Short Title

Marginal note:Short title

1 This Act may be cited as the Financial Consumer Agency of Canada Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this section and in sections 3 to 34.

Agency

Agence

Agency means the Financial Consumer Agency of Canada established under section 3. (Agence)

bank holding company

société de portefeuille bancaire

bank holding company means a bank holding company as defined in section 2 of the Bank Act; (société de portefeuille bancaire)

Commissioner

commissaire

Commissioner means the Commissioner of the Agency appointed under section 4. (commissaire)

consumer provision

disposition visant les consommateurs

consumer provision means

• (a) paragraphs 157(2)(e) and (f), sections 413.1, 439.1 to 459.5, subsections 540(2) and (3) and 545(4) and (5), paragraphs 545(6)(b) and (c) and sections 559 to 576.2 of the Bank Act together with any regulations made under or for the purposes of those provisions;

• (b) paragraphs 167(2)(f) and (g) and sections 385.05 to 385.28 of the Cooperative Credit Associations Act together with any regulations made under or for the purposes of those provisions;

• (c) paragraphs 165(2)(f) and (g) and sections 479 to 489.2 and 598 to 607.1 of the Insurance Companies Act together with any regulations made under or for the purposes of those provisions;

• (d) paragraphs 161(2)(e) and (f) and sections 425.1 to 444.3 of the Trust and Loan Companies Act together with any regulations made under or for the purposes of those provisions; and

• (e) the provisions referred to in paragraph 17(1)(f.1) of the Green Shield Canada Act as they apply to Green Shield Canada in accordance with section 17 of that Act together with any regulations made under or for the purposes of those provisions. (disposition visant les consommateurs)

Deputy Commissioner

commissaire adjoint

Deputy Commissioner means a Deputy Commissioner appointed under section 8. (commissaire adjoint)

financial institution

institution financière

financial institution means

• (a) a bank as defined in section 2 of the Bank Act;

• (b) an authorized foreign bank as defined in section 2 of the Bank Act;

• (c) a company to which the Trust and Loan Companies Act applies;

• (d) a retail association as defined in section 2 of the Cooperative Credit Associations Act;

• (e) a company or foreign company to which the Insurance Companies Act applies; and

• (f) Green Shield Canada. (institution financière)

governing statute

loi d’application

governing statute means

• (a) in relation to a bank or authorized foreign bank as defined in the Bank Act, that Act;

• (b) in relation to a retail association to which the Cooperative Credit Associations Act applies, that Act;

• (c) in relation to a company or foreign company to which the Insurance Companies Act applies, that Act;

• (d) in relation to a company to which the Trust and Loan Companies Act applies, that Act; and

• (e) in relation to Green Shield Canada, the Green Shield Canada Act. (loi d’application)

insurance holding company

société de portefeuille d’assurances

insurance holding company means an insurance holding company as defined in subsection 2(1) of the Insurance Companies Act. (société de portefeuille d’assurances)

Minister

ministre

Minister means the Minister of Finance. (ministre)

penalty

pénalité

penalty means an administrative monetary penalty. (pénalité)

prescribed

Version anglaise seulement

prescribed means prescribed by regulation. (Version anglaise seulement)

Establishment of Agency

Marginal note:Establishment

• 3 (1) There is hereby established an agency of the Government of Canada called the Financial Consumer Agency of Canada over which the Minister shall preside and for which the Minister shall be responsible.

• Marginal note:Objects

  (2) The objects of the Agency are to

  • (a) supervise financial institutions to determine whether they are in compliance with the consumer provisions applicable to them;

  • (b) promote the adoption by financial institutions of policies and procedures designed to implement consumer provisions applicable to them;

  • (c) monitor the implementation of voluntary codes of conduct that are designed to protect the interests of customers of financial institutions, that have been adopted by financial institutions and that are publicly available and to monitor any public commitments made by financial institutions that are designed to protect the interests of their customers;

  • (d) promote consumer awareness about the obligations of financial institutions under consumer provisions applicable to them; and

  • (e) foster, in co-operation with any department, agency or agent corporation of the Government of Canada or of a province, financial institutions and consumer and other organizations, an understanding of financial services and issues relating to financial services.

Commissioner of Agency

Marginal note:Appointment of Commissioner

• 4 (1) The Governor in Council shall appoint an officer to be called the Commissioner of the Financial Consumer Agency of Canada. The Commissioner has the rank and all the powers of a deputy head of a department.

• Marginal note:Tenure of office and removal

  (2) The Commissioner holds office during good behaviour for a term of not more than five years, but may be removed for cause by the Governor in Council.

• Marginal note:Further terms

  (3) The Commissioner, on the expiration of any term of office, is eligible to be re-appointed for a further term of office.

• Marginal note:Absence or incapacity

  (4) In the event of the absence or incapacity of the Commissioner, or if the office of Commissioner is vacant, the Minister may appoint a qualified person to exercise the powers and perform the duties and functions of the Commissioner, but no person may be so appointed for a term of more than 90 days without the approval of the Governor in Council.

• Marginal note:Remuneration

  (5) The Commissioner shall be paid the remuneration fixed by the Governor in Council.

• Marginal note:Expenses

  (6) The Commissioner and any person appointed under subsection (4) are entitled to be paid reasonable travel and living expenses incurred in the course of performing their duties while absent from their ordinary place of work.

• Marginal note:Deemed employment

  (7) The Commissioner and any person appointed under subsection (4) are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act and to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Powers, Duties and Functions of the Commissioner

Marginal note:Powers, duties and functions of the Commissioner

• 5 (1) The Commissioner has the powers, duties and functions assigned to the Commissioner by this Act and by the Acts listed in Schedule 1 and shall examine and inquire into, and report to the Minister from time to time on, all matters connected with the administration of this Act and of the consumer provisions of those other Acts.

• Marginal note:Personal information

  (2) The Commissioner may collect any personal information that he or she considers necessary in furtherance of the object described in paragraph 3(2)(a).

• Marginal note:Review re voluntary codes of conduct

  (3) The Commissioner, if a financial institution has adopted a voluntary code of conduct referred to in paragraph 3(2)(c) or made a commitment designed to protect the interests of its customers, may make or cause to be made any review that he or she considers necessary to monitor compliance with the code or the commitment, as the case may be.

• Marginal note:Respect for other monitors

  (4) When acting under subsection (3), the Commissioner shall have due regard for the role of any department, agency or agent corporation of the Government of Canada or of a province or any organization that has a role in monitoring compliance by financial institutions with voluntary codes of conduct or commitments.

• Marginal note:Consumer awareness

  (5) The Commissioner may carry on any activity that he or she considers necessary in furtherance of an object described in paragraph 3(2)(d) or (e).

Marginal note:Duties and functions generally

• 6 (1) The Commissioner shall engage exclusively in the duties and functions of the Commissioner under section 5 and as deputy head of the Agency.

• Marginal note:Other duties

  (2) Despite subsection (1), the Commissioner may hold any other office under Her Majesty or perform any other duties for Her Majesty, but not for reward.

Agreements

Marginal note:Agreements

7 The Agency, in order to carry out its objects, may enter into an agreement or arrangement with a department or agency of the Government of Canada or of a province or with any other person or body in the name of Her Majesty in right of Canada or in its own name. An agreement or arrangement with a department or agency of a province must be made with the approval of the Governor in Council.

Deputy Commissioners

Marginal note:Appointment of Deputy Commissioner

8 The Commissioner may appoint one or more officers each to be called a Deputy Commissioner of the Financial Consumer Agency of Canada who shall act under the instructions of the Commissioner.

Exercise of Powers, Duties and Functions

Marginal note:Exercise by personnel

9 Except as otherwise provided by the Commissioner and subject to any terms and conditions that may be specified by the Commissioner, a person who is an officer or employee of the Agency may exercise any of the powers and perform any of the duties and functions of the Commissioner under this Act if the person is appointed to serve in the Agency in a capacity appropriate to the exercise of the power or performance of the duty or function.

Staff of Agency

Marginal note:Employees

10 The employees that are necessary to enable the Commissioner to perform the duties of the Commissioner shall be appointed in accordance with the Public Service Employment Act.

Marginal note:Responsibility for personnel management

• 11 (1) In respect of persons appointed under sections 8 and 10, the Commissioner is authorized to exercise the powers and perform the duties and functions of the Treasury Board under paragraphs 7(1)(b) and (e) and section 11 of the Financial Administration Act that relate to personnel management, including the determination of terms and conditions of employment and the responsibility for employer and employee relations.

• Marginal note:Delegation of powers

  (2) The Commissioner may authorize any person employed in the public service of Canada to exercise and perform, in such manner and subject to such terms and conditions as the Commissioner directs, any of the powers and functions of the Commissioner in relation to personnel management in the public service and may, from time to time as the Commissioner sees fit, revise or rescind and reinstate the authority so granted.

• Marginal note:Sub-delegation of such powers

  (3) Any person authorized under subsection (2) to exercise and perform any of the powers and functions of the Commissioner may, subject to and in accordance with the authorization, authorize one or more persons under their jurisdiction or any other person to exercise or perform any such power or function.

Marginal note:Official Languages Act

12 For greater certainty, the Official Languages Act applies to the Agency.

Appropriation

Marginal note:Expenditures out of C.R.F.

• 13 (1) Subject to subsection (2), the Minister may, in any fiscal year on terms and conditions — including the rate of interest, if any — that are determined by the Minister, advance amounts out of the Consolidated Revenue Fund to the Agency to permit it to defray its costs of operation.

• Marginal note:Spending authority

  (2) In carrying out its responsibilities, the Agency may spend assessments and other revenues received through the conduct of its operations in the fiscal year in which they are received or, unless an appropriation Act provides otherwise, in the next fiscal year. The amount of those assessments or other revenues shall be paid out of the Consolidated Revenue Fund.

Conflict of Interest

Marginal note:Ownership

14 No Commissioner, person appointed under subsection 4(4) or Deputy Commissioner shall beneficially own, directly or indirectly, any shares of any financial institution, bank holding company, insurance holding company or of any other body corporate, however created, carrying on any business in Canada that is substantially similar to any business carried on by any financial institution.

Marginal note:Borrowing

15 No Commissioner, person appointed under subsection 4(4) or Deputy Commissioner shall borrow money from any financial institution or from any member institution as defined in the Canada Deposit Insurance Corporation Act unless the Minister is first informed in writing of the intention of the Commissioner, person or Deputy Commissioner to do so.

Marginal note:No grant or gratuity to be made

• 16 (1) The Commissioner, a person appointed under subsection 4(4), a Deputy Commissioner and any person appointed under section 10 shall not accept or receive, directly or indirectly, any grant or gratuity from a financial institution, bank holding company, insurance holding company, or from a director, officer or employee of any of them, and no such financial institution, bank holding company, insurance holding company, director, officer or employee shall make or give any such grant or gratuity.

• Marginal note:Offence and punishment

  (2) Every person, financial institution, bank holding company or insurance holding company that contravenes subsection (1) is guilty of an offence and liable

  • (a) on summary conviction, to a fine of not more than $2000 or to imprisonment for a term of not more than six months or to both; or

  • (b) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than five years or to both.

Confidentiality

Marginal note:Confidential information

• 17 (1) Subject to subsection (2) and except as otherwise provided in this Act, information regarding the business or affairs of a financial institution or regarding persons dealing with one that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsections 5(1) and (2) and any information prepared from that information, is confidential and shall be treated accordingly.

• Marginal note:Disclosure permitted

  (2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it

  • (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 or any compensation association designated by order of the Minister pursuant to subsection 449(1) or 591(1) of the Insurance Companies Act, 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.

Assessments

Marginal note:Commissioner to ascertain expenses

• 18 (1) The Commissioner shall, before December 31 in each year, ascertain the total amount of expenses incurred during the immediately preceding fiscal year for or in connection with the administration of this Act and the consumer provisions, and the amounts of any prescribed categories of those expenses in relation to any prescribed group of financial institutions.

• Marginal note:Amount conclusive

  (2) The amounts ascertained under subsection (1) are final and conclusive for the purposes of this section.

• Marginal note:Assessment

  (3) As soon as possible after ascertaining the amounts under subsection (1), the Commissioner shall assess a portion of the total amount of expenses against each financial institution to the extent and in the manner that the Governor in Council may, by regulation, prescribe.

• Marginal note:Interim assessment

  (4) The Commissioner may, during each fiscal year, prepare an interim assessment against any financial institution.

• Marginal note:Assessment is binding

  (5) Every assessment and interim assessment is final and conclusive and binding on the financial institution against which it is made.

• Marginal note:Recovery

  (6) Every assessment and interim assessment constitutes a debt due to Her Majesty, is immediately payable and may be recovered as a debt in any court of competent jurisdiction.

• Marginal note:Interest

  (7) Interest may be charged on the unpaid amount of an assessment or interim assessment at a rate equal to the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act in effect from time to time plus 2%.

Administrative Monetary Penalties

Violations

Marginal note:Regulations

• 19 (1) The Governor in Council may make regulations

  • (a) designating, as a violation that may be proceeded with under sections 20 to 31, the contravention of a specified consumer provision, or the non-compliance with a compliance agreement entered into under an Act listed in Schedule 1;

  • (b) fixing, in accordance with subsection (2), a penalty, or a range of penalties, in respect of any violation;

  • (c) respecting the service of documents required or authorized to be served under sections 20 to 31, including the manner and proof of service and the circumstances under which documents are deemed to be served; and

  • (d) generally, for carrying out the purposes and provisions of this section and sections 20 to 31.

• Marginal note:Maximum penalties

  (2) The maximum penalty for a violation is $50,000 in the case of a violation that is committed by a natural person, and $100,000 in the case of a violation that is committed by a financial institution.

Marginal note:Criteria for penalty

20 Except if a penalty is fixed under paragraph 19(1)(b), the amount of a penalty shall, in each case, be determined taking into account

• (a) the degree of intention or negligence on the part of the person who committed the violation;

• (b) the harm done by the violation;

• (c) the history of the person who committed the violation with respect to any prior violation or conviction under an Act listed in Schedule 1 within the five-year period immediately before the violation; and

• (d) any other criteria that may be prescribed.

Marginal note:How act or omission may be proceeded with

21 If a contravention or non-compliance that is designated under paragraph 19(1)(a) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Proceedings

Marginal note:Commission of violation

• 22 (1) Every contravention or non-compliance that is designated under paragraph 19(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 19 and 20.

• Marginal note:Notice of violation

  (2) If the Commissioner believes on reasonable grounds that a person has committed a violation, he or she may issue, and shall cause to be served on the person, a notice of violation.

• Marginal note:Contents of notice

  (3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out

  • (a) the penalty that the Commissioner proposes to impose;

  • (b) the right of the person, within 30 days after the notice is served, or within any longer period that the Commissioner specifies, to pay the penalty or to make representations to the Commissioner with respect to the violation and the proposed penalty, and the manner for doing so; and

  • (c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commissioner may impose a penalty in respect of it.

Determination of Responsibility and Penalty

Marginal note:Payment of penalty

• 23 (1) If the person pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.

• Marginal note:Representations to Commissioner

  (2) If the person makes representations in accordance with the notice, the Commissioner shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commissioner may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Notice of decision and right of appeal

  (4) The Commissioner shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with notice of the right of appeal under section 24.

Appeal to Federal Court

Marginal note:Right of appeal

• 24 (1) A person on whom a notice under subsection 23(4) is served may, within 30 days after the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.

• Marginal note:Court to take precautions against disclosing

  (2) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person of confidential information referred to in subsection 17(1).

• Marginal note:Powers of Court

  (3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 19(1)(b), vary the decision of the Commissioner.

Enforcement

Marginal note:Debts to Her Majesty

• 25 (1) A penalty constitutes a debt due to Her Majesty in right of Canada that may be recovered as such in the Federal Court.

• Marginal note:Time limit

  (2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

• Marginal note:Proceeds payable to Receiver General

  (3) A penalty paid or recovered under sections 19 to 24, this section and sections 26 to 31 is payable to and shall be remitted to the Receiver General.

Marginal note:Certificate of default

• 26 (1) The unpaid amount of any debt referred to in subsection 25(1) may be certified by the Commissioner.

• Marginal note:Registration in Federal Court

  (2) Registration in the Federal Court of a certificate made under subsection (1) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.

Rules about Violations

Marginal note:Violations not offences

27 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of one.

Marginal note:Due diligence available

• 28 (1) Due diligence is a defence in a proceeding in relation to a violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence in relation to a consumer provision applies in respect of a violation to the extent that it is not inconsistent with this Act.

General Provisions

Marginal note:Evidence

29 In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 22(2) or 23(4) or a certificate purporting to be made under subsection 26(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Time limit

• 30 (1) No proceedings in respect of a violation may be commenced later than two years after the subject-matter of the proceedings became known to the Commissioner.

• Marginal note:Certificate of Commissioner

  (2) A document appearing to have been issued by the Commissioner, certifying the day on which the subject-matter of any proceedings became known to the Commissioner, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Marginal note:Publication

31 The Commissioner may make public the nature of a violation, the name of the person who committed it, and the amount of the penalty imposed.

Regulations

Marginal note:Regulations

32 The Governor in Council may make regulations prescribing

• (a) anything that is required or authorized by this Act to be prescribed; and

• (b) the way in which anything that is required or authorized by this Act to be prescribed shall be determined.

No Liability

Marginal note:No liability

33 No action lies against Her Majesty, the Minister, the Commissioner, any Deputy Commissioner, any officer or employee of the Agency or any person acting under the direction of the Commissioner for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under any Act of Parliament are intended or authorized to be executed or performed.

Annual Report

Marginal note:Annual report

34 The Minister shall cause to be laid before each House of Parliament, not later than the fifth sitting day of that House after September 30 next following the end of each fiscal year, a report showing the operations of the Agency for that year and describing in aggregate form its conclusions on the compliance of financial institutions with the consumer provisions applicable to them in that year.

Amendments to Acts in Relation to Financial Institutions

35 to 571 [Amendments]

Amendments to Other Acts

572 to 583 [Amendments]

Consequential Amendments

584 to 592 [Amendments]

Coming into Force

Marginal note:Coming into force

Footnote ^*593 The provisions of this Act, other than subsections 120(2), 122(2), 155(2), 157(2), 424(2) and 444(2), section 473 and subsections 545(2) and 547(2), or the provisions of any Act enacted or amended by this Act, come into force on a day or days to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Subsections 120(2), 122(2), 155(2), 157(2), 424(2) and 444(2), section 473 and subsections 545(2) and 547(2) in force on assent June 14, 2001; sections 1 to 106 and 108 to 119, subsections 120(1) and (3), section 121, subsection 122(1), sections 123 to 140, subsections 141(1) and (3), sections 142 to 154, subsections 155(1) and (3), section 156, subsection 157(1), sections 158 to 222, subsections 223(1), (4) and (5) and sections 224 to 238, section 28 and the heading before section 28, as enacted by section 239, sections 241 to 310, sections 382 and 382.1, as enacted by section 311, sections 312 to 417 and 419 to 423, subsection 424(1), sections 425 to 443, subsection 444(1), sections 445 to 472, 475 to 533 and 535 to 544, subsections 545(1) and (3), section 546, subsection 547(1) and sections 548 to 592 and 594 in force October 24, 2001, see SI/2001-102; section 27 and the heading before section 27, as enacted by section 239, in force June 21, 2002, see SI/2002-99.]

Marginal note:Authority to substitute actual date

594 The Governor in Council may, by regulation, amend any provision of the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act that contains a reference to the coming into force of any provision of any of those Acts, or a reference to the coming into force of any provision of this Act, by replacing that reference with a reference to the actual date of the coming into force of the provision.