

in the automobile insurance statistical plan prepared under section 82 of the Insurance Companies Act .

             (8)  An insurer shall, within 30 days of the coming into force of this section, file with the board a revised schedule of rates reflecting the reductions required by subsection (2) and, where an insurer does not comply with this subsection, the board shall, by order, set rates that the insurer shall apply, that are in keeping with the reductions required under that subsection.

             (9)  This section applies to the Facility Association with respect to the insurance placed through the association.

2004 c27 s11

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Rate reduction

   62.1 (1) Notwithstanding paragraph 2(1)(l), in this section

             (a)  "base rate" means the rate approved by the board and specified in an order of the board and from which all other rates are derived by way of the application of differentials; and

             (b)  "rates" means base rates.

             (2)  Effective August 1, 2005, the rates for all types of coverage charged by an insurer for private passenger automobile insurance as approved by the board shall be reduced by at least 5%.

             (3)  Not later than September 1, 2005, an insurer that is reducing its rates by at least 5% shall file with the board the rates for all types of coverage it proposes to charge for private passenger automobile insurance.

             (4)  Notwithstanding subsection (2), an insurer may, not later than September 1, 2005, apply to the board for the approval of rates that have not been reduced by at least 5% and the board shall approve, prohibit or vary the rates proposed to be charged by the insurer.

             (5)  Where, as a result of an application under subsection (4), the board directs a reduction in rates in effect at the time the application was made, the reduction is considered to have taken effect on August 1, 2005.

             (6)  Where, as a result of an application under subsection (4), the board approves no change in the applicant insurer's rates, or an increase in those rates the board's decision shall take effect on the date the board may determine.

             (7)  This section applies to all contracts of insurance for private passenger automobiles in effect on the date this section comes into force and to all contracts entered into from that date.

             (8)  Where, as a result of this section, there is a difference between the rates agreed to by an insurer and a person insured under a contract at the time the contract was entered into and the rates the insurer is permitted to charge for the same coverage as a result of this section, the insurer may credit the amount of the difference to the insured on the premium to be paid for renewal of the contract, where the contract is renewed, but the insured is entitled to a refund of the difference where the insured terminates the contract or where the insured does not renew the contract with the insurer.

             (9)  Notwithstanding subsection (8), where a contract was entered into or renewed after August 1, 2005 between an insured and an insurer that makes an application under subsection (4), a rate reduction ordered by the board shall be credited against the premium paid or payable under the contract or, where the premium was paid in full, the reduction shall be refunded to the insured.

          (10)  In this section, "private passenger automobile" refers to vehicles used for the purposes listed under the heading "Type of Use-Private Passenger" and in the automobile insurance statistical plan prepared under section 82 of the Insurance Companies Act .

          (11)  This section applies to the Facility Association with respect to the insurance placed through the association.

          (12)  The reduction in rates required by this section are in addition to a reduction in rates that an insurer is required to make under section 62.2.

2005 c29 s6

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Rates based on age, sex or marital status to be reduced

   62.2 (1) Where, on August 1, 2005, an insurer, in a contract in effect on that date, has charged a person insured under the contract rates based, in whole or in part, on the age, sex or marital status of the insured person, and the rates are, as a result, higher than the person would have been required to pay for the same coverage if his or her age, sex or marital status had not been take into consideration, the difference between those rates shall be refunded to him or her.

             (2)  Notwithstanding subsection (1), where the time remaining under the contract is less than a year, the refund shall be reduced proportionally.

             (3)  Notwithstanding subsection (1), where a contract that is in effect on the day this section comes into force expires within 3 months of that day, the insurer may credit the amount of the refund, calculated under subsection (1), to the insured on the premium to be paid for renewal of the contract, but the insured is entitled to the refund if he or she requests it or if he or she does not renew the contract with that insurer.

             (4)  Notwithstanding subsections (1) and (3), where a person is paying the premium under his or her contract in monthly payments, the insurer may credit the amount of the refund against the payments remaining on the contract.

             (5)  This section applies to the Facility Association with respect to the insurance placed through the association.

2005 c29 s6

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Rates frozen

      63. (1) An insurer shall not apply for and the board shall not approve an application for an increase in a rate for private passenger automobile insurance for a period of 12 months from the date this section comes into force or a longer period the Lieutenant-Governor in Council may set.

             (2)  This section applies to the Facility Association with respect to the insurance placed through the association.

             (3)  This section is considered to have come into force on March 17, 2004.

2004 c27 s11