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Bill C-38

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First Reading

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	APPROPRIATION
Expenditures out of C.R.F.	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.
Spending authority	(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.
	CONFLICT OF INTEREST
Ownership	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.
Borrowing	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.
No grant or gratuity to be made	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.
Offence and punishment	(2) Every person, financial institution, bank holding company or insurance holding company that contravenes subsection (1) is guilty of an offence and liable
	(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
	(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.
	CONFIDENTIALITY
Confidential information	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 subsection 5(1), 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 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
	(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.
	ASSESSMENTS
Commissioner to ascertain expenses	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.
Amount conclusive	(2) The amounts ascertained under subsection (1) are final and conclusive for the purposes of this section.
Assessment	(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.
Interim assessment	(4) The Commissioner may, during each fiscal year, prepare an interim assessment against any financial institution.
Assessment is binding	(5) Every assessment and interim assessment is final and conclusive and binding on the financial institution against which it is made.
Recovery	(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.
Interest	(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%.
	ADMINISTRATIVE MONETARY PENALTIES
	Violations
Regulations	19. (1) The Governor in Council may make regulations
	(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;
	(b) fixing, in accordance with subsection (2), a penalty, or a range of penalties, in respect of any violation;
	(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
	(d) generally, for carrying out the purposes and provisions of this section and sections 20 to 31.
Maximum penalties	(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.
Criteria for penalty	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
	(a) the degree of intention or negligence on the part of the person who committed the violation;
	(b) the harm done by the violation;
	(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
	(d) any other criteria that may be prescribed.
How act or omission may be proceeded with	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.
	Proceedings
Commission of violation	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.
Notice of violation	(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.
Contents of notice	(3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out
	(a) the penalty that the Commissioner proposes to impose;
	(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
	(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.
	Determination of Responsibility and Penalty
Payment of penalty	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.
Representa- tions to Commissioner	(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.
Failure to pay or make representa- tions	(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.
Notice of decision and right of appeal	(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.
	Appeal to Federal Court
Right of appeal	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.
Court to take precautions against disclosing	(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).
Powers of Court	(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.
	Enforcement
Debts to Her Majesty	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.
Time limit	(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.
Proceeds payable to Receiver General	(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.
Certificate of default	26. (1) The unpaid amount of any debt referred to in subsection 25(1) may be certified by the Commissioner.
Registration in Federal Court	(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.
	Rules about Violations
Violations not offences	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.
Due diligence available	28. (1) Due diligence is a defence in a proceeding in relation to a violation.
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.
	General Provisions
Evidence	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.
Time limit	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.
Certificate of Commissioner	(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.
Publication	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.