PART XIIIRegulation of Banks — Superintendent (continued)
Marginal note:No waiver
638.1 (1) For greater certainty, the disclosure by a bank — or by a person who controls a bank or by an entity that is affiliated with a 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. 170
Marginal note:Disclosure by Superintendent
639 (1) The Superintendent shall disclose, at such times and in such manner as the Minister may determine, such information obtained by the Superintendent under this Act as the Minister considers ought to be disclosed for the purposes of the analysis of the financial condition of a bank and that
(a) is contained in returns filed pursuant to the Superintendent’s financial regulatory reporting requirements in respect of 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 financial condition of 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. 44
Marginal note:Disclosure by a bank
640 (1) A bank shall make available to the public such 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 financial condition,
in such form and manner and at such times as may be required by or pursuant to such regulations as the Governor in Council may make for the purpose.
Marginal note:Exemption by regulation
(2) Paragraph (1)(a) does not apply to a bank that is within such class or classes of banks as may be prescribed.
- 1999, c. 28, s. 44
Marginal note:Exceptions to disclosure
641 Subject to any regulations made under section 459, no information obtained by a bank regarding any of its customers shall be disclosed or made available under subsection 639(1) or section 640.
- 1999, c. 28, s. 45
Marginal note:Report respecting disclosure
642 The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by banks and describing the state of progress made in enhancing the disclosure of information in the financial services industry.
- 1999, c. 28, s. 46
- 2001, c. 9, s. 175
Inspection of Banks
Marginal note:Examination of banks
643 (1) The Superintendent, from time to time, but 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 bank that the Superintendent considers to be necessary or expedient to determine whether the bank is complying with the provisions of this Act and whether the bank is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
Marginal note:Access to records of 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 a bank; and
(b) may require the directors, officers and the auditor or auditors of a 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 bank or any entity in which the bank has a substantial investment.
- 1999, c. 28, s. 46
- 2001, c. 9, s. 176
- 2012, c. 5, s. 76
Marginal note:Power of Superintendent on inquiry
644 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. 46
Marginal note:Prudential agreement
644.1 The Superintendent may enter into an agreement, called a “prudential agreement”, with a bank for the purposes of implementing any measure designed to maintain or improve its safety and soundness.
- 2001, c. 9, s. 177
Directions of Compliance
Marginal note:Superintendent’s directions to bank
645 (1) Where, in the opinion of the Superintendent, a bank, or a person with respect to a bank, is committing, or is about to commit, an act that is an unsafe or unsound practice in conducting the business of the bank, or is pursuing or is about to pursue any course of conduct that is an unsafe or unsound practice in conducting the business of the bank, the Superintendent may direct the bank or person to
(a) cease or refrain from committing the act or pursuing the course of conduct; and
(b) perform such acts as 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 a bank or person under subsection (1) unless the 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 under subsection (2) 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:Continued effect
(4) A temporary direction under subsection (3) continues to have effect after the expiration of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the bank or person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.
- 1999, c. 28, s. 47
Marginal note:Court enforcement
646 (1) Where a bank or person
(a) is contravening or has failed to comply with a prudential agreement entered into under section 644.1 or a direction of the Superintendent made under subsection 645(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 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 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 such application the court may so order and make any other order it thinks fit.
(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. 48
- 2001, c. 9, s. 178
Disqualification and Removal of Directors or Senior Officers
Meaning of senior officer
646.1 In sections 647 and 647.1, senior officer means the chief executive officer, secretary, treasurer or controller of a bank or any other officer reporting directly to the bank’s board of directors or chief executive officer.
- 2001, c. 9, s. 179
647 (1) This section applies only in respect of a bank
(a) that has been notified by the Superintendent that this section applies to it where the bank is subject to measures designed to maintain or improve its safety and soundness, 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 the bank’s business, or
(ii) are contained in a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent; or
(b) that is the subject of a direction made under section 645 or an order made under subsection 485(3).
Marginal note:Information to be provided
(2) A bank shall provide the Superintendent with the name of
(a) each person who has been nominated for election or appointment as a member of its board of directors,
(b) each person who has been selected by the bank for appointment as a senior officer, and
(c) each person who is newly elected as a director of the bank and who was not proposed for election by anyone involved in the management of the bank,
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
(a) at least thirty days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or
(b) in the case of a person referred to in paragraph (2)(c), within fifteen days after the date of the election of the person.
Marginal note:Disqualification or removal
(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 that position, the Superintendent may, by order,
(a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a bank or from being appointed as a senior officer; or
(b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the bank.
Marginal note:Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the bank would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Marginal note:Representations may be made
(5) The Superintendent must in writing notify the person concerned and the bank of any action that the Superintendent proposes to take 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.
(6) Where an order has been made under subsection (4)
(a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the bank shall not permit the person to be, elected or appointed to the position; or
(b) removing a director from office, the person shall not continue to hold, and the bank shall not permit the person to continue to hold, office as a director.
- 1999, c. 28, s. 49
- 2001, c. 9, s. 180
- 2010, c. 12, s. 2080
Marginal note:Removal of directors or senior officers
647.1 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a bank if the Superintendent is of the opinion that the person is not suitable to hold that office
(a) on the basis of the competence, business record, experience, conduct or character of the person; or
(b) because the person has contravened or, by action or negligence, has contributed to the contravention of
(i) this Act or the regulations made under it,
(ii) a direction made under section 645,
(iii) an order made under subsection 485(3),
(iv) a condition or limitation in respect of the order approving the commencement and carrying on of the bank’s business, or
(v) a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent.
Marginal note:Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the bank have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Marginal note:Representations may be made
(3) The Superintendent must in writing notify the person concerned and the bank of any removal order that the Superintendent proposes to make under subsection (1) 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.
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Marginal note:Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the bank of a removal order or suspension order.
Marginal note:Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
(7) The director or senior officer, as the case may be, or the bank may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Marginal note:Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Marginal note:Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
- 2001, c. 9, s. 181
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