Bank Act (S.C. 1991, c. 46)

Marginal note:Copy of by-laws

952 A bank holding company shall send to the Superintendent within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.

Marginal note:Register of bank holding companies

• 953 (1) The Superintendent shall, in respect of each bank holding company, cause a register to be maintained containing a copy of

  • (a) the incorporating instrument of the bank holding company; and

  • (b) the information referred to in paragraphs 951(1)(a) and (c) to (g) contained in the latest return sent to the Superintendent pursuant to section 951.

• Marginal note:Form

  (2) The register may be maintained in

  • (a) a bound or loose-leaf form or in a photographic film form; or

  • (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.

• Marginal note:Access

  (3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.

• Marginal note:Evidence

  (4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.

Marginal note:Production of information and documents

• 954 (1) The Superintendent may, by order, direct a person who controls a bank holding company or any entity that is affiliated with a bank holding company to provide the Superintendent with the information or documents that are specified in the order if the Superintendent believes that the production of the information or documents is necessary in order to

  • (a) determine whether the bank holding company is complying with the provisions of this Act;

  • (b) ascertain the financial condition of the bank holding company; or

  • (c) determine whether the bank holding company has adequate policies and procedures to protect itself against threats to its integrity or security.

• Marginal note:Time

  (2) Any person to whom a direction has been issued under subsection (1) shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time.

• Marginal note:Exemption

  (3) Subsection (1) does not apply in respect of an entity that controls a bank holding company or is affiliated with a bank holding company where that entity is a financial institution regulated

  • (a) by or under an Act of Parliament; or

  • (b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions in that province concerning the sharing of information on such financial institutions.

Marginal note:Confidential information

• 955 (1) All information regarding the business or affairs of a bank holding company, or regarding a person dealing with a bank holding company, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.

• Marginal note:Disclosure permitted

  (2) Nothing in subsection (1) prevents the Superintendent from disclosing any information

  • (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

  • (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision,

  • (c) to the Canada Deposit Insurance Corporation or any compensation association designated by order of the Minister pursuant to subsection 449(1) of the Insurance Companies Act, for purposes related to its operation, and

  • (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions,

  if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed.

Marginal note:Regulations

956 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by bank holding companies of prescribed supervisory information.

Marginal note:Evidentiary privilege

• 956.1 (1) Prescribed supervisory information shall not be used as evidence in any civil proceedings and is privileged for that purpose.

• Marginal note:No testimony or production

  (2) No person shall 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 prescribed supervisory information.

• Marginal note:Exceptions to subsection (1)

  (3) Despite subsection (1),

  • (a) the Minister, the Superintendent or the Attorney General of Canada may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings; and

  • (b) a bank holding company may, in accordance with the regulations, if any, use prescribed supervisory information as evidence in any proceedings in relation to the administration or enforcement of this Act or the Winding-up and Restructuring Act that are commenced by the bank holding company, the Minister, the Superintendent or the Attorney General of Canada.

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

  (4) Despite subsections (1) and (2) and section 39.1 of the Office of the Superintendent of Financial Institutions Act, a court, tribunal or other body may, by order, require the Minister, the Superintendent or a bank holding company to give oral testimony or to produce any document relating to any prescribed supervisory information in any civil proceedings in relation to the administration or enforcement of this Act that are commenced by the Minister, the Superintendent, the Attorney General of Canada or the bank holding company.

• Marginal note:No waiver

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

• Marginal note:Regulations

  (6) The Governor in Council may, for the purposes of subsection (3), make regulations respecting the circumstances in which prescribed supervisory information may be used as evidence.

Marginal note:No waiver

• 956.2 (1) For greater certainty, the disclosure by a bank holding company — or by a person who controls a bank holding company or by an entity that is affiliated with a bank holding company — to the Superintendent of any information that is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of any of those privileges or that secrecy.

• Marginal note:No disclosure

  (2) The Superintendent shall not disclose any information referred to in subsection (1) to any person whose powers, duties or functions include

  • (a) the investigation or prosecution of an offence under any Act of Parliament or of the legislature of a province; or

  • (b) the investigation of, or conduct of proceedings in respect of, a violation under an Act referred to in paragraph (a).

Inspection of Bank Holding Companies

Marginal note:Examination of bank holding companies

• 957 (1) The Superintendent, from time to time, shall make or cause to be made any examination and inquiry into the business and affairs of each bank holding company that the Superintendent considers to be necessary or expedient to determine whether the bank holding company is complying with the provisions of this Act and to ascertain the financial condition of the bank holding company or to determine whether the bank holding company has adequate policies and procedures to protect itself against threats to its integrity or security.

• Marginal note:Access to records of bank holding company

  (2) The Superintendent or a person acting under the Superintendent’s direction

  • (a) has a right of access to any records, cash, assets and security held by or on behalf of a bank holding company; and

  • (b) may require the directors, officers and the auditor of a bank holding company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of the condition and affairs of the bank holding company or any entity in which the bank holding company has a substantial investment.

Marginal note:Power of Superintendent on inquiry

958 The Superintendent has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Superintendent’s direction.

Remedial Powers

Prudential Agreements

Marginal note:Prudential agreement

959 The Superintendent may enter into an agreement, called a “prudential agreement”, with a bank holding company for the purposes of implementing any measure designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it or establishing adequate policies and procedures to protect the bank holding company against threats to its integrity or security.

Directions of Compliance

Marginal note:Superintendent’s directions to bank holding company

• 960 (1) If, in the opinion of the Superintendent, a bank holding company, one of its affiliates or any person with respect to a bank holding company is committing, or is about to commit, an act — or is pursuing or is about to pursue a course of conduct — that may directly or indirectly be prejudicial to the interest of depositors, policyholders or creditors of a federal financial institution that is affiliated with the bank holding company, the Superintendent may direct the bank holding company to

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

  • (b) cause the affiliate or person to cease or refrain from committing the act or pursuing the course of conduct, to the extent that the bank holding company is able to do so;

  • (c) perform any act that in the opinion of the Superintendent is necessary to remedy the situation or to minimize the prejudice; or

  • (d) cause the affiliate or person to perform any act that in the opinion of the Superintendent is necessary to remedy the situation or to minimize the prejudice, to the extent that the bank holding company is able to do so.

• Marginal note:Directions — policies and procedures

  (1.1) If, in the opinion of the Superintendent, a bank holding company does not have adequate policies and procedures to protect itself against threats to its integrity or security, the Superintendent may direct the bank holding company to take any measures that in the opinion of the Superintendent are necessary to remedy the situation.

• Marginal note:Opportunity for representations

  (2) Subject to subsection (4), no direction shall be issued under subsection (1) or (1.1) unless the bank holding company is provided with a reasonable opportunity to make representations in respect of the matter.

• Marginal note:Temporary direction

  (3) If, in the opinion of the Superintendent, the length of time required for representations to be made might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) to (d) or subsection (1.1) having effect for a period of not more than 15 days.

• Marginal note:Continued effect

  (4) A temporary direction made under subsection (3) continues to have effect after the expiration of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the bank holding company that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.

Marginal note:Court enforcement

• 961 (1) If a bank holding company is contravening or has failed to comply with a prudential agreement entered into under section 959 or a direction of the Superintendent issued to the bank holding company under section 960 or is contravening this Act or has omitted to do any thing under this Act that it is required to do, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the bank holding company to comply with the prudential agreement or the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.

• Marginal note:Appeal

  (2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court.

Disqualification and Removal of Directors or Senior Officers

Meaning of senior officer

962 In sections 963 and 964, senior officer means the chief executive officer, secretary, treasurer or controller of a bank holding company or any other officer reporting directly to the bank holding company’s board of directors or chief executive officer.

Marginal note:Application

• 963 (1) This section applies only in respect of a bank holding company

  • (a) that has been notified by the Superintendent that this section applies to it where the bank holding company is subject to measures designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it, which measures are contained in a prudential agreement entered into under section 959 or an undertaking given by the bank holding company to the Superintendent; or

  • (b) that is the subject of a direction made under section 960, or an order made under subsection 949(3).

• Marginal note:Information to be provided

  (2) A bank holding company shall provide the Superintendent with the name of

  • (a) each person who has been nominated for election or appointment as a member of its board of directors,

  • (b) each person who has been selected by the bank holding company for appointment as a senior officer, and

  • (c) each person who is newly elected as a director of the bank holding company at a meeting of shareholders and who was not proposed for election by anyone involved in the management of the bank holding company,

  together with such other information about the background, business record and experience of the person as the Superintendent may require.

• Marginal note:When information to be provided

  (3) The information required by subsection (2) shall be provided to the Superintendent

  • (a) at least 30 days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or

  • (b) in the case of a person referred to in paragraph (2)(c), within 15 days after the date of the election of the person.

• Marginal note:Disqualification or removal

  (4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order,

  • (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a bank holding company or from being appointed as a senior officer; or

  • (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the bank holding company.

• Marginal note:Risk of prejudice

  (4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors, policyholders and creditors of any federal financial institution affiliated with the bank holding company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.

• Marginal note:Representations may be made

  (5) The Superintendent must in writing notify the person concerned and the bank holding company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.

• Marginal note:Prohibition

  (6) Where an order has been made under subsection (4)

  • (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the bank holding company shall not permit the person to be, elected or appointed to the position; or

  • (b) removing a director from office, the person shall not continue to hold, and the bank holding company shall not permit the person to continue to hold, office as a director.