Marginal note:Adequacy of capital and liquidity — companies and societies

• 515. (1) A company and society shall, in relation to its operations, maintain adequate capital and adequate and appropriate forms of liquidity and shall comply with any regulations in relation to adequate capital and adequate and appropriate forms of liquidity.

• Marginal note:Regulations and guidelines

  (2) The Governor in Council may make regulations and the Superintendent may make guidelines respecting the maintenance by companies and societies of adequate capital and adequate and appropriate forms of liquidity.

• Marginal note:Directives

  (3) Notwithstanding that a company or society is complying with regulations or guidelines made under subsection (2), the Superintendent may, by order, direct the company or society to increase its capital or to provide additional liquidity in any forms and amounts that the Superintendent may require.

• Marginal note:Compliance

  (4) A company and society shall comply with an order made under subsection (3) within the time that the Superintendent specifies in the order.

Marginal note:Transactions with holding companies

• 528.1 (1) Subject to subsection (2) and sections 528.2 and 528.3, if a widely held insurance holding company or a widely held bank holding company has a significant interest in any class of shares of a company, the company may enter into any transaction with the holding company or with any other related party of the company that is an entity in which the holding company has a substantial investment.

• Marginal note:Policies and procedures

  (2) The company shall adhere to policies and procedures established under subsection 204(3) when entering into the transaction.

Marginal note:Restriction

• 528.2 (1) If a company enters into a transaction with a related party of the company with whom the company may enter into transactions under subsection 528.1(1) and that is not a federal financial institution, the company shall not directly or indirectly make, take an assignment of or otherwise acquire a loan to the related party, make an acceptance, endorsement or other guarantee on behalf of the related party or make an investment in the securities of the related party if, immediately following the transaction, the aggregate financial exposure, as that expression is defined by the regulations, of the company would exceed

  • (a) in respect of all transactions of the company with the related party, the prescribed percentage of the company’s regulatory capital or, if no percentage is prescribed, five per cent of the company’s regulatory capital; or

  • (b) in respect of all transactions of the company with such related parties of the company, the prescribed percentage of the company’s regulatory capital or, if no percentage is prescribed, ten per cent of the company’s regulatory capital.

• Marginal note:Order

  (2) If the Superintendent is of the opinion that it is necessary for the protection of the interests of the policyholders and creditors of a company, the Superintendent may, by order,

  • (a) reduce the limit in paragraph (1)(a) or (b) that would otherwise apply to the company; and

  • (b) impose limits on transactions by the company with related parties with whom the company may enter into transactions under subsection 528.1(1) that are federal financial institutions.

• Marginal note:Order

  (3) The Superintendent may, by order, increase the limit in paragraph (1)(a) or (b) that would otherwise apply to a company on transactions by the company with related parties that are financial institutions that are regulated in a manner acceptable to the Superintendent.

Marginal note:Assets transactions

• 528.3 (1) Despite subsection 527(3), a company shall not, without the approval of the Superintendent and its conduct review committee, directly or indirectly acquire assets from a related party of the company with whom the company may enter into transactions under subsection 528.1(1) that is not a federal financial institution, or directly or indirectly transfer assets to such a related party if

  A + B > C

  where

  A

  is the value of the assets;

  B

  is the total value of all assets that the company directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the twelve months ending immediately before the acquisition or transfer; and

  C

  is five per cent, or the percentage that may be prescribed, of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer.

• Marginal note:Exception

  (2) The prohibition in subsection (1) does not apply in respect of assets purchased or otherwise acquired under subsection 527(1), assets sold under subsection 527(2) or any other assets that may be prescribed.

• Marginal note:Exception

  (3) The approval of the Superintendent is not required if

  • (a) the company sells assets under a sale agreement that is approved by the Minister under subsection 254(2); or

  • (b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 495(7) is required or the approval of the Superintendent under subsection 495(8) is required.

• Marginal note:Value of assets

  (4) For the purposes of “A” in subsection (1), the value of the assets is

  • (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and

  • (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement.

• Marginal note:Total value of all assets

  (5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition.

• Marginal note:Total value of all assets

  (6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement.

• (b) in respect of any other transaction,

  • (i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arm’s length and who are acting prudently, knowledgeably and willingly, or

  • (ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arm’s length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the company with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly.

Marginal note:Order to void contract or to grant other remedy

• 539. (1) If a company enters into a transaction that it is prohibited from entering into by this Part, the company or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate remedy, including an order directing that the related party of the company involved in the transaction account to the company for any profit or gain realized or that any director or senior officer of the company who authorized the transaction compensate the company for any loss or damage incurred by the company.

• Marginal note:Time limit

  (2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in section 538 in respect of the transaction is given to the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction.

• Marginal note:Certificate

  (3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Marginal note:Policies re security interests

• 542.07 (1) The directors of a society shall establish and the society shall adhere to policies regarding the creation of security interests in property of the society to secure obligations of the society and the acquisition by the society of beneficial interests in property that is subject to security interests.

• Marginal note:Order to amend policies

  (2) The Superintendent may, by order, direct a society to amend its policies as specified in the order.

• Marginal note:Compliance

  (3) A society shall comply with an order made under subsection (2) within the time specified in the order.

Marginal note:Regulations and guidelines

542.071 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a society of security interests in its property to secure obligations of the society and the acquisition by the society of beneficial interests in property that is subject to security interests.

Marginal note:Restriction on partnerships

542.09 Except with the approval of the Superintendent, a society may not be a general partner in a limited partnership or a partner in any partnership other than a limited partnership.

Marginal note:Change of name

• 544.1 (1) Despite anything contained in its incorporating instrument, a society may, by by-law passed and approved by the votes of at least two thirds of the members entitled to vote by the by-laws of the society who are present or represented at a special meeting duly called for considering the by-law, change the name of the society.

• Marginal note:Effective date

  (2) A by-law referred to in subsection (1) is not effective until the Superintendent approves it.

Marginal note:Restriction on control and substantial investments

• 552. (1) Subject to subsections (2) and (3), no society shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.

• Marginal note:Exception: indirect investments

  (2) A society may acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of

  • (a) an acquisition of control of an entity referred to in any of paragraphs 554(1)(a) to (c), or of a prescribed entity, that controls or has a substantial investment in the entity; or

  • (b) an acquisition of shares or ownership interests in the entity by

    • (i) an entity referred to in any of paragraphs 554(1)(a) to (c), or a prescribed entity, that is controlled by the society, or

    • (ii) an entity controlled by an entity referred to in any of paragraphs 554(1)(a) to (c), or a prescribed entity, that is controlled by the society.

• Marginal note:Exception: temporary investments, realizations and loan workouts

  (3) A society may acquire control of, or acquire or increase a substantial investment in, an entity by way of

  • (a) a temporary investment permitted by section 557;

  • (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 558; or

  • (c) a realization of security permitted by section 559.

• Marginal note:Exception: uncontrolled event

  (4) A society is deemed not to contravene subsection (1) if the society acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the society.

Marginal note:Regulations re limits

553. The Governor in Council may make regulations

• (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of sections 550 to 570;

• (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a society and its prescribed subsidiaries to or in a person and any persons connected with that person; and

• (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b).

Subsidiaries and Equity Investments

Marginal note:Permitted investments

• 554. (1) Subject to subsections (4) and (5), a society may acquire control of, or acquire or increase a substantial investment in,

  • (a) a company or a society;

  • (b) an insurance corporation incorporated or formed by or under an Act of the legislature of a province; or

  • (c) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of insurance.

• Marginal note:Permitted investments

  (2) Subject to subsections (3) to (5), a society may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (c), whose business is limited to one or more of the following:

  • (a) engaging in any financial service activity or in any other activity that a property and casualty company is permitted to engage in under subsection 440(2) or section 441 or 442, other than paragraph 441(1)(h);

  • (b) acquiring or holding shares of, or ownership interests in, entities in which a society is permitted under this Part to hold or acquire;

  • (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the society or any member of the society’s group:

    • (i) the society,

    • (ii) any member of the society’s group,

    • (iii) any entity that is primarily engaged in the business of providing financial services,

    • (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or

    • (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed;

  • (d) engaging in any activity that a society is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to

    • (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the society or any member of the society’s group, or

    • (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services;

  • (e) engaging in the activities referred to in the definition “mutual fund entity” or “mutual fund distribution entity” in subsection 490(1); and

  • (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.

• Marginal note:Restriction

  (3) A society may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include

  • (a) activities that a property and casualty company is not permitted to engage in under any of sections 466, 469 and 478;

  • (b) any financial intermediary activity that exposes the entity to material market or credit risk, including the activities of a finance entity, a factoring entity and a financial leasing entity;

  • (b.1) the activities of a specialized financing entity;

  • (c) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 440(2)(b);

  • (d) acquiring control of or acquiring or holding a substantial investment in another entity unless

    • (i) in the case of an entity that is controlled by the society, the society itself would be permitted under this Part to acquire a substantial investment in the other entity, or

    • (ii) in the case of an entity that is not controlled by the society, the society itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (2) or 552(2) or paragraph 552(3)(b) or (c); or

  • (e) any prescribed activity.

• Marginal note:Control

  (4) Subject to subsection (6) and the regulations, a society may not acquire control of, or acquire or increase a substantial investment in,

  • (a) an entity referred to in any of paragraphs (1)(a) to (c), unless the society controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity; or

  • (b) an entity whose business includes an activity referred to in paragraph (2)(b), unless

    • (i) the society controls, within the meaning of paragraph 3(1)(d), the entity, or

    • (ii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or an entity that is not a permitted entity.

• Marginal note:Minister’s approval

  (5) Subject to the regulations, a society may not, without the prior written approval of the Minister, acquire control of, or acquire or increase a substantial investment in, a permitted entity.

• Marginal note:Control not required

  (6) A society need not control an entity referred to in paragraph (1)(c), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the society to control the entity.

• Marginal note:Prohibition on giving up control in fact

  (7) A society that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.

• Marginal note:Subsections do not apply

  (8) If a society controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsection (5) does not apply in respect of any subsequent increases by the society to its substantial investment in the entity so long as the society continues to control the entity.

• Marginal note:Regulations

  (9) The Governor in Council may make regulations

  • (a) for the purposes of subsection (4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the societies or other entities in respect of which that subsection does not apply, including prescribing societies or other entities on the basis of the activities they engage in; and

  • (b) for the purposes of subsection (5), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the societies or other entities in respect of which that subsection does not apply, including prescribing societies or other entities on the basis of the activities they engage in.

Marginal note:Approval for indirect investments

555. If a society obtains the approval of the Minister under subsection 554(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the society indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 554(5) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the society is deemed to have obtained the approval of the Minister for that indirect acquisition or increase.

Marginal note:Undertakings

• 556. (1) If a society controls a permitted entity, other than an entity referred to in any of paragraphs 554(1)(a) to (c), the society shall provide the Superintendent with any undertakings that the Superintendent may require regarding

  • (a) the activities of the entity; and

  • (b) access to information about the entity.

• Marginal note:Undertakings

  (2) If a society acquires control of an entity referred to in paragraph 554(1)(b) or (c), the society shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.

• Marginal note:Agreements with other jurisdictions

  (3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in paragraph 554(1)(b) or (c) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.

• Marginal note:Access to records

  (4) Despite any other provision of this Part, a society shall not control a permitted entity, other than an entity referred to in paragraph 554(1)(a), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the society obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity.

Exceptions and Exclusions

Marginal note:Temporary investments in entity

• 557. (1) Subject to subsection (4), a society may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.

• Marginal note:Transitional

  (2) Despite subsection (1), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society subsequently increases that substantial investment by way of a temporary investment, the society shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.

• Marginal note:Extension

  (3) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.

• Marginal note:Temporary investment

  (4) If a society, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 554(5) is required, the society must, within 90 days after acquiring control or after acquiring or increasing the substantial investment,

  • (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or

  • (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.

Marginal note:Loan workouts

• 558. (1) Despite anything in this Part, if a society or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the society, or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the society may acquire

  • (a) if the entity is a body corporate, all or any of the shares of the body corporate;

  • (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity;

  • (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or

  • (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates.

• Marginal note:Obligation

  (2) If a society acquires shares or ownership interests in an entity under subsection (1), the society shall, within five years after acquiring them, do all things necessary to ensure that the society does not control the entity or have a substantial investment in the entity.

• Marginal note:Transitional

  (3) Despite subsection (1), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society later increases that substantial investment by way of an investment made under subsection (1), the society shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.

• Marginal note:Extension

  (4) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.

• Marginal note:Exception — entities controlled by foreign governments

  (5) Despite anything in this Part, if a society has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the society and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the society may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government.

• Marginal note:Time for holding shares

  (6) If a society acquires any shares or ownership interests under subsection (5), the society may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.

• Marginal note:Exception

  (7) If, under subsection (1), a society acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 554, the society may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).

Marginal note:Realizations

• 559. (1) Despite anything in this Act, a society may acquire

  • (a) an investment in a body corporate,

  • (b) an interest in an unincorporated entity, or

  • (c) an interest in real property,

  if the investment or interest is acquired through the realization of a security interest held by the society or any of its subsidiaries.

• Marginal note:Disposition

  (2) If a society acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by the society or any of its subsidiaries, the society shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the case may be, to ensure that the society no longer controls the entity or has a substantial investment in the entity.

• Marginal note:Transitional

  (3) Despite subsection (2), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society later increases that substantial investment by way of a realization of a security interest under subsection (1), the society shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.

• Marginal note:Extension

  (4) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.

• Marginal note:Exception

  (5) If, under subsection (1), a society acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 554, the society may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).

Marginal note:Regulations restricting ownership

560. The Governor in Council may make regulations restricting the ownership under sections 554 to 559 by a society of shares of a body corporate or of ownership interest in an unincorporated entity and imposing terms and conditions applicable to societies that own such shares or interests.