An Act to amend the law governing financial institutions and to provide for related and consequential matters (S.C. 2007, c. 6)
Full Document:
Assented to 2007-03-29
44. Section 488 of the Act is amended by adding the following after subsection (3):
Marginal note:Security of a related party
(4) For the purposes of this Part, “security” of a related party includes an option, transferable by delivery, to demand delivery of a specified number or amount of shares of the related party at a fixed price within a specified time.
45. Section 494 of the Act is amended by adding the following after subsection (5):
Marginal note:Approval under section 236
(6) A bank may acquire any assets from, or dispose of any assets to, a related party of the bank under a sale agreement that is approved by the Minister under section 236.
Marginal note:1997, c. 15, c. 70
46. Subsection 495(3) of the Act is replaced by the following:
Marginal note:Exception
(3) Despite subsection 489(2), a bank is deemed not to have indirectly entered into a transaction in respect of which this Part applies if the transaction is entered into by an entity that is controlled by the bank and the business of which is limited to the activity referred to in paragraph 468(2)(c) and the transaction is on terms and conditions at least as favourable to the bank as market terms and conditions, as defined in subsection 501(2).
Marginal note:2001, c. 9, s. 129
47. (1) The description of B in subsection 495.3(1) of the Act is replaced by the following:
- B
- is the total value of all assets that the bank directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the 12 months ending immediately before the acquisition or transfer, other than assets acquired by or transferred to the bank under transactions permitted by section 490; and
Marginal note:2001, c. 9, s. 129
(2) Paragraph 495.3(3)(a) of the Act is replaced by the following:
(a) the bank purchases or sells assets under a sale agreement that is approved by the Minister under section 236; or
Marginal note:2001, c. 9, s. 132
48. (1) The definitions “designated foreign bank”, “designation order” and “exemption order” in subsection 507(1) of the Act are repealed.
Marginal note:2001, c. 9, s. 132
(2) The definition “limited commercial entity” in subsection 507(1) of the Act is replaced by the following:
“limited commercial entity”
« entité à activités commerciales restreintes »
“limited commercial entity” means a Canadian entity that a foreign bank or an entity associated with a foreign bank may control in accordance with subsection 522.09(1) or (2), or in which a foreign bank or an entity associated with a foreign bank is permitted to acquire a substantial investment in accordance with that subsection.
Marginal note:2001, c. 9, s. 132
(3) Paragraph (e) of the definition “financial services entity” in subsection 507(1) of the Act is replaced by the following:
(e) engaging in the activities referred to in the definition “closed-end fund”, “mutual fund distribution entity” or “mutual fund entity” in subsection 464(1);
Marginal note:2001, c. 9, s. 132
(4) Paragraph 507(15)(c) of the Act is replaced by the following:
(c) has received the approval of the Minister under paragraph 522.22(1)(f); or
Marginal note:2001, c. 9, s. 132
(5) Paragraph 507(16)(c) of the Act is replaced by the following:
(c) has received the approval of the Minister under paragraph 522.22(1)(f); or
Marginal note:2001, c. 9, s. 132
49. Sections 508 to 509.1 of the Act are replaced by the following:
Marginal note:Application
508. (1) This Part applies to
(a) a foreign bank that
(i) is a bank according to the laws of the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business,
(ii) engages in the business of providing financial services and employs, to identify or describe its business, a name that includes the word “bank”, “banque”, “banking” or “bancaire”, either alone or in combination with other words, or any word or words in any language other than English or French corresponding generally to any of those words, or
(iii) is regulated as a bank or as a deposit-taking institution according to the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business; and
(b) an entity that is associated with a foreign bank and that is
(i) a member of a material banking group,
(ii) controlled by a foreign bank described in any of subparagraphs (a)(i) to (iii), or
(iii) associated with a foreign bank described in any of subparagraphs (a)(i) to (iii) and that foreign bank or any entity controlled by that foreign bank is
(A) engaging in or carrying on business in Canada, other than holding, managing or otherwise dealing with real property,
(B) maintaining a branch in Canada, other than an office referred to in section 522,
(C) establishing, maintaining or acquiring for use in Canada an automated banking machine, a remote service unit or a similar automated service, or, in Canada, accepting data from such a machine, unit or service other than in circumstances described in section 511 or 512,
(D) acquiring or holding control of, or a substantial investment in, a Canadian entity, or
(E) acquiring or holding any share or ownership interest in a Canadian entity and
(I) an entity associated with the foreign bank holds control of, or a substantial investment in, the Canadian entity, or
(II) the foreign bank, an entity associated with the foreign bank and one or more other entities associated with the foreign bank would, if they were one person, hold control of, or a substantial investment in, the Canadian entity.
Marginal note:Member of a material banking group
(2) For the purposes of this section, an entity is a member of a material banking group if either of the following ratios, expressed as a percentage, is equal to or greater than the percentage prescribed for the purpose of this subsection:
A/B or C/D
where
- A
- is the sum of the total assets of all foreign banks described in any of subparagraphs (1)(a)(i) to (iii) with which the entity is associated, other than the total assets of foreign banks described in any of those subparagraphs whose assets are consolidated into the total assets of any foreign bank described in any of those subparagraphs with which the entity is associated;
- B
- is
(a) if the entity is not controlled by any person, the total assets of the entity, or
(b) in any other case, the sum of the total assets of the entity and of all its affiliates, other than entities whose total assets are consolidated into the total assets of an affiliate of the entity;
- C
- is the sum of the total revenue of all foreign banks described in any of subparagraphs (1)(a)(i) to (iii) with which the entity is associated, other than the total revenue of foreign banks described in any of those subparagraphs whose revenue is consolidated into the total revenue of any foreign bank described in any of those subparagraphs with which the entity is associated; and
- D
- is
(a) if the entity is not controlled by any person, the total revenue of the entity, or
(b) in any other case, the sum of the total revenue of the entity and of all its affiliates, other than entities whose total revenue is consolidated into the total revenue of an affiliate of the entity.
Marginal note:Exemption from material banking group status
(3) Despite subsection (2), the Minister may, subject to any terms and conditions that he or she considers appropriate, exempt an entity from being a member of a material banking group if neither of the ratios determined in accordance with that subsection in relation to that entity exceeds the percentage prescribed for the purposes of this subsection.
Marginal note:Subsections 507(4) to (7) do not apply
(4) Subsections 507(4) to (7) do not apply with respect to the making of any determination relating to control or a substantial investment for the purposes of subparagraph (1)(b)(iii).
Marginal note:Definitions
(5) The following definitions apply in this section.
“total assets”
« actif total »
“total assets”, in respect of an entity, means the total value of its assets
(a) as reported on a consolidated basis in its most recently completed financial statements that were prepared in accordance with generally accepted accounting principles in
(i) the jurisdiction in which the entity was formed or incorporated,
(ii) a jurisdiction in which it carries on business, or
(iii) a country or territory that is a WTO Member as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; or
(b) if its most recently completed financial statements were not prepared in the manner described in paragraph (a), as would have been reported on a consolidated basis in its most recently completed financial statements had they been prepared in accordance with generally accepted accounting principles in Canada.
“total revenue”
« recettes d’exploitation totales »
“total revenue”, in respect of an entity, means its total revenue
(a) as reported on a consolidated basis in its most recently completed financial statements that were prepared in accordance with generally accepted accounting principles in
(i) the jurisdiction in which the entity was formed or incorporated,
(ii) a jurisdiction in which it carries on business, or
(iii) a country or territory that is a WTO Member as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; or
(b) if its most recently completed financial statements were not prepared in the manner described in paragraph (a), as would have been reported on a consolidated basis in its most recently completed financial statements had they been prepared in accordance with generally accepted accounting principles in Canada.
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