Insurance regulatory environment
Forms of insurance business
Restrictions and prohibitions
Summary information for federal applications
Compliance with other statutes
Two levels of government regulate insurance in Canada. Federally, the Office of the Superintendent of Financial Institutions Canada (OSFI) is responsible for the prudential regulation of insurers carrying on an insurance business in Canada. Federal qualification of insurers is governed by the Insurance Companies Act (Canada), which is overseen by the federal minister of finance.
There are also 10 provinces and three territories (collectively, 'provinces') in Canada, which regulate market conduct activities of insurers carrying on business within each particular province. Each province has its own statute and its own government department that regulates insurance activities. Therefore, once established federally, all insurers will need to be licensed in each provincial jurisdiction in which they intend to carry on business.
The two main vehicles for establishing an insurance business in Canada federally are incorporation of a Canadian insurance company and qualification of a Canadian branch of a foreign insurance company. Insurers may also carry on business in Canada in other forms, such as a fraternal benefit society or a reciprocal exchange, and may be incorporated under the laws of a province. For simplicity, this update is mainly restricted to insurers carrying on business in Canada as a company or a branch, and whose primary regulator is OSFI. The information requirements and timing for incorporation of a Canadian company and establishment of a Canadian branch are very similar. Both involve an extensive approval application to OSFI. As a branch is not a separate legal entity from the foreign insurer, one of the main differences between the two vehicles is that a Canadian insurance company requires a board of directors and mandatory board committees, and is subject to – among many other guidelines – the OSFI Corporate Governance Guideline, which contains comprehensive requirements for board and committee oversight. Although a branch operation does not have a board, OSFI requires the chief agent of a branch to fulfil many of the corporate governance functions required of a board of a Canadian company. Despite the legal distinction between a company and a branch, from an accounting perspective (eg, financial and regulatory reporting), the branch is treated as a separate entity.
As indicated above, a number of insurers have been incorporated under the laws of a province. However, most of the largest insurers in Canada are federally incorporated, and many insurers that were originally incorporated provincially have migrated into federal jurisdiction, where the legislation is comparatively modern and solvency regulation is more robust. At least one provincial insurance regulatory authority is considering imposing a moratorium on the incorporation of insurers under its provincial laws and requiring existing insurers incorporated in that province (other than reciprocal exchanges and farm mutuals) to transfer to federal jurisdiction or another jurisdiction where the insurer is subject to supervision that meets the new solvency standards set by the International Association of Insurance Supervisors.
If an applicant wishes to incorporate a Canadian insurer federally or establish a Canadian branch, the focus of much of OSFI's review will centre on the proposed business plan that is submitted with the application, including the actuarial calculations. The business plan must be comprehensive and include, among other things, descriptions of the proposed activities (by line of business), a complete market analysis, identification of sources of capital and pro forma financial statements and solvency ratio calculations, in each case for three years following start-up. The business plan is to be stress tested for the three-year period. OSFI, including its actuarial staff, will probe and assess the business plan, including the actuarial calculations and stress testing. The amount of initial capital that OSFI will ultimately require will be determined based on the business plan's contents, stress testing and OSFI's own assessment.
The company or branch will be authorised to conduct life or non-life business only – that is, one or the other. No new dual-licensed or 'composite' companies are permitted in Canada. Any conditions or limitations will be stipulated in the order issued by OSFI (eg, "restricted to the business of reinsurance"). Generally speaking, governments, political subdivisions of governments, government agencies and government-controlled entities – other than qualifying foreign institutions – are not permitted to incorporate an insurance subsidiary in Canada.
The following table contains a summary of the processes and requirements to incorporate a Canadian insurer federally and qualify a Canadian branch, based on OSFI's issued guidance and instructions.
|Application timeframes||Approximately 12 to 18 months.||Approximately 12 to 18 months.|
||Order approving the insuring in Canada of risks by a foreign entity.|
|Minimum OSFI fees||C$32,000||C$32,000|
|Estimated fees for provincial licences(1)||C$65,000||C$65,000|
Once qualified as a federal insurance company or branch, the insurer will be required to obtain a licence in each province in which it intends to carry on business. Generally, to attract licensing requirements, the provincial legislation contemplates that the insurer will have some kind of presence and/or carry on some insuring activities in the province. However, at the time of writing, at least three provinces require licensing if the risk (eg, person or property) or peril is located in the province. Although the legislation of each of the 13 provincial jurisdictions varies, the Canadian Council of Insurance Regulators (CCIR)(3) has put together a standardised application form which can be used for applying for a licence in all 13 jurisdictions. Although the CCIR form is standardised, each jurisdiction will conduct its own evaluation of the application and may require additional information and documentation. The depth of provincial review and analysis can vary widely. Accordingly, timeframes for issuance of provincial licences also vary (roughly ranging from one month to six months or even more), and many provinces will not entertain the insurer's application until after the OSFI qualification process has been completed.
If there is a foreign bank in the applicant's corporate group, there are restrictions under the Bank Act (Canada) with respect to having a financial establishment in Canada, so that the provisions contained in that statute may have to be reviewed for compliance. Where the applicant is not Canadian, the establishment of a new Canadian insurance business will require a notification filing under the Investment Canada Act.
For further information on this topic please contact Carol Lyons at McMillan LLP by telephone (+1 416 865 7000), fax (+1 416 865 7048) or email (firstname.lastname@example.org). The McMillan LLP website can be accessed at www.mcmillan.ca.
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