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| Expenditures
out of C.R.F.
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13. (1) Subject to subsection (2), the
Minister may, in any fiscal year on terms and
conditions - including the rate of interest, if
any - that are determined by the Minister,
advance amounts out of the Consolidated
Revenue Fund to the Agency to permit it to
defray its costs of operation.
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| Spending
authority
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(2) In carrying out its responsibilities, the
Agency may spend assessments and other
revenues received through the conduct of its
operations in the fiscal year in which they are
received or, unless an appropriation Act
provides otherwise, in the next fiscal year. The
amount of those assessments or other revenues
shall be paid out of the Consolidated Revenue
Fund.
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| Ownership
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14. No Commissioner, person appointed
under subsection 4(4) or Deputy
Commissioner shall beneficially own,
directly or indirectly, any shares of any
financial institution, bank holding company,
insurance holding company or of any other
body corporate, however created, carrying on
any business in Canada that is substantially
similar to any business carried on by any
financial institution.
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| Borrowing
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15. No Commissioner, person appointed
under subsection 4(4) or Deputy
Commissioner shall borrow money from any
financial institution or from any member
institution as defined in the Canada Deposit
Insurance Corporation Act unless the
Minister is first informed in writing of the
intention of the Commissioner, person or
Deputy Commissioner to do so.
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| No grant or
gratuity to be
made
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16. (1) The Commissioner, a person
appointed under subsection 4(4), a Deputy
Commissioner and any person appointed
under section 10 shall not accept or receive,
directly or indirectly, any grant or gratuity
from a financial institution, bank holding
company, insurance holding company, or
from a director, officer or employee of any of
them, and no such financial institution, bank
holding company, insurance holding
company, director, officer or employee shall
make or give any such grant or gratuity.
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| Offence and
punishment
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(2) Every person, financial institution, bank
holding company or insurance holding
company that contravenes subsection (1) is
guilty of an offence and liable
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(a) on summary conviction, to a fine of not
more than $2000 or to imprisonment for a
term of not more than six months or to both;
or
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(b) on conviction on indictment, to a fine of
not more than $10,000 or to imprisonment
for a term of not more than five years or to
both.
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| Confidential
information
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17. (1) Subject to subsection (2) and except
as otherwise provided in this Act, information
regarding the business or affairs of a financial
institution or regarding persons dealing with
one that is obtained by the Commissioner or
by any person acting under the direction of the
Commissioner, in the course of the exercise or
performance of powers, duties and functions
referred to in subsections 5(1) and (2) and any
information prepared from that information, is
confidential and shall be treated accordingly.
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| Disclosure
permitted
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(2) If the Commissioner is satisfied that the
information will be treated as confidential by
the agency, body or person to whom it is
disclosed, subsection (1) does not prevent the
Commissioner from disclosing it
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(a) to any government agency or body that
regulates or supervises financial
institutions, for purposes related to that
regulation or supervision;
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(b) to any other agency or body that
regulates or supervises financial
institutions, for purposes related to that
regulation or supervision;
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(c) to the Canada Deposit Insurance
Corporation or any compensation
association designated by order of the
Minister pursuant to subsection 449(1) or
591(1) of the Insurance Companies Act, for
purposes related to its operation; and
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(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.
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| Commissioner
to ascertain
expenses
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18. (1) The Commissioner shall, before
December 31 in each year, ascertain the total
amount of expenses incurred during the
immediately preceding fiscal year for or in
connection with the administration of this Act
and the consumer provisions, and the amounts
of any prescribed categories of those expenses
in relation to any prescribed group of financial
institutions.
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| Amount
conclusive
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(2) The amounts ascertained under
subsection (1) are final and conclusive for the
purposes of this section.
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| Assessment
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(3) As soon as possible after ascertaining
the amounts under subsection (1), the
Commissioner shall assess a portion of the
total amount of expenses against each
financial institution to the extent and in the
manner that the Governor in Council may, by
regulation, prescribe.
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| Interim
assessment
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(4) The Commissioner may, during each
fiscal year, prepare an interim assessment
against any financial institution.
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| Assessment is
binding
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(5) Every assessment and interim
assessment is final and conclusive and binding
on the financial institution against which it is
made.
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| Recovery
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(6) Every assessment and interim
assessment constitutes a debt due to Her
Majesty, is immediately payable and may be
recovered as a debt in any court of competent
jurisdiction.
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| Interest
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(7) Interest may be charged on the unpaid
amount of an assessment or interim
assessment at a rate equal to the rate
prescribed under the Income Tax Act for
amounts payable by the Minister of National
Revenue as refunds of overpayments of tax
under that Act in effect from time to time plus
2 %.
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| Regulations
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19. (1) The Governor in Council may make
regulations
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(a) designating, as a violation that may be
proceeded with under sections 20 to 31, the
contravention of a specified consumer
provision, or the non-compliance with a
compliance agreement entered into under
an Act listed in Schedule 1;
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(b) fixing, in accordance with subsection
(2), a penalty, or a range of penalties, in
respect of any violation;
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(c) respecting the service of documents
required or authorized to be served under
sections 20 to 31, including the manner and
proof of service and the circumstances
under which documents are deemed to be
served; and
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(d) generally, for carrying out the purposes
and provisions of this section and sections
20 to 31.
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| Maximum
penalties
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(2) The maximum penalty for a violation is
$50,000 in the case of a violation that is
committed by a natural person, and $100,000
in the case of a violation that is committed by
a financial institution.
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| Criteria for
penalty
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20. Except if a penalty is fixed under
paragraph 19(1)(b), the amount of a penalty
shall, in each case, be determined taking into
account
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(a) the degree of intention or negligence on
the part of the person who committed the
violation;
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(b) the harm done by the violation;
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(c) the history of the person who committed
the violation with respect to any prior
violation or conviction under an Act listed
in Schedule 1 within the five-year period
immediately before the violation; and
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(d) any other criteria that may be
prescribed.
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| How act or
omission may
be proceeded
with
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21. If a contravention or non-compliance
that is designated under paragraph 19(1)(a)
can be proceeded with either as a violation or
as an offence, proceeding in one manner
precludes proceeding in the other.
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| Commission
of violation
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22. (1) Every contravention or
non-compliance that is designated under
paragraph 19(1)(a) constitutes a violation and
the person who commits the violation is liable
to a penalty determined in accordance with
sections 19 and 20.
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| Notice of
violation
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(2) If the Commissioner believes on
reasonable grounds that a person has
committed a violation, he or she may issue,
and shall cause to be served on the person, a
notice of violation.
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| Contents of
notice
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(3) A notice of violation shall name the
person believed to have committed a
violation, identify the violation and set out
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(a) the penalty that the Commissioner
proposes to impose;
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(b) the right of the person, within 30 days
after the notice is served, or within any
longer period that the Commissioner
specifies, to pay the penalty or to make
representations to the Commissioner with
respect to the violation and the proposed
penalty, and the manner for doing so; and
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(c) the fact that, if the person does not pay
the penalty or make representations in
accordance with the notice, the person will
be deemed to have committed the violation
and the Commissioner may impose a
penalty in respect of it.
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| Payment of
penalty
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23. (1) If the person pays the penalty
proposed in the notice of violation, the person
is deemed to have committed the violation and
proceedings in respect of it are ended.
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| Representatio
ns to
Commissioner
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(2) If the person makes representations in
accordance with the notice, the Commissioner
shall decide, on a balance of probabilities,
whether the person committed the violation
and, if so, may, subject to any regulations
made under paragraph 19(1)(b), impose the
penalty proposed, a lesser penalty or no
penalty.
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| Failure to pay
or make
representation
s
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(3) A person who neither pays the penalty
nor makes representations in accordance with
the notice is deemed to have committed the
violation and the Commissioner may, subject
to any regulations made under paragraph
19(1)(b), impose the penalty proposed, a
lesser penalty or no penalty.
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| Notice of
decision and
right of appeal
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(4) The Commissioner shall cause notice of
any decision made under subsection (2) or (3)
to be issued and served on the person together
with notice of the right of appeal under section
24.
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| Right of
appeal
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24. (1) A person on whom a notice under
subsection 23(4) is served may, within 30 days
after the notice is served, or within any longer
period that the Court allows, appeal the
decision to the Federal Court.
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| Court to take
precautions
against
disclosing
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(2) In an appeal, the Court shall take every
reasonable precaution, including, when
appropriate, conducting hearings in private, to
avoid the disclosure by the Court or any
person of confidential information referred to
in subsection 17(1).
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| Powers of
Court
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(3) On an appeal, the Court may confirm,
set aside or, subject to any regulations made
under paragraph 19(1)(b), vary the decision of
the Commissioner.
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| Debts to Her
Majesty
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25. (1) A penalty constitutes a debt due to
Her Majesty in right of Canada that may be
recovered as such in the Federal Court.
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| Time limit
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(2) No proceedings to recover a debt
referred to in subsection (1) may be
commenced later than five years after the debt
became payable.
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| Proceeds
payable to
Receiver
General
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(3) A penalty paid or recovered under
sections 19 to 24, this section and sections 26
to 31 is payable to and shall be remitted to the
Receiver General.
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| Certificate of
default
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26. (1) The unpaid amount of any debt
referred to in subsection 25(1) may be
certified by the Commissioner.
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| Registration
in Federal
Court
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(2) Registration in the Federal Court of a
certificate made under subsection (1) 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.
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| Violations not
offences
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27. For greater certainty, a violation is not
an offence and, accordingly, section 126 of the
Criminal Code does not apply in respect of
one.
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| Due diligence
available
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28. (1) Due diligence is a defence in a
proceeding in relation to a violation.
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| 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 in relation to a consumer
provision applies in respect of a violation to
the extent that it is not inconsistent with this
Act.
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| Evidence
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29. In a proceeding in respect of a violation
or a prosecution for an offence, a notice
purporting to be issued under subsection 22(2)
or 23(4) or a certificate purporting to be made
under subsection 26(1) is admissible in
evidence without proof of the signature or
official character of the person appearing to
have signed it.
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| Time limit
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30. (1) No proceedings in respect of a
violation may be commenced later than two
years after the subject-matter of the
proceedings became known to the
Commissioner.
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| Certificate of
Commissioner
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(2) A document appearing to have been
issued by the Commissioner, certifying the
day on which the subject-matter of any
proceedings became known to the
Commissioner, is admissible in evidence
without proof of the signature or official
character of the person appearing to have
signed the document and is, in the absence of
evidence to the contrary, proof of the matter
asserted in it.
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| Publication
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31. The Commissioner may make public
the nature of a violation, the name of the
person who committed it, and the amount of
the penalty imposed.
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