Financial Consumer Agency of Canada Act (S.C. 2001, c. 9)

Assessments

Marginal note: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 — excluding the expenses incurred in connection with the objects described in subsection 3(3) — and the amounts of any prescribed categories of those expenses in relation to any prescribed group of financial institutions and the external complaints body.

• Marginal note:Commissioner to ascertain expenses — direction

  (1.1) After the publication of a notice under subsection 5.1(5), the Commissioner shall ascertain the amount of expenses that the Agency incurred in complying with the direction.

• Marginal note:Amount conclusive

  (2) The amounts ascertained under subsections (1) and (1.1) are final and conclusive for the purposes of this section.

• Marginal note:Assessment

  (3) As soon as possible after ascertaining the amounts under subsections (1) and (1.1), the Commissioner shall assess a portion of the total amount of expenses against each financial institution and the external complaints body to the extent and in the manner that the Governor in Council may, by regulation, prescribe.

• Marginal note:Exception

  (3.1) No assessment is to be made in respect of

  • (a) a company to which the Insurance Companies Act applies that was exempt from the application of paragraphs 165(2)(f) and (g) and sections 479 to 489.2 of that Act during the entire fiscal year to which the assessment relates; or

  • (b) a foreign company to which that Act applies that was exempt from the application of sections 598 to 607.1 of that Act during the entire fiscal year to which the assessment relates.

• Marginal note:Interim assessment

  (4) The Commissioner may, during each fiscal year, prepare an interim assessment against any financial institution or the external complaints body.

• Marginal note:Assessment for financial literacy

  (4.1) The Commissioner may, during a fiscal year, impose an assessment against any financial institution to cover some or all of the expenses related to initiatives to strengthen the financial literacy of Canadians.

• Marginal note:Assessment is binding

  (5) Every assessment and interim assessment is final and conclusive and binding on the financial institution against which it is made or the external complaints body, as the case may be.

• Marginal note:Commissioner to ascertain expenses — payment card network operators

  (5.1) The Commissioner shall, before December 31 in each year, ascertain the total amount of expenses incurred during the immediately preceding fiscal year in connection with the objects described in paragraphs 3(3)(a), (b) and (d).

• Marginal note:Amount conclusive

  (5.2) The amount ascertained under subsection (5.1) is final and conclusive for the purposes of this section.

• Marginal note:Assessment

  (5.3) As soon as possible after ascertaining the amount under subsection (5.1), the Commissioner shall assess a portion of the total amount of expenses against each payment card network operator to the extent and in the manner that may be prescribed.

• Marginal note:Interim assessment

  (5.4) The Commissioner may, during each fiscal year, prepare an interim assessment against any payment card network operator.

• Marginal note:Assessment is binding

  (5.5) Every assessment and interim assessment is final and conclusive and binding on the payment card network operator against which it is made.

• Marginal note: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.

• Marginal note: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

Marginal note: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

    • (i) a compliance agreement entered into under an Act listed in Schedule 1, and

    • (ii) terms and conditions, undertakings or directions referred to in subparagraph 3(2)(a)(ii).

  • (a.1) designating, as a violation that may be proceeded with under sections 20 to 31, the contravention of a specified provision of the Payment Card Networks Act or its regulations;

  • (a.2) designating, as a violation that may be proceeded with under sections 20 to 31, the non-compliance with an agreement entered into under section 7.1;

  • (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;

  • (c.1) prescribing the circumstances in which the Commissioner shall not make public, under subsection 31(1), the name of the person who committed the violation; and

  • (d) generally, for carrying out the purposes and provisions of this section and sections 20 to 31.

• Marginal note:Maximum penalties

  (2) The maximum penalty for a violation is $1,000,000 in the case of a violation that is committed by a natural person, and $10,000,000 in the case of a violation that is committed by a financial institution or a payment card network operator.

Marginal note: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 duration of the violation;

• (d) the ability of the person who committed the violation to pay the penalty;

• (e) 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

• (f) any other criteria that may be prescribed.

Marginal note:Purpose of penalty

20.1 The purpose of the penalty is to promote compliance with the consumer provisions, compliance agreements that have been entered into under an Act listed in Schedule 1, any terms and conditions, undertakings or directions referred to in subparagraph 3(2)(a)(ii), the provisions of the Payment Card Networks Act or its regulations, and agreements entered into under section 7.1, and not to punish.

Marginal note:How act or omission may be proceeded with

21 If a contravention or non-compliance that is designated under paragraph 19(1)(a) or (a.1) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Proceedings

Marginal note:Commission of violation

• 22 (1) Every contravention or non-compliance that is designated under paragraphs 19(1)(a) to (a.2) constitutes a violation and the person that commits the violation is liable to a penalty determined in accordance with sections 19 and 20.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note:Representations 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.

• Marginal note:Failure to pay or make representations

  (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.

• Marginal note: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

Marginal note: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.

• Marginal note: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) or (3).

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Certificate of default

• 26 (1) The unpaid amount of any debt referred to in subsection 25(1) may be certified by the Commissioner.

• Marginal note: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

Marginal note: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.

Marginal note:Due diligence available

• 28 (1) Due diligence is a defence in a proceeding in relation to a violation.

• Marginal note: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.

• Marginal note:Common law principles — Payment Card Networks Act

  (3) 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 provision of the Payment Card Networks Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

General Provisions

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note:Publication

• 31 (1) Subject to any regulations, the Commissioner shall make public the nature of a violation, the name of the person who committed it and the amount of the penalty imposed.

• Marginal note:Publication — reasons

  (2) In making public the nature of a violation, the Commissioner may include the reasons for his or her decision, including the relevant facts, analysis and considerations that formed part of the decision.