Financial Consumer Agency of Canada Act (S.C. 2001, c. 9)

Marginal note:Purpose of penalty

20.1 The purpose of the penalty is to promote compliance with the consumer provisions, compliance agreements that have been entered into under an Act listed in Schedule 1, any terms and conditions, undertakings or directions referred to in subparagraph 3(2)(a)(ii), the provisions of the Payment Card Networks Act or its regulations, and agreements entered into under section 7.1, and not to punish.

Marginal note:How act or omission may be proceeded with

21 If a contravention or non-compliance that is designated under paragraph 19(1)(a) or (a.1) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Proceedings

Marginal note:Commission of violation

• 22 (1) Every contravention or non-compliance that is designated under paragraphs 19(1)(a) to (a.2) constitutes a violation and the person that commits the violation is liable to a penalty determined in accordance with sections 19 and 20.

• Marginal note:Notice of violation

  (2) If the Commissioner believes on reasonable grounds that a person has committed a violation, he or she may issue, and shall cause to be served on the person, a notice of violation.

• Marginal note:Contents of notice

  (3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out

  • (a) the penalty that the Commissioner proposes to impose;

  • (b) the right of the person, within 30 days after the notice is served, or within any longer period that the Commissioner specifies, to pay the penalty or to make representations to the Commissioner with respect to the violation and the proposed penalty, and the manner for doing so; and

  • (c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commissioner may impose a penalty in respect of it.

Determination of Responsibility and Penalty

Marginal note:Payment of penalty

• 23 (1) If the person pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.

• Marginal note:Representations to Commissioner

  (2) If the person makes representations in accordance with the notice, the Commissioner shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commissioner may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.

• Marginal note:Notice of decision and right of appeal

  (4) The Commissioner shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with notice of the right of appeal under section 24.

Appeal to Federal Court

Marginal note:Right of appeal

• 24 (1) A person on whom a notice under subsection 23(4) is served may, within 30 days after the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.

• Marginal note:Court to take precautions against disclosing

  (2) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person of confidential information referred to in subsection 17(1) or (3).

• Marginal note:Powers of Court

  (3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 19(1)(b), vary the decision of the Commissioner.

Enforcement

Marginal note:Debts to Her Majesty

• 25 (1) A penalty constitutes a debt due to Her Majesty in right of Canada that may be recovered as such in the Federal Court.

• Marginal note:Time limit

  (2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

• Marginal note:Proceeds payable to Receiver General

  (3) A penalty paid or recovered under sections 19 to 24, this section and sections 26 to 31 is payable to and shall be remitted to the Receiver General.

Marginal note:Certificate of default

• 26 (1) The unpaid amount of any debt referred to in subsection 25(1) may be certified by the Commissioner.

• Marginal note:Registration in Federal Court

  (2) Registration in the Federal Court of a certificate made under subsection (1) 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.

Rules about Violations

Marginal note:Violations not offences

27 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of one.

Marginal note:Due diligence available

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

• 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 in relation to a consumer provision applies in respect of a violation to the extent that it is not inconsistent with this Act.

• Marginal note:Common law principles — Payment Card Networks Act

  (3) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence in relation to a provision of the Payment Card Networks Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

General Provisions

Marginal note:Evidence

29 In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 22(2) or 23(4) or a certificate purporting to be made under subsection 26(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Time limit

• 30 (1) No proceedings in respect of a violation may be commenced later than two years after the subject-matter of the proceedings became known to the Commissioner.

• Marginal note:Certificate of Commissioner

  (2) A document appearing to have been issued by the Commissioner, certifying the day on which the subject-matter of any proceedings became known to the Commissioner, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Marginal note:Publication

• 31 (1) Subject to any regulations, the Commissioner shall make public the nature of a violation, the name of the person who committed it and the amount of the penalty imposed.

• Marginal note:Publication — reasons

  (2) In making public the nature of a violation, the Commissioner may include the reasons for his or her decision, including the relevant facts, analysis and considerations that formed part of the decision.

Regulations

Marginal note:Regulations

32 The Governor in Council may make regulations prescribing

• (a) anything that is required or authorized by this Act to be prescribed; and

• (b) the way in which anything that is required or authorized by this Act to be prescribed shall be determined.

No Liability

Marginal note:No liability

33 No action lies against His Majesty, the Minister, the Commissioner, the Senior Deputy Commissioner, any Deputy Commissioner, any officer or employee of the Agency or any person acting under the direction of the Commissioner for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under any Act of Parliament are intended or authorized to be executed or performed.

Immunities

Marginal note:Not compellable

33.1 The Commissioner, the Senior Deputy Commissioner, any Deputy Commissioner, any officer or employee of the Agency or any person acting under the instructions of the Commissioner is not a compellable witness in any civil proceedings in respect of any matter coming to their knowledge as a result of exercising any of their powers or performing any of their duties or functions under this Act or an Act listed in Schedule 1.

Annual Report

Marginal note:Annual report

34 The Minister shall cause to be laid before each House of Parliament, not later than the fifth sitting day of that House after September 30 next after the end of each fiscal year, a report showing the Agency’s operations for that year and describing

• (a) in aggregate form, its conclusions on the compliance, in that year, of financial institutions and the external complaints body with the consumer provisions applicable to them; and

• (b) in aggregate form, its conclusions on the compliance, in that year, of payment card network operators with the provisions of the Payment Card Networks Act and its regulations; and

• (c) its collaboration with stakeholders, and the coordination of its activities with those of stakeholders, to contribute to and support initiatives to strengthen the financial literacy of Canadians.

Amendments to Acts in Relation to Financial Institutions

35 to 140 [Amendments]

• 141 (1) [Amendment]

• (2) [Repealed, 2007, c. 6, s. 437]

• (3) [Amendment]

142 to 571 [Amendments]

Amendments to Other Acts

572 to 583 [Amendments]

Consequential Amendments

584 to 592 [Amendments]

Coming into Force

Marginal note:Coming into force

Footnote ^*593 The provisions of this Act, other than subsections 120(2), 122(2), 155(2), 157(2), 424(2) and 444(2), section 473 and subsections 545(2) and 547(2), or the provisions of any Act enacted or amended by this Act, come into force on a day or days to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Subsections 120(2), 122(2), 155(2), 157(2), 424(2) and 444(2), section 473 and subsections 545(2) and 547(2) in force on assent June 14, 2001; sections 1 to 106 and 108 to 119, subsections 120(1) and (3), section 121, subsection 122(1), sections 123 to 140, subsections 141(1) and (3), sections 142 to 154, subsections 155(1) and (3), section 156, subsection 157(1), sections 158 to 222, subsections 223(1), (4) and (5) and sections 224 to 238, section 28 and the heading before section 28, as enacted by section 239, sections 241 to 310, sections 382 and 382.1, as enacted by section 311, sections 312 to 417 and 419 to 423, subsection 424(1), sections 425 to 443, subsection 444(1), sections 445 to 472, 475 to 533 and 535 to 544, subsections 545(1) and (3), section 546, subsection 547(1) and sections 548 to 592 and 594 in force October 24, 2001, see SI/2001-102; section 27 and the heading before section 27, as enacted by section 239, in force June 21, 2002, see SI/2002-99; section 107, sections 383 to 383.2, as enacted by section 311 and sections 418 and 534 in force January 1, 2004, see SI/2003-181; section 474 in force December 1, 2005, see SI/2005-116.]

Marginal note:Authority to substitute actual date

594 The Governor in Council may, by regulation, amend any provision of the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act that contains a reference to the coming into force of any provision of any of those Acts, or a reference to the coming into force of any provision of this Act, by replacing that reference with a reference to the actual date of the coming into force of the provision.