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Bank Act (S.C. 1991, c. 46)

Full Document:  

Act current to 2022-06-20 and last amended on 2022-02-26. Previous Versions

PART VICorporate Governance (continued)

Directors and Officers (continued)

Directors and Officers — Authority

Marginal note:Chief executive officer

  •  (1) The directors of a bank shall appoint from their number a chief executive officer who must be ordinarily resident in Canada and, subject to section 198, may delegate to that officer any of the powers of the directors.

  • (2) [Repealed, 1997, c. 15, s. 24]

  • 1991, c. 46, s. 196
  • 1997, c. 15, s. 24

Marginal note:Appointment of officers

  •  (1) The directors of a bank may, subject to the by-laws, designate the offices of the bank, appoint officers thereto, specify the duties of those officers and delegate to them powers, subject to section 198, to manage the business and affairs of the bank.

  • Marginal note:Directors as officers

    (2) Subject to section 164, a director of a bank may be appointed to any office of the bank.

  • Marginal note:Two or more offices

    (3) Two or more offices of a bank may be held by the same person.

Marginal note:Limits on power to delegate

 The directors of a bank that is not a federal credit union may not delegate the power to

  • (a) submit to the shareholders a question or matter requiring the approval of the shareholders;

  • (b) fill a vacancy among the directors, on a committee of directors or in the office of auditor, or appoint additional directors;

  • (c) issue or cause to be issued securities, including an issue of shares of a series that is authorized in accordance with section 62, except in accordance with any authorization made by the directors;

  • (d) declare a dividend;

  • (e) authorize the redemption or other acquisition by the bank pursuant to section 71 of shares issued by the bank;

  • (f) authorize the payment of a commission on a share issue;

  • (g) approve a management proxy circular;

  • (h) except as provided in this Act, approve the annual statement of the bank and any other financial statements issued by the bank; or

  • (i) adopt, amend or repeal by-laws.

  • 1991, c. 46, s. 198
  • 1997, c. 15, s. 25
  • 2005, c. 54, s. 38
  • 2010, c. 12, s. 1987

Marginal note:Limits on power to delegate

 The directors of a federal credit union may not delegate the power to

  • (a) submit to the members or shareholders a question or matter requiring their approval;

  • (b) admit members, except in accordance with any authorization made by the members;

  • (c) fill a vacancy among the directors, on a committee of directors or in the office of auditor;

  • (d) issue or cause to be issued securities, including an issue of shares of a series that is authorized in accordance with section 62, except in accordance with any authorization made by the directors;

  • (e) declare a dividend on membership shares or shares or allocate an amount as a patronage allocation;

  • (f) authorize the redemption or other acquisition by the federal credit union under section 71 of membership shares, or shares, issued by the federal credit union;

  • (g) authorize the payment of a commission on a share issue;

  • (h) approve a management proxy circular;

  • (i) except as provided in this Act, approve the annual statement of the federal credit union and any other financial statements it issued;

  • (j) expel members; or

  • (k) adopt or amend by-laws.

  • 2010, c. 12, s. 1988

Marginal note:Remuneration of directors, officers and employees

  •  (1) Subject to this section and the by-laws, the directors of a bank may fix the remuneration of the directors, officers and employees of the bank.

  • Marginal note:By-law required

    (2) No remuneration shall be paid to a director as director until a by-law fixing the aggregate of all amounts that may be paid to all directors in respect of directors’ remuneration during a fixed period of time has been confirmed by special resolution.

  • 1991, c. 46, s. 199
  • 1994, c. 26, s. 4

Marginal note:Validity of acts

  •  (1) An act of a director or an officer of a bank is valid notwithstanding a defect in the director’s qualification or an irregularity in the director’s election or in the appointment of the director or officer.

  • Marginal note:Idem

    (2) An act of the board of directors of a bank is valid notwithstanding a defect in the composition of the board or an irregularity in the election of the board or in the appointment of a member of the board.

Marginal note:Right to attend meetings

 A director of a bank is entitled to attend and to be heard at every meeting of shareholders or members.

  • 1991, c. 46, s. 201
  • 2010, c. 12, s. 1989

Conflicts of Interest

Marginal note:Disclosure of interest

  •  (1) A director or officer of a bank shall disclose to the bank, in writing or by requesting to have it entered in the minutes of a meeting of directors or a meeting of a committee of directors, the nature and extent of any interest they have in a material contract or material transaction with the bank, whether entered into or proposed, if they

    • (a) are a party to the contract or transaction;

    • (b) are a director or officer of a party to the contract or transaction or a person acting in a similar capacity; or

    • (c) have a material interest in a party to the contract or transaction.

  • Marginal note:Time of disclosure — director

    (2) The disclosure shall be made in the case of a director

    • (a) at the meeting of directors, or of a committee of directors, at which the proposed contract or transaction is first considered;

    • (b) if at the time of the meeting referred to in paragraph (a) the director was not interested in the proposed contract or transaction, at the first one after they become interested in it;

    • (c) if the director becomes interested after a contract or transaction is entered into, at the first one after they become interested; or

    • (d) if a person who is interested in a contract or transaction becomes a director, at the first one after they become a director.

  • Marginal note:Time of disclosure — officer

    (3) The disclosure shall be made in the case of an officer who is not a director

    • (a) immediately after they become aware that the contract, transaction, proposed contract or proposed transaction is to be considered or has been considered at a meeting of directors or of a committee of directors;

    • (b) if they become interested after the contract or transaction is entered into, immediately after they become interested; or

    • (c) if a person who is interested in a contract or transaction becomes an officer, immediately after they become an officer.

  • Marginal note:Time of disclosure — contract not requiring approval

    (4) If the material contract or material transaction, whether entered into or proposed, is one that in the ordinary course of the bank’s business would not require approval by the directors, shareholders or members, as the case may be, the director or officer must disclose to the bank, in writing or by requesting to have it entered in the minutes of a meeting of directors or of a committee of directors, the nature and extent of their interest immediately after they become aware of the contract or transaction.

  • 1991, c. 46, s. 202
  • 2005, c. 54, s. 39
  • 2010, c. 12, s. 1990

Marginal note:Director to abstain

  •  (1) A director who is required to make a disclosure under subsection 202(1) shall not be present at any meeting of directors, or of a committee of directors, while the contract or transaction is being considered or vote on any resolution to approve it unless the contract or transaction

    • (a) relates primarily to their remuneration as a director, officer, employee or agent of the bank, an entity controlled by the bank or an entity in which the bank has a substantial investment;

    • (b) is for indemnity under section 212 or insurance under section 213; or

    • (c) is with an affiliate of the bank.

  • Marginal note:Ineligibility

    (2) Any director who knowingly contravenes subsection (1) ceases to hold office as director and is not eligible, for a period of five years after the date on which the contravention occurred, for election or appointment as a director of any financial institution that is incorporated or formed by or under an Act of Parliament.

  • Marginal note:Validity of acts

    (3) An act of the board of directors of a bank, or of a committee of the board of directors, is not invalid because a person acting as a director had ceased under subsection (2) to hold office as a director.

  • 1991, c. 46, s. 203
  • 1997, c. 15, s. 26
  • 2005, c. 54, s. 40

Marginal note:General notice

  •  (1) For the purposes of subsection 202(1), a general notice to the directors declaring that a director or officer is to be regarded as interested for any of the following reasons in a contract or transaction entered into with a party is a sufficient declaration of interest in relation to any contract or transaction with that party:

    • (a) the director or officer is a director or officer of a party referred to in paragraph 202(1)(b) or (c) or a person acting in a similar capacity;

    • (b) the director or officer has a material interest in the party; or

    • (c) there has been a material change in the nature of the director’s or officer’s interest in the party.

  • Marginal note:Access to disclosures

    (2) The shareholders and members of the bank may examine the portions of any minutes of meetings of directors or committees of directors that contain disclosures under subsection 202(1), or the portions of any other documents that contain those disclosures, during the usual business hours of the bank.

  • 1991, c. 46, s. 204
  • 2001, c. 9, s. 77.1(F)
  • 2005, c. 54, s. 41
  • 2010, c. 12, s. 1991

Marginal note:Avoidance standards

  •  (1) A contract or transaction for which disclosure is required under subsection 202(1) is not invalid and a director or officer is not accountable to the bank or its shareholders or members for any profit realized from it by reason only of the director’s or officer’s interest in the contract or transaction or the fact that the director was present or was counted to determine whether a quorum existed at the meeting of directors, or of a committee of directors, that considered it if

    • (a) the director or officer disclosed their interest in accordance with section 202 and subsection 204(1);

    • (b) the directors approved the contract or transaction; and

    • (c) the contract or transaction was reasonable and fair to the bank at the time that it was approved.

  • Marginal note:Confirmation

    (2) Even if the conditions set out in subsection (1) are not met, a director or officer acting honestly and in good faith is not accountable to the bank or its shareholders or members for any profit realized from a contract or transaction for which disclosure was required and the contract or transaction is not invalid by reason only of the director’s or officer’s interest in it if

    • (a) the contract or transaction is approved or confirmed by special resolution at

      • (i) in the case of a bank that is not a federal credit union, a meeting of shareholders, or

      • (ii) in the case of a federal credit union, at a meeting of its members and, if it has shareholders, at a meeting of its shareholders;

    • (b) disclosure of the interest was made to the shareholders or, in the case of a federal credit union, to the members and shareholders, if any, in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and

    • (c) the contract or transaction was reasonable and fair to the bank at the time that it was approved or confirmed.

  • 1991, c. 46, s. 205
  • 2005, c. 54, s. 41
  • 2010, c. 12, s. 1992

Marginal note:Court may set aside or require accounting

 If a director or officer of a bank fails to comply with any of sections 202 to 205, a court, on application of the bank or any of its shareholders or members, may set aside the contract or transaction on any terms that the court thinks fit and may require the director or officer to account to the bank for any profit or gain realized on it.

  • 1991, c. 46, s. 206
  • 2005, c. 54, s. 41
  • 2010, c. 12, s. 1992

Liability, Exculpation and Indemnification

Marginal note:Director’s liability

  •  (1) Directors of a bank who vote for or consent to a resolution of the directors authorizing the issue of a share contrary to subsection 65(1), the issue of a membership share contrary to subsection 79.1(2) or the issue of subordinated indebtedness contrary to section 80 for a consideration other than money are jointly and severally, or solidarily, liable to the bank to make good any amount by which the consideration received is less than the fair equivalent of the money that the bank would have received if the share, membership share or subordinated indebtedness had been issued for money on the date of the resolution.

  • Marginal note:Further liability

    (2) Directors of a bank who vote for or consent to a resolution of the directors authorizing any of the following are jointly and severally, or solidarily, liable to restore to the bank any amounts so distributed or paid and not otherwise recovered by the bank and any amounts in relation to any loss suffered by the bank:

    • (a) a redemption or purchase of shares or membership shares contrary to section 71;

    • (b) a reduction of capital contrary to section 75;

    • (c) a payment of a dividend or patronage allocation contrary to section 79;

    • (d) a payment of an indemnity contrary to section 212; or

    • (e) any transaction contrary to Part XI.

  • 1991, c. 46, s. 207
  • 2005, c. 54, s. 42(E)
  • 2010, c. 12, s. 1992

Marginal note:Contribution

  •  (1) A director who has satisfied a judgment in relation to the director’s liability under section 207 is entitled to contribution from the other directors who voted for or consented to the unlawful act on which the judgment was founded.

  • Marginal note:Recovery

    (2) A director who is liable under section 207 is entitled to apply to a court for an order compelling a shareholder, member or other person to pay or deliver to the director

    • (a) any money or property that was paid or distributed to the shareholder, member or other person contrary to section 71, 75, 79 or 212; or

    • (b) an amount equal to the value of the loss suffered by the bank as a result of any transaction contrary to Part XI.

  • Marginal note:Court order

    (3) Where an application is made to a court under subsection (2), the court may, where it is satisfied that it is equitable to do so,

    • (a) order a shareholder, member or other person to pay or deliver to a director any money or property that was paid or distributed to the shareholder, member or other person contrary to section 71, 75, 79 or 212 or any amount referred to in paragraph (2)(b);

    • (b) order a bank to return or issue shares or membership shares to a person from whom the bank has purchased, redeemed or otherwise acquired shares or membership shares; or

    • (c) make any further order it thinks fit.

  • 1991, c. 46, s. 208
  • 2010, c. 12, s. 1993
 
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