Canada Deposit Insurance Corporation Act

Marginal note:Stay of proceedings

• 39.15 (1) Where an order is made under subsection 39.13(1),

  • (a) no action or other civil proceeding before a judicial or quasi-judicial body and no arbitration may be commenced or continued against the federal member institution or in respect of its assets other than a proceeding under the Winding-up and Restructuring Act commenced by the Corporation or the Attorney General of Canada;

  • (b) no attachment, garnishment, execution or other method of enforcement of a judgment or order against the federal member institution or its assets may take place or continue;

  • (c) no creditor of the federal member institution has any remedy against the federal member institution or its assets;

  • (d) except in the normal course of clearing and settlement processes, including the consolidation of accounts in respect of those processes or the services referred to in paragraph (5)(c), no creditor has any right of set-off or compensation against the federal member institution;

  • (e) no person may terminate or amend any agreement with the federal member institution or claim an accelerated payment, or forfeiture of the term, under such an agreement by reason only of

    • (i) the insolvency or deteriorated financial condition of the federal member institution or any of its affiliates, providers of credit support or guarantors,

    • (ii) a non-monetary default, before the order was made, by the federal member institution or any of its affiliates in the performance of obligations under the agreement,

    • (iii) a monetary default, before the order was made, under the agreement by the federal member institution or any of its affiliates that is remedied within 60 days after the day on which the order is made,

    • (iv) the making of the order or any change of control or ownership of the federal member institution or any of its affiliates that is related to the making of the order,

    • (v) the assignment or assumption of the agreement to or by a bridge institution or a third party,

    • (vi) the transfer to a third party of all or part of the assets or liabilities of the federal member institution or any of its affiliates,

    • (vii) a conversion under subsection 39.2(2.3) in respect of the federal member institution, or

    • (viii) a conversion of any of the federal member institution’s shares or liabilities in accordance with the contractual terms of those shares or liabilities; and

  • (f) no person may terminate the federal member institution’s membership in an organization by reason only of

    • (i) the insolvency or deteriorated financial condition of the federal member institution or any of its affiliates, providers of credit support or guarantors,

    • (ii) a non-monetary default, before the order was made, by the federal member institution or any of its affiliates in the performance of obligations under the rules of the organization,

    • (iii) a monetary default, before the order was made, under the rules of the organization by the federal member institution or any of its affiliates that is remedied within 60 days after the day on which the order is made,

    • (iv) the making of the order or any change of control or ownership of the federal member institution or any of its affiliates that is related to the making of the order,

    • (v) the transfer of the federal member institution’s membership to a bridge institution or a third party,

    • (vi) the transfer to a third party of all or part of the assets or liabilities of the federal member institution or any of its affiliates,

    • (vii) a conversion under subsection 39.2(2.3) in respect of the federal member institution, or

    • (viii) a conversion of any of the federal member institution’s shares or liabilities in accordance with the contractual terms of those shares or liabilities.

• Marginal note:Stay of proceedings — before conversion

  (1.1) If an order is made under paragraph 39.13(1)(d), no person may terminate or amend any agreement with the federal member institution that is in relation to any of that institution’s shares or liabilities that are prescribed by the regulations made under subsection 39.2(10), claim an accelerated payment or forfeiture of the term under such an agreement or demand payment of any amount under such an agreement, by reason only of a monetary default by that institution in the performance of obligations under the agreement when that default occurs after the order was made but before a conversion under subsection 39.2(2.3) in respect of that institution.

• Marginal note:Agreements overridden

  (2) Where an order is made under subsection 39.13(1), any stipulation in an agreement is of no force or effect if it

  • (a) has the effect of providing for or permitting anything that, in substance, is contrary to paragraph (1)(e), subsection (1.1) or paragraph 39.13(3)(b); or

  • (b) provides, in substance, that the federal member institution ceases to have the rights — or, in the case of a bridge institution, does not have the rights — to use or deal with assets that the federal member institution or bridge institution would otherwise have, on

    • (i) the insolvency or deteriorated financial condition of the federal member institution or any of its affiliates, providers of credit support or guarantors,

    • (ii) a non-monetary default, before the order was made, by the federal member institution or any of its affiliates in the performance of obligations under the agreement,

    • (iii) a monetary default, before the order was made, under the agreement by the federal member institution or any of its affiliates that is remedied within 60 days after the day on which the order is made,

    • (iv) the making of the order or any change of control or ownership of the federal member institution or any of its affiliates that is related to the making of the order,

    • (v) the assignment or assumption of the agreement to or by a bridge institution or a third party,

    • (vi) the transfer to a third party of all or part of the assets or liabilities of the federal member institution or any of its affiliates,

    • (vii) a conversion under subsection 39.2(2.3) in respect of the federal member institution, or

    • (viii) a conversion of any of the federal member institution’s shares or liabilities in accordance with the contractual terms of those shares or liabilities.

• Marginal note:Organization’s rules — no force or effect

  (2.1) If an order is made under subsection 39.13(1), any stipulation in the rules of an organization is of no force or effect if it

  • (a) has the effect of providing for or permitting anything that, in substance, is contrary to paragraph (1)(f) or 39.13(3)(b); or

  • (b) provides, in substance, that the federal member institution ceases to have the rights — or, in the case of the bridge institution, does not have the rights — of a member of the organization, that the federal member institution or the bridge institution would otherwise have, on

    • (i) the insolvency or deteriorated financial condition of the federal member institution or any of its affiliates, providers of credit support or guarantors,

    • (ii) a non-monetary default, before the order was made, by the federal member institution or any of its affiliates in the performance of obligations under the rules of the organization,

    • (iii) a monetary default, before the order was made, under the rules of the organization by the federal member institution or any of its affiliates that is remedied by the institution within 60 days after the day on which the order is made,

    • (iv) the making of the order or any change of control or ownership of the federal member institution or any of its affiliates that is related to the making of the order,

    • (v) the transfer of the federal member institution’s membership to a bridge institution or a third party,

    • (vi) the transfer to a third party of all or part of the assets or liabilities of the federal member institution or any of its affiliates,

    • (vii) a conversion under subsection 39.2(2.3) in respect of the federal member institution, or

    • (viii) a conversion of any of the federal member institution’s shares or liabilities in accordance with the contractual terms of those shares or liabilities.

• Marginal note:Clearing arrangements

  (3) Subsections (1) to (2.1) do not apply so as to prevent a member of the Canadian Payments Association from acting or ceasing to act as a clearing agent for a federal member institution in accordance with the Canadian Payments Act and the by-laws and rules of that Association.

• Marginal note:Exception

  (3.1) Despite subsection (3), if a clearing agent that is a member of the Canadian Payments Association acts in that capacity for a federal member institution at the time an order is made under subsection 39.13(1) in respect of the institution, the clearing agent shall continue to act in that capacity for the institution after the order is made, if the Corporation has given an undertaking to provide the financial assistance that the institution needs in order to discharge its obligations to the clearing agent as they become due.

• Marginal note:Clearing house

  (3.2) Subsections (1) to (2.1) do not apply so as to prevent a clearing house

  • (a) from acting or ceasing to act in that capacity for a federal member institution; or

  • (b) from exercising its rights under its settlement rules, as defined in subsection 8(5) of the Payment Clearing and Settlement Act.

• Marginal note:Exception

  (3.3) Despite subsection (3.2), a clearing house that acts in that capacity for a federal member institution at the time an order is made under subsection 39.13(1) in respect of the institution shall continue to act in that capacity for the institution and subsections (1) to (2.1) apply in respect of the clearing house, if the Corporation has given an undertaking to provide the financial assistance that the institution needs in order to discharge its obligations to the clearing house as they become due.

• Marginal note:Rights subject to set-off or compensation

  (4) A federal member institution in respect of which an order is made under subsection 39.13(1) may not enforce against a person a right to receive an amount against which the person, but for paragraph (1)(d), would have a right of set-off or compensation.

• Marginal note:Further supplies and advances

  (5) Nothing in subsection (1) or (2) shall be construed

  • (a) as prohibiting a person from requiring payments to be made in cash for goods, services, use of leased or licensed property or other valuable consideration provided after the making of the order;

  • (b) as requiring the advance to a federal member institution in respect of which an order is made under subsection 39.13(1) of money or credit after the making of the order; or

  • (c) as requiring the provision to a federal member institution in respect of which an order is made under subsection 39.13(1) of any of the following services where to do so would be likely, in the reasonable opinion of the person providing the service, to result in that person advancing money or credit to the federal member institution after the making of the order or to give rise, after the making of the order, to a claim of that person against the federal member institution, namely,

    • (i) cash management services,

    • (ii) services related to the redemption of debt instruments,

    • (iii) services related to the issuance of letters of credit or guarantees,

    • (iv) cheque certification services,

    • (v) currency supply services,

    • (vi) funds transfer services and remittance order services,

    • (vii) securities delivery and settlement services,

    • (viii) charge, credit, debit and payment card services,

    • (ix) automated banking and teller machine services,

    • (x) electronic funds transfer at point of sale services,

    • (xi) consignment cheque services,

    • (xii) other services similar to those referred to in subparagraphs (i) to (xi),

    • (xiii) any service of a kind prescribed by the regulations, and

    • (xiv) a guarantee of liabilities in respect of any of the services referred to in subparagraphs (i) to (xiii).

• Marginal note:Security agreements, assignments and transfers

  (6) Paragraphs (1)(b) to (e) and subsection (2) do not apply in respect of a remedy under, or a stipulation of, a security agreement creating a security interest in assets of a federal member institution or an agreement assigning or transferring the institution’s right, title or interest in any real property or immovable situated in Canada, including any mortgage or hypothec on that real property or immovable, if

  • (a) an obligation secured by the agreement is to the Bank of Canada or the Corporation; or

  • (b) the Superintendent, on the application of the federal member institution, exempted the agreement from the application of those paragraphs and that subsection before the making of an order under subsection 39.13(1) and the Corporation does not undertake

    • (i) to ensure that the obligations secured by the security interest or the assignment or transfer will be assumed by a bridge institution or a third party, or

    • (ii) to provide the federal member institution with the financial assistance that it needs to discharge the obligations secured by the security interest or the assignment or transfer as they become due.

• Marginal note:Eligible financial contracts

  (7) Nothing in subsection (1), (2) or (2.1) prevents the following actions from being taken in accordance with the provisions of an eligible financial contract:

  • (a) the termination or amendment of the contract;

  • (b) the accelerated payment or forfeiture of the term under the contract;

  • (c) the exercise of remedies for a failure to satisfy an obligation under or in connection with the contract, including the payment of an amount payable — or the delivery of property deliverable — under or in connection with the contract;

  • (d) the netting or setting off or compensation of an amount payable under or in connection with the contract;

  • (e) any dealing with financial collateral

    • (i) to satisfy an amount payable — or the delivery of property deliverable — under or in connection with the contract,

    • (ii) for the purpose of calculating an amount payable under or in connection with the contract by way of netting, setting off or compensation of the financial collateral or application of the proceeds or value of the financial collateral, or

    • (iii) as a remedy for a failure described in paragraph (c); or

  • (f) any dealing with financial collateral, other than a dealing set out in paragraph (e).

• Marginal note:Interpretation

  (7.01) For the purposes of paragraphs (7)(e) and (f), dealings with financial collateral include

  • (a) the sale or foreclosure or, in Quebec, the surrender of financial collateral; and

  • (b) the netting, setting off or compensation of financial collateral or the application of the proceeds or value of financial collateral.

• (7.02) and (7.03) [Repealed, 2016, c. 7, s. 134]

• Marginal note:Stay — eligible financial contracts

  (7.1) If an order is made under subsection 39.13(1), the actions referred to in paragraphs (7)(a), (b) and (f) are not to be taken by reason only of

  • (a) the insolvency or deteriorated financial condition of the federal member institution, any of its affiliates or any of its providers of credit support or guarantors in respect of the institution’s obligations under the eligible financial contract;

  • (b) the assignment or assumption of the eligible financial contract to or by a bridge institution or a third party;

  • (c) the making of the order or any change of control or ownership of the federal member institution or any of its affiliates that is related to the making of the order;

  • (d) a conversion under subsection 39.2(2.3) in respect of the federal member institution; or

  • (e) a conversion of any of the federal member institution’s shares or liabilities in accordance with the contractual terms of those shares or liabilities.

• Marginal note:Stay terminated — notice

  (7.101) If the Corporation considers that all or substantially all of the federal member institution’s assets will be transferred to a third party and that an eligible financial contract of that institution will not be assigned to a third party, it may give notice to that effect to the parties to that contract, in which case paragraphs (7.1)(a) and (c) cease to apply in respect of that contract at the date and time the notice is issued.

• Marginal note:Stay terminated

  (7.102) Paragraph (7.1)(a) and, if the order made under subsection 39.13(1) directs the incorporation of a bridge institution, paragraph (7.1)(c) cease to apply to an eligible financial contract at 5:00 p.m. at the location of the Corporation’s head office on the second business day after the day on which the order is made under subsection 39.13(1), unless the Corporation has undertaken, before that time, to assign the contract to a bridge institution.

• Marginal note:Interpretation

  (7.103) For greater certainty, paragraph (7.1)(a) and, if applicable, paragraph (7.1)(c) cease to apply in respect of an eligible financial contract to which both subsection (7.101) and (7.102) apply on the earlier of the date and time that a notice is issued under subsection (7.101) and the date and time set out in subsection (7.102).

• Marginal note:Insolvency or deteriorated financial condition

  (7.104) Despite subsections (7.101) and (7.102), an action set out in paragraph (7)(a), (b) or (f) may only be taken by reason of the insolvency or deteriorated financial condition described in paragraph (7.1)(a) if that insolvency or deteriorated financial condition exists on the date and time paragraph (7.1)(a) ceases to apply.

• Marginal note:Evidence

  (7.105) Nothing in paragraphs (7.1)(b) to (e) prevents a person from relying on the facts that led to the making of an order under subsection 39.13(1) as evidence of the insolvency or deteriorated financial condition described in paragraph (7.1)(a).

• Marginal note:Agreements overridden

  (7.11) Any stipulation in an eligible financial contract is of no force or effect if it

  • (a) has the effect of providing for or permitting anything that, in substance, is contrary to subsection (7.1); or

  • (b) provides, in substance, that, by reason of the occurrence of any circumstance described in paragraphs (7.1)(a) to (e), the federal member institution ceases to have the rights — or, in the case of a bridge institution, does not have the rights — to use or deal with assets that the federal member institution or bridge institution would otherwise have.

• Marginal note:Exception

  (7.12) Subsection (7.1) does not apply in respect of an eligible financial contract between the federal member institution and

  • (a) Her Majesty in right of Canada;

  • (b) the government of a foreign country;

  • (c) a central bank; or

  • (d) a clearing house, unless the Corporation has given the undertaking referred to in subsection (3.3) in respect of the institution.

• Marginal note:Assignment of eligible financial contracts

  (7.2) Subject to subsection (7.21), the Corporation may assign to a bridge institution or a third party eligible financial contracts — including any claim under such contracts — that are between a federal member institution and an entity or any of the following entities if the Corporation assigns all of those eligible financial contracts to the bridge institution or the third party:

  • (a) another entity that is controlled — directly or indirectly — by the entity;

  • (b) another entity that controls — directly or indirectly — the entity; or

  • (c) another entity that is controlled — directly or indirectly — by the entity referred to in paragraph (b).

• Marginal note:Eligible third parties

  (7.21) The Corporation may assign eligible financial contracts to a third party under subsection (7.2) if the third party has met any condition that may be prescribed in the by-laws and has certified in writing that

  • (a) it maintains all material licences and registrations that are required for the continued operation of its business and, if applicable, that it is in good standing in respect of those licences and registrations;

  • (b) it has, on its balance sheet, assets that exceed its liabilities;

  • (c) it is able to discharge its obligations in respect of the assigned eligible financial contracts as they become due; and

  • (d) its creditworthiness, taking into account any credit support or guarantee in respect of its obligations under the assigned contracts, is at least as good as the federal member institution’s creditworthiness was immediately before the order was made under subsection 39.13(1), taking into account any credit support or guarantee in respect of the federal member institution’s obligations under those contracts.

• Marginal note:Effects of assignment of eligible financial contracts

  (7.3) If any of the eligible financial contracts are assigned to or assumed by a bridge institution or a third party,

  • (a) the Corporation shall assign all of the federal member institution’s obligations arising from the eligible financial contracts, and the bridge institution or the third party shall assume those obligations; and

  • (b) the federal member institution’s interest or right in property that secures its obligations under the eligible financial contracts is transferred to the bridge institution or the third party.

• Marginal note:Application of this section

  (7.4) A federal member institution that is part of a class prescribed by the by-laws must ensure in accordance with the by-laws that this section — or provisions that have substantially the same effect as this section — applies to any eligible financial contract to which the institution is a party and that is part of a class prescribed by the by-laws.

• Marginal note:By-laws

  (7.5) The Board may make by-laws respecting the manner in which a federal member institution referred to in subsection (7.4) is to ensure that this section — or provisions that have substantially the same effect as this section — applies to an eligible financial contract referred to in that subsection.

• Marginal note:Different treatment

  (7.6) The by-laws made under subsection (7.5) may distinguish among classes of federal member institutions and classes of eligible financial contracts.

• Marginal note:Regulations

  (8) The Governor in Council may make regulations prescribing

  • (a) kinds of services for the purposes of subparagraph (5)(c)(xiii); and

  • (b) kinds of agreements for the purposes of the definition eligible financial contract in subsection (9).

• Marginal note:Definitions

  (9) The following definitions apply in this section.

  business day

  business day means a day, other than a Saturday or a holiday at the location of the head office of the federal member institution. (jour ouvrable)

  clearing agent

  clearing agent has the same meaning as in section 1 of the Canadian Payments Association By-law No. 3 — Payment Items and Automated Clearing Settlement System. (agent de compensation)

  clearing house

  clearing house means

  • (a) a clearing house, as defined in section 2 of the Payment Clearing and Settlement Act, that provides clearing, settlement or payment message exchange services for a clearing and settlement system designated under section 4 of that Act; or

  • (b) a securities and derivatives clearing house, as defined in subsection 13.1(3) of the Payment Clearing and Settlement Act. (chambre de compensation)

  eligible financial contract

  eligible financial contract means an agreement of a prescribed kind. (contrat financier admissible)

  financial collateral

  financial collateral has the same meaning as in subsection 13(2) of the Payment Clearing and Settlement Act. (garantie financière)

  title transfer credit support agreement

  title transfer credit support agreement means an agreement under which title to property has been provided for the purpose of securing the payment or performance of an obligation in respect of an eligible financial contract. (accord de transfert de titres pour obtention de crédit)