Office of the Superintendent of Financial Institutions Act (R.S.C., 1985, c. 18 (3rd Supp.), Part I)

Short Title

Marginal note:Short title

2 This Part may be cited as the Office of the Superintendent of Financial Institutions Act.

Interpretation

Marginal note:Interpretation

3 In this Part,

bank holding company

bank holding company means a bank holding company as defined in section 2 of the Bank Act; (société de portefeuille bancaire)

Deputy Superintendent

Deputy Superintendent means a Deputy Superintendent of Financial Institutions appointed pursuant to section 8; (surintendant adjoint)

financial institution

financial institution means

• (a) a bank within the meaning of section 2 of the Bank Act,

• (a.1) an authorized foreign bank within the meaning of section 2 of the Bank Act,

• (b) a company to which the Trust and Loan Companies Act applies,

• (c) an association to which the Cooperative Credit Associations Act applies,

• (d) a company, society, foreign company or provincial company to which the Insurance Companies Act applies, and

• (e) Green Shield Canada; (institution financière)

• (f) [Repealed, 1996, c. 6, s. 104] 

insurance holding company

insurance holding company means an insurance holding company as defined in subsection 2(1) of the Insurance Companies Act; (société de portefeuille d’assurances)

Minister

Minister means the Minister of Finance; (ministre)

Office

Office means the Office of the Superintendent of Financial Institutions established pursuant to section 4; (Bureau)

pension plan

pension plan has the same meaning as in subsection 2(1) of the Pension Benefits Standards Act, 1985 or has the meaning assigned by the definition pooled registered pension plan in subsection 2(1) of the Pooled Registered Pension Plans Act, as the case may be; (régime de pension)

Superintendent

Superintendent means the Superintendent of Financial Institutions appointed pursuant to subsection 5(1). (surintendant)

Purpose of Act

Marginal note:To ensure regulation of institutions and pension plans

3.1 The purpose of this Act is to ensure that financial institutions and pension plans are regulated by an office of the Government of Canada so as to contribute to public confidence in the Canadian financial system.

Establishment of the Office

Marginal note:Office established

• 4 (1) There is hereby established an office of the Government of Canada called the Office of the Superintendent of Financial Institutions over which the Minister shall preside and for which the Minister shall be responsible.

• Marginal note:Objects of Office — financial institutions

  (2) The objects of the Office, in respect of financial institutions, are

  • (a) to supervise financial institutions in order to determine whether they are in sound financial condition and are complying with their governing statute law and supervisory requirements under that law;

  • (a.1) to supervise financial institutions in order to determine whether they have adequate policies and procedures to protect themselves against threats to their integrity or security, including foreign interference;

  • (b) to promptly advise the management and board of directors of a financial institution in the event the institution is not in sound financial condition or is not complying with its governing statute law or supervisory requirements under that law and, in such a case, to take, or require the management or board to take, the necessary corrective measures or series of measures to deal with the situation without delay;

  • (b.1) to promptly advise the management and board of directors of a financial institution in the event the institution does not have adequate policies and procedures to protect itself against threats to its integrity or security and, in such a case, to take, or require the management or board to take, the necessary corrective measures or series of measures to deal with the situation without delay;

  • (c) to promote the adoption by management and boards of directors of financial institutions of policies and procedures designed to control and manage risk; and

  • (d) to monitor and evaluate system-wide or sectoral events or issues that may have a negative impact on the financial condition of financial institutions.

• Marginal note:Objects of Office — pension plans

  (2.1) The objects of the Office, in respect of pension plans, are

  • (a) to supervise pension plans to determine whether they meet the minimum funding requirements and are complying with the other requirements of the Pension Benefits Standards Act, 1985 and the Pooled Registered Pension Plans Act and their regulations and supervisory requirements under that legislation;

  • (b) to promptly advise the administrator of a pension plan in the event that the plan is not meeting the minimum funding requirements or is not complying with other requirements of the Pension Benefits Standards Act, 1985 or the Pooled Registered Pension Plans Act or their regulations or supervisory requirements under that legislation and, in such a case, to take, or require the administrator to take, the necessary corrective measures or series of measures to deal with the situation in an expeditious manner; and

  • (c) to promote the adoption by administrators of pension plans of policies and procedures designed to control and manage risk.

• Marginal note:Protection of depositors, etc.

  (3) In pursuing its objects, the Office shall strive

  • (a) in respect of financial institutions, to protect the rights and interests of depositors, policyholders and creditors of financial institutions, having due regard to the need to allow financial institutions to compete effectively and take reasonable risks; and

  • (b) in respect of pension plans, to protect the rights and interests of members of pension plans, former members and any other persons who are entitled to pension benefits or refunds under pension plans.

• Marginal note:Factors affecting financial institutions

  (4) Notwithstanding that the regulation and supervision of financial institutions by the Office and the Superintendent can reduce the risk that financial institutions will fail, regulation and supervision must be carried out having regard to the fact that boards of directors are responsible for the management of financial institutions, financial institutions carry on business in a competitive environment that necessitates the management of risk and financial institutions can experience financial difficulties that can lead to their failure.

• Marginal note:Factors affecting pension plans

  (5) Notwithstanding that the regulation and supervision of pension plans by the Office and the Superintendent can reduce the risk that pension plans will fail to pay the expected benefits, regulation and supervision must be carried out having regard to the fact that administrators of pension plans are responsible for the management of the pension plans and that pension plans can experience financial and funding difficulties that can result in the reduction of those benefits.

Superintendent of Financial Institutions

Marginal note:Appointment of Superintendent

• 5 (1) The Governor in Council shall appoint an officer called the Superintendent of Financial Institutions to be the deputy head of the Office.

• Marginal note:Tenure of office and removal

  (2) The Superintendent holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council.

• Marginal note:Tabling reasons

  (3) Where the Superintendent is removed from office, the order in council providing for the removal and the documents relating thereto shall be laid before each House of Parliament not later than the fifteenth sitting day of that House following the day that the order is issued.

• Marginal note:Further terms

  (4) The Superintendent, on the expiration of any term of office, is eligible to be re-appointed for a further term of office.

• Marginal note:Absence or incapacity

  (5) In the event of the absence or incapacity of the Superintendent, or if the office of Superintendent is vacant, the Governor in Council may appoint a qualified person to hold office instead of the Superintendent for a term not exceeding six months, and that person shall, while holding that office, have all of the powers, duties and functions of the Superintendent under this Part or any other Act of Parliament.

• Marginal note:Further terms

  (6) A person appointed pursuant to subsection (5), on the expiration of any term of office, is eligible to be re-appointed for a further term of office.

Powers, Duties and Functions of the Superintendent

Marginal note:Duties, powers and functions of the Superintendent

• 6 (1) The Superintendent has the powers, duties and functions assigned to the Superintendent by the Acts referred to in the schedule to this Part and shall examine into and report to the Minister from time to time on all matters connected with the administration of the provisions of those Acts except those that are consumer provisions as defined in section 2 of the Financial Consumer Agency of Canada Act.

• Marginal note:Securities activities

  (2) Where, pursuant to the Act that applies to it, a financial institution or any of its officers or employees engages in

  • (a) underwriting securities,

  • (b) trading in securities, or

  • (c) providing advisory or management services in respect of securities,

  the Superintendent shall examine and inquire into the carrying out of those activities, and report to the Minister from time to time on all matters connected therewith.

• Marginal note:Superintendent to administer regulations

  (3) The Superintendent is responsible for the administration of such regulations as the Governor in Council may make respecting the carrying out of the activities referred to in subsection (2) by financial institutions and their officers and employees, and every financial institution and every officer and employee thereof that carries out any such activity shall do so subject to those regulations.

• Marginal note:Regulation may provide for discretion

  (4) A regulation made pursuant to subsection (3) may provide that the Superintendent may, by order, determine such matters or exercise such discretion as the regulation may specify in relation to the carrying out of the activities referred to in subsection (2) by a financial institution or any of its officers and employees.

• Marginal note:Interpretation

  (5) For the purposes of subsection (2), the Act that applies to a financial institution is the Act set out in respect thereof in the definition “financial institution” in section 3.

Marginal note:Duties and functions generally

• 7 (1) The Superintendent shall engage exclusively in the duties and functions of the Superintendent under section 6 and the duties and functions of the Superintendent as the deputy head of the Office.

• Marginal note:Other duties

  (2) Notwithstanding subsection (1), the Superintendent may hold any other office under Her Majesty or perform any other duties for Her Majesty, but not for reward.

Agreements

Marginal note:Agreements with provinces

• 7.1 (1) The Minister may, with the approval of the Governor in Council, enter into agreements with the appropriate authority of a province

  • (a) with respect to the administration, application and enforcement of provincial legislation in respect of trust, loan or insurance companies incorporated or regulated by or under an Act of the legislature of the province;

  • (b) in order to authorize the Superintendent to exercise or perform the powers, duties and functions on behalf of the appropriate authority of the province, that the Minister may determine, in respect of trust, loan or insurance companies incorporated or regulated by or under an Act of the legislature of the province; and

  • (c) in order to

    • (i) make applicable the Trust and Loan Companies Act, the Insurance Companies Act or this Act, or any provisions of these Acts, and the regulations made under any of these Acts, with the modifications that the Minister considers necessary, in respect of trust, loan or insurance companies that are incorporated or regulated by or under an Act of the legislature of the province, and

    • (ii) limit the application of provincial legislation in respect of trust, loan or insurance companies that are incorporated or regulated by an Act of the legislature of the province.

• Marginal note:Notice of agreement

  (2) The Minister shall cause a notice of every agreement entered into under subsection (1) to be published in the Canada Gazette.

Deputy Superintendents

Marginal note:Appointment of Deputy Superintendents

8 The Superintendent may appoint one or more officers each to be called a Deputy Superintendent of Financial Institutions.

Marginal note:Deputy Superintendent to act under Superintendent

9 Every Deputy Superintendent shall act under the instructions of the Superintendent.

Exercise of Powers, Duties and Functions

Marginal note:Exercise by personnel

10 Except as otherwise provided by the Superintendent and subject to any terms and conditions that may be specified by the Superintendent, a person who is an officer or employee of the Office may exercise any of the powers and perform any of the duties and functions of the Superintendent under this Act if the person is appointed to serve in the Office in a capacity appropriate to the exercise of the power or performance of the duty or function.

Staff of the Office

Marginal note:Officers, etc.

11 Such employees as are necessary to enable the Superintendent to perform the duties of the Superintendent shall be appointed in accordance with the Public Service Employment Act.

Marginal note:Continuity of employment

12 Every person who was an employee of the Department of Insurance or the office of the Inspector General of Banks immediately prior to the coming into force of this Part becomes an employee of the Office and is deemed to have been appointed pursuant to section 11.

Marginal note:Responsibility for human resources management

13 In respect of persons appointed under section 11, the Superintendent is authorized to exercise the powers and perform the functions of the Treasury Board that relate to human resources management within the meaning of paragraphs 7(1)(b) and (e) and section 11.1 of the Financial Administration Act, and those of deputy heads under subsection 12(2) of that Act, as that subsection reads without regard to any terms and conditions that the Governor in Council may direct, including the determination of terms and conditions of employment and the responsibility for employer and employee relations.

Marginal note:Collective agreements

14 Any collective agreement affecting employees of the Department of Insurance or the office of the Inspector General of Banks that was entered into before the coming into force of this Act remains in force and binds the Superintendent as employer of those persons until the expiration of that agreement.

Marginal note:Classification standards

15 Classification standards may be prepared by the Superintendent for positions to which persons are appointed under section 11.

Financial

Marginal note:Appropriation

16 Subject to section 17, all expenses incurred in the administration of this Part shall be paid out of moneys appropriated by Parliament for the purpose.

Marginal note:Expenditures out of the C.R.F.

• 17 (1) The Minister may make expenditures out of the Consolidated Revenue Fund to defray the expenses arising out of the operations of the Office.

• Marginal note:Authority to spend assessments and revenues

  (2) The Minister may spend, for the purpose mentioned in subsection (1), any assessment and interim assessment received under section 23 or 23.1 and any other revenue arising out of the operations of the Office.

• Marginal note:Excess expenditures

  (3) The aggregate of expenditures made under subsection (1) shall not at any time exceed by more than $100,000,000, or such other amount as may be specified in an appropriation Act, the total of the assessments and revenues referred to in subsection (2).

• Marginal note:Treasury Board approval

  (4) No expenditure may be made under subsection (1) without the approval of the Treasury Board if the aggregate of the expenditures actually made under that subsection at any time exceeds the aggregate of

  • (a) all assessments and revenues referred to in subsection (2), and

  • (b) moneys appropriated by Parliament pursuant to section 16.

Committee

Marginal note:Committee established

• 18 (1) There is hereby established a committee consisting of

  • (a) the Superintendent;

  • (a.1) the Commissioner of the Financial Consumer Agency of Canada;

  • (b) the Governor of the Bank of Canada;

  • (c) the Chief Executive Officer of the Canada Deposit Insurance Corporation; and

  • (d) the Deputy Minister of Finance.

• Marginal note:Chairman

  (2) The Superintendent is the chairman of the committee.

• Marginal note:Purpose of committee

  (3) The purpose of the committee is to facilitate consultations and the exchange of information among its members on all matters relating directly to the supervision of financial institutions, bank holding companies or insurance holding companies.

• Marginal note:Access to information

  (4) Every member of the committee is entitled to any information on matters relating directly to the supervision of financial institutions, bank holding companies or insurance holding companies that is in the possession or under the control of any other member and any member requested by another member to provide any such information shall forthwith provide it.

• Marginal note:Designated person permitted

  (5) Information requested from one member of the committee by another member may be provided to any person designated by the member making the request.

Conflict of Interest

Marginal note:Ownership

• 19 (1) No member of the committee referred to in section 18, person appointed under subsection 5(5) or Deputy Superintendent shall beneficially own, directly or indirectly, any shares of any financial institution, bank holding company, insurance holding company or of any other body corporate, however created, carrying on any business in Canada that is substantially similar to any business carried on by any financial institution.

• Marginal note:Prohibitions — federal credit union

  (2) No member of the committee referred to in section 18, person appointed under subsection 5(5) or Deputy Superintendent shall

  • (a) directly or indirectly hold any interest or right in membership shares of a federal credit union, within the meaning of section 2 of the Bank Act, in excess of the minimum number of membership shares of the federal credit union that is required for membership; or

  • (b) exercise any right he or she has as a member of such a federal credit union, except any right that he or she has as a customer of the federal credit union.

20 [Repealed, 2013, c. 40, s. 159]

Marginal note:No grant or gratuity to be made

• 21 (1) The Superintendent, a person appointed under subsection 5(5), a Deputy Superintendent or a person appointed under section 11 shall not accept or receive, directly or indirectly, any grant or gratuity from a financial institution, bank holding company or insurance holding company, or from a director, officer or employee of any of them, and no such financial institution, bank holding company, insurance holding company, director, officer or employee shall make or give any such grant or gratuity.

• Marginal note:Offence and punishment

  (2) Every person, financial institution, bank holding company or insurance holding company that contravenes subsection (1) is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both; or

  • (b) on conviction on indictment, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding five years or to both.

Confidentiality

Marginal note:Information is confidential

• 22 (1) Subject to subsection (3), the following information, and any information prepared from it, is confidential and shall be treated accordingly:

  • (a) information regarding the business or affairs of a financial institution, foreign bank, bank holding company or insurance holding company or regarding persons dealing with any of them that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament;

  • (b) information received by any member of the committee established by subsection 18(1), or by any person referred to in subsection 18(5) designated by any member of that committee, in the course of an exchange of information permitted by subsection 18(3); and

  • (c) information furnished to the Superintendent pursuant to section 522.27 of the Bank Act.

• Marginal note:Disclosure by Superintendent

  (1.1) Despite subsection (1), subsections 606(1) and 636(1) of the Bank Act, subsection 435(1) of the Cooperative Credit Associations Act, subsection 672(1) of the Insurance Companies Act and subsection 503(1) of the Trust and Loan Companies Act, the Superintendent may disclose to the Financial Transactions and Reports Analysis Centre of Canada established by section 41 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act information relating to policies and procedures that financial institutions adopt to ensure their compliance with Parts 1 and 1.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

• Marginal note:Disclosure permitted

  (2) Nothing in subsection (1) prevents the Superintendent from disclosing any information

  • (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

  • (a.01) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

  • (a.1) to the Canada Deposit Insurance Corporation or any compensation association designated by order of the Minister pursuant to subsection 449(1) or 591(1) of the Insurance Companies Act, for purposes related to its operation, and

  • (b) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions,

  if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed.

• Marginal note:Regulations

  (2.1) The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by financial institutions, bank holding companies or insurance holding companies of prescribed supervisory information.

• Marginal note:Disclosure

  (3) The Superintendent shall disclose, at such times and in such manner as the Minister may determine, such information obtained by the Superintendent under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act and the Trust and Loan Companies Act as the Minister considers ought to be disclosed for the purposes of the analysis of the financial condition of a financial institution and that

  • (a) is contained in returns filed pursuant to the Superintendent’s financial regulatory reporting requirements; or

  • (b) has been obtained as a result of an industry-wide or sectoral survey conducted by the Superintendent in relation to an issue or circumstances that could have an impact on the financial condition of financial institutions.

• Marginal note:Prior consultation required

  (4) The Minister shall consult with the Superintendent before making any determination under subsection (3).

• Marginal note:Exceptions to disclosure

  (5) Subject to any regulations made under a statute referred to in subsection (3) governing the use by a financial institution of any information supplied to it by its customers, no information obtained by a financial institution regarding any of its customers shall be disclosed or made available under subsection (3).

• Marginal note:Report respecting disclosure

  (6) The Superintendent shall prepare a report, to be included in the report referred to in section 40, respecting the disclosure of information by financial institutions, and describing the state of progress made in enhancing the disclosure of information in the financial services industry.

Assessment

Marginal note:Superintendent to ascertain expenses

• 23 (1) The Superintendent shall, before December 31 in each year, ascertain the total amount of expenses incurred during the immediately preceding fiscal year for or in connection with the administration of the Bank Act, the Cooperative Credit Associations Act, the Green Shield Canada Act, the Insurance Companies Act, the Protection of Residential Mortgage or Hypothecary Insurance Act and the Trust and Loan Companies Act.

• Marginal note:Expenses — pension plans

  (1.1) In every fiscal year, the Superintendent shall

  • (a) estimate the total amount of expenses to be incurred by the Office during the following fiscal year for or in connection with the administration of the Pension Benefits Standards Act, 1985 and the Pooled Registered Pension Plans Act; and

  • (b) ascertain the total amount of expenses incurred by the Office during the preceding fiscal year for or in connection with the administration of the Pension Benefits Standards Act, 1985 and the Pooled Registered Pension Plans Act.

• Marginal note:Amount conclusive

  (2) Any amount ascertained or estimated by the Superintendent under subsection (1) or (1.1), as the case may be, is final and conclusive for the purposes of this section.

• Marginal note:Assessment

  (3) As soon as possible after ascertaining the amount referred to in subsection (1), the Superintendent shall assess the amount against each financial institution, bank holding company and insurance holding company to any extent and in any manner that the Governor in Council may, by regulation, prescribe.

• Marginal note:Interim assessment

  (4) The Superintendent may, during each fiscal year, prepare an interim assessment against any financial institution, bank holding company or insurance holding company.

• Marginal note:Assessment — pension plans

  (5) In every fiscal year, the Superintendent shall assess, in the prescribed manner, an amount against the administrator of a pension plan. The amount is to be determined as prescribed.

• Marginal note:Determination of amount assessed

  (6) The determination of the amount referred to in subsection (5) shall take into account the amounts referred to in subsection (1.1).

Meaning of person

• 23.1 (1) For the purpose of this section, person means a natural person, a personal representative, a body corporate, a trust, a partnership, a fund, an unincorporated association or organization, Her Majesty in right of Canada or of a province, an agency of Her Majesty in either of those rights, the government of a foreign country or of a political subdivision of a foreign country, an agency of the government of a foreign country or an agency of the government of a political subdivision of a foreign country.

• Marginal note:Assessment of particular expenses

  (2) The Superintendent may assess against a person a prescribed charge and applicable disbursements for any service provided by or on behalf of the Superintendent for the person’s benefit or for the benefit of a group of persons of which the person is a member.

• Marginal note:Interim assessment

  (3) The Superintendent may, during each fiscal year, prepare an interim assessment against any person towards the amount to be assessed against the person under subsection (2).

• (4) and (5) [Repealed, 2001, c. 9, s. 474]

Marginal note:Assessment is binding

• 23.2 (1) Every assessment and interim assessment made under section 23 or 23.1 is final and conclusive and binding on the person against whom it is made.

• Marginal note:Recovery

  (2) Every assessment and interim assessment made under section 23 or 23.1 constitutes a debt due to Her Majesty and is immediately payable and may be recovered as a debt in any court of competent jurisdiction.

• Marginal note:Interest

  (3) Interest may be charged on the unpaid amount of an assessment or interim assessment under section 23 or 23.1 at a rate equal to the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act in effect from time to time plus two per cent.

23.3 [Repealed, 2001, c. 9, s. 477]

Administrative Monetary Penalties

Interpretation

Marginal note:Definitions

• 24 (1) The following definitions apply in this section and in sections 25 to 37.2.

  entity

  entity means an entity as defined in section 2 of the Bank Act. (entité)

  financial institutions Act

  financial institutions Act means the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act, the Pension Benefits Standards Act, 1985, the Pooled Registered Pension Plans Act and the Trust and Loan Companies Act. (loi sur les institutions financières)

  penalty

  penalty means an administrative monetary penalty. (pénalité)

  person

  person means a natural person or an entity. (Version anglaise seulement)

• Marginal note:Non-application

  (2) This section and sections 25 to 37 do not apply in respect of consumer provisions as defined in section 2 of the Financial Consumer Agency of Canada Act.

Violations

Marginal note:Regulations

• 25 (1) The Governor in Council may make regulations

  • (a) designating, as a violation that may be proceeded with under sections 26 to 37, the contravention of a specified provision of a financial institutions Act or of a specified provision of a regulation made under one or the non-compliance with

    • (i) an order made by the Superintendent under a financial institutions Act,

    • (ii) a direction made under a financial institutions Act to cease or refrain from committing an act or pursuing a course of conduct that is an unsafe or unsound practice, or to perform a remedial act,

    • (iii) terms and conditions imposed by the Superintendent or an undertaking given to the Superintendent under a financial institutions Act, or

    • (iv) a prudential agreement entered into with the Superintendent under a financial institutions Act;

  • (b) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (c) fixing, in accordance with subsection (2), a penalty, or a range of penalties, in respect of any violation;

  • (d) respecting the service of documents required or authorized to be served under sections 26 to 37, including the manner and proof of service and the circumstances under which documents are deemed to be served; and

  • (e) generally for carrying out the purposes and provisions of section 24, this section and sections 26 to 37.

• Marginal note:Maximum penalties

  (2) The maximum penalty for a violation is

  • (a) in the case of a violation that is committed by a natural person, $10,000 for a minor violation, $50,000 for a serious violation and $100,000 for a very serious violation; and

  • (b) in the case of a violation that is committed by an entity, $25,000 for a minor violation, $100,000 for a serious violation and $500,000 for a very serious violation.

Marginal note:Criteria for penalty

26 Except if a penalty is fixed under paragraph 25(1)(c), the amount of a penalty shall, in each case, be determined taking into account

• (a) the degree of intention or negligence on the part of the person who committed the violation;

• (b) the harm done by the violation;

• (c) the history of the person who committed the violation with respect to any prior violation or conviction under a financial institutions Act within the five-year period immediately before the violation; and

• (d) any other criteria that may be prescribed by regulation.

Marginal note:How act or omission may be proceeded with

27 If a contravention or non-compliance that is designated under paragraph 25(1)(a) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Proceedings

Marginal note:Commission of violation

• 28 (1) Every contravention or non-compliance that is designated under paragraph 25(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 25 and 26.

• Marginal note:Notice of violation

  (2) If the Superintendent believes on reasonable grounds that a person has committed a violation, he or she may issue, and shall cause to be served on the person, a notice of violation.

• Marginal note:Contents of notice

  (3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out

  • (a) the penalty that the Superintendent proposes to impose;

  • (b) the right of the person, within 30 days after the notice is served or within any longer period that the Superintendent specifies, to pay the penalty or to make representations to the Superintendent with respect to the violation and the proposed penalty, and the manner for doing so; and

  • (c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Superintendent may impose a penalty in respect of it.

Determination of Responsibility and Penalty

Marginal note:Payment of penalty

• 29 (1) If the person pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.

• Marginal note:Representations to Superintendent

  (2) If the person makes representations in accordance with the notice, the Superintendent shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 25(1)(c), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Superintendent may, subject to any regulations made under paragraph 25(1)(c), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Notice of decision and right of appeal

  (4) The Superintendent shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with, in the case of a serious violation or very serious violation, notice of the right of appeal under section 30.

Appeal to Federal Court

Marginal note:Right of appeal

• 30 (1) A person on whom a notice under subsection 29(4) in respect of a serious violation or very serious violation is served may, within 30 days after the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.

• Marginal note:Court to take precautions against disclosing

  (2) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person of confidential information referred to in subsection 22(1).

• Marginal note:Powers of Court

  (3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 25(1)(c), vary the decision of the Superintendent.

Enforcement

Marginal note:Debts to Her Majesty

• 31 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court.

• Marginal note:Time limit

  (2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

• Marginal note:Proceeds payable to Receiver General

  (3) A penalty paid or recovered under sections 25 to 30, this section and sections 32 to 37 is payable to and shall be remitted to the Receiver General.

Marginal note:Certificate

• 32 (1) The unpaid amount of any debt referred to in subsection 31(1) may be certified by the Superintendent.

• Marginal note:Registration in Federal Court

  (2) Registration in the Federal Court of a certificate made under subsection (1) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.

Rules about Violations

Marginal note:Violations not offences

33 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of one.

Marginal note:Due diligence available

• 34 (1) Due diligence is a defence in a proceeding in relation to a violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders a circumstance a justification or an excuse in relation to a charge for an offence under a financial institutions Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

35 A minor violation that is continued on more than one day constitutes a separate violation for each day during which it is continued.

General Provisions

Marginal note:Evidence

36 In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 28(2) or 29(4) or a certificate purporting to be made under subsection 32(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Time limit

• 37 (1) No proceedings in respect of a violation may be commenced later than six months after the subject-matter of the proceedings became known to the Superintendent, in the case of a minor violation, or two years after the subject-matter of the proceedings became known to the Superintendent, in the case of a serious violation or a very serious violation.

• Marginal note:Certificate of Superintendent

  (2) A document appearing to have been issued by the Superintendent, certifying the day on which the subject-matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

• Marginal note:No use of privileged information

  (3) The Superintendent shall not use privileged information as evidence in a proceeding in respect of a violation if the privileged information was disclosed to the Superintendent by

  • (a) a financial institution, bank holding company or insurance holding company; or

  • (b) a person who controls, or an entity that is affiliated with, an entity referred to in paragraph (a).

• Marginal note:Definition of privileged information

  (4) In subsection (3), privileged information means information that is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Marginal note:Publication

37.01 After proceedings in respect of a violation in relation to section 983 of the Bank Act are ended, the Superintendent must make public the nature of the violation, the name of the person who committed it and the amount of the penalty imposed.

Remission and Write-off

Marginal note:Remission

• 37.1 (1) The Superintendent may remit all or part of any assessment or interim assessment made under section 23 or 23.1 or any penalty imposed under this Act, including any interest on that assessment, interim assessment or penalty.

• Marginal note:Conditions

  (2) A remission may be conditional or unconditional.

Marginal note:Debt write-off

• 37.2 (1) The Superintendent may write off from the accounts of the Office all or part of any debt referred to in subsection 23.2(2) or 31(1) that has been determined to be uncollectible or for which further administrative expense or other costs of collecting the debt are not justifiable in relation to the amount of the debt or the probability of collection.

• Marginal note:Effect of write-off

  (2) The writing-off of any debt does not affect any right of Her Majesty to collect or recover the debt.

• Marginal note:Financial Administration Act

  (3) The regulations made under subsection 25(1) of the Financial Administration Act do not apply to the writing off of a debt under this section.

Regulations

Marginal note:Power to make regulations

38 The Governor in Council may make regulations

• (a) prescribing anything that is required or authorized by this Act to be prescribed; and

• (b) prescribing the way in which anything that is required or authorized by this Act to be prescribed shall be determined.

No Liability

Marginal note:No liability

39 No action lies against Her Majesty, the Minister, the Superintendent, any Deputy Superintendent, any officer or employee of the Office or any person acting under the direction of the Superintendent for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under any Act of Parliament are intended or authorized to be executed or performed.

Immunities

Marginal note:Not compellable

39.1 The Superintendent, any Deputy Superintendent, any officer or employee of the Office or any person acting under the direction of the Superintendent, is not a compellable witness in any civil proceedings in respect of any matter coming to their knowledge as a result of exercising any of their powers or performing any of their duties or functions under this Act or the Acts listed in the schedule.

Annual Report

Marginal note:Annual report

40 The Minister shall cause to be laid before each House of Parliament, not later than the fifth sitting day of that House after September 30 next following the end of each fiscal year, a report showing the operations of the Office for that year.

[Note: The former sections 26 to 46, as originally enacted by R.S., c. 18 (3rd Supp.), Part I, are spent but not yet repealed. Those spent provisions will be repealed by a future amendment.]