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) 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 paragraph 19(1)(a) constitutes a violation and the person who 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).

• 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.

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. The Commissioner may make public the nature of a violation, the name of the person who committed it, and the amount of the penalty imposed.

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 Her Majesty, the Minister, the 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.

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 following the end of each fiscal year, a report showing the operations of the Agency for that year and describing in aggregate form its conclusions on the compliance of financial institutions with the consumer provisions applicable to them in that year.

AMENDMENTS TO ACTS IN RELATION TO FINANCIAL INSTITUTIONS

1991, c. 46Bank Act

• 35. (1) The definition “foreign bank subsidiary” in section 2 of the Bank Act is repealed.

• Marginal note:1999, c. 28, s. 1(2)

  (2) The definitions “affairs”, “annual statement”, “central securities register” or “securities register”, “head office”, “incorporator”, “recorded address”, “regulatory capital” and “subsidiary” in section 2 of the Act are replaced by the following:

  “affairs”

  « affaires internes »

  “affairs”, with respect to a bank, an authorized foreign bank or a bank holding company, means the relationships among the bank, authorized foreign bank or bank holding company and its affiliates and the shareholders, directors and officers of the bank, authorized foreign bank or bank holding company and its affiliates, but does not include the business of the bank, authorized foreign bank or bank holding company or any of its affiliates;

  “annual statement”

  « rapport annuel »

  “annual statement”, in relation to a bank, means the annual financial statement of the bank within the meaning of paragraph 308(1)(a) and, in relation to a bank holding company, means the annual financial statement of the bank holding company within the meaning of paragraph 840(1)(a);

  “central securities register” or “securities register”

  « registre central des valeurs mobilières »ou« registre des valeurs mobilières »

  “central securities register” or “securities register”, in relation to a bank, means the register referred to in section 248 and, in relation to a bank holding company, means the register referred to in section 825;

  “head office”

  « siège »

  “head office”, in relation to a bank, means the office required to be maintained under section 237 and, in relation to a bank holding company, means the office required to be maintained under section 814;

  “incorporator”

  « fondateur »

  “incorporator”, in relation to a bank or a bank holding company, means a person who applied for letters patent to incorporate the bank or bank holding company, as the case may be;

  “recorded address”

  « adresse enregistrée »

  “recorded address” means

  • (a) in relation to a person who is a shareholder of a bank or a bank holding company, the latest postal address of the person according to its central securities register, and

  • (b) in relation to a person in any other respect in relation to a bank, the latest postal address of the person according to the records of the branch concerned;

  “regulatory capital”

  « capital réglementaire »

  “regulatory capital”, in respect of a bank or a bank holding company, has the meaning given that expression by the regulations;

  “subsidiary”

  « filiale »

  “subsidiary” means an entity that is a subsidiary of another entity as defined in section 5;

• Marginal note:1999, c. 28, s. 1(3)

  (3) Paragraph (c) of the definition “complainant” in section 2 of the Act is replaced by the following:

  • (c) any other person who, in the discretion of a court, is a proper person to make an application under section 334, 338 or 989;

• Marginal note:1991, c. 47, par. 756(1)(a), c. 48, par. 494(a)

  (4) Paragraphs (c) and (d) of the definition “financial institution” in section 2 of the Act are replaced by the following:

  • (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act,

  • (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act,

• (5) The portion of the definition “foreign bank” in section 2 of the Act after paragraph (f) is replaced by the following:

  • (g) is a foreign institution, other than a foreign bank within the meaning of any of paragraphs (a) to (f), that controls a bank incorporated or formed under this Act,

  but does not include a subsidiary of a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, unless the Minister has specified that subsection 378(1) no longer applies to the bank;

• (6) Paragraph (a) of the definition “foreign institution” in section 2 of the Act is replaced by the following:

  • (a) engaged in the business of banking, the trust, loan or insurance business, the business of a cooperative credit society or the business of dealing in securities or is otherwise engaged primarily in the business of providing financial services, and

• (7) Section 2 of the Act is amended by adding the following in alphabetical order:

  “Agency”

  « Agence »

  “Agency” means the Financial Consumer Agency of Canada established under section 3 of the Financial Consumer Agency of Canada Act;

  “bank holding company”

  « société de portefeuille bancaire »

  “bank holding company” means a body corporate that is incorporated or formed under Part XV;

  “Commissioner”

  « commissaire »

  “Commissioner” means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act;

  “consumer provision”

  « disposition visant les consomma­teurs »

  “consumer provision” means a provision referred to in paragraph (a) of the definition “consumer provision” in section 2 of the Financial Consumer Agency of Canada Act;

  “equity”

  « capitaux propres »

  “equity”, in respect of a bank or a bank holding company, means its equity as determined in accordance with the regulations;

  “federal financial institution”

  « institution financière fédérale »

  “federal financial institution” means

  • (a) a bank,

  • (b) a body corporate to which the Trust and Loan Companies Act applies,

  • (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, or

  • (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act;

  “insurance holding company”

  « société de portefeuille d’assurances »

  “insurance holding company” means a body corporate that is incorporated or formed under Part XVII of the Insurance Companies Act;