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Trust and Loan Companies Act (S.C. 1991, c. 45)

Act current to 2019-07-01 and last amended on 2019-06-17. Previous Versions

PART XIIRegulation of Companies — Superintendent (continued)

Remedial Powers (continued)

Disqualification and Removal of Directors or Senior Officers (continued)

Marginal note:Application

  •  (1) This section applies only in respect of a company

    • (a) that has been notified by the Superintendent that this section applies to it where the company is subject to measures designed to maintain or improve its safety and soundness, which measures

      • (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the company’s business, or

      • (ii) are contained in a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent; or

    • (b) that is the subject of a direction made under section 507 or an order made under subsection 473(3).

  • Marginal note:Information to be provided

    (2) A company shall provide the Superintendent with the name of

    • (a) each person who has been nominated for election or appointment as a member of its board of directors,

    • (b) each person who has been selected by the company for appointment as a senior officer, and

    • (c) each person who is newly elected as a director of the company at a meeting of shareholders and who was not proposed for election by anyone involved in the management of the company,

    together with such other information about the background, business record and experience of the person as the Superintendent may require.

  • Marginal note:When information to be provided

    (3) The information required by subsection (2) shall be provided to the Superintendent

    • (a) at least thirty days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or

    • (b) in the case of a person referred to in paragraph (2)(c), within fifteen days after the date of the election of the person.

  • Marginal note:Disqualification or removal

    (4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order

    • (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a company or from being appointed as a senior officer; or

    • (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the company.

  • Marginal note:Risk of prejudice

    (4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.

  • Marginal note:Representations may be made

    (5) The Superintendent must in writing notify the person concerned and the company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

  • Marginal note:Prohibition

    (6) Where an order has been made under subsection (4)

    • (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the company shall not permit the person to be, elected or appointed to the position; or

    • (b) removing a director from office, the person shall not continue to hold, and the company shall not permit the person to continue to hold, office as a director.

  • 1996, c. 6, s. 126
  • 2001, c. 9, s. 563

Marginal note:Removal of directors or senior officers

  •  (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a company if the Superintendent is of the opinion that the person is not suitable to hold that office

    • (a) on the basis of the competence, business record, experience, conduct or character of the person; or

    • (b) because the person has contravened or, by action or negligence, has contributed to the contravention of

      • (i) this Act or the regulations made under it,

      • (ii) a direction made under section 507,

      • (iii) an order made under subsection 473(3),

      • (iv) a condition or limitation in respect of the order approving the commencement and carrying on the company’s business, or

      • (v) a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent.

  • Marginal note:Risk of prejudice

    (2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.

  • Marginal note:Representations may be made

    (3) The Superintendent must in writing notify the person concerned and the company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

  • Marginal note:Suspension

    (4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.

  • Marginal note:Notice of order

    (5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the company of a removal order or suspension order.

  • Marginal note:Consequences of removal order

    (6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.

  • Marginal note:Appeal

    (7) The director or senior officer, as the case may be, or the company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.

  • Marginal note:Powers of Federal Court

    (8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.

  • Marginal note:Order not stayed by appeal

    (9) A removal order is not stayed by an appeal.

  • 2001, c. 9, s. 564

Supervisory Intervention

Marginal note:Superintendent may take control

  •  (1) Subject to this Act, where any of the circumstances described in subsection (1.1) exist in respect of a company, the Superintendent may

    • (a) take control, for a period not exceeding sixteen days, of the assets of the company and the assets held in trust by or under the administration of the company; or

    • (b) unless the Minister advises the Superintendent that the Minister is of the opinion that it is not in the public interest to do so,

      • (i) take control, for a period exceeding sixteen days, of the assets of the company and the assets held in trust by or under the administration of the company,

      • (ii) where control of assets has been taken under paragraph (a), continue the control beyond the sixteen days referred to in that paragraph, or

      • (iii) take control of the company.

  • Marginal note:Circumstances for taking control

    (1.1) Control by the Superintendent under subsection (1) may be taken in respect of a company where

    • (a) the company has failed to pay its liabilities or, in the opinion of the Superintendent, will not be able to pay its liabilities as they become due and payable;

    • (b) [Repealed, 2001, c. 9, s. 565]

    • (c) the assets of the company are not, in the opinion of the Superintendent, sufficient to give adequate protection to the company’s depositors and creditors;

    • (d) any asset appearing on the books or records of the company or held in trust by or under the administration of the company is not, in the opinion of the Superintendent, satisfactorily accounted for;

    • (e) the regulatory capital of the company has, in the opinion of the Superintendent, reached a level or is eroding in a manner that may detrimentally affect the company’s depositors or creditors;

    • (f) the company has failed to comply with an order of the Superintendent under paragraph 473(3)(a);

    • (g) the company’s deposit insurance has been terminated by the Canada Deposit Insurance Corporation; or

    • (h) in the opinion of the Superintendent, any other state of affairs exists in respect of the company that may be materially prejudicial to the interests of the company’s depositors or creditors or the beneficiaries of any trust under the company’s administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the company.

  • Marginal note:Notice of proposed action

    (1.2) The Superintendent must notify a company of any action proposed to be taken in respect of it under paragraph (1)(b) and of its right to make written representations to the Superintendent within the time specified in the notice not exceeding ten days after it receives the notice.

  • Marginal note:Objectives of Superintendent

    (2) Where, pursuant to subsection (1), the Superintendent has control of the assets of a company referred to in that subsection, the Superintendent may do all things necessary or expedient to protect the rights and interests of the depositors and creditors of the company or the beneficiaries of any trust under the administration of the company.

  • Marginal note:Powers of Superintendent

    (3) Where, pursuant to subsection (1), the Superintendent has control of the assets of a company referred to in that subsection,

    • (a) the company shall not make, acquire or transfer any loan or make any purchase, sale or exchange of securities or any disbursement or transfer of cash of any kind without the prior approval of the Superintendent or a representative designated by the Superintendent; and

    • (b) no director, officer or employee of the company shall have access to any cash or securities held by or under the administration of the company unless

      • (i) a representative of the Superintendent accompanies the director, officer or employee, or

      • (ii) the access is previously authorized by the Superintendent or the Superintendent’s representative.

  • 1991, c. 45, s. 510
  • 1996, c. 6, s. 127
  • 2001, c. 9, s. 565
 
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