Budget Implementation Act, 2021, No. 1 (S.C. 2021, c. 23)

Short Title

Marginal note:Short title

1 This Act may be cited as the Retail Payment Activities Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

Bank

Bank means the Bank of Canada. (Banque)

Centre

Centre means the Financial Transactions and Reports Analysis Centre of Canada. (Centre)

electronic funds transfer

electronic funds transfer means a placement, transfer or withdrawal of funds by electronic means that is initiated by or on behalf of an individual or entity. (transfert électronique de fonds)

end user

end user means an individual or entity that uses a payment service as a payer or payee. (utilisateur final)

entity

entity means a corporation, trust, partnership, fund, an unincorporated association or organization, the government of a foreign country or of a political subdivision of a foreign country, or an agency of a foreign country or of a subdivision of a foreign country. (entité)

government authority

government authority includes the Royal Canadian Mounted Police, the Communications Security Establishment and the Canadian Security Intelligence Service. (autorité administrative)

Governor

Governor has the same meaning as in section 2 of the Bank of Canada Act. (gouverneur)

incident

incident means an event or series of related events that is unplanned by a payment service provider and that results in or could reasonably be expected to result in the reduction, deterioration or breakdown of any retail payment activity that is performed by the payment service provider. (incident)

Minister

Minister means the Minister of Finance. (ministre)

operational risk

operational risk means a risk that any of the following will result in the reduction, deterioration or breakdown of retail payment activities that are performed by a payment service provider:

• (a) a deficiency in the payment service provider’s information system or internal process;

• (b) a human error;

• (c) a management failure; or

• (d) a disruption caused by an external event. (risque opérationnel)

payment function

payment function means

• (a) the provision or maintenance of an account that, in relation to an electronic funds transfer, is held on behalf of one or more end users;

• (b) the holding of funds on behalf of an end user until they are withdrawn by the end user or transferred to another individual or entity;

• (c) the initiation of an electronic funds transfer at the request of an end user;

• (d) the authorization of an electronic funds transfer or the transmission, reception or facilitation of an instruction in relation to an electronic funds transfer; or

• (e) the provision of clearing or settlement services. (fonction de paiement)

payment service provider

payment service provider means an individual or entity that performs payment functions as a service or business activity that is not incidental to another service or business activity.  (fournisseur de services de paiement)

prescribed

prescribed means prescribed by regulation. (Version anglaise seulement)

registered

registered means registered under section 25. (enregistré)

retail payment activity

retail payment activity means a payment function that is performed in relation to an electronic funds transfer that is made in the currency of Canada or another country or using a unit that meets prescribed criteria. (activité associée aux paiements de détail)

third-party service provider

third-party service provider means an individual or entity that, under a contract, provides a payment service provider with a service related to a payment function and that is not an employee or agent or mandatary of the payment service provider. (tiers fournisseur de services)

Marginal note:Affiliation

• 3 (1) For the purposes of section 8 and paragraph 29(1)(d),

  • (a) one entity is affiliated with another entity if one of them is the subsidiary of the other or both are subsidiaries of the same entity or each of them is controlled by the same individual or entity;

  • (b) two entities are deemed to be affiliated with each other if they are affiliated with the same entity at the same time; and

  • (c) an individual is affiliated with an entity if the individual controls the entity.

• Marginal note:Subsidiary entity

  (2) For the purposes of subsection (1), an entity is a subsidiary of another entity if it is controlled by that other entity.

• Marginal note:Control

  (3) For the purposes of this section,

  • (a) a corporation is controlled by an individual or entity if

    • (i) securities of the corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation are held, directly or indirectly, whether through one or more subsidiaries or otherwise, otherwise than by way of security only, by or for the benefit of that individual or entity, and

    • (ii) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation;

  • (b) a limited partnership is controlled by its general partner; and

  • (c) an entity other than a corporation or a limited partnership is controlled by an individual or entity if the individual or entity, directly or indirectly, whether through one or more subsidiaries or otherwise, holds an interest in the entity that is not a corporation that entitles them to receive more than 50% of the profits of that entity or more than 50% of its assets on dissolution.

Application

General

Marginal note:Payment service providers in Canada

4 Subject to sections 6 to 10, this Act applies in respect of any retail payment activity that is performed by a payment service provider that has a place of business in Canada.

Marginal note:Payment service providers outside of Canada

5 Subject to sections 6 to 10, this Act also applies in respect of any retail payment activity that is performed for an end user in Canada by a payment service provider that does not have a place of business in Canada but directs retail payment activities at individuals or entities that are in Canada.

Non-application

Marginal note:Retail payment activities

6 This Act does not apply in respect of the following retail payment activities:

• (a) a payment function that is performed in relation to an electronic funds transfer that is made with an instrument that is issued by a merchant — or by an issuer that is not a payment service provider and has an agreement with a group of merchants — and that allows the holder of the instrument to purchase goods or services only from the issuing merchant or any merchant in the group;

• (b) a payment function that is performed in relation to an electronic funds transfer that is made for the purpose of giving effect to an eligible financial contract as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act or for the purpose of giving effect to a prescribed transaction in relation to securities;

• (c) a payment function that is performed in relation to an electronic funds transfer that is made for the purpose of a cash withdrawal at an automatic teller machine; and

• (d) a prescribed retail payment activity.

Marginal note:Designated systems

7 This Act does not apply in respect of a payment function that is performed in relation to an electronic funds transfer if the payment function is performed using a system that is designated under section 4 of the Payment Clearing and Settlement Act.

Marginal note:Internal transactions

8 This Act does not apply in respect of a retail payment activity that is performed by a payment service provider if

• (a) the payment function in question is performed in relation to an electronic funds transfer that is made between affiliated entities;

• (b) the payment service provider is one of the affiliated entities; and

• (c) no other payment service provider performs payment functions in relation to that electronic funds transfer.

Marginal note:Payment service providers

9 This Act does not apply to a payment service provider that performs retail payment activities if the payment service provider is one of the following:

• (a) a bank;

• (b) an authorized foreign bank as defined in section 2 of the Bank Act in respect of its business in Canada;

• (c) a cooperative credit society, savings and credit union, caisse populaire or central cooperative credit society that is regulated by a provincial Act or an association regulated by the Cooperative Credit Associations Act;

• (d) Her Majesty in right of a province or an agent or mandatary of Her Majesty in right of a province, if Her Majesty in right of a province or the agent or mandatary accepts deposits transferable by order;

• (e) a company to which the Insurance Companies Act applies or an insurance company regulated by a provincial Act;

• (f) a company to which the Trust and Loan Companies Act applies;

• (g) a trust company that is regulated by a provincial Act;

• (h) a loan company that accepts deposits transferable by order and is regulated by a provincial Act;

• (i) the Canadian Payments Association;

• (j) the Bank; or

• (k) a prescribed individual or entity or an individual or entity of a prescribed class.

Marginal note:Agents and mandataries

10 This Act does not apply to an agent or mandatary of a registered payment service provider if the agent or mandatary is performing retail payment activities in the scope of their authority as agent or mandatary and is included on the list of agents or mandataries that was provided by the payment service provider under paragraph 29(1)(e) and is updated in accordance with subsection 59(1).

Marginal note:Governor’s orders

• 11 (1) If a provision of a federal or provincial Act or regulation applies to or in respect of a payment service provider that performs retail payment activities or a class of payment service providers that perform retail payment activities and the Governor is of the opinion that the provision is substantially similar to any of the following provisions of this Act or its regulations, then the Governor may, by order, specify the provision of this Act or its regulations and the payment service provider or class of payment service provider:

  • (a) sections 17 to 22;

  • (b) subsection 29(2);

  • (c) paragraphs 48(1)(a) to (e) and (g) and 52(a) to (d) and (g);

  • (d) sections 59, 94, 95 and 99; and

  • (e) a provision of the regulations that is made for the purposes of any of the provisions referred to in paragraphs (a) to (d).

• Marginal note:Effect of order

  (2) A provision that is specified in an order made under subsection (1) does not apply to or in respect of the payment service provider or class of payment service provider specified in the order.

PART 1Bank and Minister

Marginal note:Objects

• 12 (1) The Bank’s objects under this Act are to

  • (a) supervise payment service providers that perform retail payment activities in order to determine whether those payment service providers are in compliance with this Act;

  • (b) promote the adoption by those payment service providers of policies and procedures that are designed to implement their obligations under this Act; and

  • (c) monitor and evaluate trends and issues related to retail payment activities.

• Marginal note:Duty of Bank

  (2) In pursuing these objects, the Bank must consider the efficiency of payment services and the interests of end users.

Marginal note:Agreements and arrangements

13 The Bank may, for the purpose of exercising its powers or performing its duties and functions under this Act, enter into an agreement or arrangement with any government authority or regulatory body.

Marginal note:Guidelines — Bank

• 14 (1) The Bank may issue guidelines respecting the manner in which this Act, with the exception of the provisions referred to in subsection (2), is to be applied.

• Marginal note:Guidelines — Minister

  (2) The Minister may issue guidelines respecting the manner in which sections 32 to 47, 72 to 75, 96 and 98 are to be applied.

Marginal note:Delegation of Governor’s powers, duties and functions

• 15 (1) The Governor may delegate to an officer of the Bank any of the Governor’s powers, duties or functions under this Act.

• Marginal note:Notice of delegation

  (2) If a power, duty or function is delegated, the Bank must cause to be published in the Canada Gazette a notice that includes

  • (a) the title of the officer to whom the power, duty or function is delegated;

  • (b) the power, duty or function that is delegated; and

  • (c) the day on which the delegation takes effect.

• Marginal note:Notice of revocation of delegation

  (3) If the Governor revokes a delegation, the Bank must cause to be published in the Canada Gazette a notice that includes the day on which the delegation ceases to have effect.

• Marginal note:Timing

  (4) The notice referred to in subsection (2) or (3) must be published before the day on which the delegation takes effect or ceases to have effect, as the case may be.

Marginal note:No liability if in good faith — Bank

• 16 (1) No action lies against Her Majesty in right of Canada, any officer, employee or director of the Bank or any person acting under the direction of the Governor for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.

• Marginal note:No liability if in good faith — Minister

  (2) No action lies against Her Majesty in right of Canada, the Minister or any person or government authority acting under the direction of the Minister for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.

PART 2Operational and Financial Measures

Operational Risk Management and Incident Response

Marginal note:Framework

• 17 (1) For the purposes of identifying and mitigating operational risks and responding to incidents, a payment service provider that performs retail payment activities must, in accordance with the regulations, establish, implement and maintain a risk management and incident response framework that meets prescribed requirements.

• Marginal note:Assessment by Bank

  (2) The Bank or a person designated by the Bank may assess the payment service provider’s risk management and incident response framework or any portion of it and the Bank may provide the payment service provider with a list of corrective measures that the Bank considers appropriate.

• Marginal note:Duty to assist

  (3) The payment service provider must give all assistance that is reasonably required to enable the Bank or the designated person to carry out an assessment referred to in subsection (2) and must provide any documents or information and access to any data that are specified by the Bank or the designated person.

Marginal note:Requirement to notify

• 18 (1) If a payment service provider that performs retail payment activities becomes aware of an incident that has a material impact on any of the following individuals or entities, the payment service provider must, without delay, notify that individual or entity and the Bank of the incident:

  • (a) an end user;

  • (b) a payment service provider that performs retail payment activities, whether or not this Act applies to the payment service provider; and

  • (c) a clearing house of a clearing and settlement system, as those expressions are defined in section 2 of the Payment Clearing and Settlement Act, that is designated under subsection 4(1) of that Act.

• Marginal note:Form, manner and content of notice

  (2) The notice must be given in the prescribed form and manner and contain the prescribed information.

Marginal note:Follow-up notices

• 19 (1) The Bank may, by order, direct a payment service provider that has given a notice in accordance with section 18 to provide any follow-up notice that the Bank considers relevant.

• Marginal note:Content of order

  (2) The order must specify

  • (a) the individuals or entities to be notified;

  • (b) when the follow-up notice is to be given and its form and manner; and

  • (c) the information to be contained in the notice.

• Marginal note:Compliance with order

  (3) The payment service provider must comply with the order.

Safeguarding of Funds

Marginal note:Accounts

• 20 (1) If a payment service provider performs a retail payment activity that is the holding of end-user funds until they are withdrawn by the end user or transferred to another individual or entity, the payment service provider must

  • (a) hold the end-user funds in trust in a trust account that is not used for any other purpose;

  • (b) hold the end-user funds in a prescribed account or in a prescribed manner and take any prescribed measures in relation to the funds, the account or the manner; or

  • (c) hold the end-user funds in an account that is not used for any other purpose and hold insurance or a guarantee in respect of the funds that is in an amount equal to or greater than the amount held in the account.

• Marginal note:Exception — provincial insurance or guarantee

  (2) Subsection (1) does not apply to a payment service provider in respect of end-user funds it holds in a province if the payment service provider accepts deposits that are insured or guaranteed under an Act of that province and those end-user funds are deposits that are guaranteed or insured under that Act.

• Marginal note:No set-off or compensation

  (3) No right of set-off or compensation may be asserted by an individual or entity that maintains an account that is referred to in paragraph (1)(a), (b) or (c) in respect of the funds held in that account.

Provision of Information

Marginal note:Annual report

21 A payment service provider that performs retail payment activities must, at the prescribed time and in the prescribed form and manner, submit an annual report to the Bank that includes

• (a) the prescribed information respecting the payment service provider’s risk management and incident response framework;

• (b) the prescribed information in relation to any account referred to in subsection 20(1) and the insurance or guarantee referred to in paragraph 20(1)(c);

• (c) any other prescribed information in relation to the holding of end-user funds for the purposes of subsection 20(1) and any regulations made for the purposes of that subsection; and

• (d) any other prescribed information.

Marginal note:Notice — significant change or new activity

• 22 (1) A payment service provider must notify the Bank before the payment service provider makes a significant change in the way it performs a retail payment activity or before it performs a new retail payment activity. The notice must

  • (a) be given within the prescribed period;

  • (b) be in the prescribed form and manner; and

  • (c) include the prescribed information.

• Marginal note:Significant change

  (2) For the purposes of subsection (1), a change is significant if it could reasonably be expected to have a material impact on operational risks or the manner in which end-user funds are safeguarded.

PART 3Registration

General

Marginal note:Registration required

23 A payment service provider must be registered with the Bank before it performs any retail payment activities.

Marginal note:New application — acquisition of control

• 24 (1) If an individual or entity plans to acquire control of a registered payment service provider, the registered payment service provider must, before the acquisition, submit a new application for registration that takes the planned acquisition into account and be so registered.

• Marginal note:New application — other change

  (2) If a registered payment service provider plans to make a prescribed change, the registered payment service provider must, before the change takes effect, submit a new application for registration that takes the planned change into account and be so registered.

• Marginal note:Non-application

  (3) Subsection (1) does not apply in the case of a planned acquisition that would, on the day on which it is planned to take effect, result in this Act no longer applying to the registered payment service provider by virtue of section 9 or 10.

Marginal note:Duty to register

• 25 (1) Subject to sections 35, 37, 48 and 49, the Bank must register any individual or entity that applies for registration.

• Marginal note:Notice of registration

  (2) The Bank must, as soon as feasible, notify the applicant in writing that the applicant has been registered.

Marginal note:Registry

26 The Bank must maintain a registry of registered payment service providers and must make public the name of each registered payment service provider, its address and any prescribed information in relation to the payment service provider, the activities it performs or its registration.

Marginal note:List of refusals and revocations

• 27 (1) The Bank must maintain and publish a list of the individuals or entities that the Bank has refused to register and the payment service providers that have had their registrations revoked. The list must set out the reasons for a refusal or revocation.

• Marginal note:Reviews

  (2) The Bank must not add an individual, entity or payment service provider to the list unless the prescribed period for requesting the applicable review under section 41, 46, 50 or 53 has expired or the refusal or revocation has been confirmed under the section in question.

Marginal note:Execution of documents

28 Any document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of similar form, each of which is executed or signed by one or more of the individuals. The documents, when executed or signed by all individuals required or permitted, as the case may be, to do so, are deemed to constitute one document for the purposes of this Act.

Applications for Registration

Marginal note:Form, manner and information

• 29 (1) An applicant for registration must submit an application in the prescribed form and manner that includes

  • (a) the applicant’s name and any name under which the applicant performs or plans to perform payment functions as a service or business activity;

  • (b) the applicant’s address and any prescribed contact information;

  • (c) a declaration that states whether the applicant operates or plans to operate out of a dwelling-house;

  • (d) a description of how the applicant is organized or structured and, as applicable, any prescribed information in relation to the applicant’s incorporation, affiliated entities, directors and managers or owners;

  • (e) a list of the applicant’s agents and mandataries that perform retail payment activities in the scope of their authority as an agent or mandatary and any prescribed information in relation to those agents and mandataries;

  • (f) a description of the retail payment activities the applicant performs or plans to perform, including any prescribed information in relation to the volume and value or estimated volume and value of those retail payment activities;

  • (g) the number of end users or estimated number of end users for whom the applicant performs or plans to perform retail payment activities;

  • (h) any prescribed information in relation to end-user funds that the applicant holds or plans to hold;

  • (i) a description of the applicant’s risk management and incident response framework or the framework that the applicant plans to establish and implement;

  • (j) any prescribed information in relation to the manner in which the applicant safeguards or plans to safeguard end-user funds;

  • (k) any prescribed information in relation to any of the applicant’s third-party service providers that have or will have a material impact on the applicant’s operational risks or the manner in which the applicant safeguards or plans to safeguard end-user funds;

  • (l) a declaration that states whether the applicant is registered with the Centre;

  • (m) a declaration that states whether the applicant has a place of business in Canada;

  • (n) a declaration that states whether the applicant has applied for registration or is registered under a provincial Act respecting retail payment activities;

  • (o) in the case of an applicant that does not have a place of business in Canada, the name and address of an agent or mandatary in Canada that is authorized, on behalf of the applicant, to accept notices given or served under this Act as well as orders made under this Act; and

  • (p) any information in relation to the applicant or the retail payment activities the applicant performs or plans to perform that is prescribed for the purposes of sections 34 to 45.

• Marginal note:Registration fee

  (2) The applicant must include the prescribed registration fee with the application.

• Marginal note:Additional information

  (3) The applicant must provide the Bank with any additional information that the Bank requests in relation to the information referred to in subsection (1) within 30 days after the day on which the request is made.

Marginal note:Notice of change in information

30 An applicant that becomes aware that information provided as part of the application has changed or is about to change must notify the Bank of the change or anticipated change as soon as possible after becoming aware of it and the Bank must then, as soon as possible, notify the Minister and any person or government authority designated under section 32.

Marginal note:Duty to notify and provide information

31 The Bank must, as soon as feasible after it is of the opinion that an application for registration is complete, notify the applicant that the application is complete and provide the Centre with the information referred to in paragraphs 29(1)(a) to (f) and any information respecting the applicant that is under the Bank’s control and is prescribed for the purposes of this section.

National Security Review

Marginal note:Designation

32 The Minister may designate a person or government authority for the purposes of sections 33, 39 and 60.

Marginal note:Copy of application

33 The Bank must, as soon as feasible after it is of the opinion that an application for registration is complete, provide the Minister and any designated person or government authority with a copy of the application.

Marginal note:Review of application

• 34 (1) The Minister may, within the prescribed period, decide to review an application for registration if the Minister is of the opinion that it is necessary to do so for reasons related to national security. In that case, the Minister must notify the Bank of the decision and the Bank must then notify the applicant.

• Marginal note:Extension of decision period

  (2) The Minister may extend the prescribed period for one or more prescribed periods if the Minister considers it necessary to do so and notifies the Bank. In that case, the Bank must notify the applicant of the extension.

Marginal note:Prohibition on registration

35 The Bank must not register an applicant during a period referred to in subsection 34(1) or (2) unless the Minister informs the Bank that the Minister has decided not to review the application for registration.

Marginal note:Timeline for review of application

36 If the Minister decides to review an application for registration, the Minister must conduct the review within the prescribed period but the Minister may extend the period for conducting the review for one or more periods equal to the prescribed period if the Minister considers it necessary to do so and notifies the Bank. In that case, the Bank must notify the applicant of the extension.

Marginal note:Prohibition on registration

37 If the Minister notifies the Bank of a decision to review an application for registration, the Bank must not register the applicant unless the Minister notifies the Bank under section 38 of a decision not to issue a directive.

Marginal note:Notice to Bank

38 The Minister must notify the Bank if, after completing a review of an application, the Minister decides not to issue a directive under section 40.

Marginal note:Additional information

39 An applicant or registered payment service provider must provide the Minister and any designated person or government authority with any additional information that the Minister, person or government authority requests in relation to the applicant or registered payment service provider or the retail payment activities the applicant performs or plans to perform.

Marginal note:Directive to refuse registration

40 The Minister may, for any of the following reasons, issue a directive to the Bank to refuse to register an applicant:

• (a) there are reasons related to national security;

• (b) the applicant has failed to provide additional information in accordance with section 39;

• (c) an order made under section 42 or an undertaking provided in accordance with that section that is in relation to the application in question has not been complied with;

• (d) a condition imposed under section 43 in relation to the application in question has not been complied with; and

• (e) the applicant has provided false or misleading information.

Marginal note:Review of directive

• 41 (1) An applicant that has been notified under section 49 may, within the prescribed period, make a request to the Minister for a review of the directive to refuse registration.

• Marginal note:Decision

  (2) On completion of the review, the Minister must, after giving the applicant an opportunity to make representations, confirm or revoke the directive. The Minister must notify the Bank of the decision and the Bank must then, as soon as feasible, notify the applicant.

Marginal note:Undertakings

42 The Minister may, by order, require any individual or entity to provide an undertaking in relation to an application for registration or in relation to any registered payment service provider if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

Marginal note:Conditions

43 The Minister may, by order, impose conditions on any individual or entity in relation to an application for registration or in relation to any registered payment service provider if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

Marginal note:Copy to Bank

44 The Minister must provide the Bank with a copy of each order the Minister makes under section 42 or 43 and the Bank must, as soon as feasible, provide a copy to the individual or entity in question.

Marginal note:Notice of intent to issue directive to revoke registration

• 45 (1) The Minister may, for any of the following reasons, issue to the Bank a notice of intent to issue a directive to the Bank to revoke a payment service provider’s registration:

  • (a) there are reasons related to national security

  • (b) the payment service provider has failed to provide additional information in accordance with section 39;

  • (c) an order made under section 42 or an undertaking provided in accordance with that section that is in relation to the payment service provider has not been complied with;

  • (d) a condition imposed under section 43 in relation to the payment service provider has not been complied with;

  • (e) the payment service provider has provided false or misleading information; and

  • (f) the payment service provider has not complied with an order under section 96.

• Marginal note:Notice to payment service provider

  (2) The Bank must, as soon as feasible, notify the payment service provider in writing of the issuance of the Minister’s notice of intent.

Marginal note:Review of notice of intent

• 46 (1) A registered payment service provider that has been notified under subsection 45(2) may, within the prescribed period, make a request to the Minister for a review of the notice of intent.

• Marginal note:Decision

  (2) On completion of the review, the Minister must, after giving the payment service provider an opportunity to make representations, either withdraw the notice of intent or issue a directive to the Bank to revoke the registration.

• Marginal note:Notices to Bank and payment service provider

  (3) The Minister must notify the Bank of a decision to withdraw the notice of intent and the Bank must, as soon as feasible, notify the payment service provider of the withdrawal.

Marginal note:Review not requested

47 If a registered payment service provider that has been notified under subsection 45(2) does not make a request to the Minister for a review of the notice of intent within the prescribed period, the Minister may issue a directive to the Bank to revoke the payment service provider’s registration.

Refusal to Register

Marginal note:Refusal to register

• 48 (1) The Bank may, within the prescribed period, refuse to register an applicant for a prescribed reason or for any of the following reasons:

  • (a) the applicant has failed to provide additional information in accordance with subsection 29(3);

  • (b) the applicant has provided false or misleading information;

  • (c) the applicant has been found guilty of contravening a provision referred to in section 74, 75 or 76, subsection 77(1) or section 77.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act;

  • (d) during the five-year period before the day on which the application was submitted, the Director of the Centre, under subsection 73.15(4) of that Act, caused a notice of a decision or of an imposed penalty to be issued and served on the applicant in respect of a violation that was classified as a serious violation or very serious violation under that Act;

  • (e) the applicant is not registered in accordance with section 11.1 of that Act;

  • (f) the applicant has ceased to perform or no longer plans to perform retail payment activities; and

  • (g) the applicant has committed or has been deemed to have committed a violation under this Act.

• Marginal note:Unpaid penalties

  (2) If an applicant that does not have a place of business in Canada has committed a violation under this Act and is liable to pay a penalty for it, and if 30 days have elapsed after the day on which all proceedings in respect of the violation are ended and the penalty has not been paid, the Bank must refuse to register the applicant until the penalty is paid.

• Marginal note:Notice to applicant

  (3) If the Bank refuses to register an applicant under subsection (1), the Bank must, as soon as feasible, notify the applicant of the refusal in writing. The notice must include the reason for the refusal.

Marginal note:Directive to refuse to register

49 The Bank must refuse to register an applicant if the Minister issues a directive to that effect under section 40. In that case, the Bank must, as soon as feasible, notify the applicant in writing of the refusal.

Marginal note:Review by Governor

• 50 (1) An applicant that has been notified under subsection 48(3) may, within the prescribed period, make a request to the Governor for a review of the refusal to register.

• Marginal note:Decision

  (2) On completion of the review, the Governor must confirm the refusal or direct the Bank to register the applicant.

• Marginal note:Form and manner of decision

  (3) The Governor must, within the prescribed period, make a decision and must, as soon as feasible, notify the applicant in writing of the decision.

Marginal note:Notice to Centre

51 The Bank must, as soon as feasible, notify the Centre in writing of any refusal to register an applicant.

Revocation of Registration

Marginal note:Notice of intent to revoke registration

52 The Bank may, for a prescribed reason or for any of the following reasons, issue to a registered payment service provider a notice of intent to revoke the payment service provider’s registration that sets out the reason for the intention to revoke:

• (a) the payment service provider has provided false or misleading information;

• (b) the payment service provider has been found guilty of contravening a provision referred to in section 74, 75 or 76, subsection 77(1) or section 77.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act;

• (c) the Director of the Centre, under subsection 73.15(4) of that Act, has caused a notice of a decision or of an imposed penalty to be issued and served on the payment service provider in respect of a violation that was classified as a serious or very serious violation under that Act;

• (d) the payment service provider is not registered in accordance with section 11.1 of that Act;

• (e) the payment service provider has ceased to perform retail payment activities;

• (f) an individual or entity that applied for registration under section 24 has acquired control of the payment service provider; and

• (g) the payment service provider has committed or has been deemed to have committed a violation under this Act.

Marginal note:Review of notice of intent

• 53 (1) A registered payment service provider that has been notified under section 52 may, within the prescribed period, make a request to the Governor for a review of the notice of intent.

• Marginal note:Decision

  (2) On completion of the review, the Governor must, after giving the payment service provider an opportunity to make representations, direct the Bank to either withdraw the notice of intent or revoke the payment service provider’s registration.

• Marginal note:Form and manner of decision

  (3) The Governor must, within the prescribed period, make a decision and must, as soon as feasible, notify the payment service provider in writing of the decision.

Marginal note:Review not requested

54 If a registered payment service provider that has been notified under section 52 does not make a request to the Governor for a review of the notice of intent within the prescribed period, the Governor may direct the Bank to revoke the payment service provider’s registration.

Marginal note:Revocation of registration for non-payment of penalty

• 55 (1) The Bank must revoke the registration of a registered payment service provider if the payment service provider does not have a place of business in Canada, has committed a violation under this Act and is liable to pay a penalty for it, and the penalty has not been paid within 30 days after the day on which all proceedings in respected of the violation are ended.

• Marginal note:Notice to payment service provider

  (2) The Bank must, as soon as feasible, notify the payment service provider in writing of the revocation under subsection (1).

Marginal note:Directed revocation of registration

• 56 (1) The Bank must revoke the registration of a registered payment service provider if the Minister directs the Bank to do so under subsection 46(2) or section 47.

• Marginal note:Notice to payment service provider

  (2) The Bank must, as soon as feasible, notify the payment service provider in writing of the revocation under subsection (1).

Marginal note:Notice to Centre

57 The Bank must, as soon as feasible, notify the Centre in writing of any revocation of a payment service provider’s registration.

Appeal to Federal Court

Marginal note:Right of appeal

• 58 (1) An applicant or payment service provider that has been notified under subsection 50(3) or 53(3) may, within the prescribed period or within any longer period that the Federal Court allows, appeal the decision to that Court.

• Marginal note:Powers of Federal Court

  (2) The Federal Court may

  • (a) dismiss the appeal;

  • (b) set aside the decision and, as applicable, order the Bank to register the applicant or to reinstate the payment service provider’s registration; or

  • (c) set aside the decision and refer the matter back to the Governor for re-determination.

• Marginal note:Conflict

  (3) If there is a conflict between an order under paragraph (2)(b) and a directive under section 40, subsection 46(2) or section 47, the directive prevails.

Provision of Information

Marginal note:Notice of change in information

• 59 (1) A registered payment service provider must notify the Bank of any change to the information referred to in any of paragraphs 29(1)(a) to (e), (k) and (m) to (o). The notice must include the updated information, be given within the prescribed period and be in the prescribed form and manner.

• Marginal note:Exception

  (2) The payment service provider is not however required to notify the Bank if the information in question was included in a notice under section 60.

Marginal note:Notice of change in prescribed information

• 60 (1) A registered payment service provider must notify the Bank of any change to prescribed information in relation to the payment service provider or the retail payment activities the payment service provider performs.

• Marginal note:Timing of notice

  (2) The notice must be given as soon as feasible after the payment service provider becomes aware of the change but before the change takes effect. However, if a different period is prescribed for the purposes of this subsection, the notice must be given within that period.

• Marginal note:Notice to Minister

  (3) The Bank must, as soon as feasible, notify the Minister and any designated person or government authority of any notice given under subsection (1).

Marginal note:False or misleading information

61 An individual or entity must not provide false or misleading information to the Bank, the Minister or a person or government authority designated under section 32.

PART 4Confidentiality of Information

Marginal note:Information obtained by Bank

• 62 (1) Subject to subsections (2) and (3), information that the Bank obtains under this Act and any information prepared from that information is confidential and the Bank must treat it accordingly.

• Marginal note:Disclosure permitted — sections 26, 27 and 93

  (2) The Bank may disclose information obtained under this Act if it is required to make the information public under section 26 or does so under section 27 or 93.

• Marginal note:Disclosure permitted — entities

  (3) Subject to subsection (4), the Bank may disclose information obtained under this Act to the Minister or to any government authority or regulatory body if it agrees to treat the information as confidential.

• Marginal note:Consent required

  (4) The Bank must not disclose information obtained from the Centre without the Centre’s consent.

Marginal note:Information obtained by Minister

• 63 (1) Subject to subsection (2), information that is obtained under this Act by the Minister or by a person or government authority designated under section 32 as well as any information prepared from that information is confidential and the Minister or the designated person or government authority must treat it accordingly.

• Marginal note:Disclosure permitted — entities

  (2) The Minister or the designated person or government authority may disclose information obtained under this Act to any government authority or regulatory body that agrees to treat the information as confidential.

Marginal note:Evidentiary privilege

• 64 (1) Prescribed information in relation to the supervision of payment service providers must not be used as evidence in any civil proceedings and is privileged for that purpose.

• Marginal note:No testimony or production

  (2) An individual or entity must not by an order of any court, tribunal or other body be required in any civil proceedings to give oral testimony or to produce any document relating to any information referred to in subsection (1).

• Marginal note:Exception to subsection (1)

  (3) Despite subsection (1), the Minister, the Governor, the Bank or the Attorney General of Canada may, in accordance with the regulations, use information referred to in that subsection as evidence in any proceedings.

• Marginal note:Exception to subsection (1)

  (4) Despite subsection (1), a payment service provider may, in accordance with the regulations, use information referred to in that subsection as evidence in any proceedings in relation to the administration or enforcement of this Act, the Bankruptcy and Insolvency Act or the Companies’ Creditors Arrangement Act that are commenced by the payment service provider, the Minister, the Governor, the Bank or the Attorney General of Canada.

• Marginal note:Exceptions to subsections (1) and (2)

  (5) Despite subsections (1) and (2), a court, tribunal or other body may, by order, require the Minister, the Governor, the Bank or a payment service provider to give oral testimony or to produce any document relating to any information referred to in subsection (1) in any civil proceedings in relation to the administration or enforcement of this Act that are commenced by the Minister, the Governor, the Bank, the Attorney General of Canada or a payment service provider.

• Marginal note:No waiver

  (6) The disclosure of any information referred to in subsection (1), other than under subsection (3), (4) or (5), does not constitute a waiver of the privilege referred to in subsection (1).

PART 5Administration and Enforcement

Bank’s Powers

Marginal note:Information request — payment service provider

• 65 (1) The Bank may request, in writing, a payment service provider that performs retail payment activities to provide, within the prescribed period, the Bank with any information that the Bank considers necessary for a purpose related to verifying compliance with this Act or carrying out the Bank’s objects under this Act.

• Marginal note:Compliance with request

  (2) The payment service provider must comply with the request.

Marginal note:Information request — individual or entity

• 66 (1) For the purpose of verifying compliance with this Act, the Bank may, if it has reasonable grounds to believe that an individual or entity is a payment service provider that performs retail payment activities, request in writing, the individual or entity to provide the Bank with any information that the Bank requires to determine whether the individual or entity is a payment service provider that performs retail payment activities.

• Marginal note:Compliance with request

  (2) The individual or entity must comply with the request within the prescribed period.

Marginal note:Special audit

• 67 (1) The Bank may direct that a special audit of a payment service provider that performs retail payment activities be conducted in accordance with any conditions that the Bank considers appropriate if, in the Bank’s opinion, the special audit is required for the purpose of verifying compliance with this Act and the Bank may appoint an individual or entity to conduct the special audit.

• Marginal note:Duty to assist

  (2) The payment service provider must give all assistance that is reasonably required to enable the appointed individual or entity to conduct the special audit and must provide any documents or information and access to any data that are specified by the individual or entity.

• Marginal note:Report to Bank

  (3) The payment service provider must provide the Bank with the results of the special audit.

• Marginal note:Expenses

  (4) The expenses incurred in respect of the special audit are payable by the payment service provider.

Marginal note:Designation

68 The Governor may designate persons or classes of persons as authorized persons for the purposes of sections 69 and 70.

Marginal note:Powers — authorized person

• 69 (1) An authorized person may, from time to time, examine the records and inquire into the business and affairs of a payment service provider that performs retail payment activities for the purpose of verifying compliance with this Act and for that purpose may

  • (a) enter any place, other than a dwelling-house, in which the authorized person has reasonable grounds to believe that there are records relevant to verifying compliance with this Act;

  • (b) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

  • (c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; or

  • (d) use any copying equipment in the place or cause it to be used.

• Marginal note:Duty to assist

  (2) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the authorized person to perform their functions under this section and must provide any documents or information and access to any data that are specified by the authorized person.

Marginal note:Warrant to enter dwelling-house

• 70 (1) If the place is a dwelling-house, an authorized person may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in paragraph 69(1)(a);

  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

Marginal note:Compliance agreement

71 The Bank may enter into a compliance agreement with a payment service provider that performs retail payment activities for the purpose of implementing any measure that is designed to further compliance with this Act by the payment service provider.

Minister’s Powers

Marginal note:Designation

72 The Minister may designate persons or classes of persons as authorized persons for the purposes of sections 73 to 75.

Marginal note:Information request — individual or entity

• 73 (1) An authorized person may request, in writing, an individual or entity to provide, within the prescribed period, the authorized person with any information that the authorized person considers necessary for a purpose related to verifying compliance with an undertaking provided in accordance with section 42 or a condition imposed under section 43.

• Marginal note:Compliance with request

  (2) The individual or entity must comply with the request.

Marginal note:Powers — authorized person

• 74 (1) An authorized person may, from time to time, examine the records and inquire into the business and affairs of an individual or entity for the purpose of verifying compliance with an undertaking provided in accordance with section 42 or a condition imposed under section 43 and for that purpose may

  • (a) enter any place, other than a dwelling-house, in which the authorized person has reasonable grounds to believe that there are records relevant to verifying compliance with the undertaking or condition;

  • (b) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

  • (c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; or

  • (d) use any copying equipment in the place or cause it to be used.

• Marginal note:Duty to assist

  (2) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the authorized person to perform their functions under this section and must provide any documents or information and access to any data that are specified by the authorized person.

Marginal note:Warrant to enter dwelling-house

• 75 (1) If the place is a dwelling-house, an authorized person may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in paragraph 74(1)(a);

  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with the undertaking or condition; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

Administrative Monetary Penalties

Notices of Violation and Compliance Agreements

Marginal note:Commission of violation

• 76 (1) Every contravention that is designated under paragraph 101(1)(h) or (j) constitutes a violation and the individual or entity that commits the violation is liable to a penalty established in accordance with paragraph 101(1)(k) or (l).

• Marginal note:Payment service provider

  (2) If the Bank believes on reasonable grounds that a payment service provider has committed a violation, the Bank may

  • (a) issue and cause to be served on the payment service provider a notice of violation; or

  • (b) issue and cause to be served on the payment service provider a notice of violation with an offer to reduce by half the penalty set out in the notice if the payment service provider enters into a compliance agreement with the Bank in respect of the provision to which the violation relates.

• Marginal note:Other individual or entity

  (3) If the Bank believes on reasonable grounds that an individual or entity other than a payment service provider has committed a violation, the Bank may issue and cause to be served on the individual or entity a notice of violation.

• Marginal note:Purpose of penalty

  (4) The purpose of the penalty is to promote compliance with this Act and not to punish.

Marginal note:Contents of notice

• 77 (1) A notice of violation must name the individual or entity believed to have committed a violation, identify the violation and set out

  • (a) the penalty to be paid;

  • (b) the right of the individual or entity, within 30 days after the day on which the notice is served or within any longer period that the Bank specifies, to pay the penalty or to make representations to the Governor with respect to the violation and the penalty, and the manner for doing so; and

  • (c) the fact that, if the individual or entity does not pay the penalty or make representations in accordance with the notice, the individual or entity will be deemed to have committed the violation and is liable to pay the penalty.

• Marginal note:Short-form descriptions

  (2) The Bank may establish, in respect of each violation, a short-form description to be used in notices of violation.

• Marginal note:Administrative corrections

  (3) If a notice of violation contains any error or omission, the Bank may issue and cause to be served a corrected notice of violation on the individual or entity at any time during the period referred to in paragraph (1)(b).

Marginal note:Payment of penalty

• 78 (1) If the individual or entity pays the penalty set out in the notice of violation, the individual or entity is deemed to have committed the violation and proceedings in respect of it are ended.

• Marginal note:Representations to Governor

  (2) If the individual or entity makes representations in accordance with the notice, the Governor must decide, on a balance of probabilities, whether the individual or entity committed the violation and, if so, may, subject to any regulations made under paragraph 101(1)(k) or (l), impose the penalty set out in the notice, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) An individual or entity that neither pays the penalty set out in the notice nor makes representations in accordance with the notice is deemed to have committed the violation and is liable to pay the penalty set out in the notice.

• Marginal note:Notice of decision and right of appeal

  (4) The Bank must cause notice of any decision made under subsection (2) or the penalty that the individual or entity is liable to pay under subsection (3) to be issued and served on the individual or entity together with notice of the right of appeal under subsection 84(1).

Marginal note:Contents of compliance agreement

• 79 (1) If the Bank offers to enter into a compliance agreement with a payment service provider under paragraph 76(2)(b), the agreement must

  • (a) identify the provision that was contravened and provide that the payment service provider will comply with that provision within the period and be subject to the terms and conditions specified in the agreement; and

  • (b) set out the amount that the payment service provider will have to pay as the reduced penalty for the violation if the compliance agreement is entered into.

• Marginal note:Refusal to enter into agreement

  (2) If the payment service provider does not enter into the compliance agreement and does not pay the reduced penalty within 30 days after the day on which the payment service provider received the notice of violation, the payment service provider is deemed to have refused to enter into the agreement and is liable to pay the full penalty set out in the notice of violation.

• Marginal note:Extension of period

  (3) The Bank may extend the period referred to in paragraph (1)(a) if it is satisfied that the payment service provider is unable to comply with it within that period for reasons beyond their control.

Marginal note:Deemed violation

80 A payment service provider that enters into a compliance agreement referred to in a notice of violation issued under paragraph 76(2)(b) is deemed to have committed the violation in respect of which the agreement was entered into.

Marginal note:Compliance agreement complied with

81 If the Bank considers that a compliance agreement with a payment service provider has been complied with, the Bank must serve a notice to that effect on the payment service provider and, on the service of the notice, no further proceedings may be taken against the payment service provider with respect to the violation.

Marginal note:Compliance agreement not complied with

• 82 (1) If the Bank considers that a compliance agreement with a payment service provider has not been complied with, the Bank may issue and cause to be served a notice of default on the payment service provider to the effect that the payment service provider is liable to pay

  • (a) the difference between the penalty set out in the notice of violation and any portion of the reduced penalty under the compliance agreement that was paid; and

  • (b) an additional penalty specified in the regulations.

• Marginal note:Contents of notice

  (2) The notice of default must specify the date, which must be 30 days after the day on which the notice is served, on or before which an application for review may be filed and particulars of how the application may be filed.

• Marginal note:No set-off or compensation

  (3) On the service of a notice of default, the payment service provider served has no right of set-off or compensation against any amount that it spent under the compliance agreement.

Marginal note:Application for review

• 83 (1) A payment service provider served with a notice of default may, on or before the date specified in the notice or within any time that the Bank allows, file an application for review of the Bank’s decision made under that subsection with the Governor.

• Marginal note:Decision

  (2) The Governor may confirm the Bank’s decision or decide that the payment service provider has complied with the compliance agreement.

• Marginal note:Failure to pay or apply for review

  (3) A payment service provider that neither pays the amounts set out in the notice of default nor files an application for review in accordance with the notice is deemed to have not complied with the compliance agreement and must pay the amounts set out in the notice of default without delay.

• Marginal note:Notice of decision

  (4) The Bank must cause notice of the Governor’s decision to be issued and served on the payment service provider together with notice of the right of appeal under subsection 84(1).

Marginal note:Right of appeal

• 84 (1) An individual or entity on which a notice of a decision made under subsection 78(2) or 83(2) is served may, within 30 days after the day on which the notice is served or within any longer period that the Federal Court allows, appeal the decision to that Court.

• Marginal note:Appeal — no notice of decision

  (2) If the Bank does not cause notice of a decision to be issued and served under subsection 78(4) within 90 days after the day on which representations under subsection 78(2) were made, the individual or entity may appeal the penalty set out in the notice of violation to the Federal Court within 30 days after the day on which the 90-day period expires.

• Marginal note:Appeal — no notice of decision

  (3) If the Bank does not cause notice of a decision to be issued and served under subsection 83(4) within 90 days after the day on which the Governor received the application for review under subsection 83(1), the individual or entity that filed the application may appeal to the Federal Court the amounts set out in the notice of default referred to in subsection 82(1) within 30 days after the day on which the 90-day period expires.

• Marginal note:Powers of Federal Court

  (4) On an appeal, the Federal Court may confirm, set aside or, subject to any regulations made under paragraph 101(1)(k) or (l), vary the decision.

Rules About Violations

Marginal note:Violations not offences

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

Marginal note:Due diligence available

• 86 (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 applies in respect of a violation to the extent that it is consistent with this Act.

Marginal note:Liability

87 An individual or entity is liable for a violation that is committed by any of its employees, third-party service providers, or agents or mandataries acting in the course of their employment, their contract or the scope of their authority as agent or mandatary, whether or not the employee, third-party service provider or agent or mandatary that actually committed the violation is identified.

Recovery of Debts

Marginal note:Debts due to Her Majesty

• 88 (1) The following amounts constitute a debt due to Her Majesty in right of Canada that may be recovered in the Federal Court or any other court of competent jurisdiction:

  • (a) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice, a compliance agreement is entered into or the decision is appealed;

  • (b) if representations are made, the amount of the penalty that is imposed by the Governor, beginning on the day specified by the Governor or, if no day is specified, beginning on the day on which the decision is made;

  • (c) every amount set out in a compliance agreement, beginning on the day on which the compliance agreement is entered into or the day specified in the compliance agreement;

  • (d) the amount of a penalty set out in a notice of default referred to in subsection 82(1), beginning on the day on which the period specified in the notice expires, unless a review is requested under subsection 83(1);

  • (e) if a review is requested under subsection 83(1) and the Governor confirms the Bank’s decision, the amount of the penalty set out in the notice of default referred to in subsection 82(1), beginning on the day specified by the Governor or, if no day is specified, beginning on the day on which the Governor’s decision is made, unless the decision is appealed;

  • (f) the amount of a penalty determined by the Federal Court under subsection 84(4), beginning on the day on which the period specified in the decision for the payment of that amount expires or the day specified in the decision; and

  • (g) the amount of any costs and expenses referred to in subsection (3).

• Marginal note:Limitation or prescription period

  (2) Proceedings to recover a debt referred to in subsection (1) may be commenced no later than the fifth anniversary of the day on which the debt becomes payable.

• Marginal note:Liability

  (3) An individual or entity that is liable to pay the amount of any debt referred to in any of paragraphs (1)(a) to (f) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

• Marginal note:Proceeds payable to Receiver General

  (4) A debt referred to in subsection (1) that is paid or recovered is payable to and must be remitted to the Receiver General.

Marginal note:Certificate

• 89 (1) The unpaid amount of any debt referred to in subsection 88(1) may be certified by the Governor.

• Marginal note:Registration in Federal Court

  (2) Registration in the Federal Court of a certificate 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.

General

Marginal note:Limitation or prescription period

90 No notice of violation is to be issued after the second anniversary of the day on which the Bank becomes aware of the acts or omissions that constitute the alleged violation.

Marginal note:Certification by Bank

91 A document purporting to have been issued by the Bank, certifying the day on which the acts or omissions that constitute the alleged violation became known to the Bank, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Bank became aware of the acts or omissions on that day.

Marginal note:Evidence

92 In a proceeding in respect of a violation, a notice of violation purporting to be issued under subsection 76(2), a notice of decision purporting to be issued under subsection 78(4) or 83(4), a notice of default purporting to be issued under subsection 82(1) or a certificate purporting to be made under subsection 89(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Publication

• 93 (1) As soon as feasible after a payment service provider is deemed under subsection 78(1) or (3) to have committed a violation or after a notice of decision stating that the payment service provider has committed a violation is served under subsection 78(4), the Bank must make public the nature of the violation, the name of the payment service provider and the amount of any penalty imposed.

• Marginal note:Reasons

  (2) In making public the nature of a violation, the Bank may include the reasons for its decision to issue the notice of violation and any related decision, including the relevant facts, analysis and considerations that formed part of the decision.

Compliance Orders

Marginal note:Governor’s orders

• 94 (1) If the Governor is of the opinion that a payment service provider that performs retail payment activities is committing, or is about to commit, an act that could have a significant adverse impact on an individual or entity referred to in subsection (2), the Governor may, by order, direct the payment service provider to

  • (a) cease or refrain from committing the act or pursuing the course of conduct; and

  • (b) perform any acts that, in the Governor’s opinion, are necessary to remedy the situation.

• Marginal note:Individuals and entities

  (2) The individuals and entities are any of the following:

  • (a) an end user;

  • (b) a payment service provider that performs retail payment activities, whether or not this Act applies to them; and

  • (c) a clearing house of a clearing and settlement system, as those expressions are defined in section 2 of the Payment Clearing and Settlement Act, that is designated under subsection 4(1) of that Act.

• Marginal note:Opportunity for representations

  (3) Subject to subsection (4), no order is to be made in respect of a payment service provider under subsection (1) unless the payment service provider is provided with a opportunity to make representations in respect of the matter.

• Marginal note:Temporary order

  (4) If, in the Governor’s opinion, the length of time required for representations to be made might be prejudicial to the public interest, the Governor may make a temporary order that has the same effect as an order under subsection (1). The order ceases to have effect 30 days after the day on which it is made or after the expiration of a shorter period that is specified in the order.

• Marginal note:Continued effect

  (5) A temporary order continues to have effect after the expiration of the 30-day or the shorter period if no representations are made to the Governor within that period or, if representations are made, the Governor notifies the payment service provider that the Governor is not satisfied that there are sufficient grounds for revoking the order.

Marginal note:Court enforcement

• 95 (1) If an individual or entity is contravening or has contravened a provision of this Act, the regulations or an order made under subsection 94(1) or (4), the Governor may, in addition to any other action that may be taken under this Act, apply to a superior court for an order requiring the individual or entity to cease the contravention or to comply with the provision.

• Marginal note:Powers of court

  (2) The court may make the order and may make any other order the court thinks fit.

• Marginal note:Appeal

  (3) An appeal from an order made under subsection (2) lies in the same manner and to the same court as an appeal from any other order of the court.

National Security

Marginal note:National security order

• 96 (1) The Minister may, by order, direct a payment service provider that performs retail payment activities to take or to refrain from taking any measures related to the performance of retail payment activities if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

• Marginal note:Opportunity for representations

  (2) Subject to subsection (3), no order is to be made under subsection (1) unless the payment service provider is provided with a opportunity to make representations in respect of the matter.

• Marginal note:Temporary order

  (3) If, in the Minister’s opinion, the length of time required for representations to be made might be prejudicial to the public interest, the Minister may make a temporary order that has the same effect as an order made under subsection (1). The temporary order ceases to have effect 30 days after the day on which it is made or after the expiration of a shorter period that is specified in the order.

• Marginal note:Continued effect

  (4) The temporary order continues to have effect after the expiration of the 30-day or the shorter period if no representations are made to the Minister within that period or, if representations are made, the Minister notifies the payment service provider that the Minister is not satisfied that there are sufficient grounds for revoking the order.

Marginal note:Copy to Bank

97 The Minister must provide the Bank with a copy of each order the Minister makes under subsection 96(1) or (3) and the Bank must, as soon as feasible, provide a copy to the individual or entity in question.

Marginal note:Court enforcement

• 98 (1) If an individual or entity is not complying with an undertaking provided in accordance with section 42, a condition imposed under section 43 or an order made under section 96, the Minister may, in addition to any other action that may be taken under this Act, apply to a superior court for an order requiring the individual or entity to comply with the undertaking, condition or order.

• Marginal note:Powers of court

  (2) The court may make the order and may make any other order the court thinks fit.

• Marginal note:Appeal

  (3) An appeal from an order made under subsection (2) lies in the same manner and to the same court as an appeal from any other order of the court.

PART 6Assessment Fees

Marginal note:Bank to ascertain expenses

• 99 (1) The Bank must, before September 30 in each year, ascertain the total amount of expenses incurred by it during the immediately preceding calendar year for or in connection with the administration of this Act and deduct from that amount any registration fees paid to it in that preceding calendar year.

• Marginal note:Amount conclusive

  (2) The amount ascertained is final and conclusive for the purposes of this section.

• Marginal note:Assessment

  (3) As soon as feasible after ascertaining the amount, the Bank must, in the prescribed manner and to the prescribed extent, assess a portion of the total amount of expenses against each registered payment service provider.

• Marginal note:Interim assessment

  (4) The Bank may, during each calendar year, prepare an interim assessment against any registered payment service provider.

• Marginal note:Assessment is binding

  (5) Every assessment and interim assessment is final and conclusive and binding on the registered payment service provider against which it is made.

• Marginal note:Recovery

  (6) Every assessment and interim assessment constitutes a debt due to the Bank, is immediately payable and may be recovered as a debt in any court of competent jurisdiction.

• Marginal note:Interest

  (7) Interest may be charged on the unpaid amount of an assessment or interim assessment at a rate equal to 2% plus the rate in effect that is prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.

Marginal note:Information request

• 100 (1) The Bank may request, in writing, a registered payment service provider to provide, within the prescribed period, the Bank with any information that the Bank considers necessary for the purposes of subsection 99(3) or (4).

• Marginal note:Compliance with request

  (2) The payment service provider must comply with the request.

PART 7Regulations

Marginal note:Regulations

• 101 (1) The Governor in Council may, on the recommendation of the Minister, make regulations for the purposes of this Act, including regulations

  • (a) respecting risk management and incident response frameworks;

  • (b) respecting any account referred to in paragraph 20(1)(a) or (c) and the insurance or guarantee referred to in paragraph 20(1)(c);

  • (c) respecting the holding of end-user funds by a payment service provider referred to in subsection 20(1) and the measures to be taken by the payment service provider to ensure that end-user funds or proceeds from any insurance or guarantee referred to in paragraph 20(1)(c) are payable to end users in the event of an insolvency or other specified event;

  • (d) respecting the provision of information in relation to the holding of end-user funds with the Canada Deposit Insurance Corporation or a member institution as in section 2 of the Canada Deposit Insurance Corporation Act;

  • (e) respecting the acquisition of control for the purposes of section 24;

  • (f) respecting the circumstances in which information referred to in subsection 64(1) may be used as evidence;

  • (g) prohibiting, limiting or restricting the disclosure by payment service providers of information referred to in subsection 64(1);

  • (h) designating, as a violation that may be proceeded with under Part 5, the contravention of a specified provision of this Act or the regulations;

  • (i) classifying each violation as a minor violation, a serious violation or a very serious violation, classifying a series of minor violations as a serious violation or a very serious violation or classifying a series of serious violations as a very serious violation;

  • (j) designating, as a violation that may be proceeded with under Part 5, the non-compliance with an agreement entered into under section 71;

  • (k) establishing a penalty or a range of penalties in respect of a violation up to a maximum of $10,000,000;

  • (l) if a range of penalties is established by regulations made under paragraph (k), setting out the method of establishing the amount payable as the penalty for the violation, including the criteria to be taken into account;

  • (m) specifying the additional penalty referred to in paragraph 82(1)(b);

  • (n) respecting the service of documents under Part 5, including the manner and proof of service and the circumstances under which documents are deemed to be served;

  • (o) respecting the keeping and retention of records; and

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

• Marginal note:Registration fee

  (2) A registration fee is prescribed for the purposes of subsection 29(2) if a method for determining the amount of the registration fee is prescribed.

Marginal note:Statutory Instruments Act

102 The Statutory Instruments Act does not apply in respect of

• (a) an order made under section 19;

• (b) a directive issued under section 40;

• (c) an order made under section 42 or 43;

• (d) a notice issued under section 45;

• (e) a directive issued under subsection 46(2) or section 47;

• (f) a notice issued under section 52;

• (g) an order made under subsection 94(1) or (4); or

• (h) an order made under subsection 96(1) or (3).

PART 8Transitional Provisions

Marginal note:Definition of transition period

103 In this Part, transition period means the period that begins on the day on which section 29 comes into force and ends on the day before the day on which subsection 25(1) comes into force.

Marginal note:Application required

104 A payment service provider that performs or plans to perform retail payment activities during the transition period must, within the prescribed period that begins on the day on which section 29 comes into force, apply to the Bank for registration in accordance with that section.

Marginal note:Prescribed periods

• 105 (1) For greater certainty, a regulation that prescribes a period within which something is to be done or may be done under this Act in relation to an application for registration may distinguish between applications that are submitted during the transition period and applications that are submitted after the end of that period.

• Marginal note:Period suspended for Centre

  (2) If subsection 53.6(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, as enacted by section 181 of the Budget Implementation Act, 2021, No. 1, comes into force before or during the transition period, the 30-day period referred to in that subsection is, in relation to an application for registration that is submitted during the transition period, suspended until the end of the transition period.

Marginal note:Prohibition on disclosure of outcome of application

106 During the transition period, the Bank must not disclose the outcome or likely outcome of an application to the applicant unless a directive in relation to the applicant is issued to the Bank under section 40.

Marginal note:Exception to subsection 62(1)

107 Despite subsection 62(1), the Bank may publish the names of applicants that submit applications during the transition period as well as any prescribed information in relation to those applications.

Marginal note:Non-application of section 23

108 Starting on the day on which section 23 comes into force, that section does not apply to a payment service provider who submits an application during the transition period until the earlier of

• (a) the day on which the Bank notifies the payment service provider under subsection 25(2) that it has been registered; and

• (b) the day on which the Bank notifies the payment service provider under subsection 48(3) or section 49 of a refusal to register.