An Act to amend the law governing financial institutions and to provide for related and consequential matters (S.C. 2007, c. 6)
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Assented to 2007-03-29
PART 11991, c. 46AMENDMENTS TO THE BANK ACT
Marginal note:2001, c. 9, s. 183
123. Subsections 933(3) and (4) of the Act are replaced by the following:
Marginal note:Temporary investment
(3) If a bank holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister would have been required under subsection 930(5) if the bank holding company had acquired the control, or acquired or increased the substantial investment, under section 930, the bank holding company must, within 90 days after acquiring control or after acquiring or increasing the substantial investment,
(a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or
(b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Marginal note:Indeterminate extension
(4) If a bank holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent would have been required under subsection 930(6) if the bank holding company had acquired the control, or acquired or increased the substantial investment, under section 930, the Superintendent may, on application, permit the bank holding company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers appropriate.
124. (1) Section 944 of the Act is amended by adding the following after subsection (1):
Marginal note:Approval of series of transactions
(1.1) The Superintendent may, for the purposes of subsection (1), approve a transaction or series of transactions relating to the acquisition or transfer of assets that may be entered into with a person, or with persons of any class of persons, regardless of whether those persons are known at the time of the granting of the approval or not.
Marginal note:2001, c. 9, s. 183
(2) The portion of subsection 944(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exception
(2) Subsection (1) does not apply in respect of
Marginal note:2001, c. 9, s. 183
(3) Paragraph 944(2)(f) of the Act is replaced by the following:
(f) assets acquired or transferred under a transaction or series of transactions by a subsidiary of the bank holding company with a financial institution as a result of the subsidiary’s participation in one or more syndicated loans with that financial institution.
Marginal note:2001, c. 9, s. 183
(4) Paragraph 944(4)(b) of the Act is replaced by the following:
(b) in the case of assets that are transferred, the value of the assets as reported in the last annual statement of the bank holding company prepared before the transfer or, if the value of the assets is not reported in that annual statement, the value of the assets as it would be reported in the annual statement of the bank holding company if the annual statement had been prepared, in accordance with the accounting principles referred to in subsection 840(4), immediately before the transfer.
Marginal note:2001, c. 9, s. 183
(5) Subsection 944(6) of the Act is replaced by the following:
Marginal note:Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the bank holding company or any of its subsidiaries has transferred during the 12-month period referred to in subsection (1) is the total of the value of each of those assets as reported in the last annual statement of the bank holding company prepared before the transfer of the asset or, if the value of any of those assets is not reported in that annual statement, as it would be reported in the annual statement of the bank holding company if the annual statement had been prepared, in accordance with the accounting principles referred to in subsection 840(4), immediately before the transfer of the asset.
Marginal note:2001, c. 9, s. 183
125. Section 973 of the Act and the heading before it are replaced by the following:
Approvals
Definition of “approval”
973. In sections 973.01 to 973.06, “approval” includes any consent, designation, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent.
Marginal note:Matters to take into account — Minister
973.01 (1) In addition to any matters or conditions provided for in this Act that are relevant to the granting of an approval, the Minister may, in considering whether to grant the approval, take into account all matters that he or she considers relevant in the circumstances, including
(a) national security; and
(b) Canada’s international relations and its international legal obligations.
Marginal note:Matters to take into account — Superintendent
(2) In addition to any matters or conditions provided for in this Act that are relevant to the granting of an approval and to any prudential considerations that the Superintendent considers relevant in the circumstances, the Superintendent may, in considering whether to grant the approval, take into account
(a) national security; and
(b) Canada’s international relations and its international legal obligations.
Marginal note:Minister — terms, conditions and undertakings
973.02 (1) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose any terms and conditions or require any undertaking that the Minister considers appropriate, including any terms, conditions or undertakings specified by the Superintendent to maintain or improve the safety and soundness of any financial institution regulated under an Act of Parliament to which the approval relates or that might be affected by it.
Marginal note:Superintendent — terms, conditions and undertakings
(2) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose any terms and conditions or require any undertaking that the Superintendent considers appropriate.
Marginal note:Revocation, suspension or amendment of approval — Minister
973.03 (1) The Minister may revoke, suspend or amend any approval granted by the Minister if he or she considers it appropriate to do so. In deciding whether to take any of those actions, the Minister may take into account all matters that he or she considers relevant in the circumstances, including
(a) national security; and
(b) Canada’s international relations and its international legal obligations.
Marginal note:Revocation, suspension or amendment of approval — Superintendent
(2) The Superintendent may revoke, suspend or amend any approval granted by the Superintendent if he or she considers it appropriate to do so. In deciding whether to take any of those actions, the Superintendent may take into account any prudential considerations that he or she considers relevant in the circumstances and
(a) national security; and
(b) Canada’s international relations and its international legal obligations.
Marginal note:Representations
(3) Before taking any action under this section, the Minister or the Superintendent, as the case may be, shall give the person concerned a reasonable opportunity to make representations.
Marginal note:Effect of non-compliance on approval
973.04 (1) Unless otherwise expressly provided in this Act, a failure to comply with a term, condition or undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates.
Marginal note:Non-compliance
(2) In addition to any other action that may be taken under this Act, in the case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or the Superintendent, as the case may be, may
(a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or
(b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such an application the court may make the order and any other order that it thinks fit.
Marginal note:Representations
(3) Before taking any action under subsection (2), the Minister or the Superintendent, as the case may be, shall give the person concerned a reasonable opportunity to make representations.
Marginal note:Revocation, suspension or amendment
(4) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her and may revoke or suspend an undertaking given to him or her or approve its amendment.
Marginal note:Multiple approval — other approvals
973.05 The Minister or the Superintendent may grant more than one approval, other than letters patent, in a single instrument if he or she considers it appropriate to do so, and if the Minister or Superintendent does so, he or she may specify different effective dates for each of the approvals.
Marginal note:Exemption in relation to notices of intention
973.06 The Superintendent may, on application, exempt an applicant or applicants from the provisions of this Act respecting the publication of a notice of intention in respect of applications for approvals and impose any terms and conditions respecting the publication of the notice of intention that he or she considers appropriate.
Marginal note:2001, c. 9, s. 183
126. (1) The portion of subsection 976(1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Demande d’approbation
976. (1) Doivent être accompagnées des renseignements, documents et éléments de preuve que peut exiger le surintendant les demandes suivantes qui lui sont présentées :
Marginal note:2001, c. 9, s. 183
(2) Paragraph 976(1)(c) of the Act is replaced by the following:
(c) applications for exemptions under subsection 156.05(3); and
Marginal note:2001, c. 9, s. 183
(3) Subsection 976(2) of the French version of the Act is replaced by the following:
Marginal note:Accusé de réception
(2) Le surintendant adresse sans délai au demandeur un accusé de réception précisant la date où la demande a été reçue.
127. The Act is amended by adding the following after section 976:
Applications for Certain Approvals
Marginal note:Application for certain approvals
976.1 (1) An application for the prior written approval of the Minister in respect of any of the following provisions must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require:
(a) paragraphs 410(1)(c) and (c.1);
(b) paragraphs 468(5)(c), (d) and (d.1);
(c) paragraphs 522.22(1)(c), (d) and (d.1);
(d) paragraphs 539(1)(b.1) and (b.2); and
(e) paragraphs 930(5)(c), (d) and (d.1).
Marginal note:Certification of receipt of application
(2) If, in the opinion of the Superintendent, the application contains all the required information, the Superintendent must refer it to the Minister, together with his or her analysis in relation to the application, and send a receipt to the applicant certifying the date on which the application was referred to the Minister.
Marginal note:Incomplete application
(3) If, in the opinion of the Superintendent, the application is incomplete, the Superintendent must send a notice to the applicant specifying the information required by the Superintendent to complete it.
Marginal note:Notice of decision
(4) Subject to subsection (5), the Minister must, within 30 days after the certified date referred to in subsection (2), send to the applicant
(a) a notice approving the application; or
(b) if the Minister is not satisfied that the application should be approved, a notice to that effect.
Marginal note:Extension of period
(5) If the Minister is unable to complete the consideration of an application within the 30-day period, the Minister must, within that period, send a notice to the applicant informing the applicant that the Minister has extended the period for a further period set out in the notice.
Marginal note:Deemed approval
(6) If the Minister does not send the notice referred to in subsection (4) or, where applicable, subsection (5), within the required period, the Minister is deemed to have approved the application.
128. The Act is amended by adding the following after section 980:
Marginal note:False or misleading information
980.1 Every person who knowingly provides false or misleading information in relation to any matter under this Act or the regulations is guilty of an offence.
Marginal note:2001, c. 9, s. 183
129. (1) Subsections 983(2) and (3) of the Act are replaced by the following:
Marginal note:Unauthorized name
(2) Subject to the regulations and subsections (4) to (5.1), (6) and (12), every entity, other than a bank, that acquires, adopts or retains a name that includes the word “bank”, “banker” or “banking”, either alone or in combination with other words, to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Marginal note:Unauthorized use of word “bank”, “banker” or “banking”
(2.1) Subject to the regulations and subsections (4) to (5.1), (6) and (12), every person, other than a bank, who uses the word “bank”, “banker” or “banking” to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Marginal note:Unauthorized use of name or identifying mark of bank or foreign bank
(2.2) Subject to the regulations and subsections (4), (5), (5.2), (5.3) and (10) to (12), every person who uses the name or any identifying mark of a bank or a foreign bank to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Marginal note:Unauthorized statements regarding association with a bank, etc.
(2.3) Subject to the regulations and subsections (4), (5.2) and (12), every person is guilty of an offence who, without being authorized to do so by this Act or any other Act of Parliament, makes any statement that a business is connected, associated or affiliated with a bank or a foreign bank.
Marginal note:Unauthorized use of name or identifying mark of a bank holding company
(3) Subject to the regulations and subsections (7) to (9.1) and (12), every entity that acquires, adopts or retains the name of a bank holding company and every person who uses the name or any identifying mark of a bank holding company to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Marginal note:2001, c. 9, s. 183
(2) The portion of subsection 983(4) of the Act before paragraph (c) is replaced by the following:
Marginal note:Permitted use
(4) No person commits an offence under any of subsections (2) to (2.3) if the activity referred to in that subsection is done
(a) in a description of the corporate relationship between a bank and an entity controlled by the bank;
(b) subject to the regulations, in a description of a corporate relationship between a bank and an entity affiliated with the bank;
(b.1) in a description of the corporate relationship between a bank holding company and an entity controlled by the bank holding company;
Marginal note:2001, c. 9, s. 183
(3) Paragraphs 983(4)(f) to (h) of the Act are replaced by the following:
(f) in a description of the corporate relationship between a bank or a bank holding company and a foreign bank that controls the bank or the bank holding company;
(f.1) in a description of the corporate relationship between a bank or a bank holding company and an entity that is associated with a foreign bank and that controls the bank or the bank holding company;
(g) subject to the regulations, in a description of the corporate relationship between a non-bank affiliate of a foreign bank, within the meaning of subsection 507(1), and a foreign bank that controls the non-bank affiliate, if the non-bank affiliate is not a bank holding company or an entity that is controlled by a bank holding company;
(h) subject to the regulations, in a description of the corporate relationship between a non-bank affiliate of a foreign bank, within the meaning of subsection 507(1), and an entity that is associated with a foreign bank that controls the non-bank affiliate, if
(i) the non-bank affiliate is not a bank holding company or an entity that is controlled by a bank holding company, and
(ii) the entity is not a bank, a bank holding company, a foreign bank or an entity controlled by a bank or a bank holding company;
Marginal note:2001, c. 9, s. 183
(4) Subsections 983(5) and (5.1) of the Act are replaced by the following:
Marginal note:Permitted use
(5) No subsidiary of a bank commits an offence by reason only that it uses the name of the bank of which it is a subsidiary in its corporate name or a name under which it carries on business or by reason only that it uses any identifying mark of that bank in carrying on its business.
Marginal note:Permitted use
(5.1) No person commits an offence under subsection (2) or (2.1) if the activity referred to in that subsection is in relation to a business that is not engaged in financial activities, unless the business is carried out by a prescribed entity.
Marginal note:Permitted use
(5.2) No bank commits an offence under subsection (2.2) or (2.3) if it is affiliated with the bank or the foreign bank.
Marginal note:Permitted use
(5.3) Subject to the regulations, no entity affiliated with a bank commits an offence by reason only that the entity uses the name of the bank in the entity’s corporate name or in a name under which the entity carries on business or by reason only that it uses any identifying mark of the bank in carrying on its business, if the entity does not use the word “bank”, “banker” or “banking” in its corporate name, in a name under which it carries on business or in any of its identifying marks.
Marginal note:2001, c. 9, s. 183
(5) Subsection 983(6) of the English version of the Act is replaced by the following:
Marginal note:Permitted use
(6) No financial institution that was controlled by a bank on June 25, 1999 and that had a name that included the word “bank”, “banker” or “banking” on that day commits an offence by reason only that it uses that word in its corporate name or in a name under which it carries on business if the financial institution is a subsidiary of a bank holding company that controls the bank.
Marginal note:2001, c. 9, s. 183
(6) Subsections 983(6.1) to (8.1) of the Act are replaced by the following:
Marginal note:Permitted use
(7) No subsidiary of a bank holding company commits an offence by reason only that it uses the name of the bank holding company in the subsidiary’s corporate name or in a name under which it carries on business, or by reason only that it uses any identifying mark of the bank holding company in carrying on its business, so long as, if the subsidiary is not a bank or a subsidiary of a bank, it does not use the word “bank”, “banker” or “banking” in its corporate name, in a name under which it carries on business or in any of its identifying marks.
Marginal note:Permitted use
(8) Subject to the regulations, no entity affiliated with a bank holding company commits an offence by reason only that the entity uses the name of the bank holding company in the entity’s corporate name or in a name under which the entity carries on business or by reason only that it uses any identifying mark of the bank holding company in carrying on its business, if the entity does not use the word “bank”, “banker” or “banking” in its corporate name, in a name under which it carries on business or in any of its identifying marks.
Marginal note:2001, c. 9, s. 183
(7) Subsection 983(9) of the French version of the Act is replaced by the following:
Marginal note:Utilisation autorisée
(9) Ne commet pas une infraction la filiale d’une société de portefeuille bancaire du simple fait qu’elle utilise le nom de la société de portefeuille bancaire pour décrire les rapports qui l’unissent à elle.
Marginal note:2001, c. 9, s. 183
(8) Subsections 983(9.1) to (16) of the Act are replaced by the following:
Marginal note:Permitted use
(9.1) Subject to the regulations, no entity affiliated with a bank holding company commits an offence by reason only that the entity uses the name of the bank holding company in a description of the entity’s corporate relationship with the bank holding company.
Marginal note:Permitted use
(10) Subject to the regulations, no Canadian entity that is an entity associated with a foreign bank commits an offence by reason only that it uses the name of the foreign bank in its corporate name or in a name under which it carries on business, or by reason only that it uses any identifying mark of the foreign bank in carrying on its business, if
(a) it does not use the word “bank”, “banker” or “banking” in its corporate name, in a name under which it carries on business or in any of its identifying marks; and
(b) the foreign bank has consented to the use.
Marginal note:Permitted use
(11) Subject to the regulations, no foreign bank that carries on a business or activity referred to in section 510.1, 522.05, 522.18 or 522.19, and no entity incorporated or formed by or under the laws of a country other than Canada that carries on a business or activity referred to in any of those provisions and that is an entity associated with a foreign bank, commits an offence by reason only that it uses its name or any of its identifying marks if it does not use the word “bank”, “banker” or “banking”.
Marginal note:Permitted use — consent
(12) No person commits an offence under any of subsections (2) to (3) if the activity referred to in that subsection has been approved by the Superintendent and is in accordance with any terms and conditions that the Superintendent may impose and, if the activity involves the use of the name or any identifying mark of a bank, a bank holding company or a foreign bank, the bank, bank holding company or foreign bank has consented to the use.
Marginal note:Words “bank”, “banker” or “banking”
(13) For the purposes of this section, the word “bank”, “banker” or “banking” includes
(a) any of those words in any language; and
(b) any word or words, in any language, that are equivalent to any of those words.
Marginal note:Entity’s name
(14) For the purposes of this section, other than subsection (1), an entity’s name includes
(a) a name that is substantially similar to the entity’s name; and
(b) the entity’s name in any language.
Marginal note:Identifying marks
(15) For the purposes of this section, an identifying mark of an entity includes
(a) any logogram, insignia or logo of the entity;
(b) the initials or any acronym of the entity; and
(c) any mark that is substantially similar to any identifying mark of the entity.
Definition of “foreign bank”
(16) In this section, “foreign bank” means a foreign bank to which Part XII applies.
Marginal note:Entity associated with a foreign bank
(17) For the purposes of this section, an entity is associated with a foreign bank if the entity is or is deemed to be associated with the foreign bank within the meaning of section 507 and is an entity to which Part XII applies.
Marginal note:Regulations
(18) The Governor in Council may make regulations for the purposes of subsections (1) to (3), paragraphs (4)(b), (g) and (h) and subsections (5.3), (8) and (9.1) to (11).
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