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(b) is contravening this Act, or
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(c) has omitted to do any thing under this
Act that is required to be done by or on the
part of the association or person,
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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
association or person 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.
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| 1996, c. 6,
s. 59
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332. The heading before section 441.1 of
the Act is replaced by the following:
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Disqualification and Removal of Directors
or Senior Officers
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| Meaning of
``senior
officer''
|
441.01 In sections 441.1 and 441.2, ``senior
officer'' means the chief executive officer,
secretary, treasurer, controller of an
association or any other officer reporting
directly to the association's board of directors
or chief executive officer.
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| 1996, c. 6,
s. 59
|
333. (1) Paragraphs 441.1(1)(a) and (b) of
the Act are replaced by the following:
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(a) that has been notified by the
Superintendent that this section applies to it
where the association is subject to measures
designed to maintain or improve its safety
and soundness, which measures
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(i) have been specified by the
Superintendent by way of conditions or
limitations in respect of the order
approving the commencement and
carrying on of the association's business,
or
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(ii) are contained in a prudential
agreement entered into under section
438.1 or an undertaking given by the
association to the Superintendent; or
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(b) that is the subject of a direction made
under section 439 or an order made under
subsection 409(3).
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| 1996, c. 6,
s. 59
|
(2) Paragraph 441.1(2)(b) of the Act is
replaced by the following:
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(b) each person who has been selected by
the association for appointment as a senior
officer,
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| 1996, c. 6,
s. 59
|
(3) The portion of subsection 441.1(2) of
the French version of the Act after
paragraph (b) is replaced by the following:
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Elle lui communique également les
renseignements personnels qui les concernent
et les renseignements sur leur expérience et
leur dossier professionnel qu'il peut exiger.
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| 1996, c. 6,
s. 59
|
(4) Subsections 441.1(4) and (5) of the Act
are replaced by the following:
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| Disqualificati
on
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(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,
disqualify the person from being elected or
appointed as a director of an association or
from being appointed as a senior officer.
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| Risk of
prejudice
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(4.1) In forming an opinion under
subsection (4), the Superintendent must
consider whether the interests of the
depositors and creditors of the association
would likely be prejudiced if the person were
to take office or continue to hold office, as the
case may be.
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| Representatio
ns may be
made
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(5) The Superintendent must in writing
notify the person concerned and the
association 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.
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334. The Act is amended by adding the
following after section 441.1:
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| Removal of
directors or
senior officers
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441.2 (1) The Superintendent may, by
order, remove a person from office as a
director or senior officer of an association if
the Superintendent is of the opinion that the
person is not suitable to hold that office
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(a) on the basis of the competence, business
record, experience, conduct or character of
the person; or
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(b) because the person has contravened or,
by action or negligence, has contributed to
the contravention of
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(i) this Act or the regulations made under
it,
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(ii) a direction made under section 439,
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(iii) an order made under subsection
409(3),
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(iv) a condition or limitation in respect of
the order approving the commencement
and carrying on of the association's
business, or
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(v) a prudential agreement entered into
under section 438.1 or an undertaking
given by the association to the
Superintendent.
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| Risk of
prejudice
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(2) In forming an opinion under subsection
(1), the Superintendent must consider whether
the interests of the depositors and creditors of
the association have been or are likely to be
prejudiced by the person's holding office as a
director or senior officer.
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| Representatio
ns may be
made
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(3) The Superintendent must in writing
notify the person concerned and the
association of any removal order that the
Superintendent proposes to make under
subsection (1) 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.
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| Suspension
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(4) If the Superintendent is of the opinion
that the public interest may be prejudiced by
the director or senior officer continuing to
exercise the powers or carry out the duties and
functions of that office during the period for
making representations, the Superintendent
may make an order suspending the director or
senior officer. The suspension may not extend
beyond 10 days after the expiration of that
period.
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| Notice of
order
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(5) The Superintendent shall, without delay,
notify the director or senior officer, as the case
may be, and the association of a removal order
or suspension order.
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| Consequences
of removal
order
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(6) The director or senior officer, as the case
may be, ceases to hold that office as of the date
the removal order is made or any later date
specified in the order.
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| Appeal
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(7) The director or senior officer, as the case
may be, or the association may, within 30 days
after the date of receipt of notice of the
removal order under subsection (5), or within
any longer period that the Court allows,
appeal the matter to the Federal Court.
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| Powers of
Federal Court
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(8) The Federal Court, in the case of an
appeal, may dismiss the appeal or set aside the
removal order.
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| Order not
stayed by
appeal
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(9) A removal order is not stayed by an
appeal.
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| 1996, c. 6,
s. 60
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335. (1) Paragraphs 442(1.1)(b) to (f) of
the Act are replaced by the following:
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(c) the assets of the association are not, in
the opinion of the Superintendent,
sufficient to give adequate protection to its
depositors and creditors;
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(d) any asset appearing on the books or
records of the association or held under the
administration of the association is not, in
the opinion of the Superintendent,
satisfactorily accounted for;
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(e) the regulatory capital of the association
has, in the opinion of the Superintendent,
reached a level or is eroding in a manner
that may detrimentally affect its depositors
and creditors;
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(f) the association has failed to comply with
an order of the Superintendent under
paragraph 409(3)(a);
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(g) in the case of a retail association, the
association's deposit insurance has been
terminated by the Canada Deposit
Insurance Corporation; or
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(h) in the opinion of the Superintendent, any
other state of affairs exists in respect of the
association that may be materially
prejudicial to the interests of the depositors
or creditors of the association or to those of
the owners of any assets under the
association's administration.
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(2) Subsection 442(2) of the Act is
replaced by the following:
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| Objectives of
Superintenden
t
|
(2) If, pursuant to subsection (1), the
Superintendent has control of the assets of an
association referred to in that subsection, the
Superintendent may do all things necessary or
expedient to protect the rights and interests of
the depositors and creditors of the association.
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336. The Act is amended by adding the
following after section 452:
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| Required
information
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452.1 A retail association shall provide the
Commissioner with the information at the
times and in the form that the Commissioner
may require for the purposes of the
administration of the Financial Consumer
Agency of Canada Act and the consumer
provisions.
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| Confidential
information
|
452.2 (1) Subject to subsection (2),
information regarding the business or affairs
of a retail association 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
subsection 5(1) of the Financial Consumer
Agency of Canada Act, 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, 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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| Examination
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452.3 (1) The Commissioner, from time to
time, but at least once in each calendar year,
shall make or cause to be made any
examination and inquiry that the
Commissioner considers necessary for the
purposes of satisfying the Commissioner that
the applicable consumer provisions are being
complied with and, after the conclusion of
each examination and inquiry, shall report on
it to the Minister.
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| Access to
records of
retail
association
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(2) The Commissioner or a person acting
under the Commissioner's direction in
carrying out his or her duties under subsection
(1)
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(a) has a right of access to any records,
including electronic records, of a retail
association; and
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(b) may require the directors or officers of
a retail association to provide information
and explanations, to the extent that they are
reasonably able to do so, in respect of any
matter subject to examination or inquiry
under subsection (1).
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| Power of
Commissioner
on inquiry
|
452.4 The Commissioner, in carrying out
his or her duties in relation to consumer
provisions, 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
Commissioner's direction.
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| Compliance
agreement
|
452.5 The Commissioner may enter into an
agreement, called a ``compliance
agreement'', with a retail association for the
purposes of implementing any measure
designed to further compliance by it with the
consumer provisions.
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337. The Act is amended by adding the
following after section 459.1:
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| Definition of
``approval''
|
459.2 (1) In this section, ``approval''
includes any consent, order, exemption,
extension or other permission granted by the
Minister or the Superintendent under this Act,
and includes the issuance of letters patent.
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| Minister -
terms,
conditions
and
undertakings
|
(2) In addition to any other action that may
be taken under this Act, the Minister may, in
granting an approval, impose such terms and
conditions or require such undertaking as the
Minister considers necessary, including any
terms, conditions or undertaking specified by
the Superintendent to maintain or improve the
safety and soundness of any financial
institution regulated under an Act of
Parliament and to which the approval relates
or that may be affected by it.
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| Superintenden
t - terms,
conditions
and
undertakings
|
(3) In addition to any other action that may
be taken under this Act, the Superintendent
may, in granting an approval, impose such
terms and conditions or require such
undertaking as the Superintendent considers
necessary.
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| Effect of
non-complian
ce on
approval
|
(4) Unless otherwise expressly provided in
this Act, a failure to comply with a term or
condition or an undertaking imposed or
required under any provision of this Act does
not invalidate the approval to which the term,
condition or undertaking relates.
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| Non-complian
ce
|
(5) In addition to any other action that may
be taken under this Act, in case of
non-compliance by a person with a term,
condition or undertaking imposed or required
under any provision of this Act, the Minister
or Superintendent, as the case may be, may
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(a) revoke, suspend or amend the approval
to which the term, condition or undertaking
relates; or
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(b) apply to a court for an order directing the
person to comply with the term, condition
or undertaking, and on such application the
court may so order and make any other
order it thinks fit.
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| Representatio
ns
|
(6) Before taking any action under
subsection (5), the Minister or the
Superintendent, as the case may be, shall
afford the person concerned a reasonable
opportunity to make representations.
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| Revocation,
suspension or
amendment
|
(7) At the request of the person concerned,
the Minister or the Superintendent, as the case
may be, may revoke, suspend or amend any
terms or conditions imposed by him or her or
may revoke or suspend an undertaking given
to him or her or approve its amendment.
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338. The Act is amended by adding the
following after section 461:
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