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Bank Act (S.C. 1991, c. 46)

Full Document:  

Act current to 2021-11-17 and last amended on 2021-06-30. Previous Versions

PART IVOrganization and Commencement (continued)

Commencement and Carrying on of Business (continued)

Marginal note:Variations

  •  (1) In respect of the order approving the commencement and carrying on of business by a bank, the Superintendent may at any time, by further order,

    • (a) make the order subject to such conditions or limitations that are consistent with this Act and that relate to the business of the bank as the Superintendent deems expedient and necessary, or

    • (b) amend or revoke any authorization contained in the order or any condition or limitation to which the order is subject, other than the condition deemed to be in the order by subsection 53(2),

    but before making any such further order the Superintendent shall provide the bank with an opportunity to make representations regarding that further order.

  • (2) to (6) [Repealed, 1996, c. 6, s. 4]

  • 1991, c. 46, s. 54
  • 1996, c. 6, s. 4
  • 2010, c. 12, s. 1928

Marginal note:Limit on assets

  •  (1) The Minister may, by order, require a bank not to have average total assets in any three month period ending on the last day of a month subsequent to the month specified in the order exceeding the bank’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order if the Minister is of the opinion that it is in the best interests of the financial system in Canada to do so, after having considered the Superintendent’s opinion on

    • (a) the nature and extent of the financial services activities carried out by entities affiliated with the bank; and

    • (b) the impact that the nature and degree of supervision and regulation of those financial services activities have on the supervision and regulation of the bank.

  • Marginal note:Revocation of order

    (2) If the Minister is of the opinion that the circumstances giving rise to the order have ceased to exist or have changed substantially, the Minister may, by further order, revoke the order.

  • Marginal note:Average total assets

    (3) For the purposes of subsection (1), the average total assets of a bank in a three month period shall be computed by adding the total assets of the bank as calculated for the month end of each of the three months in the period and by dividing the sum by three.

  • Definition of total assets

    (4) For the purposes of subsections (1) and (3), total assets, in respect of a bank, has the meaning given that expression by the regulations.

  • 2001, c. 9, s. 57

Marginal note:Permission to subsidiary of foreign bank

  •  (1) On the recommendation of the Superintendent, the Minister may, at the same time that an order is made approving the commencement and carrying on of business by a bank that is the subsidiary of a foreign bank, by further order, grant the subsidiary permission to

    • (a) hold assets that banks are not otherwise permitted by this Act to hold if those assets consist of shares of a body corporate incorporated by or under an Act of Parliament or of the legislature of a province that, at the time application for letters patent incorporating the subsidiary was made, were held by the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary or any affiliate of that eligible foreign institution; and

    • (b) hold assets that banks are not otherwise permitted by this Act to hold if, at the time application for letters patent incorporating the subsidiary was made, the assets were held by an affiliate of the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary.

    Despite any other provision of this Act or the regulations, the subsidiary may act in accordance with that permission.

  • Marginal note:Extension of permission

    (2) Permission granted to a bank by order of the Minister under subsection (1) is only for the period specified in the order. That period may not be more than two years, except that the Minister may extend the period by further order on application by the bank. The total of the period and any extensions of it may not, in any case, exceed ten years.

  • 1991, c. 46, s. 55
  • 1997, c. 15, s. 6
  • 1999, c. 31, s. 9
  • 2001, c. 9, s. 58

Marginal note:Public notice

  •  (1) On the making of an order approving the commencement and carrying on of business by a bank, the bank shall publish a notice of the making of the order in a newspaper in general circulation at or near the place where the head office of the bank is located.

  • Marginal note:Notice in Canada Gazette

    (2) The Superintendent shall cause to be published in the Canada Gazette a notice of the making of an order approving the commencement and carrying on of business by a bank.

  • Marginal note:Non-application to existing bank

    (3) For greater certainty, this section does not apply to a bank referred to in subsection 48(2).

Marginal note:Cessation of existence

 Except for the sole purpose of winding up the bank’s affairs, a bank ceases to exist one year after the day on which its incorporating instrument became effective if it does not obtain an order approving the commencement and carrying on of business within that year.

Marginal note:Allowed disbursements

  •  (1) Where an order approving the commencement and carrying on of business is not made for a bank, no part of the moneys of the bank shall be used for the payment of incorporation and organization expenses, other than remuneration and costs referred to in section 50, unless the payment has been approved by a special resolution.

  • Marginal note:Application to court to settle disbursements

    (2) If the amount allowed by a special resolution for the payment of any incorporation and organization expenses referred to in subsection (1) is considered insufficient by the directors or if no special resolution for the payment of such expenses is passed, the directors may apply to any court having jurisdiction in the place where the head office of the bank is situated to settle and determine the amounts to be paid out of any moneys of the bank before distribution of the balance to

    • (a) if the bank is not a federal credit union, the shareholders or, if there are no shareholders, to the incorporators; or

    • (b) if the bank is a federal credit union, its members.

  • Marginal note:Notice of application to court

    (3) The directors must, at least 21 days before the date fixed for the hearing of the application referred to in subsection (2), send to the shareholders, incorporators or members, as the case may be, a notice of the application, containing a statement of the amounts that are proposed to be settled and determined by the court.

  • Marginal note:Ratio payable

    (4) In order that the amounts paid and payable under this section may be equitably borne by the shareholders, incorporators or members, as the case may be, the directors must, after the amounts of the payments have been approved by special resolution or settled and determined by a court, fix the proportionate part of the amounts chargeable to each shareholder, incorporator or member as the ratio of the amount paid in by that person to the aggregate of all the amounts paid in by the shareholders, incorporators or members.

  • Marginal note:Return of excess

    (5) After the amounts referred to in this section have been paid, the directors shall pay, with any interest earned, to the shareholders, incorporators or members, the respective balances of the moneys paid in by them, less the amount chargeable to each under subsection (4).

  • 1991, c. 46, s. 58
  • 2010, c. 12, s. 1929

PART VCapital Structure

Share Capital

Marginal note:Power to issue shares

  •  (1) Subject to this Act and the by-laws of the bank, shares of a bank may be issued at such times and to such persons and for such consideration as the directors of the bank may determine.

  • Marginal note:Shares

    (2) Shares of a bank shall be in registered form and shall be without nominal or par value.

  • Marginal note:Shares of existing bank

    (3) Shares with nominal or par value of a bank that was in existence immediately prior to the day this Part comes into force are deemed to be shares without nominal or par value.

  • Marginal note:Shares of continued bank

    (4) Where a body corporate is continued as a bank under this Act, shares with nominal or par value issued by the body corporate before it was so continued are deemed to be shares without nominal or par value.

  • Marginal note:Deemed share conditions

    (5) If a right, other than a voting right, of a holder of a share with nominal or par value of a bank referred to in subsection (3) or a body corporate continued as a bank under this Act was stated or expressed in terms of the nominal or par value of the share immediately before the coming into force of this subsection or the continuance under this Act, as the case may be, that right is deemed, after the coming into force of this Part or the continuance, as the case may be, to be the same right stated or expressed without reference to the nominal or par value of the share.

  • 1991, c. 46, s. 59
  • 2001, c. 9, s. 59

Marginal note:Common shares

  •  (1) A bank that is not a federal credit union must have one class of shares, to be designated as “common shares”, which are non-redeemable and in which the rights of the holders of those common shares are equal in all respects, and those rights include

    • (a) the right to vote at all meetings of shareholders except where only holders of a specified class of shares are entitled to vote;

    • (b) the right to receive dividends declared on those shares; and

    • (c) the right to receive the remaining property of the bank on dissolution.

  • Marginal note:Designations of shares

    (2) No bank shall designate more than one class of its shares as “common shares” or any variation of that term.

  • (3) [Repealed, 2012, c. 5, s. 4]

  • Marginal note:Continued bank

    (4) A body corporate continued as a bank under this Act that is not in compliance with subsection (2) on the date letters patent continuing it as a bank are issued shall, within twelve months after that date, redesignate its shares to comply with that subsection.

  • 1991, c. 46, s. 60
  • 2010, c. 12, s. 1930
  • 2012, c. 5, s. 4

Marginal note:Shares of federal credit union

  •  (1) A federal credit union may issue shares only if its by-laws set out the following:

    • (a) whether the shares may be issued to persons who are not members;

    • (b) the maximum number, if any, of shares of any class that the federal credit union is authorized to issue;

    • (c) the number of classes of shares; and

    • (d) the rights, privileges, restrictions and conditions attaching to the shares of each class.

  • Marginal note:No automatic rights

    (2) Subject to this Act, a federal credit union must not issue any share that confers on the holder of the share the right

    • (a) to vote at meetings of the federal credit union otherwise than in accordance with this Act; or

    • (b) to receive any of the remaining property of the federal credit union on dissolution.

  • Marginal note:Exception

    (3) A federal credit union’s by-laws may provide that

    • (a) a share confers on its holder the right to vote at an election of directors by reason of an event that has occurred and is continuing or by reason of a condition that has been fulfilled; or

    • (b) the shareholders, any class of shareholders or the holders of a series of shares, may elect a fixed number or a percentage of the directors.

  • Marginal note:Limit on shareholders’ directors

    (4) Despite subsections (2) and (3), the shareholders do not have the right to elect more than 20 per cent of the directors.

  • Marginal note:One share, one vote

    (5) If shareholders are entitled to vote in accordance with subsection (3) or otherwise in accordance with this Act, each share entitles the holder to one vote.

  • 2010, c. 12, s. 1931

Marginal note:Designation of shares

 A federal credit union must not designate a class of its shares as “membership shares” or any variation of those words.

  • 2010, c. 12, s. 1931

Marginal note:Classes of shares

  •  (1) The by-laws of a bank that is not a federal credit union may provide for more than one class of shares and, if they so provide, they must set out

    • (a) the rights, privileges, restrictions and conditions attaching to the shares of each class; and

    • (b) the maximum number, if any, of shares of any class that the bank is authorized to issue.

  • Marginal note:Shareholder approval

    (2) Where a by-law referred to in subsection (1) is made, the directors of the bank shall submit the by-law to the shareholders at the next meeting of shareholders.

  • Marginal note:Effective date

    (3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2).

  • 1991, c. 46, s. 61
  • 2001, c. 9, s. 60
  • 2010, c. 12, s. 1932

Marginal note:Shares issued in series

  •  (1) The by-laws of a bank may, subject to any limitations set out in them, authorize the issue of any class of shares in one or more series and may

    • (a) fix the maximum number of shares in each series and determine the designation, rights, privileges, restrictions and conditions attaching to them; and

    • (b) authorize the directors to do anything referred to in paragraph (a).

  • Marginal note:Effective date

    (1.1) In the case of a federal credit union, a by-law referred to in subsection (1) must be made by special resolution of the members. If the federal credit union has issued shares, the by-law is not effective until it is confirmed by a separate special resolution of the shareholders, the class of shareholders or the holders of the series of shares that is affected by the by-law.

  • Marginal note:Series participation

    (2) If any cumulative dividend or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital.

  • Marginal note:Voting rights

    (3) Where voting rights are attached to any series of a class of shares, the shares of every other series of that class shall have the same voting rights.

  • Marginal note:Restriction on series

    (4) No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section confer on the series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding.

  • Marginal note:Material to Superintendent

    (5) If the directors exercise their authority under paragraph (1)(b), the directors shall, before the issue of shares of the series, send to the Superintendent particulars of the series of shares and a copy of the by-law that granted the authority to the directors.

  • 1991, c. 46, s. 62
  • 2005, c. 54, s. 8
  • 2007, c. 6, s. 8(E)
  • 2010, c. 12, s. 1933
 
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