Canada Small Business Financing Act (S.C. 1998, c. 36)

Fees and Charges

Marginal note:Condition re: fees and charges

10 Every loan is subject to the condition that no fee or charge is payable by a borrower in respect of the loan other than

• (a) interest;

• (b) the registration fee; and

• (c) any other prescribed fee or charge that is specified in the regulations as being payable by the borrower.

Marginal note:Registration fee

11 Every lender shall pay to the Minister, at the time a loan made by that lender is submitted for registration, a registration fee of an amount calculated in accordance with the regulations in respect of the loan. The registration fee may be charged by the lender to the borrower.

Marginal note:Annual administration fee

12 Every lender shall, in accordance with the terms and conditions set out in the regulations, pay to the Minister, in respect of a loan, an annual administration fee of an amount calculated in accordance with the regulations. The lender may not charge the borrower for that fee otherwise than through the imposition of interest in respect of the loan.

Pilot Projects

Marginal note:Regulations

• 13 (1) Notwithstanding anything in this Act, the Governor in Council may, on the recommendation of the Minister, make any regulations that the Governor in Council considers necessary respecting the establishment and operation of one or more pilot projects for testing whether to guarantee loans made to borrowers in the voluntary sector or capital leases and to determine the legislative and regulatory measures required to do so.

• Marginal note:Program liability ceiling

  (2) The Minister’s maximum aggregate contingent liability in respect of a pilot project may be established by an appropriation Act or another Act of Parliament.

• Marginal note:Maximum duration of pilot projects

  (3) Subject to subsection (4), regulations made under subsection (1) have a maximum duration of five years from the time they come into force.

• Marginal note:Extension of regulations

  (4) If, as a result of a pilot project referred to in subsection (1), the Minister decides to guarantee loans made to borrowers in the voluntary sector or capital leases, the Minister shall cause to be published in the Canada Gazette a notice of that decision and the regulations made under that subsection in relation to that pilot project will continue to have effect until the earlier of

  • (a) the coming into force of the legislative and regulatory measures referred to in that subsection, and

  • (b) one year after the day on which they would otherwise cease to have effect.

• Marginal note:Tabling of proposed regulations

  (5) The Minister shall cause a copy of each regulation proposed to be made under subsection (1) to be laid before each House of Parliament before it is made and that House shall refer the proposed regulations to the appropriate Committee of each House.

Regulations

Marginal note:Regulations

• 14 (1) The Governor in Council may, subject to subsection (2), on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act and, without limiting the generality of the foregoing, may make regulations

  • (a) authorizing the Minister to designate organizations as lenders;

  • (b) prescribing classes of loans;

  • (c) respecting loan application, loan registration and claims forms, including the information to be included in such forms;

  • (d) respecting the further conditions for eligibility referred to in subsection 4(1);

  • (e) respecting limits referred to in paragraph 4(1)(d);

  • (f) respecting eligibility criteria for borrowers;

  • (g) respecting the calculation of eligible loss;

  • (h) respecting the extent of the Minister’s liability in respect of a loan where certain provisions of this Act or the regulations have not been complied with, including prescribing conditions that may be attached to that liability;

  • (i) respecting the making of loans, including loan approval, maximum loan terms, repayment requirements and security requirements, including guarantees and suretyships;

  • (j) respecting the maximum rates of interest payable in respect of a loan;

  • (k) respecting the registration and administration of loans, including in respect of default, recovery, claims for loss by lenders and payment of claims by the Minister, including interim claim payments;

  • (l) authorizing the Minister to extend the prescribed period within which a claim may be submitted;

  • (m) respecting registration and annual administration fees that are payable under this Act, including prescribing their calculation and payment, including the time when and the manner in which the fees and charges shall be paid, the additional fees that may be charged for the late payment of the fees and charges, the refunding of fees and charges and the circumstances in which any fees and charges previously paid may be refunded in whole or in part;

  • (n) respecting fees and charges, including insurance premiums and charges for putting security in place, that are payable by the borrower;

  • (o) respecting audits and examinations;

  • (p) respecting the submission of documents, information, reports, fees and charges;

  • (q) respecting documents, information, records and books of account to be kept by lenders;

  • (r) respecting documents, information and reports to be provided under this Act;

  • (s) providing for the acquisition, assumption, transfer or assignment of loans, including the attachment of terms and conditions to those acts and the adjustment of the Minister’s liability;

  • (t) respecting, in the case of an amalgamation of lenders, the adjustment of the Minister’s liability in respect of loans made by those lenders;

  • (u) respecting the subrogation of Her Majesty in the rights of a lender with respect to a loan;

  • (v) respecting the meaning of “related” for the purposes of subsections 4(3) and 7(2); and

  • (w) prescribing anything that by this Act is to be prescribed.

• Marginal note:Ministerial recommendation

  (2) Regulations under paragraph (1)(j) shall be made on the recommendation of the Minister and the Minister of Finance.

• Marginal note:Tabling of proposed regulations

  (3) The Minister shall cause a copy of each regulation proposed to be made under subsection (1) to be laid before each House of Parliament before it is made and that House shall refer the proposed regulations to the appropriate Committee of each House.

Audit or Examination

Marginal note:Minister’s powers

• 15 (1) The Minister may, after giving at least twenty-one days notice in writing to a lender, conduct an audit or examination of the lender’s documents, records and books of account to verify that this Act and the regulations are being complied with in respect of a loan, including that the lender has exercised due diligence, as provided in the regulations, in the approval and administration of the loan and that the documentation submitted to the Minister in respect of the borrower is accurate and complete.

• Marginal note:Records to be made available

  (2) The documents, records and books of account shall, for the purposes of the audit or examination, be made available at all reasonable times to any person authorized by the Minister for the purpose.

• Marginal note:Assisting authorized persons

  (3) Every lender shall, for the purpose of an audit or examination under this Act, give all reasonable assistance to any person authorized by the Minister to carry out the audit or examination, provide access to all relevant sites, answer, orally or in writing, as required, all questions relating to the subject-matter of the audit or examination and provide all information and documentation in their possession and all copies required for the purpose of the audit or examination. Without the permission of the lender, the authorized person shall not remove the documentation or copies from the relevant sites.

• Marginal note:Report of audit

  (4) The Minister shall provide the lender with a copy of the report of the audit or examination within twenty-one days after the report is completed.

• Marginal note:Non-compliance

  (5) If a lender refuses or intentionally fails to comply with any requirement of this section, the Minister may notify the lender in writing that the Minister is not liable under this Act to make any payment to the lender in respect of any loss sustained by it as a result of any loan made by it.

Offences and Punishment

Marginal note:Offence

• 16 (1) Every person commits an offence who, in respect of a loan,

  • (a) knowingly makes any false statement or misrepresentation in an application, report or other document or wilfully furnishes any false or misleading information;

  • (b) being a borrower, without the consent of the lender and with fraudulent intent, disposes of any assets taken as security for the loan where the disposition is not permitted by the regulations; or

  • (c) being a borrower, uses the proceeds of the loan, with fraudulent intent, for a purpose that does not fall within the scope of any prescribed class of loans.

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and liable to a fine not exceeding $500,000 or to imprisonment for a term not exceeding five years, or to both; or

  • (b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both.

• Marginal note:Limitation period

  (3) Any proceedings by way of summary conviction in respect of an offence under subsection (1) may be instituted at any time within but not later than three years after the time when the subject-matter of the proceedings arose.

General

Marginal note:Payment out of C.R.F.

17 Any amount payable by the Minister to a lender under this Act is to be paid out of the Consolidated Revenue Fund.

Marginal note:Annual report

18 The Minister shall, within twelve months after the end of each fiscal year, cause a report on the administration of this Act during the preceding fiscal year to be made.

Marginal note:Five-year review

19 The Minister shall, within twelve months after March 31, 2004 and every five years after that, cause a comprehensive review and report of the provisions and operation of this Act during the preceding five years to be made.

Marginal note:Laying of reports before Parliament

20 The Minister shall cause a copy of each report referred to in sections 18 and 19 to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day on which the report is made.

Consequential Amendment

21 [Amendment]

Repeal

22 [Repeal]