The purpose of this bulletin is to provide information concerning the new requirements for individuals who are not lawyers and who provide representation to claimants under the Statutory Accident Benefits Schedule ("SABS representatives"), in order to comply with the amendments to the Insurance Act
introduced by the Keeping the Promise for a Strong Economy Act (Budget Measures)
As announced in Bulletin A-04/03 (Implementing Bill 198: New and Amending Regulations), the provisions applicable to SABS representatives come into force on November 1, 2003.
As a result of these changes, no one may act as an adviser, consultant or representative on behalf of a person concerning a claim for statutory accident benefits, unless the representative meets the requirements set out in the regulations. This includes, for example, a person who does any of the following activities concerning a claim for statutory accident benefits:
- advises another person about his or her rights under the SABS;
- completes or assists in completing application forms;
- discusses and negotiates with an insurer or adjuster;
- attends dispute resolution proceedings at FSCO, in Small Claims Court or private arbitration; or
- negotiates the settlement of SABS claims.
The regulations require SABS representatives to file information required by the Superintendent with the Financial Services Commission of Ontario (FSCO); carry errors & omissions (e & o) liability insurance coverage of $1,000,000 in respect of any one occurrence; and refrain from acting for any individual who they know, or ought reasonably to know, has a catastrophic impairment as defined in the SABS (O. Regulation 664 amended by O. Reg 275/03).
The regulations also amend the definition of "unfair or deceptive acts or practices" to prohibit the following conduct by SABS representatives:
- charging fees under a contingency fee arrangement;
- paying or accepting referral fees;
- committing an act or omission inconsistent with a Code of Conduct issued by the Superintendent; and
- failing to disclose any conflict of interest to the claimant and the insurer (O. Reg. 7/00 amended by O. Reg. 278/03).
Lawyers acting in the usual course of the practice of law and insurer representatives are exempt from these requirements. Lawyers’ employees are also exempt, provided they act only under the direct supervision of a lawyer who is retained, or whose law firm is retained, by the claimant.
Persons who provide representation without compensation (such as a friend or family member who assists a claimant in an informal and unpaid manner) are also exempt from these requirements. However, a person is considered to be providing representation for "compensation" if he or she receives, directly or indirectly, a financial benefit in connection with the claimant’s representation. Individuals who are paid service providers who combine the provision of health care or other services with claimant representation, must comply with these requirements.
Filing requirements for SABS representatives
All SABS representatives must file a declaration form with FSCO before November 1, 2003. Anyone who becomes a SABS representative after November 1, 2003, will need to file before engaging in the activities of a SABS representative. SABS representatives may commence filing with FSCO on September 2, 2003. In addition, he or she must re-file on or before the renewal date of his or her e & o liability insurance policy and any time the filed information changes (e.g. change to personal or business information, change to e & o liability insurance, or ceasing to act as a SABS representative).
The required information in the declaration includes basic personal identification information (name, home address and contact information); business information (business name, business address, and contact information); details of e & o liability insurance (information on the broker or agent, insurance company, and policy), confirmation and signature. There is no fee for this filing. The declaration is not an application for a licence or registration.
The easy-to-use e-filing service will be available through FSCO’s website at www.fsco.gov.on.ca beginning September 2, 2003. Simply go to the Paralegals / SABS Representatives page of FSCO’s website, which can be accessed through the Insurance or Consumers sections. A copy of the web page filing form is included with this bulletin for your reference.
A searchable list of SABS representatives who have filed with FSCO will be posted on the Paralegals / SABS Representatives page of FSCO’s website at www.fsco.gov.on.ca Only the SABS representative’s name, business name, and city in which he/she does business will be posted; no personal information will be posted. This list will ensure that claimants and insurance industry participants can verify that a SABS representative has filed with FSCO. It does not mean, however, that FSCO has endorsed the services or qualifications of the persons whose names are on the list.
A SABS representative who fails to file or fails to update the filing as required, is in violation of the Insurance Act and is not entitled to act as a SABS representative. He or she may also be subject to prosecution and administrative action taken by the Superintendent. Effective November 1, 2003, FSCO will not accept an application in any dispute resolution proceeding from a SABS representative who has not filed. Nor will FSCO allow a SABS representative to participate in existing proceedings after the deadline, if he or she has not filed.
SABS representatives are required to obtain e & o liability insurance coverage
Effective November 1, 2003, all SABS representatives must have e & o liability insurance coverage. This insurance may be available to some SABS representatives through membership in one of the paralegal associations. If not, he or she will need to obtain insurance directly. Please contact your insurance broker or agent directly for more information or ask them to contact ENCON Group Inc., which currently arranges this coverage.
A SABS representative must obtain and continue to maintain e & o liability insurance coverage in an amount that is not less than $1,000,000 in respect of any one occurrence, with an overall policy aggregate limit of at least $1,000,000 per person. The deductible must not exceed $5,000 in respect of any one occurrence.
Information with respect to the policy must be provided to FSCO when making and filing the declaration. In addition, if requested by FSCO, a SABS representative must provide a copy of the insurance certificate or policy.
SABS representatives are required to adhere to a code of conduct
The Code of Conduct for Statutory Accident Benefit Representatives (Code), issued by the Superintendent, sets out the standards of conduct expected of SABS representatives. The Code also includes requirements set out in legislation and regulation so as to be a comprehensive document.
A copy of the Code is attached. The Code is made under authority of the Insurance Act (Act) and subsection 4(1) of Ontario Regulation 7/00, as amended. The effective date is November 1, 2003. The Code governs the conduct of all SABS representatives, whether or not they appear in dispute resolution proceedings at FSCO.
A link to the Code is posted on the Paralegals / SABS Representatives page of FSCO’s website at www.fsco.gov.on.ca The Code will also be published in The Ontario Gazette. A copy may also be obtained by contacting FSCO. See contact information at the end of the document.
Additional information is available
Answers to frequently asked questions are attached. Further information is available through the Paralegals / SABS Representatives page of FSCO’s website. Simply go to the Insurance or Consumers sections of FSCO’s website to locate the link.
If you have questions about the requirements, new regulatory changes or the Code and how it applies to you, please contact FSCO at 416-250-7250 or 1-800-668-0128, or by e-mail at firstname.lastname@example.org
Bryan P. Davies
Chief Executive Officer and
Superintendent of Financial Services
July 28, 2003