Financial Consumer Agency of Canada Act (S.C. 2001, c. 9)
Full Document:
Assented to 2001-06-14
172. The title of Part XIII of the Act is replaced by the following:
REGULATION OF BANKS — SUPERINTENDENT
Marginal note:1999, c. 28, s. 39
173. Sections 633 and 634 of the Act are replaced by the following:
Marginal note:Copy of by-laws
633. A bank shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Marginal note:Register of banks
634. (1) The Superintendent shall, in respect of each bank for which an order approving the commencement and carrying on of business has been made, cause a register to be maintained containing a copy of
(a) the incorporating instrument of the bank; and
(b) the information referred to in paragraphs 632(1)(a), (c) and (e) to (h) contained in the latest return sent to the Superintendent under section 632.
Marginal note:Form
(2) The register may be maintained in
(a) a bound or loose-leaf form or in a photographic film form; or
(b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Marginal note:Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Marginal note:Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.
Marginal note:1999, c. 28, s. 41
174. Subsection 636(1) of the Act is replaced by the following:
Marginal note:Confidential information
636. (1) Subject to sections 638 and 639, all information regarding the business or affairs of a bank or a foreign bank, or regarding a person dealing with a bank or a foreign bank, 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, and all information prepared from that information, is confidential and shall be treated accordingly.
Marginal note:1996, c. 6, s. 12; 1999, c. 28, s. 46
175. Section 642 of the Act is replaced by the following:
Marginal note:Report respecting disclosure
642. The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by banks and describing the state of progress made in enhancing the disclosure of information in the financial services industry.
Marginal note:1999, c. 28, s. 46
176. Subsection 643(1) of the Act is replaced by the following:
Marginal note:Examination of banks
643. (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each bank that the Superintendent considers to be necessary or expedient to determine whether the bank is complying with the provisions of this Act and whether the bank is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
177. The Act is amended by adding the following after the heading “Remedial Powers” after section 644:
Prudential Agreements
Marginal note:Prudential agreement
644.1 The Superintendent may enter into an agreement, called a “prudential agreement”, with a bank for the purposes of implementing any measure designed to maintain or improve its safety and soundness.
Marginal note:1999, c. 28, s. 48
178. Subsection 646(1) of the Act is replaced by the following:
Marginal note:Court enforcement
646. (1) Where a bank or person
(a) is contravening or has failed to comply with a prudential agreement entered into under section 644.1 or a direction of the Superintendent made under subsection 645(1) or (3),
(b) is contravening this Act, or
(c) has omitted to do any thing under this Act that is required to be done by or on the part of the bank or person,
the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the bank or person to comply with the prudential agreement or the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.
Marginal note:1996, c. 6, s. 14
179. The heading before section 647 of the Act is replaced by the following:
Disqualification and Removal of Directors or Senior Officers
Meaning of “senior officer”
646.1 In sections 647 and 647.1, “senior officer” means the chief executive officer, secretary, treasurer or controller of a bank or any other officer reporting directly to the bank’s board of directors or chief executive officer.
Marginal note:1996, c. 6, s. 14; 1999, c. 28, s. 49
180. (1) Paragraphs 647(1)(a) and (b) of the Act are replaced by the following:
(a) that has been notified by the Superintendent that this section applies to it where the bank is subject to measures designed to maintain or improve its safety and soundness, which measures
(i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the bank’s business, or
(ii) are contained in a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent; or
(b) that is the subject of a direction made under section 645 or an order made under subsection 485(3).
Marginal note:1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(2) Paragraph 647(2)(b) of the Act is replaced by the following:
(b) each person who has been selected by the bank for appointment as a senior officer, and
Marginal note:1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(3) The portion of subsection 647(2) of the French version of the Act after paragraph (c) is replaced by the following:
Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel qu’il peut exiger.
Marginal note:1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(4) Subsections 647(4) and (5) of the Act are replaced by the following:
Marginal note:Disqualification or removal
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order,
(a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a bank or from being appointed as a senior officer; or
(b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the bank.
Marginal note:Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the bank would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Marginal note:Representations may be made
(5) The Superintendent must in writing notify the person concerned and the bank of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Marginal note:1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(5) Subsection 647(6) of the English version of the Act is replaced by the following:
Marginal note:Prohibition
(6) Where an order has been made under subsection (4)
(a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the bank shall not permit the person to be, elected or appointed to the position; or
(b) removing a director from office, the person shall not continue to hold, and the bank shall not permit the person to continue to hold, office as a director.
181. The Act is amended by adding the following after section 647:
Marginal note:Removal of directors or senior officers
647.1 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a bank if the Superintendent is of the opinion that the person is not suitable to hold that office
(a) on the basis of the competence, business record, experience, conduct or character of the person; or
(b) because the person has contravened or, by action or negligence, has contributed to the contravention of
(i) this Act or the regulations made under it,
(ii) a direction made under section 645,
(iii) an order made under subsection 485(3),
(iv) a condition or limitation in respect of the order approving the commencement and carrying on of the bank’s business, or
(v) a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent.
Marginal note:Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the bank have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Marginal note:Representations may be made
(3) The Superintendent must in writing notify the person concerned and the bank of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Marginal note:Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Marginal note:Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the bank of a removal order or suspension order.
Marginal note:Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Marginal note:Appeal
(7) The director or senior officer, as the case may be, or the bank may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Marginal note:Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Marginal note:Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
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