Financial Administration Act (R.S.C., 1985, c. F-11)

Marginal note:Limitation of application of this Part

70 This Part does not apply

• (a) to any negotiable instrument;

• (b) to any Crown debt incurred by or in the name of a corporation set out in Schedule III; or

• (c) to any securities issued under Part IV.

Marginal note:Regulations

71 The Governor in Council may make regulations

• (a) designating persons as paying officers for the purposes of this Part;

• (b) prescribing additional classes of Crown debts for the purpose of subsection 68(1);

• (c) prescribing the forms of notices of assignment and acknowledgments thereof;

• (d) prescribing the documents to be submitted in connection with a notice of assignment, the forms of those documents and the manner in which they are to be completed; and

• (e) generally, for carrying into effect the purposes and provisions of this Part.

PART VIIIAssignment of Debts Due to the Crown Under Payment Bonds

Marginal note:Definitions

72 In this Part,

Crown

Crown means Her Majesty in right of Canada or any agent of Her Majesty in right of Canada and includes a Crown corporation and a departmental corporation; (Sa Majesté)

payment bond

payment bond means a bond held by the Crown as security for the payment of certain classes of persons who perform labour or services or supply material in connection with a contract between the Crown and a contractor. (cautionnement)

Marginal note:Assignment of Crown right under payment bond

• 73 (1) Where an amount is due to the Crown under the provisions of a payment bond, a person who

  • (a) performed labour or services or supplied material in connection with the contract in respect of which the payment bond is held,

  • (b) is within a class of persons for the payment of which the payment bond is held as security, and

  • (c) has not been paid in full for the labour or services performed or material supplied by him in connection with the contract within the time provided in the payment bond for payment to the class of persons of which that person is a member,

  is, without any act by or notice by or to the Crown, an assignee of the right of the Crown to recover an amount under the payment bond determined pursuant to subsection (2).

• Marginal note:Amount recoverable

  (2) The amount that may be recovered by a person referred to in subsection (1) shall be equal to the lesser of the amount due to that person for the labour or services performed or material supplied by him under the contract and the amount due to the Crown under the provisions of the payment bond.

• Marginal note:Crown not a party to action

  (3) A person who is an assignee of the right of the Crown to recover an amount under a payment bond may, in his own name, exercise the right that, but for this Act, the Crown would have had to bring action to enforce payment under the payment bond in accordance with its terms and conditions and the Crown shall be neither a party to, nor liable for any costs in connection with, that action.

Marginal note:Provision of certified copy of payment bond

• 74 (1) A copy of a payment bond certified by the officer of the Crown having custody of the original payment bond shall be provided by that officer to any person who files with him an affidavit setting out that the person has performed labour or services or supplied material in connection with the contract for which the bond is held and that he has not been paid in full therefor.

• Marginal note:Certified copy as evidence

  (2) A document purporting to be a copy of a payment bond certified by the officer of the Crown having custody of the original payment bond is, without proof of the signature of the officer, admissible in evidence in any court of justice, or before a person having by law or by consent of parties authority to hear, receive and examine evidence in any action taken by a person under this Part, and has the same probative force as the original document would have if it were proven in the ordinary way.

Marginal note:Regulations

75 The Governor in Council, on the recommendation of the Treasury Board, may make regulations for carrying into effect the purposes and provisions of this Part.

PART IXCivil Liability and Offences

Marginal note:Notice to persons failing to pay over public money

• 76 (1) Where the appropriate Minister or the Receiver General believes on reasonable grounds that any person

  • (a) has received money for Her Majesty and has not duly paid it over,

  • (b) has received money for which the person is accountable to Her Majesty and has not duly accounted for it, or

  • (c) has received any public money applicable to any purpose and has not duly applied it,

  the appropriate Minister or the Receiver General, as the case may be, may cause a notice to be served on that person, or on the person’s representative in case of the person’s death, requiring the person, within such time after the service of the notice as may be named therein, duly to pay over, account for or apply that money, as the case may be, and to transmit to the appropriate Minister or the Receiver General, as the notice provides, proper vouchers that the person has done so.

• Marginal note:Proceedings where notice not complied with

  (2) Where a person does not comply with a notice served under subsection (1), the appropriate Minister or the Receiver General, as the case may be, shall state an account between that person and Her Majesty showing the amount of money not duly paid over, accounted for or applied, as the case may be, and may charge interest on the whole or any part of that amount from such date as the appropriate Minister or the Receiver General may determine and at such rate as may be prescribed pursuant to subsection 155.1(6).

• Marginal note:Evidence

  (3) In any proceedings for the recovery of money referred to in subsection (2), a copy of the account stated and certified by the appropriate Minister or the Receiver General is evidence that the amount stated in the account, together with interest, is due and payable to Her Majesty, without proof of the signature of the appropriate Minister or the Receiver General or the official character of the office.

• Marginal note:Recovery

  (4) Any amount of money referred to in subsection (1) and the interest on that amount may be recovered as a debt due to Her Majesty.

Marginal note:Evidence

77 Where it appears by the books or accounts kept by or in the office of any person employed in the collection or management of the revenue, in any accounting by that person or by his written acknowledgment or confession, that that person has, by virtue of his office or employment, received money belonging to Her Majesty and refused or neglected to pay over that money to the proper persons at the proper times, an affidavit deposing to those facts, taken by any person having knowledge thereof, shall, in any proceedings for the recovery of that money, be admitted in evidence and is, in the absence of any evidence to the contrary, proof of the facts stated therein.

Marginal note:Liability for loss

78 Where, by reason of any malfeasance or negligence by any person employed in collecting or receiving any public money, any sum of money is lost to Her Majesty, that person is accountable for the sum as if that person had collected and received it and it may be recovered from that person as if that person had collected and received it.

Marginal note:Regulations in respect of losses of money and public property

79 The Governor in Council, on the recommendation of the Treasury Board, may make regulations

• (a) prescribing the actions to be taken in respect of losses of money or public property, however caused, suffered by Her Majesty;

• (b) respecting the charging of losses of money suffered by Her Majesty against the appropriations to which they relate; and

• (c) prescribing the records to be kept and providing for the reporting in the Public Accounts in respect of every loss referred to in paragraph (a).

Marginal note:Offences and punishment

• 80 (1) Every officer or person acting in any office or employment connected with the collection, management or disbursement of public money who

  • (a) receives any compensation or reward for the performance of any official duty, except as by law prescribed,

  • (b) conspires or colludes with any other person to defraud Her Majesty, or makes opportunity for any person to defraud Her Majesty,

  • (c) designedly permits any contravention of the law by any other person,

  • (d) wilfully makes or signs any false entry in any book, or wilfully makes or signs any false certificate or return in any case in which it is the duty of that officer or person to make an entry, certificate or return,

  • (e) having knowledge or information of the contravention of this Act or the regulations or any revenue law of Canada by any person, or of fraud committed by any person against Her Majesty, under this Act or the regulations or any revenue law of Canada, fails to report, in writing, that knowledge or information to a superior officer, or

  • (f) demands or accepts or attempts to collect, directly or indirectly, as payment or gift or otherwise, any sum of money, or other thing of value, for the compromise, adjustment or settlement of any charge or complaint for any contravention or alleged contravention of law,

  is guilty of an indictable offence and liable on conviction to a fine not exceeding five thousand dollars and to imprisonment for a term not exceeding five years.

• Marginal note:Fraud against Her Majesty

  (2) Every officer or person acting in any office or employment connected with the collection, management or disbursement of public money who, by deceit, falsehood or other fraudulent means, defrauds Her Majesty of any money, securities, property or service is guilty of an indictable offence and liable on conviction,

  • (a) if the amount of the money or the value of the securities, property or service does not exceed $5,000, to a fine not exceeding $5,000 and to imprisonment for a term not exceeding five years; or

  • (b) if the amount of the money or the value of the securities, property or service exceeds $5,000, to a fine not exceeding that amount or that value and to imprisonment for a term not exceeding fourteen years.

Marginal note:Idem, where bribes offered or accepted

81 Every person who

• (a) promises, offers or gives any bribe to any officer or any person acting in any office or employment connected with the collection, management or disbursement of public money, with intent

  • (i) to influence the decision or action of that officer or person on any question or matter that is then pending, or may, by law, be brought before him in his official capacity, or

  • (ii) to influence that officer or person to commit, or aid or abet in committing any fraud on the revenue, or to connive at, collude in, or allow or permit any opportunity for the commission of any such fraud, or

• (b) accepts or receives any such bribe,

is guilty of an indictable offence and liable on conviction to a fine not exceeding three times the amount so offered or accepted and to imprisonment for any term not exceeding five years.

Marginal note:Books, etc., property of Her Majesty

82 All books, papers, accounts and documents kept or used by, or received or taken into the possession of, any officer or person who is or has been employed in the collection or management of the revenue or in accounting for the revenue, by virtue of that employment, shall be deemed to be chattels belonging to Her Majesty, and all money or valuable securities received or taken into the possession of that officer or person by virtue of his employment shall be deemed to be money and valuable securities belonging to Her Majesty.

PART XCrown Corporations

Interpretation

Marginal note:Definitions

• 83 (1) In this Part,

  agent corporation

  agent corporation means a Crown corporation that is expressly declared by or pursuant to any other Act of Parliament to be an agent of the Crown; (société mandataire)

  appoint

  appoint includes elect and designate; (nomination)

  appropriate Minister

  appropriate Minister means,

  • (a) in relation to a parent Crown corporation,

    • (i) the Minister specified by or pursuant to any other Act of Parliament as the Minister in respect of that corporation, or

    • (ii) if no Minister is specified as described in subparagraph (i), such member of the Queen’s Privy Council for Canada as is designated by order of the Governor in Council as the appropriate Minister for the corporation, and

  • (b) in relation to a wholly-owned subsidiary, the appropriate Minister, as defined in paragraph (a), for the parent Crown corporation that wholly owns the subsidiary; (ministre de tutelle)

  articles

  articles means

  • (a) original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution and articles of revival, and includes any amendments thereto, and

  • (b) letters patent, memorandum of association and any constating documents or other documents of a like nature to those referred to in paragraph (a), and includes any amendments thereto; (statuts)

  auditor

  auditor includes a partnership of auditors; (vérificateur)

  board of directors

  board of directors means a board of directors, by whatever name called, of a corporation and includes a group of persons, other than a minister of the Crown, that constitutes a corporation; (conseil d’administration)

  by-law

  by-law means a by-law, by whatever name called, of a corporation and includes an amendment or a repeal of a by-law; (règlements administratifs)

  chairperson

  chairperson means a person occupying the position of chairperson, by whatever name called, of the board of directors of a corporation; (président)

  charter

  charter means

  • (a) in relation to a corporation established by an Act of Parliament, the Act, and

  • (b) in relation to a corporation established by articles, the articles; (acte constitutif)

  corporation

  corporation includes a company or other body corporate wherever or however incorporated; (personne morale)

  Crown

  Crown means Her Majesty in right of Canada; (Sa Majesté)

  Crown corporation

  Crown corporation means a parent Crown corporation or a wholly-owned subsidiary; (société d’État)

  directive

  directive[Repealed, 1991, c. 24, s. 21]

  director

  director means a person occupying the position of director, by whatever name called, of a corporation and includes any person, other than a minister of the Crown, in a group of persons that constitutes a corporation; (administrateur)

  major business or activity

  major business or activity, in relation to a parent Crown corporation or a wholly-owned subsidiary, means a class of business or activity of the corporation or subsidiary established pursuant to subsection (10) or, if no classes are so established, all the business or activity of the corporation or subsidiary; (activités principales)

  parent Crown corporation

  parent Crown corporation means a corporation that is wholly owned directly by the Crown, but does not include a departmental corporation; (société d’État mère)

  regulations

  regulations means the regulations made under this Part; (règlements)

  share

  share includes a membership interest or ownership interest in a corporation; (action)

  wholly-owned subsidiary

  wholly-owned subsidiary means a corporation that is wholly owned by one or more parent Crown corporations directly or indirectly through any number of subsidiaries each of which is wholly owned directly or indirectly by one or more parent Crown corporations. (filiale à cent pour cent)

• Marginal note:Wholly owned by Crown

  (2) For the purposes of this Part, a corporation is wholly owned directly by the Crown if

  • (a) all of the issued and outstanding shares of the corporation, other than shares necessary to qualify persons as directors, are held, otherwise than by way of security only, by, on behalf of or in trust for the Crown; or

  • (b) all the directors of the corporation, other than ex officio directors, are appointed by the Governor in Council or by a minister of the Crown with the approval of the Governor in Council.

• Marginal note:Holding by agent corporations

  (3) For the purposes of subsection (2), shares held by a corporation that is an agent of the Crown

  • (a) are deemed not to be held by or on behalf of the Crown; and

  • (b) are not by reason of that fact alone shares held in trust for the Crown.

• Marginal note:Wholly owned by other corporation or corporations

  (4) For the purposes of this Part, a corporation is wholly owned by one or more other corporations if

  • (a) all of the issued and outstanding shares of the corporation, other than shares necessary to qualify persons as directors, are held, otherwise than by way of security only, by, on behalf of or in trust for the one or more other corporations;

  • (b) all the directors of the corporation are appointed by the board or boards of directors of the one or more other corporations; or

  • (c) all the directors of the one or more other corporations are, by virtue of their being directors of the one or more other corporations, directors of the corporation.

• Marginal note:Affiliates

  (5) For the purposes of this Part,

  • (a) one corporation is an affiliate of another corporation if one of them is the subsidiary of the other or both are subsidiaries of the same corporation or each of them is controlled by the same person; and

  • (b) if two corporations are affiliates of the same corporation at the same time, they are deemed to be affiliates of each other.

• Marginal note:Subsidiaries

  (6) For the purposes of this Part, a corporation is a subsidiary of another corporation if it is controlled by that other corporation.

• Marginal note:Control

  (7) For the purposes of this Part, a corporation with share capital is controlled by a person if

  • (a) shares of the corporation to which are attached more than fifty per cent of the votes that may be cast to elect directors of the corporation are held, otherwise than by way of security only, by, on behalf of or in trust for that person; and

  • (b) the votes attached to those shares are sufficient, if exercised, to elect a majority of the directors of the corporation.

• Marginal note:Idem

  (8) For the purposes of this Part, a corporation without share capital is controlled by a person if that person is able to appoint the majority of the directors of the corporation, whether or not he does so.

• Marginal note:Appointment

  (9) For the purposes of this Part, a person is deemed to be appointed by another person or group of persons if that person is appointed on the direction of that other person or group, whether or not he is actually appointed by that other person or group.

• Marginal note:Major business or activity

  (10) Where, in the opinion of the Governor in Council, a parent Crown corporation or a wholly-owned subsidiary of a parent Crown corporation carries on, or a parent Crown corporation and any wholly-owned subsidiary of the corporation carry on, more than one business or activity, the parent Crown corporation shall, with the approval of the Governor in Council, classify the businesses or activities for the purposes of this Part.