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Bank Act (S.C. 1991, c. 46)

Full Document:  

Act current to 2022-05-02 and last amended on 2022-02-26. Previous Versions

PART XII.1Authorized Foreign Banks (continued)

Remedial Powers (continued)

Supervisory Intervention (continued)

Marginal note:Expiration of control

 Control by the Superintendent under subsection 619(1) of the assets of an authorized foreign bank expires on the day on which a notice by the Superintendent is sent to the principal officer of the authorized foreign bank stating that the Superintendent is of the opinion that the circumstances leading to the taking of control of the assets by the Superintendent have been substantially rectified and that the authorized foreign bank can resume control of its assets.

  • 1999, c. 28, s. 35

Marginal note:Superintendent may request winding-up

 The Superintendent may, at any time before the receipt of a request under section 622 to relinquish control of the assets of an authorized foreign bank, request the Attorney General of Canada to apply for a winding-up order under section 10.1 of the Winding-up and Restructuring Act in respect of the authorized foreign bank, where the assets of the authorized foreign bank are under the control of the Superintendent pursuant to subparagraph 619(1)(b)(i) or (ii).

  • 1999, c. 28, s. 35

Marginal note:Requirement to relinquish control

 Where no action has been taken by the Superintendent under section 621 and, after thirty days following the taking of control by the Superintendent under subsection 619(1) of the assets of an authorized foreign bank, the Superintendent receives from the principal officer of the authorized foreign bank a notice in writing requesting the Superintendent to relinquish control, the Superintendent must, not later than twelve days after receipt of the notice,

  • (a) comply with the request; or

  • (b) request the Attorney General of Canada to apply for a winding-up order under section 10.1 of the Winding-up and Restructuring Act in respect of the authorized foreign bank.

  • 1999, c. 28, s. 35

Marginal note:Advisory committee

 The Superintendent may appoint a committee of not more than six members to advise the Superintendent in respect of the assets and all other matters pertinent to the duties and responsibilities of the Superintendent in exercising control of the assets. The committee shall be appointed from among the banks and authorized foreign banks that are subject to an assessment under section 23 of the Office of the Superintendent of Financial Institutions Act and required to share in the expenses resulting from the taking of control of the assets of the authorized foreign bank under subsection 619(1).

  • 1999, c. 28, s. 35

Marginal note:Expenses payable by authorized foreign bank

  •  (1) Where control of the assets of an authorized foreign bank has been taken under subparagraph 619(1)(b)(i) or (ii) and the control expires or is relinquished under section 620 or paragraph 622(a), the Superintendent may direct that the authorized foreign bank be liable for repayment of all or part of the expenses resulting from the taking of control of the assets and assessed against and paid by other authorized foreign banks and by banks under section 23 of the Office of the Superintendent of Financial Institutions Act, together with any interest in respect of the expenses at any rate that is specified by the Superintendent.

  • Marginal note:Debt due to Her Majesty

    (2) Where any direction is made under subsection (1), the amount for which the authorized foreign bank is liable is a debt due to Her Majesty in right of Canada payable on demand and is recoverable in the Federal Court or any other court of competent jurisdiction.

  • 1999, c. 28, s. 35

Marginal note:Priority of claim in liquidation

 In the case of the winding-up of the business in Canada of an authorized foreign bank, the expenses resulting from the taking of control of the assets of the authorized foreign bank under subsection 619(1) and assessed against and paid by other authorized foreign banks and by banks under section 23 of the Office of the Superintendent of Financial Institutions Act and interest in respect of the expenses at any rate that is specified by the Superintendent, constitute a claim of Her Majesty in right of Canada against the assets of the authorized foreign bank that ranks after any claim referred to in paragraph 627(1)(d).

  • 1999, c. 28, s. 35

Marginal note:Application of assessment

 Any amount recovered under section 624 or 625 shall be applied to reduce the total amount of expenses incurred for or in connection with the administration of this Act.

  • 1999, c. 28, s. 35

Marginal note:Order of priority for payment of claims

  •  (1) Subject to sections 72 and 94 of the Winding-up and Restructuring Act, where a winding-up order under that Act is made in respect of an authorized foreign bank,

    • (a) the payment of any amount due to Her Majesty in right of Canada, in trust or otherwise, in respect of the business in Canada of the authorized foreign bank is a first charge on the assets of the authorized foreign bank;

    • (b) the payment of any amount due to Her Majesty in right of a province, in trust or otherwise, in respect of the business in Canada of the authorized foreign bank is a second charge on the assets of the authorized foreign bank;

    • (c) the payment of the deposit liabilities of the authorized foreign bank and all other liabilities of the authorized foreign bank in respect of its business in Canada, except the liabilities referred to in paragraph (d) and section 625, is a third charge on the assets of the authorized foreign bank; and

    • (d) the payment of any fines and penalties for which the authorized foreign bank is liable in respect of its business in Canada is a last charge on the assets of the authorized foreign bank.

  • Marginal note:Priority not affected

    (2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of an authorized foreign bank.

  • Marginal note:Priorities

    (3) Priorities within each of paragraphs (1)(a) to (d) shall be determined in accordance with the laws governing priorities and, where applicable, by the terms of the liabilities referred to in those paragraphs.

  • 1999, c. 28, s. 35
  • 2001, c. 9, s. 171

PART XIIIRegulation of Banks — Superintendent

Supervision

Returns

Marginal note:Required information

  •  (1) A bank shall provide the Superintendent with such information, at such times and in such form as the Superintendent may require.

  • (2) [Repealed, 1997, c. 15, s. 86]

  • 1999, c. 28, s. 36

 [Repealed, 2007, c. 6, s. 102]

 [Repealed, 2007, c. 6, s. 102]

 [Repealed, 2007, c. 6, s. 102]

Marginal note:Names of directors and auditors

  •  (1) A bank shall, within thirty days after each annual meeting of the bank, provide the Superintendent with a return showing

    • (a) the name, residence and citizenship of each director holding office immediately following the meeting;

    • (b) the mailing address of each director holding office immediately following the meeting;

    • (c) the bodies corporate of which each director referred to in paragraph (a) is an officer or director and the firms of which each director is a member;

    • (d) the affiliation, within the meaning of section 162, with the bank of each director referred to in paragraph (a);

    • (e) the names of the directors referred to in paragraph (a) who are officers or employees of the bank or any affiliate of the bank, and the positions they occupy;

    • (f) the name of each committee of the bank on which each director referred to in paragraph (a) serves;

    • (g) the date of expiration of the term of each director referred to in paragraph (a); and

    • (h) the name, address and date of appointment of the auditor or auditors of the bank.

  • Marginal note:Changes

    (2) Where

    • (a) any information relating to a director or an auditor of a bank shown in the latest return made to the Superintendent under subsection (1), other than information referred to in paragraph (1)(c) or (d), becomes inaccurate or incomplete,

    • (b) a vacancy in the office of auditor of the bank occurs or is filled by another person, or

    • (c) a vacancy on the board of directors of the bank occurs or is filled,

    the bank shall forthwith provide the Superintendent with such information as is required to maintain the return in a complete and accurate form.

  • 1999, c. 28, s. 38

Marginal note:Copy of by-laws

 A bank shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.

  • 1999, c. 28, s. 38
  • 2001, c. 9, s. 173

Marginal note:Register of banks

  •  (1) The Superintendent shall, in respect of each bank for which an order approving the commencement and carrying on of business has been made, cause a register to be maintained containing a copy of

    • (a) the incorporating instrument of the bank; and

    • (b) the information referred to in paragraphs 632(1)(a), (c) and (e) to (h) contained in the latest return sent to the Superintendent under section 632.

  • Marginal note:Form

    (2) The register may be maintained in

    • (a) a bound or loose-leaf form or in a photographic film form; or

    • (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.

  • Marginal note:Access

    (3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.

  • Marginal note:Evidence

    (4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.

  • 1999, c. 28, s. 39
  • 2001, c. 9, s. 173

Marginal note:Certificate

 On the application of a bank that has been incorporated by a special Act of Parliament, the Superintendent may issue a certificate stating that the bank was incorporated by a special Act of Parliament, and may include with the certificate any information in the Superintendent’s possession that relates to the bank’s incorporation.

  • 2012, c. 5, s. 75

Marginal note:Production of information and documents

  •  (1) The Superintendent may, by order, direct a person who controls a bank or any entity that is affiliated with a bank to provide the Superintendent with such information or documents as may be specified in the order where the Superintendent believes that the production of the information or documents is necessary in order to be satisfied that the provisions of this Act are being duly observed and that the bank is in a sound financial condition.

  • Marginal note:Time

    (2) Any person to whom a direction has been issued under subsection (1) shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time.

  • Marginal note:Exemption

    (3) Subsection (1) does not apply in respect of an entity that controls a bank or is affiliated with a bank where that entity is a financial institution regulated

    • (a) by or under an Act of Parliament; or

    • (b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions in that province concerning the sharing of information on such financial institutions.

  • 1999, c. 28, s. 40

Marginal note:Confidential information

  •  (1) Subject to section 639, all information regarding the business or affairs of a bank or a foreign bank, or regarding a person dealing with a bank or a foreign bank, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.

  • Marginal note:Disclosure permitted

    (2) Nothing in subsection (1) prevents the Superintendent from disclosing any information

    • (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

    • (a.01) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

    • (a.1) to the Canada Deposit Insurance Corporation for purposes related to its operation, and

    • (b) 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,

    if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed.

  • 1999, c. 28, s. 41
  • 2001, c. 9, s. 174
  • 2007, c. 6, s. 103

Marginal note:Regulations

 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by banks of prescribed supervisory information.

  • 1999, c. 28, s. 42

Marginal note:Evidentiary privilege

  •  (1) Prescribed supervisory information shall not be used as evidence in any civil proceedings and is privileged for that purpose.

  • Marginal note:No testimony or production

    (2) No person shall by an order of any court, tribunal or other body be required in any civil proceedings to give oral testimony or to produce any document relating to any prescribed supervisory information.

  • Marginal note:Exceptions to subsection (1)

    (3) Despite subsection (1),

    • (a) the Minister, the Superintendent or the Attorney General of Canada may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings; and

    • (b) a bank may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings in relation to the administration or enforcement of this Act or the Winding-up and Restructuring Act that are commenced by the bank, the Minister, the Superintendent or the Attorney General of Canada.

  • Marginal note:Exceptions to subsections (1) and (2)

    (4) Despite subsections (1) and (2) and section 39.1 of the Office of the Superintendent of Financial Institutions Act, a court, tribunal or other body may, by order, require the Minister, the Superintendent or a bank to give oral testimony or to produce any document relating to any prescribed supervisory information in any civil proceedings in relation to the administration or enforcement of this Act that are commenced by the Minister, the Superintendent, the Attorney General of Canada or the bank.

  • Marginal note:No waiver

    (5) The disclosure of any prescribed supervisory information, other than under subsection (3) or (4), does not constitute a waiver of the privilege referred to in subsection (1).

  • Marginal note:Regulations

    (6) The Governor in Council may, for the purposes of subsection (3), make regulations respecting the circumstances in which prescribed supervisory information may be used as evidence.

  • 1999, c. 28, s. 43
  • 2007, c. 6, s. 104
  • 2015, c. 36, s. 234
 
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