Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m F E B R U A R Y 2 0 1 9 7 N E W F O U N D L A N D A N D L A B R A D O R INSURANCE CAPS SPARK DEBATE I nsurance is a hot-button issue in Newfoundland and Labrador — and heating up even more. The industry is calling for a cap on minor injuries, an issue the public utilities board has investigated in a series of hearings and consultations. Its report is expected to be delivered to government early this year. In the mean- time, the Superintendent of Insurance has released her 2017 Insurance Statistics Report that shows a roughly $92-million gap between claims paid out and premi- ums taken in by auto insurance companies. The Insurance Bureau of Canada says that money is eaten up in overhead and related expenses, leaving business awash in red ink. It's a contention lawyers with the Campaign to Protect Accident Victims have dismissed as inflated. For insurance companies in Newfoundland and Labrador, "the landscape looks bleak," says Amanda Dean, IBC's vice-president, Atlantic in Halifax. "In 2016, for every dollar of premiums, it cost insurers $1.04 to work there. In 2017, it was $1.00 versus $1.01." The Campaign to Protect Accident Victims, launched by a group of personal injury law firms in the province, acknowledges that some of the contested $92 million is allocated for business expenses, but they do not believe these expenses account for the full amount. "The experts we have retained tell us insurance com- panies are overstating their costs," says Brad Wicks, managing partner with Roe- bothan McKay Marshall in St. John's and a founding member of the campaign. Premiums are only part of the profitability equation. Investments are another — and significant — source of revenue, Wicks says. "In the first quarter of 2017, the property and casualty insurance industry [nationally] made $986 million in profit from investments. It's very substantial and they don't talk about it." Dean points to a report prepared for the Newfoundland and Labrador Board of Commissioners of Public Utilities that "ultimately finds that insurers have been in a precarious financial position for years." The report concludes there has been an average return on equity of -2.4 per cent over the last five years. The insurance industry is calling for a minor injuries cap to minimize the payout to automobile accident victims like that in place in Nova Scotia and New Brunswick. At the same time, the campaign states, the insurance industry has also said that a cap on injury claims will not lower insurance premiums. The public utilities board will address the issue in its forthcoming report, but has already stated publicly it will not make recommendations specifically related to a cap, an announcement that has added fuel to an already hot issue. — donalee Moulton REGIONAL WRAP W H A T ' S H A P P E N I N G F R O M C O A S T T O C O A S T CLIMATE CLASS ACTION LAUNCHED IN QUEBEC P.8 INSURANCE CAP WILL IMPACT PERSONAL INJURY BUSINESS IN BRITISH COLUMBIA P.12 N E W B R U N S W I C K NEW REGS COMING ON WORKPLACE VIOLENCE AND HARASSMENT N ew Brunswick is joining the rest of Canada with the implementation of new regulations that will require employers to be more proactive in addressing issues of work- place violence and harassment. "We're catching up. It is time," says Jessica Bungay, a partner with Cox & Palmer in Fredericton. "Other jurisdictions have moved in this direction. We're late in the game." Under the new regulatory changes, which come into effect on April 1, harassment and violence are specifically defined as workplace hazards that affect health and safety. Sexual vio- lence and harassment, domestic violence and intimate partner violence are also included. The new regulations require employers to prepare codes of practice that address both the issue of harassment and workplace violence. The code is the equivalent of a harassment policy and must include a statement that employees have the right to a harassment-free workplace, says Bungay. "It didn't exist before, but a lot of employers were doing it as a best practice." Indeed, the current legislation calls for ensuring a safe environment generally, but does not deal with harassment and violence explic- itly. "At present, there is arguably an obligation under the Occupational Health and Safety Act to address these issues, but there is not the specificity," says Kelly VanBuskirk, a partner with Lawson Creamer in Saint John. The new regulations also require employers to perform a risk assessment analyzing the like- lihood of violence in their workplace. Certain factors must be considered, notes Bungay. This includes if there have been incidents in similar workplaces, any incidents in this workplace and whether intimate partner violence has occurred in the workplace. — donalee Moulton "The experts we have retained tell us insurance companies are overstating their costs." Brad Wicks, Roebothan McKay Marshall

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