The Discipline Committee of the ChAD has tackled this issue a number of times. What conclusion has it come to?

COLLABORATING WITH A CAR DEALERSHIP¹

A damage insurance broker was responsible for car insurance files in his firm. He would contact insureds who had bought or leased a vehicle and review with them the coverage offered by the car dealership. Actually, he merely verified a few pieces of information the clients had themselves provided.

By failing to provide the insureds with information on replacement cost and replacement insurance for their vehicles, the damage insurance broker was not fulfilling his advisory role. A formal complaint made up of five charges was filed against him; four of the charges pertained to breaching the duty to provide advice. In his defense, the damage insurance broker argued that he was following his employer’s orders. On October 4, 2016, the damage insurance broker was found guilty of the charges and fined $8,000.

[27] During the hearing, the respondent relied strongly on the fact that he was only following his employer’s instructions and that, unfortunately, they were inappropriate and led him to commit some of the offences of which he was accused in the complaint;

[28] However, as a professional, the respondent had ethical obligations that went beyond the instructions he may have received from his employer;

[29] It is worthwhile recalling that a damage insurance broker must at all times protect his professional independence and respect the letter and the spirit of his code of ethics, which is a public code; [unofficial translation]

This decision brings to mind a previous case that came before the Discipline Committee of the ChAD; the case concerned another certified professional who was also a damage insurance broker. This broker acted as an intermediary in issuing motorcycle insurance contracts. The investigation conducted by the Syndic’s Office revealed that the motorcycle dealership had gathered information without any involvement on the part of the certified professional who, furthermore, provided no advice to the insureds.

The formal complaint contained 75 charges, including one regarding engaging in professional activities with non-authorized individuals (in this case, motorcycle dealerships), under section 37 (14) of the Code of ethics of damage insurance representatives.

The respondent was found guilty of 52 charges and was temporarily struck from the membership roll for a period of seven to 30 days for each of the charges for which she was found guilty.

GIVING THE INSURED A COPY OF THE DAMAGE EVALUATION REPORT³

A claims adjuster was responsible for a claims file concerning water damage to the insureds’ home. The investigation conducted by the Syndic’s Office of the ChAD revealed, amongst other things, that the claims adjuster had never given the insureds a copy of the damage evaluation report that had been prepared for the insurer. In a formal complaint filed before the Discipline Committee of the ChAD, one of the charges concerned failing to inform, in breach of section 16 of the Act respecting the distribution of financial products and services and sections 21 and 58 (1) of the Code of ethics of claims adjusters.

During his testimony before the Discipline Committee, the claims adjuster acknowledged that he had not given the insureds a copy of the damage evaluation report, but argued that they had never asked for one. He went on to explain that his employer had issued instructions to not give insureds the evaluation of damages unless they asked for it.

The claims adjuster was found guilty of the charge and fined $1,000.

In response to the argument the respondent had raised in his own defence, the Discipline Committee reminded him that “a professional’s ethical obligations take precedence over an employer’s instructions and that this defence is therefore inadmissible.”

IN CONCLUSION

In each of the decisions discussed in this article, the ChAD’s Discipline Committee confirmed that a professional cannot shirk his or her ethical obligations and rely simply on the employer’s instructions.

Before establishing any new organizational structure, it is important for the company’s officers to review the legislation and regulations in force in order to ensure full compliance.

Maintaining one’s independence as a professional means always behaving in an ethical manner.

By M^e Marie-Josée Belhumeur, LL.B., Syndic

^{1. Chambre de l’assurance de dommages v. Domon​, 2016 CanLII 74877 (QC CDCHAD).
2. Chambre de l’assurance de dommages c. Légaré, 2010 CanLII 64055 (QC CDCHAD) et
Chambre de l’assurance de dommages v. Légaré, 2011 CanLII 9776 (QC CDCHAD).
3. Chambre de l’assurance de dommages v. Soucy, 2012 CanLII 50495 (QC CDCHAD) et
Chambre de l’assurance de dommages v. Soucy, 2013 CanLII 14894 (QC ​CDCHAD).}