Guidelines for Commissioner’s Direction

I. Introduction

1. This document sets out the procedure applicable to the exercise of the power to direct a bank, authorized foreign bank, or person (Regulated Party) under section 661.1 of the Bank Act (Act) (Direction) by the Commissioner of the Financial Consumer Agency of Canada (FCAC).

II. Objective

2. These Guidelines support a transparent, consistent and expeditious process for the issuance of a Direction.

III. Commissioner’s Direction

3. If the Commissioner is of the opinion that the Regulated Party has failed to comply, or has reasonable grounds to believe that the Regulated Party will fail to comply, with any of the following:

1. a compliance agreement
2. a consumer provision
3. Part XIV of the Act

the Commissioner may issue a Direction for the Regulated Party to comply and perform any act, or refrain from performing any act, that in the opinion of the Commissioner is necessary.

4. A Direction may be issued on the Commissioner’s own initiative or further to a request made to the Commissioner, including from FCAC staff. A Direction may be issued as part of a proceeding under s. 22(1) of the Financial Consumer Agency of Canada Act (Proceeding) or further to a separate process, outside of a Proceeding.

IV. Notice of Direction

5. If the Commissioner is of the opinion that a Direction should be issued, a written notice is provided to the Regulated Party that sets out the Direction the Commissioner is considering issuing (Notice of Direction).

V. Representations

6. The Regulated Party may, within 15 days of receiving the Notice of Direction, make representations in writing and include:

1. the facts relied on
2. any argument in support of the Regulated Party’s position
3. any supporting document the Regulated Party relies on in support of its position

7. An extension of the period to make representations may be granted, on an exception basis, if the Commissioner determines that the facts and circumstances giving rise to the request so warrant.

8. A request for extension should be made to the Commissioner in writing within 5 days of receiving the Notice of Direction and include:

1. the extension requested
2. the reasons for the request of the extension
3. any supporting document the Regulated Party relies on in support of the request

VI. Issuance of Direction

9. The Commissioner serves the Direction issued on the Regulated Party together with information on the Regulated Party’s right to judicial review.

VII. Temporary Direction

10. If the Commissioner determines that the Direction should be issued as a temporary one in accordance with s. 661.1(3) of the Act (Temporary Direction), the Commissioner serves the Temporary Direction on the Regulated Party.

11. The Temporary Direction has effect for a period of not more than 15 days unless its effect continues in accordance with s. 14 of these Guidelines.

12. The Regulated Party must comply with the Temporary Direction immediately.

13. The Regulated Party may, within 10 days of receiving the Temporary Direction, make representations to the Commissioner in writing.

14. The Temporary Direction continues to have effect after the 15-day period if:

1. the Regulated Party does not make representations within that period, or
2. representations have been made, and the Commissioner is not satisfied that there are sufficient grounds for revoking the Temporary Direction

15. The Regulated Party is provided written notice if the Temporary Direction continues to have effect after the 15-day period.

VIII. Revocation or variation

16. The Commissioner may revoke a Direction or Temporary Direction at any time by issuing an order revoking the Direction or Temporary Direction.

17. A Direction or Temporary Direction may be varied on the Commissioner’s own initiative and may be revoked or varied further to a request from the Regulated Party. Any such request must include:

1. the revocation or variation sought
2. the reasons for the request
3. the facts and supporting documents that the Regulated Party relies on in support of its request

18. If the Commissioner is of the opinion that a Direction or Temporary Direction should be varied, a written notice is provided to the Regulated Party that sets out the order to vary that the Commissioner is considering issuing (Variation Notice).

19. The Regulated Party may, within 15 days of receiving the Variation Notice, make representations in writing.

20. A request for extension to make representations may be made within 5 days of receipt of the Variation Notice in accordance with ss. 6 and 7 of these Guidelines.

21. The Commissioner serves the order revoking or varying the Direction or Temporary Direction on the Regulated Party together with information on the Regulated Party’s right to judicial review.

IX. Publication

22. A Direction, Temporary Direction, and the order revoking or varying same may be published on the FCAC web page.

X. Communications

23. Any communication to the Commissioner should be in writing and include:

1. the sender’s name, telephone number, address and email address
2. the title or description of any document transmitted
3. the name, telephone number and email address of a person to contact if transmission problems occur
4. in the case of an email, any attachment in PDF format (Portable Document Format)

24. Any communication addressed to the Commissioner may be provided in either official language.

25. Any communication addressed to the Commissioner should be sent to the Secretariat by:

1. email addressed to secretariat@fcac-acfc.gc.ca, or
2. mail addressed to:
   
   Financial Consumer Agency of Canada
   Attention: Secretariat
   427 Laurier Ave West
   5th Floor
   Ottawa, ON K1R 5C7

26. Any communication to be provided to a Regulated Party is sent by:

1. email to the address for the Regulated Party, or
2. mail to the mailing address of the Regulated Party

27. A communication is considered to be received:

1. on the day of the postmark date if sent by regular mail, or
2. on the day of delivery if sent by email

28. The computation of time is governed by the Interpretation Act.