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Office of the Superintendent of Financial Institutions Act (R.S.C., 1985, c. 18 (3rd Supp.), Part I)

Act current to 2021-03-23 and last amended on 2018-12-13. Previous Versions

Administrative Monetary Penalties (continued)

Violations (continued)

Marginal note:Criteria for penalty

 Except if a penalty is fixed under paragraph 25(1)(c), 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 a financial institutions Act within the five-year period immediately before the violation; and

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

  • R.S., 1985, c. 18 (3rd Supp.), s. 26
  • 2001, c. 9, s. 476

Marginal note:How act or omission may be proceeded with

 If a contravention or non-compliance that is designated under paragraph 25(1)(a) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

  • R.S., 1985, c. 18 (3rd Supp.), s. 27
  • 2001, c. 9, s. 476

Proceedings

Marginal note:Commission of violation

  •  (1) Every contravention or non-compliance that is designated under paragraph 25(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 25 and 26.

  • Marginal note:Notice of violation

    (2) If the Superintendent 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 Superintendent proposes to impose;

    • (b) the right of the person, within 30 days after the notice is served or within any longer period that the Superintendent specifies, to pay the penalty or to make representations to the Superintendent 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 Superintendent may impose a penalty in respect of it.

  • R.S., 1985, c. 18 (3rd Supp.), s. 28
  • 2001, c. 9, s. 476

Determination of Responsibility and Penalty

Marginal note:Payment of penalty

  •  (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 Superintendent

    (2) If the person makes representations in accordance with the notice, the Superintendent shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 25(1)(c), 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 Superintendent may, subject to any regulations made under paragraph 25(1)(c), impose the penalty proposed, a lesser penalty or no penalty.

  • Marginal note:Notice of decision and right of appeal

    (4) The Superintendent shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with, in the case of a serious violation or very serious violation, notice of the right of appeal under section 30.

  • R.S., 1985, c. 18 (3rd Supp.), s. 29
  • 2001, c. 9, s. 476

Appeal to Federal Court

Marginal note:Right of appeal

  •  (1) A person on whom a notice under subsection 29(4) in respect of a serious violation or very serious violation 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 22(1).

  • Marginal note:Powers of Court

    (3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 25(1)(c), vary the decision of the Superintendent.

  • R.S., 1985, c. 18 (3rd Supp.), s. 30
  • 2001, c. 9, s. 476

Enforcement

Marginal note:Debts to Her Majesty

  •  (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered 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 25 to 30, this section and sections 32 to 37 is payable to and shall be remitted to the Receiver General.

  • R.S., 1985, c. 18 (3rd Supp.), s. 31
  • 2001, c. 9, s. 476

Marginal note:Certificate

  •  (1) The unpaid amount of any debt referred to in subsection 31(1) may be certified by the Superintendent.

  • 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.

  • R.S., 1985, c. 18 (3rd Supp.), s. 32
  • 2001, c. 9, s. 476

Rules about Violations

Marginal note:Violations not offences

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

  • R.S., 1985, c. 18 (3rd Supp.), s. 33
  • 2001, c. 9, s. 476

Marginal note:Due diligence available

  •  (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 a circumstance a justification or an excuse in relation to a charge for an offence under a financial institutions Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

  • R.S., 1985, c. 18 (3rd Supp.), s. 34
  • 2001, c. 9, s. 476

Marginal note:Continuing violation

 A minor violation that is continued on more than one day constitutes a separate violation for each day during which it is continued.

  • R.S., 1985, c. 18 (3rd Supp.), s. 35
  • 2001, c. 9, s. 476

General Provisions

Marginal note:Evidence

 In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 28(2) or 29(4) or a certificate purporting to be made under subsection 32(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

  • R.S., 1985, c. 18 (3rd Supp.), s. 36
  • 2001, c. 9, s. 476

Marginal note:Time limit

  •  (1) No proceedings in respect of a violation may be commenced later than six months after the subject-matter of the proceedings became known to the Superintendent, in the case of a minor violation, or two years after the subject-matter of the proceedings became known to the Superintendent, in the case of a serious violation or a very serious violation.

  • Marginal note:Certificate of Superintendent

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

  • Marginal note:No use of privileged information

    (3) The Superintendent shall not use privileged information as evidence in a proceeding in respect of a violation if the privileged information was disclosed to the Superintendent by

    • (a) a financial institution, bank holding company or insurance holding company; or

    • (b) a person who controls, or an entity that is affiliated with, an entity referred to in paragraph (a).

  • Marginal note:Definition of privileged information

    (4) In subsection (3), privileged information means 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.

  • R.S., 1985, c. 18 (3rd Supp.), s. 37
  • 2001, c. 9, s. 476
  • 2018, c. 27, s. 167
 
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