An annual tradition in Ontario is an insured driver opening a letter from their insurer with their new or renewed automobile insurance policy, which includes their new "pink card" certificate evidencing their automobile insurance. This certificate is often requested by police officers during a roadside stop, and shown to other drivers in the event of an automobile accident.
The Ontario government recently approved changes to the "pink card" process which acknowledges the reality of 21st century data storage and sets the stage for further changes to automobile insurance.
What are the changes?
Motorists now have the option of carrying proof of automobile insurance on their smart phones or other mobile devices and this electronic certificate is required to have the same data fields, text, and overall appearance as the paper certificate. Rather than forgetting to replace an expired certificate or having to hunt through their glove box for their certificate, motorists will have the option of storing their certificate on their phones to be accessed on-demand.
The electronic certificate must be downloadable and capable of being stored in a secure manner on an electronic mobile device. Conceptually, demonstrating proof of automobile insurance will be similar to showing electronic tickets to board airplanes.
These changes are consistent with changes in other Canadian provinces and many American states.
When do the changes take effect?
Effective immediately, policyholders can now request an electronic version of the certificate from insurers who make this option available. However, insurers are required to issue paper versions of the "pink card" to all insureds for one year, to ensure that the transition to digital certificates is not disruptive.
What does this mean for consumers?
Motorists using digital certificates will be required to ensure that they can properly display these certificates on their phones at all times. This means that annoyances of low batteries or damaged screens may cross the line into legal challenges if digital insurance certificates are not made available when required.
Consumers must take care when travelling outside of Ontario. Electronic certificates are not universally accepted as proof of insurance. Motorists should consider having a paper copy in the vehicle for those such circumstances in order to avoid a potential legal challenge.
In addition, while pink cards are ordinarily placed in a vehicle and accessible by any driver of the automobile, automobile owners will need to ensure that the digital insurance certificates are available to and accessible by any driver of the automobile – no matter how rarely the driver is behind the wheel. Insurers must ensure that electronic versions have email and transfer capabilities to other drivers of the vehicle as well as to law enforcement if needed.
Policyholders will be provided with notification by insurers that their decision to opt-in to receive an electronic certificate is theirs alone and that the policyholder assumes the risk of loss or damage occurring to an electronic mobile device when given to a third party, such as damage that may result during review of the electronic certificate by law enforcement or a government agency renewing the vehicle's registration.
What does this mean for insurers and agents/brokers?
First, the obvious: Insurers will save on paper and mailing costs and similar administrative tasks for those insureds who opt for electronic policies only.
Second, under the applicable regulations, insurers will be required to make digital certificates viewable on a phone using "lock screen capability", as the Financial Services Regulatory Authority put it in a recent bulletin. Specifically, insurers will be required to ensure that a driver can show their digital insurance certificate to another driver or to a police officer when the phone is locked, to avoid the driver unintentionally making his or her open phone available to others. Insurers must provide policyholders with clear, plain language instructions on how to enable a lock screen capability.
However, lock screen capability does not address all privacy concerns. For example, a driver may receive a message or calendar reminder on the lock screen while law enforcement is looking at the insurance certificate, or the phone may inadvertently unlock when the phone is handed over due to a poorly-placed fingerprint or accidental retina scan. This concern reflects that smart phones are more than just phones and include information that drivers may not intend to reveal to others. This risk should clearly be communicated to policyholders by insurers.
Third, insurers must consider the Electronic Commerce Act (Ontario)("ECA") to ensure that they are complying with record retention and accessibility requirements. Insurers must also comply with applicable Personal Information Protection and Electronic Documents Act (Canada) ("PIPEDA") requirements when collecting any personal information of policyholders such as the tracking information on an individual's phone.
Fourth, insurers should be aware of the risk of fraud. Digital insurance certificates must be secure to make certain that they will not be altered or manipulated. One potential safeguard is creating a machine-readable bar code on the certificate. Including a code is not a requirement but it may be a useful step in minimizing fraud risks.
The most interesting implication relates to the reality that digital insurance certificates are likely to be delivered to vehicle owners and other drivers a short time after insurance is acquired. In contrast to the analog "pink card" regime – under which drivers will often have a paper copy emailed or faxed to them for printing, followed by a set of pink certificates sent to them in the mail in the following weeks – digital certificates of insurance should be expected to be delivered very shortly after an insurance contract is concluded.
This means that on-demand automobile insurance – including rideshare, scooter share, vehicles with frequent coverage adjustments such as commercial freight or passenger buses – is now more likely as drivers and vehicle owners toggle among coverage levels and insurers. In its 2019 budget, the Ontario government signalled plans to enable automobile insurance companies to provide pay-as-you-go insurance (sometimes referred to as "usage-based insurance") to drivers and digital insurance certificates would be part of these plans.
The authors would like to thank Lindsay Craig, an articling student in Dentons' Toronto office, who contributed to this article.
About Dentons
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.
