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Bill C-38

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First Reading

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	(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 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.
Risk of prejudice	(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the bank would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representa- tions may be made	(5) The Superintendent must in writing notify the person concerned and the bank 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.
1996, c. 6, s. 14; 1999, c. 28, s. 49(1)	(5) Subsection 647(6) of the English version of the Act is replaced by the following:
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 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 shall not permit the person to continue to hold, office as a director.
	171. The Act is amended by adding the following after section 647:
Removal of directors or senior officers	647.1 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a bank if the Superintendent is of the opinion that the person is not suitable to hold that office
	(a) on the basis of the competence, business record, experience, conduct or character of the person; or
	(b) because the person has contravened or, by action or negligence, has contributed to the contravention of
	(i) this Act or the regulations made under it,
	(ii) a direction made under section 645,
	(iii) an order made under subsection 485(3),
	(iv) a condition or limitation in respect of the order approving the commencement and carrying on of the bank's business, or
	(v) a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent.
Risk of prejudice	(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the bank have been or are likely to be prejudiced by the person's holding office as a director or senior officer.
Representa- tions may be made	(3) The Superintendent must in writing notify the person concerned and the bank 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.
Suspension	(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.
Notice of order	(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the bank of a removal order or suspension order.
Consequences of removal order	(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.
Appeal	(7) The director or senior officer, as the case may be, or the bank 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.
Powers of Federal Court	(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal	(9) A removal order is not stayed by an appeal.
1997, c. 15, s. 88(3); 1999, c. 28, s. 50	172. (1) Paragraph 648(1.1)(b) of the Act is repealed.
	(2) Subsection 648(1.1) of the Act is amended by striking out the word ``or'' at the end of paragraph (f), by adding the word ``or'' at the end of paragraph (g) and by adding the following after paragraph (g):
	(h) in the opinion of the Superintendent, any other state of affairs exists in respect of the bank that may be materially prejudicial to the interests of the bank's depositors or creditors or the owners of any assets under the bank's administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the bank.
1991, c. 46, par. 580(b); 1996, c. 6, s. 20; 1997, c. 15, ss. 89 to 92; 1999, c. 28, ss. 58 to 73, c. 31, s. 16	173. Parts XIV and XV of the Act are replaced by the following:
	PART XIV
	REGULATION OF BANKS - COMMISSIONER
Required information	657. A bank or an authorized foreign bank 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 consumer provisions.
Confidential information	658. (1) Subject to subsection (2), information regarding the business or affairs of a bank or authorized foreign bank or regarding persons dealing with any of them 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.
Disclosure permitted	(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
	(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, 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.
Examination of banks	659. (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.
Access to records of bank	(2) The Commissioner or a person acting under the Commissioner's direction in carrying out his or her duties under subsection (1)
	(a) has a right of access to any records, including electronic records, of a bank or authorized foreign bank; and
	(b) may require the directors or officers of a bank or authorized foreign bank 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).
Power of Commissioner on inquiry	660. 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.
Compliance agreement	661. The Commissioner may enter into an agreement, called a ``compliance agreement'', with a bank or an authorized foreign bank for the purposes of implementing any measure designed to further compliance by it with the consumer provisions.
	PART XV
	BANK HOLDING COMPANIES
	Purpose
Purpose	662. The purpose of this Part is to provide for the incorporation, formation and regulation of bank holding companies.
	DIVISION 1
	INTERPRETATION
Definitions	663. (1) The definitions in this section apply in this Part.
``complainant '' « plaignant »	``complainant'', in relation to a bank holding company or any matter concerning a bank holding company, means
	(a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a bank holding company or any of its affiliates;
	(b) a director or an officer, or a former director or officer, of a bank holding company or any of its affiliates; or
	(c) any other person who, in the discretion of a court, is a proper person to make an application under section 334, 338 or 989.
``subordinated indebtedness'' « titre secondaire »	``subordinated indebtedness'' means an instrument evidencing an indebtedness of a bank holding company that by its terms provides that the indebtedness will, in the event of the insolvency or winding-up of the bank holding company, be subordinate in right of payment to all liabilities of the bank holding company except those that, by their terms, rank equally with or are subordinate to such indebtedness.
Provisions in other Parts	(2) A reference in a provision of this Part to a provision in any other Part is deemed to be a reference to that provision as it has been made applicable by this Part in respect of bank holding companies.
References in other Parts	(3) A reference in a provision of another Part to a provision that has been made applicable in respect of bank holding companies by this Part is to be read as including a reference to that provision as it has been made applicable in respect of bank holding companies.
	DIVISION 2
	STATUS AND POWERS
Corporate powers	664. (1) A bank holding company has the capacity of a natural person and, subject to this Act, the rights, powers and privileges of a natural person.
Powers restricted	(2) A bank holding company shall not carry on any business or exercise any power that it is restricted by this Act from carrying on or exercising, or exercise any of its powers in a manner contrary to this Act.
Business in Canada	(3) A bank holding company may carry on business throughout Canada.
Powers outside Canada	(4) Subject to this Act, a bank holding company has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Canada to the extent and in the manner that the laws of that jurisdiction permit.
No invalidity	665. No act of a bank holding company, including any transfer of property to or by a bank holding company, is invalid by reason only that the act or transfer is contrary to the bank holding company's incorporating instrument or this Act.
By-law not necessary	666. It is not necessary for a bank holding company to pass a by-law in order to confer any particular power on the bank holding company or its directors.
No personal liability	667. The shareholders of a bank holding company are not, as shareholders, liable for any liability, act or default of the bank holding company except as otherwise provided by this Act.
No constructive notice	668. No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning a bank holding company by reason only that the document has been filed with the Superintendent or the Minister or is available for inspection at an office of the bank holding company.
Authority of directors and officers	669. A bank holding company or a guarantor of an obligation of a bank holding company may not assert against a person dealing with the bank holding company or with any person who has acquired rights from the bank holding company that
	(a) the bank holding company's incorporating instrument or any by-laws of the bank holding company have not been complied with,
	(b) the persons named as directors of the bank holding company in the most recent return sent to the Superintendent under section 951 are not the directors of the bank holding company,
	(c) the place named in the incorporating instrument or the by-laws of the bank holding company is not the head office of the bank holding company,
	(d) a person held out by the bank holding company as a director, an officer or a representative of the bank holding company has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the bank holding company or usual for such director, officer or representative, or
	(e) a document issued by any director, officer or representative of the bank holding company with actual or usual authority to issue the document is not valid or not genuine,
	except where the person has or ought to have by virtue of the person's position with or relationship to the bank holding company knowledge to that effect.
Sunset provision	670. Bank holding companies shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, bank holding companies may continue to carry on business until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.