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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 XII.1Authorized Foreign Banks (continued)

Auditors (continued)

Examinations and Reports (continued)

Marginal note:Additional reports to principal officer

  •  (1) It is the duty of the auditor of an authorized foreign bank to report in writing to the principal officer of the authorized foreign bank any transactions or conditions in respect of the business in Canada of the authorized foreign bank that have come to the auditor’s attention affecting the well-being of the authorized foreign bank that in the auditor’s opinion are not satisfactory and require rectification and, without restricting the generality of the foregoing, the auditor shall, as occasion requires, make a report to the principal officer in respect of transactions in respect of the business in Canada of the authorized foreign bank that have come to the auditor’s attention and that in the auditor’s opinion have not been within the powers of the authorized foreign bank.

  • Marginal note:Transmission of report

    (2) The auditor shall, at the time of transmitting the report to the principal officer, provide the Superintendent with a copy of it.

  • 1991, c. 46, s. 595
  • 1999, c. 28, s. 35

Marginal note:Qualified privilege for statements

 Any oral or written statement or report made under this Act by the auditor or a former auditor of an authorized foreign bank has qualified privilege.

  • 1991, c. 46, s. 596
  • 1999, c. 28, s. 35

Records

Marginal note:Records

  •  (1) An authorized foreign bank shall prepare and maintain

    • (a) records containing copies of all orders of the Minister or the Superintendent in relation to the authorized foreign bank;

    • (b) accounting records respecting its business in Canada;

    • (c) with respect to its business in Canada, records showing, for each of its customers, on a daily basis, particulars of the transactions with that customer and the balance owing to or by the authorized foreign bank in respect of that customer;

    • (d) records containing information set out in Schedule III, as that information exists from time to time, in relation to the authorized foreign bank; and

    • (e) records containing the name, address and date of appointment of the authorized foreign bank’s auditor.

  • Marginal note:Place of records

    (2) The records described in subsection (1) shall be kept at the principal office of the authorized foreign bank or at any other place in Canada that its principal officer thinks fit.

  • Marginal note:Exception

    (2.1) Subject to subsection 245(1.1), subsection (2) does not apply to an authorized foreign bank that is:

    • (a) incorporated in a country or territory other than Canada in which a trade agreement listed in Schedule IV is applicable; or

    • (b) a subsidiary of a foreign bank incorporated or formed otherwise in a country or territory other than Canada in which a trade agreement listed in Schedule IV is applicable or of a regulated foreign entity.

  • Marginal note:Notice of place of records

    (3) Where any of the records described in subsection (1) are not kept at the principal office of an authorized foreign bank, the authorized foreign bank shall notify the Superintendent of the place where they are kept.

  • Marginal note:Form of records

    (4) Records required by this Act to be prepared and maintained by an authorized foreign bank

    • (a) may be in a bound or loose-leaf form or in a photographic film form; or

    • (b) may be entered or recorded by any 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:Conversion of records

    (5) Records kept in one form may be converted to any other form and, notwithstanding section 246, an authorized foreign bank may destroy the record at any time after it has been converted.

  • Marginal note:Access to records

    (6) Creditors in respect of the business in Canada of an authorized foreign bank and their personal representatives may examine a record referred to in any of paragraphs (1)(a), (d) or (e) during the usual business hours of the authorized foreign bank, and may take extracts from it, free of charge, or have copies made of it on payment of a reasonable fee.

  • Marginal note:Electronic access

    (7) An authorized foreign bank may make the information contained in records referred to in subsection (1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time.

Marginal note:Application of sections 244 to 247

 Sections 244 to 247 apply, with any modifications that the circumstances require, to an authorized foreign bank, and in the application of those sections,

  • (a) the reference in subsections 245(1) and (1.1) to “records referred to in section 238” shall be read as a reference to “records referred to in subsection 597(1)”;

  • (b) the reference in subsection 245(1.1) to “subsection 239(3.1)” shall be read as a reference to “subsection 597(2.1)”;

  • (c) the reference in subsection 245(1.1) to “directors” shall be read as a reference to “principal officer”; and

  • (d) the reference in paragraph 246(1)(a) to “records of the bank referred to in subsection 238(1)” shall be read as a reference to “records of the authorized foreign bank” referred to in subsection 597(1)”.

Termination of Business in Canada

Marginal note:Release of assets in Canada

  •  (1) An authorized foreign bank that discontinues its business in Canada may apply in writing to the Superintendent for the release of its assets maintained on deposit under paragraph 534(3)(a) or subsection 582(1).

  • Marginal note:Conditions of release

    (2) Except as otherwise provided in this Act, the assets may not be released unless

    • (a) the authorized foreign bank discharges, provides for the discharge of, or transfers, all its liabilities in respect of its business in Canada to a bank, to another authorized foreign bank in respect of its business in Canada or to a body corporate to which the Trust and Loan Companies Act applies; and

    • (b) the authorized foreign bank provides the Superintendent with proof of the publication, for four consecutive weeks, in at least one newspaper of general circulation at or near the place where the principal office of the authorized foreign bank is situated and the Canada Gazette of a notice that it will apply to the Superintendent for the release of its assets on a day specified in the notice, which must be at least six weeks after the date of the notice, and calling on any of its depositors or creditors opposing that release to file their opposition with the Superintendent on or before the day.

  • Marginal note:Superintendent may release assets

    (3) After the day specified in the notice, the Superintendent may authorize the release of the assets if the Superintendent is satisfied that the authorized foreign bank has discharged, provided for the discharge of, or transferred, all of its liabilities in respect of its business in Canada.

  • Marginal note:Release of assets to liquidator

    (4) Notwithstanding subsections (1) to (3), the assets on deposit of an authorized foreign bank that is in liquidation may, on the order of any court having jurisdiction under the Winding-up and Restructuring Act, be released to the liquidator.

  • Marginal note:Order deemed to be revoked

    (5) An order made under subsection 524(1), 528(1) or (1.1) or 534(1) in respect of an authorized foreign bank is deemed to be revoked when the Superintendent authorizes the release of the assets of the authorized foreign bank under subsection (3).

  • 1991, c. 46, s. 599
  • 1999, c. 28, s. 35
  • 2007, c. 6, s. 96

Supervision

Returns

Marginal note:Required information

 An authorized foreign bank shall provide the Superintendent with any information, at the times and in the form, that the Superintendent may require.

  • 1991, c. 46, s. 600
  • 1999, c. 28, s. 35

Marginal note:Annual return

  •  (1) An authorized foreign bank, in respect of its business in Canada, shall prepare annually a return of the condition and affairs of the authorized foreign bank as at the end of each financial year, showing its assets and liabilities and its income and expenditures during that financial year together with any other information that the Superintendent considers appropriate.

  • (2) [Repealed, 2007, c. 6, s. 97]

  • Marginal note:Accounting principles

    (3) The annual return shall be prepared in accordance with the accounting principles referred to in subsection 308(4).

  • 1991, c. 46, s. 601
  • 1999, c. 28, s. 35
  • 2007, c. 6, s. 97

 [Repealed, 2007, c. 6, s. 98]

 [Repealed, 2007, c. 6, s. 98]

 [Repealed, 2007, c. 6, s. 98]

Marginal note:Production of information and documents

  •  (1) The Superintendent may, by order, direct a person who controls an authorized foreign bank or any entity that is affiliated with an authorized foreign bank to provide the Superintendent with any information or documents that may be specified in the order if the Superintendent believes that the production of the information or documents is necessary in order to be satisfied that the provisions of this Act are being duly observed.

  • Marginal note:Time

    (2) A person to whom an order is issued shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time.

  • Marginal note:Exemption

    (3) Subsection (1) does not apply in respect of an entity that is affiliated with an authorized foreign bank where that entity is a financial institution regulated

    • (a) by or under an Act of Parliament; or

    • (b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions in that province concerning the sharing of information on those financial institutions.

  • 1991, c. 46, s. 605
  • 1999, c. 28, s. 35

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
 
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