Financial Consumer Agency of Canada Act (S.C. 2001, c. 9)
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Assented to 2001-06-14
AMENDMENTS TO ACTS IN RELATION TO FINANCIAL INSTITUTIONS
1991, c. 46Bank Act
Marginal note:1997, c. 15, s. 6(1); 1999, c. 31, s. 9
58. Subsection 55(1) of the Act is replaced by the following:
Marginal note:Permission to subsidiary of foreign bank
55. (1) On the recommendation of the Superintendent, the Minister may, at the same time that an order is made approving the commencement and carrying on of business by a bank that is the subsidiary of a foreign bank, by further order, grant the subsidiary permission to
(a) hold assets that banks are not otherwise permitted by this Act to hold if those assets consist of shares of a body corporate incorporated by or under an Act of Parliament or of the legislature of a province that, at the time application for letters patent incorporating the subsidiary was made, were held by the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary or any affiliate of that eligible foreign institution; and
(b) hold assets that banks are not otherwise permitted by this Act to hold if, at the time application for letters patent incorporating the subsidiary was made, the assets were held by an affiliate of the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary.
Despite any other provision of this Act or the regulations, the subsidiary may act in accordance with that permission.
59. Subsection 59(5) of the Act is replaced by the following:
Marginal note:Deemed share conditions
(5) If a right, other than a voting right, of a holder of a share with nominal or par value of a bank referred to in subsection (3) or a body corporate continued as a bank under this Act was stated or expressed in terms of the nominal or par value of the share immediately before the coming into force of this subsection or the continuance under this Act, as the case may be, that right is deemed, after the coming into force of this Part or the continuance, as the case may be, to be the same right stated or expressed without reference to the nominal or par value of the share.
60. Subsection 61(3) of the Act is replaced by the following:
Marginal note:Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2).
61. (1) Subsection 79(1) of the Act is replaced by the following:
Marginal note:Declaration of dividend
79. (1) The directors of a bank may declare and a bank may pay a dividend by issuing fully paid shares of the bank or options or rights to acquire fully paid shares of the bank and, subject to subsections (4) and (5), the directors of a bank may declare and a bank may pay a dividend in money or property, and where a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada.
(2) Section 79 of the Act is amended by adding the following after subsection (4):
Marginal note:When dividend not to be declared
(5) The directors of a bank shall not declare and a bank shall not pay a dividend in any financial year without the approval of the Superintendent if, on the day the dividend is declared, the total of all dividends declared by the bank in that year would exceed the aggregate of the bank’s net income up to that day in that year and of its retained net income for the preceding two financial years.
62. Subsection 93(1) of the French version of the Act is replaced by the following:
Marginal note:Relations avec le détenteur inscrit
93. (1) La banque ou le fiduciaire visé à l’article 294 peut, sous réserve des paragraphes 137(2) à (5) et des articles 138 à 141 et 145, considérer le détenteur inscrit d’une valeur mobilière comme la seule personne ayant qualité pour voter, recevoir des avis ainsi que les intérêts, dividendes ou autres paiements et exercer tous les droits et pouvoirs du propriétaire de la valeur mobilière.
63. Section 138 of the Act is amended by adding the following after subsection (1):
Marginal note:Number of eligible votes
(1.1) A bank with equity of five billion dollars or more shall set out in the notice of a meeting the number of eligible votes, as defined under subsection 156.09(1), that may be cast at the meeting as of the record date for determining those shareholders entitled to receive the notice of meeting or, if there are to be separate votes of shareholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting.
64. Subsection 142(2) of the French version of the Act is replaced by the following:
Marginal note:Renonciation à l’avis
(2) La présence à l’assemblée équivaut à une renonciation de l’avis de convocation, sauf lorsque la personne y assiste spécialement pour s’opposer aux délibérations au motif que l’assemblée n’est pas régulièrement convoquée.
65. The portion of subsection 145(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Shareholder list
145. (1) A bank shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 138(1)(a), arranged in alphabetical order and showing the number of shares held by each shareholder, which list must be prepared
66. Section 148 of the Act is replaced by the following:
Marginal note:One share — one vote
148. Subject to section 156.09, if a share of a bank entitles the holder of the share to vote at a meeting of shareholders, that share entitles the shareholder to one vote at the meeting.
67. The Act is amended by adding the following after section 156.08:
Restrictions on Voting
Meaning of “eligible votes”
156.09 (1) In this section, “eligible votes” means the total number of votes that may be cast by or on behalf of shareholders on a vote of shareholders or a vote of holders of a class or series of shares, as the case may be, in respect of any particular matter, calculated without regard to subsection (2).
Marginal note:Restriction
(2) At a meeting of shareholders of a bank with equity of five billion dollars or more, no person and no entity controlled by any person may, in respect of any vote of shareholders or holders of any class or series of shares of the bank, cast votes in respect of any shares beneficially owned by the person or the entity that are, in aggregate, more than 20 per cent of the eligible votes that may be cast in respect of that vote.
Marginal note:Proxyholders
(3) No person who is a proxyholder for a person or for an entity controlled by a person may cast votes to which the proxy relates that the person or entity may not cast by reason of subsection (2).
Marginal note:Exception
(4) If a person is, with respect to a bank, a person referred to in subsection 375(1), subsections (2) and (3) do not apply with respect to votes cast by or on behalf of the person during any period that the person is entitled under section 375 to remain a major shareholder of the bank.
Marginal note:Exception
(5) Subsections (2) and (3) do not apply in respect of votes cast by or on behalf of any entity that controls the bank or any entity that is controlled by an entity that controls the bank.
Marginal note:Exception
(6) Subsection (2) does not apply in respect of a vote held under section 218.
Marginal note:Validity of vote
(7) A vote in respect of a particular matter is not invalid merely because a person voted contrary to subsection (2) or (3).
Marginal note:Disposition of shareholdings
(8) If, with respect to any bank, a person contravenes subsection (2) or (3), the Minister may, by order, direct the shareholder of the shares to which the contravention relates or any person controlled by that shareholder to dispose of any number of shares of the bank beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the shareholder and the persons controlled by that shareholder that is specified in the order.
Marginal note:Restriction on voting rights
(9) If the Minister makes an order under subsection (8), the person to whom the order relates may not, in person or by proxy, exercise any voting rights that are attached to shares of the bank beneficially owned by the person.
Marginal note:Subsection (9) ceases to apply
(10) Subsection (9) ceases to apply in respect of a person when the shares to which the order relates have been disposed of.
Marginal note:Reliance on number in notice
(11) For the purpose of this section, a person is entitled to rely on the number of eligible votes set out in a notice of a meeting under subsection 138(1.1).
Marginal note:Designation of persons
(12) For the purpose of this section, the Minister may, with respect to a particular bank, designate two or more persons who are parties to an agreement, commitment or understanding referred to in section 9 to be a single person.
68. Paragraph 157(2)(f) of the French version of the Act is replaced by the following:
f) désigner l’un des comités du conseil d’administration pour surveiller l’application des mécanismes et procédures visés à l’alinéa e) et s’assurer que ces mécanismes et procédures soient respectés par la banque;
69. Subsection 159(2) of the Act is replaced by the following:
Marginal note:Residency requirement
(2) At least one half of the directors of a bank that is a subsidiary of a foreign bank and at least two thirds of the directors of any other bank must be, at the time of each director’s election or appointment, resident Canadians.
Marginal note:1997, c. 15, s. 12
70. Paragraphs 160(e) and (f) of the Act are replaced by the following:
(e) a person who is prohibited by section 392 or 401.3 or subsection 156.09(9) from exercising voting rights attached to shares of the bank;
(f) a person who is an officer, director or full time employee of an entity that is prohibited by section 392 or 401.3 or subsection 156.09(9) from exercising voting rights attached to shares of the bank;
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