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Bank Act (S.C. 1991, c. 46)

Full Document:  

Act current to 2022-11-16 and last amended on 2022-06-30. Previous Versions

PART XII.1Authorized Foreign Banks (continued)

Supervision (continued)

Returns (continued)

Marginal note:Confidential information

  •  (1) Subject to section 609, all information regarding the business or affairs of an authorized foreign bank, or regarding a person dealing with an authorized 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: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,

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

    • (c) to the Canada Deposit Insurance Corporation for purposes related to its operation, and

    • (d) 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.

  • 1999, c. 28, s. 35
  • 2001, c. 9, s. 164
  • 2007, c. 6, s. 99

Marginal note:Regulations

 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by authorized foreign banks of prescribed supervisory information.

  • 1999, c. 28, s. 35

Marginal note:Evidentiary privilege

  •  (1) Prescribed supervisory information shall not be used as evidence in any civil proceedings and is privileged for that purpose.

  • Marginal note:No testimony or production

    (2) No person shall by an order of any court, tribunal or other body be required in any civil proceedings to give oral testimony or to produce any document relating to any prescribed supervisory information.

  • Marginal note:Exceptions to subsection (1)

    (3) Despite subsection (1),

    • (a) the Minister, the Superintendent or the Attorney General of Canada may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings; and

    • (b) an authorized foreign bank may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings in relation to the administration or enforcement of this Act or the Winding-up and Restructuring Act that are commenced by the authorized foreign bank, the Minister, the Superintendent or the Attorney General of Canada.

  • Marginal note:Exceptions to subsections (1) and (2)

    (4) Despite subsections (1) and (2) and section 39.1 of the Office of the Superintendent of Financial Institutions Act, a court, tribunal or other body may, by order, require the Minister, the Superintendent or an authorized foreign bank to give oral testimony or to produce any document relating to any prescribed supervisory information in any civil proceedings in relation to the administration or enforcement of this Act that are commenced by the Minister, the Superintendent, the Attorney General of Canada or the authorized foreign bank.

  • Marginal note:No waiver

    (5) The disclosure of any prescribed supervisory information, other than under subsection (3) or (4), does not constitute a waiver of the privilege referred to in subsection (1).

  • Marginal note:Regulations

    (6) The Governor in Council may, for the purposes of subsection (3), make regulations respecting the circumstances in which prescribed supervisory information may be used as evidence.

  • 1999, c. 28, s. 35
  • 2007, c. 6, s. 100
  • 2015, c. 36, s. 233

Marginal note:No waiver

  •  (1) For greater certainty, the disclosure by an authorized foreign bank — or by a person who controls an authorized foreign bank or by an entity that is affiliated with an authorized foreign bank — to the Superintendent of any 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 does not constitute a waiver of any of those privileges or that secrecy.

  • Marginal note:No disclosure

    (2) The Superintendent shall not disclose any information referred to in subsection (1) to any person whose powers, duties or functions include

    • (a) the investigation or prosecution of an offence under any Act of Parliament or of the legislature of a province; or

    • (b) the investigation of, or conduct of proceedings in respect of, a violation under an Act referred to in paragraph (a).

  • 2018, c. 27, s. 169

Marginal note:Disclosure by Superintendent

  •  (1) The Superintendent shall disclose, at the times and in the manner that the Minister may determine, any information obtained by the Superintendent under this Act that the Minister considers ought to be disclosed for the purposes of the analysis of the business in Canada of an authorized foreign bank and that

    • (a) is contained in returns filed pursuant to the Superintendent’s financial regulatory reporting requirements in respect of authorized foreign banks; 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 business in Canada of authorized foreign banks.

  • Marginal note:Prior consultation required

    (2) The Minister shall consult with the Superintendent before making any determination under subsection (1).

  • 1999, c. 28, s. 35

Marginal note:Disclosure by an authorized foreign bank

  •  (1) An authorized foreign bank shall make available to the public any information concerning

    • (a) the compensation of its executives, as that expression is defined by the regulations, and

    • (b) its business and affairs for the purposes of the analysis of its business in Canada,

    in the form and manner and at the times that may be required by or under regulations that the Governor in Council may make for the purpose.

  • Marginal note:Exemption by regulation

    (2) Paragraph (1)(a) does not apply to an authorized foreign bank that is within any class or classes of authorized foreign banks that may be prescribed.

  • 1999, c. 28, s. 35

Marginal note:Exceptions to disclosure

 Subject to any regulations made under paragraph 627.998(n), information obtained by an authorized foreign bank regarding any of its customers shall not be disclosed or made available under subsection 609(1) or section 610.

Marginal note:Report respecting disclosure

 The Superintendent shall prepare a report respecting the disclosure of information by authorized foreign banks and describing the state of progress made in enhancing the disclosure of information in the financial services industry. The report is to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act.

  • 1999, c. 28, s. 35
  • 2001, c. 9, s. 165

Inspection of Authorized Foreign Banks

Marginal note:Examination of authorized foreign banks

  •  (1) The Superintendent, from time to time, but, in the case of an authorized foreign bank that is not subject to the restrictions and requirements referred to in subsection 524(2), 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 authorized foreign bank that the Superintendent considers to be necessary or expedient to determine whether the authorized foreign bank is complying with the provisions of this Act and, after the conclusion of each examination and inquiry, shall report on it to the Minister.

  • Marginal note:Access to records of authorized foreign bank

    (2) The Superintendent or a person acting under the Superintendent’s direction

    • (a) has a right of access to any records, cash, assets and security held by or on behalf of an authorized foreign bank; and

    • (b) may require the directors, officers and the auditor of an authorized foreign bank to provide information and explanations, to the extent that they are reasonably able to do so, in respect of the condition and affairs of the authorized foreign bank or any entity in which it has a substantial investment under Part XII.

  • 1999, c. 28, s. 35
  • 2001, c. 9, s. 166
  • 2012, c. 5, s. 74

Marginal note:Power of Superintendent on inquiry

 The Superintendent has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Superintendent’s direction.

  • 1999, c. 28, s. 35

Remedial Powers

Prudential Agreements

Marginal note:Prudential agreement

 The Superintendent may enter into an agreement, called a “prudential agreement”, with an authorized foreign bank for the purposes of implementing any measure designed to protect the interests of its depositors and creditors in respect of its business in Canada.

  • 2001, c. 9, s. 167

Directions of Compliance

Marginal note:Superintendent’s directions to authorized foreign bank

  •  (1) Where, in the opinion of the Superintendent, an authorized foreign bank, or a person with respect to an authorized foreign bank, is committing, or is about to commit, an act that is an unsafe or unsound practice in relation to the business in Canada of the authorized foreign bank, or is pursuing or is about to pursue any course of conduct that is an unsafe or unsound practice in relation to that business, the Superintendent may direct the authorized foreign bank or person to

    • (a) cease or refrain from committing the act or pursuing the course of conduct; and

    • (b) perform any acts that in the opinion of the Superintendent are necessary to remedy the situation.

  • Marginal note:Opportunity for representations

    (2) Subject to subsection (3), no direction shall be issued to an authorized foreign bank or person unless the authorized foreign bank or person is provided with a reasonable opportunity to make representations in respect of the matter.

  • Marginal note:Temporary direction

    (3) Where, in the opinion of the Superintendent, the length of time required for representations to be made might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) and (b) having effect for a period of not more than fifteen days.

  • Marginal note:Continuing effect

    (4) A temporary direction continues to have effect after the expiration of the fifteen day period referred to in subsection (3) if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the authorized foreign bank or person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.

  • 1999, c. 28, s. 35

Marginal note:Court enforcement

  •  (1) Where an authorized foreign bank or a person

    • (a) is contravening or has failed to comply with a prudential agreement entered into under section 614.1 or a direction of the Superintendent made under subsection 615(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 authorized foreign 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 authorized foreign 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 the application the court may so order and make any other order it thinks fit.

  • Marginal note:Appeal

    (2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court.

  • 1999, c. 28, s. 35
  • 2001, c. 9, s. 168

Asset Maintenance

Marginal note:Order re: asset maintenance

 Where, in the opinion of the Superintendent, it is necessary for the protection of rights of depositors and creditors of the authorized foreign bank in respect of its business in Canada, the Superintendent may, by order,

  • (a) subject to any terms and conditions that the Superintendent considers necessary, direct an authorized foreign bank to maintain in Canada assets of any type and in any amount that the Superintendent may specify; and

  • (b) require that the assets referred to in paragraph (a) be deposited with a Canadian financial institution approved by the Superintendent under a deposit agreement approved by the Superintendent.

  • 1999, c. 28, s. 35

Disqualification and Removal of Principal Officers

Marginal note:Application

  •  (1) This section applies only in respect of an authorized foreign bank

    • (a) that has been notified by the Superintendent that this section applies to it where the authorized foreign bank is subject to measures designed to protect the interests of its depositors and creditors in respect of its business in Canada, 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 business in Canada by the authorized foreign bank, or

      • (ii) are contained in a prudential agreement entered into under section 614.1 or an undertaking given by the authorized foreign bank to the Superintendent; or

    • (b) that is the subject of a direction made under section 615 or an order made under section 617.

  • Marginal note:Information to be provided

    (2) An authorized foreign bank shall provide the Superintendent with the name of any person who has been selected by the authorized foreign bank for appointment as principal officer, together with such other information about the background, business record and experience of the person as the Superintendent may require.

  • Marginal note:When information to be provided

    (3) The information required by subsection (2) shall be provided to the Superintendent at least 30 days prior to the date of the appointment or within any shorter period that the Superintendent may allow.

  • Marginal note:Disqualification

    (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 the position of principal officer, the Superintendent may, by order, disqualify the person from being appointed to that office.

  • Marginal note:Risk of prejudice

    (5) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the authorized foreign bank in respect of its business in Canada would likely be prejudiced if the person were to take office.

  • Marginal note:Representations may be made

    (6) The Superintendent must in writing notify the person concerned and the authorized foreign bank of an order that the Superintendent proposes to make 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:Prohibition

    (7) If an order is made under subsection (4) disqualifying a person from being appointed as principal officer, the person shall not be, and the authorized foreign bank shall not permit the person to be, appointed to that position.

  • 2001, c. 9, s. 169
 
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