On June 13, 2019, the main provisions of the new Québec Insurers Act and amendments to the Act respecting the distribution of financial products and services (“Financial Products Act”) came into force. Among other things, these provisions set out the regulatory requirements for insurers and insurance intermediaries selling insurance online in Québec (online insurance has been sold in Québec for many years, but without formal regulation).
The finalized Regulation respecting Alternative Distribution Methods (“Online insurance Regulation”) sets out details of the new obligations on insurers and insurance intermediaries. The draft regulation (“Draft Regulation”) that was published in 2018 has undergone a number of changes in response to industry comments.
Insurers and insurance intermediaries have until June 2020 to comply with certain of their new obligations as set out below.
Framework for the Sale of Online Insurance
The Online Insurance Regulation regulates:
- online offers of insurance by intermediaries and insurers without the intermediary of a natural person; and
- offers of insurance through a distributor.
The finalized regulation specifically excludes non-transactional websites, such as those that facilitate comparison shopping, unless they redirect users to an insurer’s website to conclude an insurance policy. This exception was absent from the Draft Regulation.
Disclosures to the AMF
Initially, insurers must disclose certain information about their website and the products offered on it to Québec’s insurance regulator, the Autorité des marchés financiers (“AMF”). [s. 4] Insurers are also required to make annual disclosures with respect to the:
- Amount of premium written;
- Number of policies issued;
- Number of financial plans prepared;
- Number of claims settled; and
- How often clients cancelled their policies within the 10-day period provided for by s. 64 of the Insurers Act. [s. 5]
Disclosures to clients
As was the case prior to the recent amendments, certain disclosure obligations apply to both insurers and firms while some are applicable only to insurers. The final Online Insurance Regulation makes several changes to an insurer’s disclosure obligations, including:
- Insurers are required to ensure that the means to interact with one of its representatives (e.g., a chatbox) is visible at all times [s. 8(1)]; and
- Insurers are required to inform the client about his/her right of rescission or cancellation and the procedures for exercising it after the conclusion of the contract, not before. [s. 12(2)]
The Online Insurance Regulation also contains provisions relating to the design, operation and monitoring of insurers’ websites. The Regulation makes the following notable changes:
- The scope of an insurer’s confidentiality and security obligations is broadened with respect to the storage of clients’ information as well as its collection, use, and delivery; [s. 13(3)]
- Insurers are required to interrupt offers of insurance of persons that are likely replacing other contracts where the replacement cannot proceed through the website in accordance with s. 22 of the Regulation respecting the pursuit of activities as a representative; and [s. 14(2)]
- Insurers are required to suspend proposals for insurance of persons where no representative can immediately interact with a client who has asked to interact with a representative and where there is a risk that the client, despite the information that the insurer sent to him or her, is unable to make an informed decision. [s. 14(3)]
In a significant change from the Draft Regulation, the finalized Online Insurance Regulation does not prohibit advertising when the client is in the process of completing his application, unless it is “unrelated to the product or service”. While the AMF had previously argued for an outright prohibition, the government appears to have accepted industry submissions that related advertising could provide valuable information to a customer. [s. 18(1)]
Offers Through a Distributor
With respect to the distribution method of offering insurance, the Online Insurance Regulation modifies the obligations of both insurers and distributors.
With respect to the collection by distributors of a client’s medical or lifestyle-related personal information, the finalized Online Insurance Regulation requires the distributor to deliver a notice of specific consent to the client, but only if the distributor wishes to use the information for purposes other than those for which it was collected. [s. 25] The Draft Regulation included a broader notice requirement.
Disclosure to the AMF
Insurers must disclose to the AMF information that is similar to what must be disclosed in the case of online insurance (see above):
- Amount of premium written;
- Number of insurance policies and certificates issued;
- Number of claims and amount of indemnities paid;
- Number of rescissions and cancellations; and
- Remuneration paid to distributors and third parties. [s. 21]
If an insurer removes a distributor from its distributors’ list, it must inform the AMF of the reason. [s. 20] One other change from the Draft Regulation is that insurers will be given 30 days to disclose any changes in their initial disclosure. [s. 20(2)]
Disclosure to clients
The Online Insurance Regulation requires insurers to require distributors to deliver a product summary at the time they offer the product to clients, together with a fact sheet in a form prescribed by the Online Insurance Regulation. The fact sheet is a document prepared by the AMF that lists relevant consumer rights, whereas the summary is a concise document that is prepared by the insurer to explain its product, both broadly and through such specific information as the product coverage, exclusions, and limitations. [ss. 22, 28–29, Sched. 2] A summary and a specimen of an insurance product policy should be available on the insurer’s website if the product is offered by distributors. [s. 32]
As part of insurers’ obligation to supervise and monitor their distributors’ offering of products, insurers are required to adopt and implement procedures to supervise and train distributors and their representatives [s. 33]. These procedures may be helpful because insurers are liable for any acts of distributors or their representatives in connection with underwriting an insurance policy or enrolling a participant [Insurers Act s. 65].
Finally, the Online Insurance Regulation establishes several prohibitions relating to how insurers pay distributors, including a prohibition on profit-sharing and bonuses. [s. 35(2)]
Next Steps: Effective Date and Transitional Provisions
The Regulation came into force on June 13, 2019, with the exception of certain provisions that will not take effect until June 13, 2020. These include the requirements:
- to make readily accessible on their websites a specimen of the policy for each offered product and any available endorsement, if applicable;
- to adopt and implement a procedure regarding the design, use, and maintenance of their websites and regarding the management and mitigation of risks; and
- to adopt and implement procedures to supervise and train distributors and their representatives.
In addition, until June 13, 2020, the insurer’s new obligation to deliver a summary and a fact sheet to distributors is deemed to be satisfied by delivering to clients a distribution guide that was provided to the AMF before June 13, 2019 in accordance with the requirement that existed prior to the coming into force of the new regime.