Manitoba Law Reform Commission Consultation Report on Presumption of Death Act

The Manitoba Law Reform Commission has released its Consultation Report on Improving Manitoba’s Presumption of Death Act. 

From the Executive Summary:

"Presumption of death legislation is not to be confused with survivorship or missing persons legislation. Survivorship legislation prescribes the order of death when two or more persons die in circumstances in which the order of death cannot be determined. Missing persons legislation provides access to records for the purpose of searching for a missing person. In contrast to both of these type of legislation, presumption of death legislation allows courts to issue orders declaring someone to be presumed dead so that the estate of the missing person may be administered, insurance proceeds may be paid out, or a spouse may remarry. Manitoba has statutes which deal separately with survivorship, missing persons and presumption of death."

"All Canadian jurisdictions have some form of presumption of death legislation regardless of whether or not the relevant legislative provisions are restricted, in their application, to specific statutory contexts or are laws of general application, or both. It would appear that the presumption of death legislation found in most other Canadian jurisdictions has been significantly amended since originally enacted. Conversely, Manitoba’s Presumption of Death Act has not been amended since first enacted in 1968. The purpose of this Consultation Report is to recommend improvements to Manitoba’s Presumption of Death Act in order to put it on par with presumption of death legislation found other Canadian jurisdictions."

The report:

• outlines the history and background which led up to the enactment of the Presumption of Death Act in Manitoba
• canvasses the need for reform with reference to legislation in other jurisdictions
• provides a summary of additional matters considered or reviewed by the Commission during its study of the Act, but about which it has made no recommendations
• provides a summary of the Commission’s provisional recommendations.

Since this is part of a consultation process, comments  are being invited and should reach the Commission by September 8, 2015.

New UK Insurance Act Implements Recommendations of Joint English/Scottish Law Commission Report

I often wonder whether law reform commission reports ever have any real impact. From time to time, an example comes along that shows that it is indeed the case that a report influences actual legislation.

Last week, the Insurance Act 2015 received Royal Assent in the United Kingdom.

The Act implements a series of reforms recommended by the English and the Scottish Law Commissions to modernize and simplify insurance contract law across the UK. This includes changes to matters relating to disclosure and misrepresentation, warranties and remedies for fraudulent claims.

The joint project by both law commissions was ambitious in scope and has had an important impact:

"The project began in January 2006. The teams working on the project at the two Commissions issued a scoping paper, inviting views on which areas of insurance contract law were in need of reform. In the light of the responses received, the teams published a paper setting out their decisions on the scope of the project. The first consultation, in 2007, covered pre-contract issues in consumer and business insurance. The size of the project led the Commissioners to design a phased programme of work (separating pre-contract consumer and business issues)."

"Our first report on Consumer Insurance Law was laid before Parliament in December 2009 and the Consumer Insurance (Disclosure and Representations) Bill was introduced in the House of Lords under the Special Bills Procedure in May 2011. The Bill was a priority for us in 2011. The Bill, now the Consumer Insurance (Disclosure and Representations) Act 2012, came into force on 6 April 2013."

"The Law Commissions' second joint consultation covering post contractual issues: damages for late payment, remedies for fraudulent claims, insurable interest and policies and premiums in marine insurance, closed in March 2012. Our third consultation on disclosure in business insurance and warranties was published on 26 June 2012. That consultation closed in September 2012. The results of these consultations fed into the second report and draft Bill, published on 17 July 2014. This covers disclosure in business insurance, warranties, remedies for fraudulent claims, and late payment."

Joint UK/Scottish Law Commission Review of Insurance Contract Law

The Law Commission (United Kingdom) and the Scottish Law Commission have been conducting a joint review of insurance contract law since 2007.

In July 2007, they published a Consultation Paper outlining proposals for the reform of insurance law in the areas of pre-contractual information and warranties.

In 2008, they published a summary of responses on consumer insurance reform as well as a summary of responses on business insurance reform.

This month, they published a policy statement on consumer insurance reform, judged to be the area most urgently in need of change:

"This paper is part of the Law Commissions’ joint review of consumers’ obligations to give information to insurers before entering an insurance contract. It considers the legal consequences where an intermediary acts negligently or dishonestly in transmitting pre-contract information from consumer to insurer (...)"

"It is therefore important to know whom an intermediary acts for when helping a consumer complete an insurance application. Unfortunately, the law in this area is uncertain, as the courts and the FOS [Financial Ombudsman Service] struggle to apply early 20th century cases to a rapidly changing market place (...)"

"In this paper we propose a new statutory code, based largely on the existing law. Where the current law does not provide clear answers, we have supplemented it by drawing upon FOS practice and industry understanding."

"The aim is to find a balance. Insurers should bear responsibility for those intermediaries within their control, and have appropriate incentives to exercise that control in a way that prevents problems from occurring. Insurers should not, however, be liable for the actions of genuinely independent agents."

Canadian Insurance Case Database

The Canadian Insurance Law Blog, published by Michael Thomas at the Vancouver firm Harper Grey, happens to have a Case Database that is searchable by jurisdiction, selected issues (e.g. bad faith, duty to defend, subrogation), and type of insurance.