Payment Clearing and Settlement Act (S.C. 1996, c. 6, Sch.)

Marginal note:Liquidator bound

• 11.22 (1) The liquidator of a clearing house appointed under the Winding-up and Restructuring Act is bound by the terms and conditions of any transaction that involves the sale or other alienation of the clearing house’s assets or the assumption by a bridge clearing house of any portion of the clearing house’s liabilities and shall carry out those transactions or cause them to be carried out.

• Marginal note:Expenses

  (2) All costs, charges and expenses properly incurred by the liquidator in complying with the terms and conditions of any transaction referred to in subsection (1), including the liquidator’s remuneration, are payable by the bridge clearing house.

Marginal note:Dissolution

• 11.23 (1) The Bank may, if it is a shareholder of a clearing house, take any measure in respect of the dissolution of the clearing house.

• Marginal note:Winding-up and Restructuring Act

  (2) The Bank may, if it is a shareholder of a clearing house that is incorporated under the Trust and Loan Companies Act, apply for a winding-up order in respect of the clearing house under the Winding-up and Restructuring Act.

• Marginal note:Bank considered to be creditor

  (3) For the purposes of the Winding-up and Restructuring Act, the Bank is considered to be a creditor of the clearing house that is incorporated under the Trust and Loan Companies Act.

Marginal note:Notice — end of resolution

11.24 If the Bank considers that the exit plan has been substantially implemented, it shall cause a notice to that effect to be published in the Canada Gazette. The notice must specify the day on which the clearing and settlement system or clearing house is no longer in resolution.

Compensation

Marginal note:No compensation — Canadian Payments Association

11.25 If an order is made under paragraph 11.09(1)(a), neither the Canadian Payments Association nor its members are entitled to compensation as a result of the receivership of the Association.

Marginal note:Amount of compensation

• 11.26 (1) If an order is made under paragraph 11.09(1)(b) or subsection 11.11(1), the Bank shall, in accordance with the regulations, determine the amount of compensation, if any, to be paid to a prescribed person or entity.

• Marginal note:Entitlement to compensation

  (2) A person or entity that was a prescribed person or entity at the time a declaration of non-viability was made is entitled to be paid compensation only if they are in a worse financial position than they would have been if

  • (a) in the case of a clearing house incorporated under the Trust and Loan Companies Act, the clearing house had been liquidated under the Winding-up and Restructuring Act at the time a declaration of non-viability was made; or

  • (b) in all other cases, the clearing house had become bankrupt and been liquidated at the time a declaration of non-viability was made and the measures to address financial loss, shortfalls in liquidity or capital adequacy that were specified in its by-laws or rules, or in an arrangement that relates to the clearing and settlement system, were exhausted.

• Marginal note:Duty to pay compensation

  (3) The Bank shall pay the compensation and shall decide whether to pay it wholly or partly in cash or wholly or partly in any other form, including shares, that the Bank considers appropriate.

• Marginal note:Compensation not payable

  (4) No compensation is payable under subsection (1) before the 90th day after the day on which the clearing and settlement system or clearing house is no longer in resolution.

Marginal note:Discharge of liability

11.27 Payment of the compensation by the Bank under section 11.26 discharges the Bank from its obligations under that section and in no case is the Bank under any obligation to see to the proper application in any way of any such payment.

Marginal note:Appointment of assessor

• 11.28 (1) In the circumstances prescribed by the regulations, the Governor in Council shall, by order, appoint as assessor a judge of a superior court to review a determination made by the Bank under subsection 11.26(1).

• Marginal note:Review

  (2) In reviewing the Bank’s determination, the assessor shall decide whether the Bank made its determination based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it or on an unreasonable estimate.

• Marginal note:Confirmation of determination

  (3) If the assessor decides that the Bank did not make its determination based on such a finding of fact or on such an estimate, the assessor shall confirm the Bank’s determination.

• Marginal note:Determination of amount

  (4) If the assessor decides that the Bank made its determination based on such a finding of fact or on such an estimate, the assessor shall determine, in accordance with the regulations, the amount of compensation, if any, to be paid to the prescribed person or entity and substitute the assessor’s determination for the Bank’s determination.

Marginal note:Sittings and hearings

• 11.29 (1) The assessor may sit at any place and shall arrange for the sittings and hearings that may be required.

• Marginal note:Powers of assessor

  (2) The assessor has all the powers conferred on a commissioner appointed under Part II of the Inquiries Act for the purpose of obtaining evidence under oath or solemn affirmation.

• Marginal note:Assistance

  (3) The assessor may appoint a person or entity to assist him or her in exercising his or her powers or performing his or her duties and functions.

• Marginal note:Payment

  (4) Fees and disbursements payable to the person or entity may be included by the assessor in an amount awarded in respect of costs under subsection (5) or (6).

• Marginal note:Costs payable by Bank

  (5) If the assessor determines that it is just and reasonable that costs in the proceeding before the assessor be awarded to a prescribed person or entity and against the Bank, the amount that the assessor determines to be just and reasonable to award in respect of those costs is payable by the Bank to the prescribed person or entity.

• Marginal note:Costs payable to Bank

  (6) If the assessor determines that it is just and reasonable that costs in the proceeding before the assessor be awarded to the Bank and against a prescribed person or entity, the amount that the assessor determines to be just and reasonable to award in respect of those costs constitutes a debt payable by the prescribed person or entity to the Bank and may be recovered as such in any court of competent jurisdiction.

Marginal note:Determination and decision final

11.3 A determination or decision made by an assessor appointed under section 11.28 or, subject to that section, by the Bank under section 11.26 is for all purposes final.

PART IIGeneral

Bank Powers

Marginal note:Other powers

12 The Bank may do all or any of the following:

• (a) be a participant in a clearing and settlement system and participate in its loss-sharing mechanism;

• (b) act as a custodian of financial assets or act as a settlement agent, or both, for a clearing house;

• (c) despite section 23 of the Bank of Canada Act, accept and pay interest on deposits from a clearing house, participant or central counter-party.

Marginal note:Cooperation

12.01 If a clearing and settlement system is operated by a clearing house that is not located in Canada, the Bank may cooperate with the foreign resolution authority of that clearing house.

Marginal note:Bank may impose fees

• 12.1 (1) The Bank may annually impose a fee on a clearing house for the reasonable costs to the Bank of the administration of this Act for that year in respect of the clearing house’s designated clearing and settlement system.

• Marginal note:Recovery of fees

  (2) A fee imposed under subsection (1) constitutes a debt due to the Bank and may be recovered as such in any court of competent jurisdiction.

Netting Agreements

Marginal note:Termination

• 13 (1) Despite anything in any law relating to bankruptcy or insolvency or any order of a court made in respect of a reorganization, arrangement or receivership involving insolvency, a party to a netting agreement may terminate the agreement and determine a net termination value or net settlement amount in accordance with the provisions of the agreement and the party entitled to the net termination value or net settlement amount is to be a creditor of the party owing the net termination value or net settlement amount for that value or amount.

• Marginal note:Eligible financial contract

  (1.1) If a netting agreement referred to in subsection (1) is an eligible financial contract, a party to the agreement may also, in accordance with the provisions of that agreement, deal with financial collateral including

  • (a) selling or foreclosing or, in the Province of Quebec, surrendering financial collateral; and

  • (b) setting off or compensating financial collateral or applying the proceeds or value of financial collateral.

• Marginal note:Sections 39.15 and 39.152 of Canada Deposit Insurance Corporation Act

  (1.2) Despite subsections (1) and (1.1), no action may be taken in respect of an eligible financial contract, as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act, if it is prevented by subsection 39.15(7.1), (7.104), (7.11), (7.12) or (7.2) or section 39.152 of that Act.

• Marginal note:Interpretation

  (2) The following definitions apply in this section.

  financial collateral

  financial collateral means any of the following that is subject to an interest, or in the Province of Quebec a right, that secures payment or performance of an obligation in respect of an eligible financial contract or that is subject to a title transfer credit support agreement:

  • (a) cash or cash equivalents, including negotiable instruments and demand deposits,

  • (b) securities, a securities account, a securities entitlement or a right to acquire securities,

  • (c) a futures agreement or a futures account,

  • (d) an assignment of a right to payment or delivery against a clearing house, or

  • (e) any other collateral that is prescribed. (garantie financière)

  financial institution

  financial institution means

  • (a) a financial institution within the meaning of section 2 of the Trust and Loan Companies Act,

  • (b) such other entity or entity within a class of entities engaged primarily in the business of providing financial services as may be designated by order of the Governor in Council to be a financial institution for the purposes of this section,

  • (c) a trustee, manager or administrator of a pension fund maintained to provide benefits under a pension plan registered under the Income Tax Act,

  • (d) the Canada Pension Plan Investment Board, or

  • (e) the Public Sector Pension Investment Board. (institution financière)

  net termination value

  net termination value means the net amount obtained after setting off or compensating or otherwise netting the obligations between the parties to a netting agreement in accordance with its provisions. (reliquat net)

  netting agreement

  netting agreement means an agreement between two or more financial institutions, between the Bank and one or more financial institutions or between a participant and a customer to which the participant provides clearing services that is

  • (a) an eligible financial contract; or

  • (b) an agreement that provides for the netting or set-off or compensation of present or future obligations to make payments against the present or future rights to receive payments. (accord de compensation)

  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)