Bill C-38
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Amounts
conclusive
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(2) Any amounts ascertained by the
Superintendent 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 referred to in subsection (1), the
Superintendent shall, subject to this section,
assess the amount ascertained under
paragraph (1)(a) against each financial
institution, bank holding company and
insurance holding company referred to in
subsection (1) to any extent and in any manner
that the Governor in Council may, by
regulation, prescribe.
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Interim
assessment
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(4) The Superintendent may, during each
fiscal year, make an interim assessment
against any financial institution, bank holding
company or insurance holding company
referred to in subsection (1).
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Assessment is
binding
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(5) Every assessment and interim
assessment made under this section is final
and conclusive and binding on the financial
institution, bank holding company or
insurance holding company against which it
was made.
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(2) If section 23 of the Act, as enacted by
section 339 of An Act to amend certain laws
relating to financial institutions, being
chapter 15 of the Statutes of Canada, 1997,
comes into force before this section comes
into force, subsections 23(3) and (4) of the
Act are replaced by the following:
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Assessment
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(3) As soon as possible after ascertaining
the amount referred to in subsection (1), the
Superintendent shall assess the amount
against each financial institution, bank
holding company and insurance holding
company to any extent and in any manner that
the Governor in Council may, by regulation,
prescribe.
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Interim
assessment
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(4) The Superintendent may, during each
fiscal year, prepare an interim assessment
against any financial institution, bank holding
company or insurance holding company.
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1999, c. 28,
s. 131
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459. Subsections 23.1(4) and (5) of the Act
are repealed.
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1997, c. 15,
s. 339
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460. Subsection 23.2(1) of the French
version of the Act is replaced by the
following:
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Caractère
obligatoire
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23.2 (1) Toute cotisation établie en vertu
des articles 23 ou 23.1 est irrévocable et lie la
personne à qui elle est imposée.
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461. The Act is amended by adding the
following after section 23.2:
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Administrative Monetary Penalties |
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Interpretation
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Definitions
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24. (1) The definitions in this subsection
apply in this section and in sections 25 to 37.
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``entity'' « entité »
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``entity'' means an entity as defined in section
2 of the Bank Act.
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``financial
institutions
Act'' « loi sur les institutions financières »
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``financial institutions Act'' means the Bank
Act, the Cooperative Credit Associations
Act, the Insurance Companies Act, the
Pension Benefits Standards Act, 1985 and
the Trust and Loan Companies Act.
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``penalty'' « pénalité »
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``penalty'' means an administrative monetary
penalty.
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``person''
Version
anglaise
seulement
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``person'' means a natural person or an entity.
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Non-applicati
on
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(2) This section and sections 25 to 37 do not
apply in respect of consumer provisions as
defined in section 2 of the Financial
Consumer Agency of Canada Act.
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Violations
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Regulations
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25. (1) The Governor in Council may make
regulations
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Maximum
penalties
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(2) The maximum penalty for a violation is
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Criteria for
penalty
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26. Except if a penalty is fixed under
paragraph 25(1)(c), the amount of a penalty
shall, in each case, be determined taking into
account
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How act or
omission may
be proceeded
with
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27. If a contravention or non-compliance
that is designated under paragraph 25(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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Proceedings
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Commission
of violation
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28. (1) Every contravention or
non-compliance that is designated under
paragraph 25(1)(a) constitutes a violation and
the person who commits the violation is liable
to a penalty determined in accordance with
sections 25 and 26.
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Notice of
violation
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(2) If the Superintendent 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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Determination of Responsibility and Penalty
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Payment of
penalty
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29. (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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Representa- tions to Superinten- dent
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(2) If the person makes representations in
accordance with the notice, the
Superintendent shall decide, on a balance of
probabilities, whether the person committed
the violation and, if so, may, subject to any
regulations made under paragraph 25(1)(c),
impose the penalty proposed, a lesser penalty
or no penalty.
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Failure to pay
or make
representa- tions
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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 Superintendent may, subject
to any regulations made under paragraph
25(1)(c), 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 Superintendent shall cause notice of
any decision made under subsection (2) or (3)
to be issued and served on the person together
with, in the case of a serious violation or very
serious violation, notice of the right of appeal
under section 30.
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Appeal to Federal Court
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Right of
appeal
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30. (1) A person on whom a notice under
subsection 29(4) in respect of a serious
violation or very serious violation 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 22(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 25(1)(c), vary the decision of
the Superintendent.
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Enforcement
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Debts to Her
Majesty
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31. (1) A penalty constitutes a debt due to
Her Majesty in right of Canada and may be
recovered 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 25 to 30, this section and sections 32
to 37 is payable to and shall be remitted to the
Receiver General.
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Certificate
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32. (1) The unpaid amount of any debt
referred to in subsection 31(1) may be
certified by the Superintendent.
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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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Rules about Violations
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Violations not
offences
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33. 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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34. (1) Due diligence is a defence in a
proceeding in relation to a violation.
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Common law
principles
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(2) Every rule and principle of the common
law that renders a circumstance a justification
or an excuse in relation to a charge for an
offence under a financial institutions Act
applies in respect of a violation to the extent
that it is not inconsistent with this Act.
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Continuing
violation
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35. A violation that is continued on more
than one day constitutes a separate violation
for each day during which it is continued.
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General Provisions
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Evidence
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36. In a proceeding in respect of a violation
or a prosecution for an offence, a notice
purporting to be issued under subsection 28(2)
or 29(4) or a certificate purporting to be made
under subsection 32(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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37. (1) No proceedings in respect of a
violation may be commenced later than six
months after the subject matter of the
proceedings became known to the
Superintendent, in the case of a minor
violation, or two years after the subject-matter
of the proceedings became known to the
Superintendent, in the case of a serious
violation or a very serious violation.
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Certificate of
Superinten- dent
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(2) A document appearing to have been
issued by the Superintendent, certifying the
day on which the subject-matter of any
proceedings became known to the
Superintendent, is admissible in evidence
without proof of the signature or official
character of the person appearing to have
signed it and is, in the absence of evidence to
the contrary, proof of the matter asserted in it.
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462. Sections 23.3, 24 and 25 of the Act
are renumbered as sections 38, 39 and 40,
respectively.
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