Bank Act (S.C. 1991, c. 46)

Marginal note:Report on directors’ statement

• 327 (1) The auditor or auditors of a bank must, if required by the shareholders or, if the bank is a federal credit union, by the members or shareholders, if any, audit and report to the shareholders or members, as the case may be, on any financial statement submitted by the directors to the shareholders or members, and the report must state whether, in their opinion, the financial statement presents fairly the information required by the shareholders or members.

• Marginal note:Making of report

  (2) A report of the auditor or auditors made under subsection (1) must be attached to the financial statement to which it relates and a copy of the statement and report must be sent by the directors to the Superintendent, to every shareholder and, if the bank is a federal credit union, to every member and shareholder, if any.

Marginal note:Report to officers

• 328 (1) It is the duty of the auditor or auditors of a bank to report in writing to the chief executive officer and chief financial officer of the bank any transactions or conditions that have come to the attention of the auditor or auditors affecting the well-being of the bank that in the opinion of the auditor or auditors are not satisfactory and require rectification and, without restricting the generality of the foregoing, the auditor or auditors shall, as occasion requires, make a report to those officers in respect of

  • (a) transactions of the bank that have come to the attention of the auditor or auditors and that in the opinion of the auditor or auditors have not been within the powers of the bank, and

  • (b) loans owing to the bank by any person the aggregate amount of which exceeds one half of one per cent of the regulatory capital of the bank and in respect of which, in the opinion of the auditor or auditors, loss to the bank is likely to occur,

  but when a report required under paragraph (b) has been made in respect of loans to any person, it is not necessary to report again in respect of loans to that person unless, in the opinion of the auditor or auditors, the amount of the loss likely to occur has increased.

• Marginal note:Transmission of report

  (2) Where the auditor or auditors of a bank make a report under subsection (1),

  • (a) the auditor or auditors shall transmit the report, in writing, to the chief executive officer and chief financial officer of the bank;

  • (b) the report shall be presented to the first meeting of the directors following its receipt;

  • (c) the report shall be incorporated in the minutes of that meeting; and

  • (d) the auditor or auditors shall, at the time of transmitting the report to the chief executive officer and chief financial officer, provide the audit committee of the bank and the Superintendent with a copy.

Marginal note:Auditors of subsidiaries

• 329 (1) A bank shall take all necessary steps to ensure that each of its subsidiaries has as its auditor the auditor or one of the auditors of the bank.

• Marginal note:Subsidiary outside Canada

  (2) Subsection (1) applies in the case of a subsidiary that carries on its operations in a country other than Canada unless the laws of that country do not permit the appointment of an auditor of the bank as the auditor of that subsidiary.

• Marginal note:Exception

  (3) Subsection (1) does not apply in respect of any particular subsidiary where the bank, after having consulted its auditor or auditors, is of the opinion that the total assets of the subsidiary are not a material part of the total assets of the bank.

Marginal note:Auditors’ attendance

• 330 (1) The auditors of a bank are entitled to receive notice of every meeting of the committee designated under paragraph 157(2)(e), if that committee is to perform the duties set out in section 195.1 in that meeting, of the audit committee and of the conduct review committee and, at the expense of the bank, to attend and be heard at that meeting.

• Marginal note:Attendance

  (2) If so requested by a member of the audit committee, the auditor or auditors shall attend every meeting of the audit committee held during the member’s term of office.

Marginal note:Calling meeting

• 331 (1) The auditor or auditors of a bank or a member of the audit committee may call a meeting of the audit committee.

• Marginal note:Right to interview

  (2) The chief internal auditor of a bank or any officer or employee of the bank acting in a similar capacity shall, at the request of the auditor or auditors of the bank and on receipt of reasonable notice, meet with the auditor or auditors.

Marginal note:Notice of errors

• 332 (1) A director or an officer of a bank shall forthwith notify the audit committee and the auditor or auditors of the bank of any error or misstatement of which the director or officer becomes aware in an annual statement or other financial statement on which the auditor or auditors or any former auditor or auditors have reported.

• Marginal note:Error noted by auditors

  (2) If the auditor or auditors or former auditor or auditors of a bank are notified or become aware of an error or misstatement in an annual statement or other financial statement on which the auditor or auditors reported and in the opinion of the auditor or auditors the error or misstatement is material, the auditor or auditors or former auditor or auditors shall inform each director of the bank accordingly.

• Marginal note:Duty of directors

  (3) When under subsection (2) the auditor or auditors or former auditor or auditors of a bank inform the directors of an error or misstatement in an annual statement or other financial statement, the directors shall

  • (a) prepare and issue a revised annual statement or financial statement; or

  • (b) otherwise inform the shareholders, and, if the bank is a federal credit union, its members, and the Superintendent of the error or misstatement.

Marginal note:Qualified privilege for statements

333 Any oral or written statement or report made under this Act by the auditor or auditors or former auditor or auditors of a bank has qualified privilege.

Remedial Actions

Marginal note:Derivative action

• 334 (1) Subject to subsection (2), a complainant or the Superintendent may apply to a court for leave to bring an action under this Act in the name and on behalf of a bank or any of its subsidiaries, or to intervene in an action under this Act to which the bank or a subsidiary of the bank is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the bank or the subsidiary.

• Marginal note:Conditions precedent

  (2) No action may be brought and no intervention in an action may be made under subsection (1) by a complainant unless the court is satisfied that

  • (a) the complainant has, not less than 14 days before bringing the application or as otherwise ordered by the court, given notice to the directors of the bank or the bank’s subsidiary of the complainant’s intention to apply to the court under subsection (1) if the directors of the bank or the bank’s subsidiary do not bring, diligently prosecute or defend or discontinue the action;

  • (b) the complainant is acting in good faith; and

  • (c) it appears to be in the interests of the bank or the subsidiary that the action be brought, prosecuted, defended or discontinued.

• Marginal note:Notice to Superintendent

  (3) A complainant under subsection (1) shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.

Marginal note:Powers of court

• 335 (1) In connection with an action brought or intervened in under subsection 334(1), the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing,

  • (a) an order authorizing the Superintendent, the complainant or any other person to control the conduct of the action;

  • (b) an order giving directions for the conduct of the action;

  • (c) an order directing that any amount adjudged payable by a defendant in the action be paid, in whole or in part, directly to the following instead of to the bank or the subsidiary:

    • (i) if the bank is not a federal credit union, former and present security holders of the bank or subsidiary, or

    • (ii) if the bank is a federal credit union, former and present members or security holders of the federal credit union or former and present security holders of the subsidiary; and

  • (d) an order requiring the bank or the subsidiary to pay reasonable legal fees incurred by the Superintendent or the complainant in connection with the action.

• Marginal note:Jurisdiction

  (2) Notwithstanding subsection (1), the court may not make any order in relation to any matter that would, under this Act, require the approval of the Minister or the Superintendent.

Marginal note:Status of approval

• 336 (1) An application made or an action brought or intervened in under subsection 334(1) or section 338 need not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the bank or its subsidiary has been or might be approved by the shareholders or members of the bank, or by the shareholders of the subsidiary, but evidence of approval by the shareholders or the members, as the case may be, may be taken into account by the court in making an order under section 335.

• Marginal note:Court approval to discontinue

  (2) An application made or an action brought or intervened in under subsection 334(1) or section 338 shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on such terms as the court thinks fit and, if the court determines that the interests of any complainant might be substantially affected by any stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant.

Marginal note:No security for costs

• 337 (1) A complainant is not required to give security for costs in any application made or any action brought or intervened in under subsection 334(1) or section 338.

• Marginal note:Interim costs

  (2) In an application made or an action brought or intervened in under subsection 334(1) or section 338, the court may at any time order the bank or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable by the court for those interim costs on final disposition of the application or action.

Marginal note:Application to rectify records

• 338 (1) If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the securities register, the members register or any other record of a bank, the bank, a security holder of the bank, a member of the bank or any aggrieved person may apply to a court for an order that the register or record be rectified.

• Marginal note:Notice to Superintendent

  (2) An applicant under this section shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.

• Marginal note:Powers of court

  (3) In connection with an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing,

  • (a) an order requiring the register or other record of the bank to be rectified;

  • (b) an order restraining a bank from calling or holding a meeting of shareholders or members, or paying a dividend or patronage allocation, before the rectification;

  • (c) an order determining the right of a party to the proceedings to have the party’s name entered or retained in, or deleted or omitted from, the register or records of the bank, whether the issue arises between two or more security holders or alleged security holders, or two or more members or alleged members, or between the bank and any security holder or alleged security holder or member or alleged member; and

  • (d) an order compensating a party who has incurred a loss.

Liquidation and Dissolution

Definition of court

339 For the purposes of subsections 346(1) and 347(1) and (2), sections 348 to 352, subsection 353(1), sections 355 and 357 to 359, subsections 363(3) and (4) and section 368, court means a court having jurisdiction in the place where the bank has its head office.

Marginal note:Application of subsection (2) and sections 341 to 368

• 340 (1) Subsection (2) and sections 341 to 368 do not apply to a bank that is insolvent within the meaning of the Winding-up and Restructuring Act.

• Marginal note:Staying proceedings on insolvency

  (2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve a bank shall be stayed if the bank is at any time found to be insolvent within the meaning of the Winding-up and Restructuring Act.

Marginal note:Returns to Superintendent

341 A liquidator appointed under this Part to wind up the business of a bank shall provide the Superintendent with such information relating to the business and affairs of the bank in such form as the Superintendent requires.

Simple Liquidation

Marginal note:No property and no liabilities

• 342 (1) A bank that has no property and no liabilities may apply to the Minister for letters patent dissolving the bank if it is authorized by

  • (a) in the case of a bank that is not a federal credit union, a special resolution of the shareholders or, if there are no shareholders, by a resolution of all the directors; or

  • (b) in the case of a federal credit union, a special resolution of the members and a separate special resolution of the shareholders, if any.

• Marginal note:Dissolution by letters patent

  (2) Where the Minister has received an application under subsection (1) and is satisfied that all the circumstances so warrant, the Minister may issue letters patent dissolving the bank.

• Marginal note:Effect of letters patent

  (3) A bank in respect of which letters patent are issued under subsection (2) ceases to exist on the day stated in the letters patent.

Marginal note:Proposing liquidation

• 343 (1) The voluntary liquidation and dissolution of a bank, other than a bank referred to in subsection 342(1),

  • (a) may be proposed by its directors;

  • (b) may, if the bank is not a federal credit union, be initiated by way of a proposal made by a shareholder who is entitled to vote at an annual meeting of shareholders in accordance with sections 143 and 144; or

  • (c) may, if the bank is a federal credit union, be initiated by way of a proposal made by a member in accordance with section 144.1.

• Marginal note:Terms must be set out

  (2) A notice of any meeting at which the voluntary liquidation and dissolution of a bank is to be proposed must set out the terms of the proposal.