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Retail Payment Activities Act (S.C. 2021, c. 23, s. 177)

Act current to 2022-06-20

PART 5Administration and Enforcement (continued)

Administrative Monetary Penalties (continued)

Rules About Violations

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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 a violation.

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Marginal note:Due diligence available

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

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    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 applies in respect of a violation to the extent that it is consistent with this Act.

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Marginal note:Liability

 An individual or entity is liable for a violation that is committed by any of its employees, third-party service providers, or agents or mandataries acting in the course of their employment, their contract or the scope of their authority as agent or mandatary, whether or not the employee, third-party service provider or agent or mandatary that actually committed the violation is identified.

Recovery of Debts

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Marginal note:Debts due to Her Majesty

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     (1) The following amounts constitute a debt due to Her Majesty in right of Canada that may be recovered in the Federal Court or any other court of competent jurisdiction:

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      (a) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice, a compliance agreement is entered into or the decision is appealed;

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      (b) if representations are made, the amount of the penalty that is imposed by the Governor, beginning on the day specified by the Governor or, if no day is specified, beginning on the day on which the decision is made;

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      (c) every amount set out in a compliance agreement, beginning on the day on which the compliance agreement is entered into or the day specified in the compliance agreement;

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      (d) the amount of a penalty set out in a notice of default referred to in subsection 82(1), beginning on the day on which the period specified in the notice expires, unless a review is requested under subsection 83(1);

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      (e) if a review is requested under subsection 83(1) and the Governor confirms the Bank’s decision, the amount of the penalty set out in the notice of default referred to in subsection 82(1), beginning on the day specified by the Governor or, if no day is specified, beginning on the day on which the Governor’s decision is made, unless the decision is appealed;

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      (f) the amount of a penalty determined by the Federal Court under subsection 84(4), beginning on the day on which the period specified in the decision for the payment of that amount expires or the day specified in the decision; and

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      (g) the amount of any costs and expenses referred to in subsection (3).

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    Marginal note:Limitation or prescription period

    (2) Proceedings to recover a debt referred to in subsection (1) may be commenced no later than the fifth anniversary of the day on which the debt becomes payable.

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    Marginal note:Liability

    (3) An individual or entity that is liable to pay the amount of any debt referred to in any of paragraphs (1)(a) to (f) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

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    Marginal note:Proceeds payable to Receiver General

    (4) A debt referred to in subsection (1) that is paid or recovered is payable to and must be remitted to the Receiver General.

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Marginal note:Certificate

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     (1) The unpaid amount of any debt referred to in subsection 88(1) may be certified by the Governor.

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    Marginal note:Registration in Federal Court

    (2) Registration in the Federal Court of a certificate 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.

General

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Marginal note:Limitation or prescription period

 No notice of violation is to be issued after the second anniversary of the day on which the Bank becomes aware of the acts or omissions that constitute the alleged violation.

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Marginal note:Certification by Bank

 A document purporting to have been issued by the Bank, certifying the day on which the acts or omissions that constitute the alleged violation became known to the Bank, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Bank became aware of the acts or omissions on that day.

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Marginal note:Evidence

 In a proceeding in respect of a violation, a notice of violation purporting to be issued under subsection 76(2), a notice of decision purporting to be issued under subsection 78(4) or 83(4), a notice of default purporting to be issued under subsection 82(1) or a certificate purporting to be made under subsection 89(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

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Marginal note:Publication

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     (1) As soon as feasible after a payment service provider is deemed under subsection 78(1) or (3) to have committed a violation or after a notice of decision stating that the payment service provider has committed a violation is served under subsection 78(4), the Bank must make public the nature of the violation, the name of the payment service provider and the amount of any penalty imposed.

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    Marginal note:Reasons

    (2) In making public the nature of a violation, the Bank may include the reasons for its decision to issue the notice of violation and any related decision, including the relevant facts, analysis and considerations that formed part of the decision.

Compliance Orders

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Marginal note:Governor’s orders

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     (1) If the Governor is of the opinion that a payment service provider that performs retail payment activities is committing, or is about to commit, an act that could have a significant adverse impact on an individual or entity referred to in subsection (2), the Governor may, by order, direct the payment service provider to

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      (a) cease or refrain from committing the act or pursuing the course of conduct; and

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      (b) perform any acts that, in the Governor’s opinion, are necessary to remedy the situation.

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    Marginal note:Individuals and entities

    (2) The individuals and entities are any of the following:

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      (a) an end user;

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      (b) a payment service provider that performs retail payment activities, whether or not this Act applies to them; and

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      (c) a clearing house of a clearing and settlement system, as those expressions are defined in section 2 of the Payment Clearing and Settlement Act, that is designated under subsection 4(1) of that Act.

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    Marginal note:Opportunity for representations

    (3) Subject to subsection (4), no order is to be made in respect of a payment service provider under subsection (1) unless the payment service provider is provided with a opportunity to make representations in respect of the matter.

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    Marginal note:Temporary order

    (4) If, in the Governor’s opinion, the length of time required for representations to be made might be prejudicial to the public interest, the Governor may make a temporary order that has the same effect as an order under subsection (1). The order ceases to have effect 30 days after the day on which it is made or after the expiration of a shorter period that is specified in the order.

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    Marginal note:Continued effect

    (5) A temporary order continues to have effect after the expiration of the 30-day or the shorter period if no representations are made to the Governor within that period or, if representations are made, the Governor notifies the payment service provider that the Governor is not satisfied that there are sufficient grounds for revoking the order.

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Marginal note:Court enforcement

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     (1) If an individual or entity is contravening or has contravened a provision of this Act, the regulations or an order made under subsection 94(1) or (4), the Governor may, in addition to any other action that may be taken under this Act, apply to a superior court for an order requiring the individual or entity to cease the contravention or to comply with the provision.

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    Marginal note:Powers of court

    (2) The court may make the order and may make any other order the court thinks fit.

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    Marginal note:Appeal

    (3) An appeal from an order made under subsection (2) lies in the same manner and to the same court as an appeal from any other order of the court.

National Security

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Marginal note:National security order

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     (1) The Minister may, by order, direct a payment service provider that performs retail payment activities to take or to refrain from taking any measures related to the performance of retail payment activities if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

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    Marginal note:Opportunity for representations

    (2) Subject to subsection (3), no order is to be made under subsection (1) unless the payment service provider is provided with a opportunity to make representations in respect of the matter.

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    Marginal note:Temporary order

    (3) If, in the Minister’s opinion, the length of time required for representations to be made might be prejudicial to the public interest, the Minister may make a temporary order that has the same effect as an order made under subsection (1). The temporary order ceases to have effect 30 days after the day on which it is made or after the expiration of a shorter period that is specified in the order.

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    Marginal note:Continued effect

    (4) The temporary order continues to have effect after the expiration of the 30-day or the shorter period if no representations are made to the Minister within that period or, if representations are made, the Minister notifies the payment service provider that the Minister is not satisfied that there are sufficient grounds for revoking the order.

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Marginal note:Copy to Bank

 The Minister must provide the Bank with a copy of each order the Minister makes under subsection 96(1) or (3) and the Bank must, as soon as feasible, provide a copy to the individual or entity in question.

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Marginal note:Court enforcement

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     (1) If an individual or entity is not complying with an undertaking provided in accordance with section 42, a condition imposed under section 43 or an order made under section 96, the Minister may, in addition to any other action that may be taken under this Act, apply to a superior court for an order requiring the individual or entity to comply with the undertaking, condition or order.

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    Marginal note:Powers of court

    (2) The court may make the order and may make any other order the court thinks fit.

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    Marginal note:Appeal

    (3) An appeal from an order made under subsection (2) lies in the same manner and to the same court as an appeal from any other order of the court.

PART 6Assessment Fees

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Marginal note:Bank to ascertain expenses

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     (1) The Bank must, before September 30 in each year, ascertain the total amount of expenses incurred by it during the immediately preceding calendar year for or in connection with the administration of this Act and deduct from that amount any registration fees paid to it in that preceding calendar year.

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    Marginal note:Amount conclusive

    (2) The amount ascertained is final and conclusive for the purposes of this section.

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    Marginal note:Assessment

    (3) As soon as feasible after ascertaining the amount, the Bank must, in the prescribed manner and to the prescribed extent, assess a portion of the total amount of expenses against each registered payment service provider.

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    Marginal note:Interim assessment

    (4) The Bank may, during each calendar year, prepare an interim assessment against any registered payment service provider.

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    Marginal note:Assessment is binding

    (5) Every assessment and interim assessment is final and conclusive and binding on the registered payment service provider against which it is made.

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    Marginal note:Recovery

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

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    Marginal note:Interest

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

 
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