Added: Deann Berends - Date: 22.11.2021 11:03 - Views: 36225 - Clicks: 4057
Zurich  with respect to the "reasonable and bona fide " test under section 22 of the Code section 21 at the time of the complaint. This ruling is binding on all lower courts and tribunals and Boards of Inquiry have also applied the section 22 test in cases dealing with employment under section 25 of the Code . The defence in section 22 of the Code allows insurance companies to make distinctions in individual insurance policies and non-employment group insurance policies based on age, sex, marital status, family status or handicap but only if those distinctions are made on reasonable and bona fide grounds.
At issue before the Court was whether Zurich Insurance discriminated against Michael Bates when they charged him higher premiums for automobile insurance because of his age, sex, and marital status. The Court defined a practice as bona fide if it was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code.
It was not disputed that Zurich acted in good faith when setting its insurance premiums. The judgement focused on the application of the "reasonableness" test to the facts of the case. The Court held that a discriminatory practice is "reasonable" if:. I It is based on a sound and accepted insurance practice; and II There is no practical alternative.
In terms of the first part of the reasonableness test, a sound and accepted insurance practice was defined as one that is adopted "for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk". The majority of the Court found that Zurich's decision in setting the premiums was based on credible actuarial evidence available at the time of the complaint.
That actuarial evidence consisted of a statistical correlation between age, sex and marital status and insurance losses which showed that young male drivers are involved in more accidents than other drivers. The Court then considered whether a practical alternative existed at the time of the complaint. The Court found that, inthere was no practical alternative for Zurich to setting premiums based on age, sex and marital status.
The Court held it would be unreasonable to expect Zurich to guess at what level premiums should be set rather than relying on statistically valid, albeit discriminatory data. The Court made it clear, however, that the insurance industry should not continue indefinitely to use discriminatory criteria for rate setting. The Court found that, according to the evidence, three years are required to obtain meaningful statistics. The Court also stated that "the industry must strive to avoid setting premiums based on enumerated grounds".
The two dissenting judges would have ruled in favour of the Commission. They made a of persuasive arguments in keeping with a broad, liberal and purposive interpretation of human rights legislation:. The Court's application of the reasonableness test reveals the majority's deference to established tradition of the insurance industry.
Respondent insurance companies can easily argue that their practices are well established and accepted in the industry. This argument of tradition is not an accepted defence in other types of human rights complaints. And, one could argue that discriminatory attitudes and behaviours would not change if respondents could justify their actions based solely on tradition.
That being said, the Commission would have to consider the statistical evidence available to the insurance industry at the time of a complaint. However, as noted by the dissenting judges, simply because an insurance company does not Zurich ontario man sex charges statistics developed for their own use does not mean that current, non-discriminatory statistics could not be made available.
The Court's comments regarding an available practical alternative imply that the insurance industry could have developed a new system for automobile insurance based on non-discriminatory criteria.
To date, the industry has not developed a new system for automobile insurance. A similar automobile insurance complaint might now be decided quite differently. The Supreme Court clearly stated that the insurance industry should be actively working to develop non-discriminatory criteria for assessing risk. The existing discriminatory classification system may no longer meet the test of a sound and accepted insurance practice. The Section 22 defence in the Code includes auto insurance where distinctions may be made based on age, sex, marital and family status, or handicap, but these distinctions must be made on reasonable and bona fide grounds.
Presently in Ontario, auto insurance risk assessment is in part based on family groupings, age and sex. As a result complaints of discrimination on the grounds of marital status, family status, age and sex are likely to continue.
A variety of scenarios based on marital or family status can appear to result in discriminatory treatment. For example, children of the principal driver in a family may be rated as occasional drivers. At one time, female children were included free of charge where as male children were not. Female children drivers are no longer included free of charge.
There is an additional charge for both male and female occasional drivers, but the rate charged for males may be higher than that charged for females. In the situation where one member of a household has his or her suspended, the partner will likely have to pay a higher premium. The insurance company may feel that the suspended driver is a risk for driving without a and may increase the partner's premium according to their risk assessment.
Under the Insurance ActFSCO reviews all applications and the Superintendent will approve them if certain statutory standards related to risk classification and rates are met. Insurers have a right to request a hearing if approval is not given and the Superintendent holds a hearing if it is in the public interest to do so. Inthe former Ontario Insurance Commission OIC received application from an insurer that proposed a new risk classification and rate system based on criteria not directly related to driving.
A background paper prepared by OIC staff took the position that several elements of the proposed risk classification system were not just and reasonable and did not distinguish fairly between the risks due to their social policy implications. The OIC did not approve the application and, as required by the Insurance Actscheduled a hearing on the matter. The insurer subsequently withdrew its application before commencement of the hearing. Also, the Commission had concern that such criteria might have an adverse impact on women, youth and recent immigrants.
At the same time, the Court made it clear that the insurance industry should not continue indefinitely to use discriminatory criteria for rate setting and stated that "the industry must strive to avoid setting premiums based Zurich ontario man sex charges enumerated grounds". When these two aspects of the Zurich decision are read together, it might be argued that any Zurich ontario man sex charges proposed classification system, even if shown to be a better measure of risk, should at least not further contravene Part I of the Code any more than any current classification system does.
And in fact, such a newly proposed system should strive to avoid determining risk based on enumerated grounds. The OIC background paper argued a similar contention to the opinion of the two dissenting judges in the Zurich case. These judges found that a statistical correlation is not sufficient to justify the reasonableness of a discriminatory practice.
There must be a causal connection. It goes on to say that apart from a statistical relationship, risk classification criteria must also make a fair distinction. One indicator of the reasonableness of a risk classification system is its causality, i. Massachusetts, for example, uses a "Safe Driver Insurance Plan" that is based on driving record and a points system and not upon age, sex or marital status, except that there is a discount for those aged over sixty-five.
Moreover, Baer uses the term disability insurance to refer to insurance which is deed to replace lost income or to compensate for loss of enjoyment. He distinguishes this from insurance deed to cover medical expenses. Baer points out that the Insurance Act does not distinguish between short and long-term disability, whereas the industry and the Canadian courts do. However, group disability insurance policies often combine short and long-term occupational coverage. Baer also stipulates that the Insurance Act distinguishes between individual and group disability insurance contracts, and that Statutory Conditions do not apply to group disability insurance.
At the same time, most disability insurance is provided under group policies from employers or other organizations. That is, all members of an organization may be accepted into a group plan with membership in the group such as employment used as a rough proxy for good health, and a limited enrolment period for participation in the plan used to guard against adverse risk selection.
The risk may be further controlled by various policy exclusions particularly an exclusion relating to a prior medical condition. Section 25 3 offers two defences to insurance companies and employers who decline coverage to an employee because of a pre-existing handicap :.
Section 25 3 b is less onerous, as a respondent does not have to show that the handicap substantially increases the risk. Employers and insurers who make distinctions based on handicap in group insurance contracts in employment situations which do not fall within the requirements of the section 25 3 exemptions, are not entitled to a special defence under the Code.
The insurance industry uses exclusion clauses in long-term disability contracts to restrict individuals from making claims for conditions that pre-existed the effective date of coverage. These exclusion clauses are apparently intended to protect the insurer from individuals who an employer company primarily to obtain protection for an anticipated health problem that the insurer and employer are unaware of. The insurance industry calls this behaviour "adverse selection". Pre-existing condition limitations may vary, but they all limit coverage for some period of time for any condition that the employee was diagnosed or treated for during some period of time prior to the effective date of coverage.
The limitation in an exclusion clause is usually temporary. The employee will likely receive coverage for other conditions on the effective date and deferred coverage for the pre-existing condition. In the case of Thornton v.
North American Life Assurance Company et al. The exclusion clause in that plan prohibited employees from receiving long-term disability benefits if the employee received care or treatment by a physician in the 90 day period prior to the date the insurance became effective. The complainant had visited his physician twice in the first 90 days of his employment in order to discuss his HIV positive status.
Eleven months into his employment Mr. Thornton applied for long-term disability benefits because of an illness related to his HIV status. The Board of Inquiry dismissed the complaint. The Board also found that there was no practical alternative to this practice. A problematic scenario arises when an individual visits a doctor during the exclusionary period prior to coverage for a minor ailment Zurich ontario man sex charges is not yet diagnosed as a pre-existing handicap.
That is, the ailment that shows up prior to coverage is deemed to be a symptom of a pre-existing condition only after the point coverage begins. It might be argued that given that the intent of exclusionary clauses for pre-existing handicap is to protect the insurer from adverse selection, the seriousness of a condition should be known or diagnosed during the exclusionary time period prior to coverage in order to deny benefits. Baer explains that insurance contracts are considered to be contracts of utmost good faith where the insured is required to disclose to the insurer all material facts.
Baer finds that the Insurance Act has adopted modifications to the requirement of the utmost good faith, although the second is adopted by inference:. Section 25 3 a presents a higher standard for employers and insurers due to the fact that the pre-existing handicap must substantially increase the risk. The Board of Inquiry in Thornton defined "risk" to refer to the chances of a claim being made for the insurance benefit which is the subject of the exclusion. Under group disability insurance the insurer does not attempt to assess the degree of risk associated with individual employees.
The insurer accepts that some members of the group will be at risk of making a claim. Achieving a normal spread of risk in a group depends on the group being large enough to be statistically reliable. Very large groups of employees likely have a normal spread of risk.
According to the insurance industry, groups of less than employees are not expected to represent a normal spread of risk. An insurance company may not actually assess whether a condition substantially increases the risk of claims being made.
At the same time, in order to meet the requirements of section 25 3 a an insurance company should ensure that any distinction based on pre-existing handicap applies only to those handicaps that involve a high degree of risk.
However, meeting this Code requirement itself raises concerns. The exclusion of individuals who have a "pre-existing handicap that substantially increases the risk" in unequal treatment in employment because of handicap. This denial of long-term disability coverage is a barrier for persons with disabilities who have not yet entered the work force and for persons who are employed but could not change employment without losing the coverage they have with their present employer.Zurich ontario man sex charges
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