Office of the Superintendent of Financial Institutions
Life insurance companies have issued participating and adjustable policies for many years. Management of these policies is subject to discretion by the company with respect to the management of the business, the level of policyholder dividends for participating policies and post-issue changes for adjustable policies. As a result, participating policies have historically been subject to a number of provisions in the Insurance Companies Act (ICA) Footnote 1. In 2005, the ICA was amended to incorporate additional requirements for the management of participating policies and new requirements were added for adjustable policies. In 2010, the new Policyholders Disclosure Regulations (Regulations), which support the ICA on the subject of participating and adjustable policies, were enacted.
This guideline outlines OSFI’s expectations regarding the implementation of the requirements found in the ICA and the Regulations.
Please refer to OSFI’s Corporate Governance Guideline for OSFI’s expectations of company Boards of Directors in regards to operational, business, risk and crisis management policies.
A participating insurance policy is defined by the ICA (Section 2(1)) as “a policy issued by a company that entitles its holder to participate in the profits of the company.” The ICA requires companies to maintain participating accounts if they have participating policies in-force. Participating policies participate in the profits of such participating accounts.
Generally, participating policies are distinguished from other policies by the existence of policyholder dividends. These dividends are the normal mechanism used for the sharing of profits with policyholders. However, there are cases where policyholder dividends are zero, fixed or minimal. In cases where the policyholder contract states that the policy is participating, such policies are subject to all of the participating requirements of the ICA, the Regulations and OSFI guidelines.
The following summarizes the sections of the ICA that specifically deal with participating policies:
Adjustable policies are referenced in Section 2(1) of the ICA, which points to the Regulations for a detailed definition. This definition is discussed in more detail in Section 4 below.
The following is a summary of the sections of the ICA that specifically refer to adjustable policies:
Sections 456 through 462 of the ICA deal with certain requirements regarding the operation of participating accounts. This part of the guideline outlines OSFI’s expectations with respect to these requirements.
Section 456 of the ICA requires companies to maintain accounts in respect of participating policies separate from those maintained in respect of other policies. The Superintendent has the authority to determine the form and manner to be used to maintain these participating accounts. Depending on a company’s history and past operations, there may be several separate participating accounts maintained under section 456 of the ICA. Unless specifically excluded, the expectations set out in this guideline apply to all separate participating accounts established by a company pursuant to section 456 of the ICA.
The term “closed block” used in this guideline refers exclusively to closed participating blocks resulting from demutualization.
OSFI is committed to having companies enhance the level of disclosure to participating policyholders in order to facilitate informed decision-making and informed policyholder expectations. In this regard, OSFI expects companies to develop and publish meaningful descriptions of the investment income and expense allocation methodologies required pursuant to sections 457 and 458 of the ICA.
Section 459 of the ICA requires that the Board of Directors (the Board) of a company file a copy, with the Superintendent, of a resolution approving the method of allocation of investment income and expenses to a participating account within thirty days after making the resolution.
Given the importance of fairness to participating policyholders, the ICA requires that the allocation methodologies must:
Even where a company has met the above two requirements, the Superintendent may disallow an allocation method if it is deemed not to be fair and equitable to the participating policyholders. See Section 3 of this guideline for a discussion of the general principles for deciding on fairness and policyholders’ reasonable expectations.
Section 461 of the ICA addresses payments to shareholder accounts from participating accounts. Each financial year companies are permitted to transfer an amount from each participating account. These amounts are based on a calculation using the following information and factors specified in Section 461:
The ICA requires several opinions by the Appointed Actuary with respect to the operation of the participating accounts. Section 165 of the ICA requires the following with respect to reports from the Appointed Actuary concerning participating accounts:
Sections 457 and 458 each require a written opinion by the Appointed Actuary that the methods of allocation of investment income and expense to the participating accounts are fair and equitable to the participating policyholders. Section 460 requires an annual opinion by the Appointed Actuary to the Board on their continuing fairness.
Section 464 requires the Appointed Actuary to report in writing to the Board on the fairness to participating policyholders of a proposed dividend and whether it is in accordance with the policy. The Board shall consider the Appointed Actuary’s report before declaring the dividend. OSFI expects the Appointed Actuary to send a copy of all such reports to the Superintendent within thirty days after such reports are presented to the Board.
However, the ICA and the Regulations do not explicitly specify how fairness is to be determined. The following are general principles for deciding on fairness for participating dividends:
In addition to the above general principles on fairness, OSFI expects that the company will consider Policyholder Reasonable Expectations (PRE). PRE are the reasonable expectations by policyholders of the company’s exercise of discretion in matters concerning their policies. PRE arises from the company’s communications in marketing materials, from information provided at the point of sale (such as policyholder dividend and investment performance illustrations), from its past and continuing administration practices and from general standards of market conduct. Past practice includes the non-exercise of discretion by the company.
The ICA also requires several opinions from the Appointed Actuary with respect to adjustable products. Section 165 requires the following with respect to adjustable products:
Section 464.1 requires the Appointed Actuary to report in writing to the Board on whether the changes that the company made to its adjustable products are in accordance with the criteria established and are fair to the policyholders. OSFI expects the Appointed Actuary to send a copy of all such reports to the Superintendent within thirty days after such reports are presented to the Board.
The following are general principles for deciding on fairness for changes made to adjustable policies:
The ICA provides for regulations to be made with respect to the content of company policies regarding the management of each of the participating accounts and the criteria for changes to adjustable policies.
In this regard, the Policyholders Disclosure Regulations came into force on June 1, 2011. The Regulations have the following sections:
The disclosures made pursuant to the Regulations are expected to have the following characteristics for participating accounts and adjustable products:
The Regulations require that the company’s policies dealing with dividends and bonuses to be paid to the participating policyholders and the management of the participating accounts be disclosed and available to shareholders and policyholders. In this regard, OSFI expects companies that have participating policies in force to provide the information necessary for the policyholder to have an understanding of the operations of participating accounts. Such appropriate disclosure should contribute to enabling policyholders to form reasonable expectations with respect to dividends, and to obtain reasonable knowledge of the nature of participation, the operation of participating accounts and the methods used in deciding on the distribution of participating account surplus to policyholders.
The following are specific comments for certain subsections of the Regulations dealing with participating accounts.
The company should explain its policy concerning the determination of distributable surplus which is to be paid as participating dividends.
If a permanent contribution to participating account surplus is expected under the policy, this methodology should be explained and the rationale for this approach should be provided. Guidance should be given with respect to the effect on the participating accounts. If other methods are used to manage participating account surplus, they should be explained and the rationale should be provided.
The policyholder’s participation in the experience of the company (which is common policy contract language) should be explained such that policyholders understand that they are participating in the results of the participating account to which the particular policy belongs. It should be clear how that participation is achieved, e.g., through policyholder dividends, bonuses, etc.
The statement should be clear that since actual levels of experience cannot be known in advance, dividends cannot be guaranteed. It is also important for the statement to note that experience can deteriorate over time and that, as a result, dividends may be reduced.
If the company pays terminal dividends, the difference between this type of dividend and normal periodic policyholder dividends should be described clearly.
If the company smooths participating account experience by introducing the effects of changed experience into the dividend scale on a gradual basis, this should be described.
It is important to indicate that policyholder dividends are generated by the differences between actual levels of experience for certain factors (e.g. mortality, expenses, investment income, etc.) and assumed levels of experience for these factors.
In the case of a company that distributes profits from other than participating business to participating policyholders, the company’s policy and practice should be described.
If there are several participating accounts for which experience is tracked separately, the methods used for the measurement of experience of these participating accounts should each be described.
It should be clear which participating accounts, if any, are closed to new business.
In the case of closed accounts resulting from demutualization, such practices were required to be implemented upon demutualization and the description should make reference to the company’s obligation in this regard.
If this amount is less than the maximum allowable percentage that the company may transfer to shareholders, this is expected to be disclosed.
The policy is expected to indicate if the company intends to transfer the full permitted percentage of distributable participating profits to shareholders. If the company has a practice of limiting the amount of this transfer, this should be disclosed.
Such disclosure is for the benefit of the policyholders and should be supportive to this expectation.
The company can satisfy the requirement to provide a summary by providing the policies themselves, provided they meet the characteristics of disclosure stated earlier.
It is OSFI’s view that disclosure of just the total annual change in surplus provides insufficient information to policyholders to form their expectations. This is due to a number of factors:
Consequently, OSFI expects that disclosure will include the following items for participating accounts other than closed participating accounts resulting from demutualization:
For closed participating accounts resulting from demutualization, the corresponding items are:
(‘Excess’ is defined as the amount by which the value of the assets in a closed block exceeds the amount of the policy liabilities in that closed block.)
With respect to adjustable policies, Part 2 of the Regulations defines them as “an individual life insurance policy, other than a participating policy, that is issued by a life company and for which the company may at its sole discretion directly or indirectly change the premium or charge for insurance, the amount of insurance or the policy’s surrender value, but does not include:
The specific reference to “life insurance policies” results in the adjustable policy disclosure requirements in the Regulation not being applicable to accident and sickness policies. Accident and sickness policies include, but are not limited to, critical illness, long-term care and individual disability income policies.
The definition of adjustable policies in the Regulations states that policies are not classified as adjustable if changes “…can be determined under the terms of the policy or schedule to the policy.” For this exclusion to apply, this determination should be possible to be made by the policyholder using the provisions in the policy contract. The following are examples of where such exclusions would apply, even if an actual schedule is not included in the policy contract but a methodology is specified:
Policies that allow changes to the premium or charge for insurance, the amount of insurance or the policy’s surrender value based on company decisions not linked to market rates, indices or other measures determinable by policyholders should be classified as adjustable policies.
The Regulations use the term “directly or indirectly” in reference to changes in premiums, charges for insurance, amount of insurance or surrender values. This term is interpreted to cover, in the broadest sense, any possible changes, including but not limited to, revised product designs, administration charges, etc. which affect the premium or charge for insurance, the amount of insurance or the policy’s surrender value.
The Regulations require disclosure to the policyholder when a change has been made in an adjustable policy. This is different than for participating policies in that it is only required after a change, if any, is made. The characteristics of the disclosure after a change are expected to be the same as shown for participating account disclosure at the start of this section of the guideline.
This section deals with the operation of closed blocks of participating policies resulting from the demutualization of Canadian mutual life insurance companies. It replaces the 1999 OSFI document Participating Account Restructuring in Canadian Company Demutualizations, which was used previously as a model for the structuring of participating and shareholder accounts during a demutualization.
OSFI considers that the requirements of this section apply to these closed blocks, whether they are still in the parent Canadian company, including its foreign branches, or whether they were subsequently transferred to its subsidiaries. Ancillary accounts which are not policyholder funds, are excluded from the requirements of this guideline.
The Operating Rules established at the time of a demutualization specify the restructuring of participating accounts commencing with demutualization and the rules to be followed in the operations of such participating accounts in future years.
If any requirement in this guideline is in conflict with a provision in the Operating Rules of a closed participating account established prior to the effective date of the Policyholders Disclosure Regulations, the Operating Rules will prevail and the provision will be deemed to be in compliance with this guideline.
The structure and rules can vary somewhat by company, but the following are required features of the past demutualizations and are expected to be followed in the case of any future demutualizations:
The detailed operating rules can vary slightly for each demutualization, as long as the above structure is followed. Examples of such variances in treatment include, but are not limited to:
If a company considers it necessary to change the basis of operation of the closed participating blocks, OSFI expects the proposed change to be made in accordance with the operating rules agreed at the time of demutualization. It is expected that a company will notify OSFI of any such planned changes. OSFI’s permission is required before such changes are implemented.
Gains and losses from operations will emerge each year in the closed participating blocks. The aggregate of any accumulated gains or losses in a closed block may be referred to as a Dividend Stabilization Reserve (DSR), which is the term used in this guideline, or some similar name as established by each company. OSFI expects that each company will manage its closed blocks so as to avoid the development of material excess, Footnote 3 or deficit, positions with respect to a closed block’s assets over policy liabilities. Any such excess or deficits from operations that emerge are to be distributed over time to the policyholders in the block through changes to the dividend scale. For this reason, the DSR is treated as an additional policy liability.
In order to avoid a tontine effect (under which dividends are inappropriately shifted from current policies to a smaller number of policies which remain active in future years), a DSR, positive or negative, should not continue to grow for an extended period. OSFI expects that each company has a policy with respect to the maximum operational size of the DSR for each closed participating account and that at least the amounts in excess of this will be distributed in a timely manner to policyholders through modification of the policyholder dividend scale.
In order to have assurance that this distribution is being done in a fair and orderly manner, OSFI expects that each company will retain, at least once every five years, an independent actuary to review the progress of the closed block and to offer an opinion as to whether the policyholder dividend policy and the actual payment of dividends are fair to the closed block participating policyholders, are consistent with their reasonable dividend expectations, and are such that the emergence of a tontine is avoided. The independent actuary should also opine on whether the company’s policy with respect to the maximum operational size of the DSR is appropriate and fair to policyholders. This review applies to all the closed blocks set up at the time of demutualization, whether they are still in the parent Canadian company, including its foreign branches, or whether they were subsequently transferred to its subsidiaries. The first such review is required as of the first financial year-end after 2012 January 1. The independent actuary should satisfy the criteria set out in OSFI’s guideline E-14 Role of the Independent Actuary.
With the passage of time, a closed block will decrease in size. It may reach a size such that a company may no longer consider it to be practical to maintain a closed block separately. In such a case, OSFI expects that the company would apply for permission to either merge the closed block with other blocks of participating business or implement another acceptable method of terminating the closed block. Any such termination methodology is expected to conform to the relevant provisions of the demutualization plan and the closed block operating rules. Application should be made using normal OSFI procedures for obtaining approvals of business changes. OSFI may require a report from an independent actuary on the fairness and appropriateness of the termination.
OSFI expects the company and its Appointed Actuary to report annually to OSFI, no later than 180 days following the company’s financial year-end on all closed participating blocks set up at the time of demutualization, whether they are still in the parent Canadian company, including its foreign branches, or whether they were subsequently transferred to its subsidiaries. In addition, OSFI expects the company and its Appointed Actuary to report annually to OSFI, no later than 180 days following the company’s financial year-end on closed participating blocks resulting from demutualization residing in subsidiaries.
The annual Appointed Actuary’s report to OSFI on each closed participating block is expected, at a minimum, to contain the following disclosures:
The Appointed Actuary’s report on the closed participating blocks resulting from demutualization should contain professional opinions in respect of each closed block stating that:
The par and adjustable policies requirements referred to in the ICA apply to Canadian incorporated life insurance companies, including any foreign branch operations outside of Canada. The par and adjustable policies requirements of the ICA do not apply to a foreign subsidiary of a Canadian insurance company or to the Canadian branch business of a foreign insurance company.
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A par account may arise for a number of reasons, including:
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The amount by which the value of the assets backing the policies in a closed block exceeds the amount of the policy liabilities as determined under generally accepted actuarial practice, based on the current approved dividend scale.
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