PAYMENT CLEARING AND SETTLEMENT ACTPayment Clearing and Settlement RegulationsP.C.2019-92520196
22
Her Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 24a of the Payment Clearing and Settlement Actb, makes the annexed Payment Clearing and Settlement Regulations.S.C. 2018, c. 12, s. 243S.C. 1996, c. 6, Sch.DefinitionsThe following definitions apply in these Regulations.Act means the Payment Clearing and Settlement Act. (Loi)affiliate means an affiliated person or entity within the meaning of subsection (2). (groupe)Affiliated persons or entitiesFor the purpose of these Regulations,one person or entity is affiliated with another person or entity if one of them is the subsidiary of the other or both are subsidiaries of the same person or entity or each of them is controlled by the same person or entity; andif two persons or entities are affiliated with the same person or entity at the same time, they are deemed to be affiliated with each other.ControlFor the purpose of these Regulations,a person or entity controls a corporation if shares of the corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation are held, directly or indirectly, by the person or entity and the votes attached to those shares are sufficient, if exercised, to elect a majority of the directors of the corporation;a person or entity controls a trust, fund or partnership (other than a limited partnership) or an unincorporated association or organization, if more than 50% of the ownership interests, however designated, into which the trust, fund, partnership, association or organization is divided are held, directly or indirectly, by the person or entity and the person or entity is able to direct the business and affairs of the trust, fund, partnership, association or organization; andthe general partner of a limited partnership controls the limited partnership.SubsidiaryA person or entity is a subsidiary of another person or entity ifit is controlled bythat other person or entity,that other person or entity and one or more persons or entities, each of which is controlled by that other person or entity, ortwo or more persons or entities, each of which is controlled by that other person or entity; orit is a subsidiary of a subsidiary of that other person or entity.Limited clearing memberFor the purposes of subsection 11.11(4) of the Act, a limited clearing member means a participant in a clearing and settlement system designated under subsection 4(1) of the Act who, under the rules of the system,is not required to contribute to a default fund;is not required to absorb any losses arising from the default of another participant in the system other than a reduction in the amount of variation margin gain that is returnable to the participant if the gain results from a transaction that was entered into by the participant and the defaulting participant and subsequently submitted for clearing to the clearing house of the system; andis subject to additional initial margin.Ownership interestIn these Regulations, a reference to an ownership interest in a clearing house does not include shares of the clearing house.Conflict of interestFor the purposes of subsection 11.04(6) of the Act, no member of the committee shall beneficially own, directly or indirectly, shares of a clearing house of a clearing and settlement system designated under subsection 4(1) of the Act or of an entity that controls such a clearing house.Contents of resolution planA resolution plan for a clearing and settlement system referred to in section 11.05 of the Act must includea risk profile of the system that describesthe design of the system,the corporate governance or organizational structure of its clearing house,by way of a diagram or otherwise, the intercorporate relationships between the clearing house of the system and each of its affiliates, including with respect to each affiliateits name and the law by or under which it was incorporated, continued or formed, andthe percentage of votes attaching to all voting shares of the affiliate that are held, directly or indirectly, by another affiliate,the critical clearing and settlement functions performed by the system or its clearing house,the critical services referred to in paragraph 11.07(1)(f) of the Act that are provided to its clearing house by a service provider,the critical operational resources of the system and its clearing house, including staff and information technology, andany contractual or operational arrangements between the system or its clearing house with other clearing houses or systems;a resolution strategy that sets out the principal measures that could be taken in the event of a declaration of non-viability;an assessment of the resources that may be necessary to implement the resolution strategy including the financial resources and loss allocation tools provided for in the rules, by-laws or related arrangements of the system or its clearing house;an operational plan that sets outthe manner in which the resolution strategy could be implemented, andany potential barriers to a resolution; anda statement that the plan has been approved by the Governor of the Bank.Review and modificationsThe Governor of the Bank must review and make any necessary modifications to the resolution planat least once during each 12-month period following the development or modification of the plan; andwithout delay after any change referred to in any of paragraphs 9(2)(a) to (c) of the Act is made.Persons from whom costs may be recoveredFor the purposes of section 11.18 of the Act, the Bank may recover the costs of a resolution froma clearing house that has been declared non-viable under section 11.06 of the Act;the clearing house of a clearing and settlement system that has been declared non-viable under section 11.06 of the Act; andany person or entity who was a participant in a clearing and settlement system on the day on which a declaration of non-viability was made in respect of the system or its clearing house or on any subsequent day.CostsThe costs of a resolution of a clearing and settlement system or clearing house are the costs incurred, and the amounts paid, by the Bank in order toaddress the financial losses, or shortfalls in liquidity or capital adequacy, of the clearing house;maintain the pre-funded financial resources at the level provided for in the by-laws, rules or arrangements that govern the clearing and settlement system or clearing house;operate the clearing and settlement system or clearing house;meet a participant’s financial obligations to the clearing house;administer the compensation process referred to in sections 6 to 18; andgenerally execute the resolution.Limited clearing memberThe costs of a resolution that the Bank may recover from a limited clearing member are limited to the costs incurred, and the amounts paid, by the Bank in order tooperate the clearing and settlement system or clearing house;administer the compensation process referred to in sections 6 to 18; andmeet the member’s financial obligations to the clearing house.Amounts not includedThe amounts paid under sections 13 and 18 are not included in subsections (2) or (3).Recovery of certain costs — participantIf the Bank incurs a cost or pays an amount in order to meet a participant’s financial obligations to a clearing house, it must attempt to recover that cost or amount from the participant before attempting to recover it from a clearing house or other participant.Recovery of certain costs — clearing houseIf the Bank incurs a cost or pays an amount referred to in any of paragraphs (2)(a) to (c) and (f) in order to meet the obligations of a clearing house, it must attempt to recover that cost or amount from the clearing house before attempting to recover it from a participant.Prescribed persons and entitiesThe following persons or entities are prescribed for the purposes of subsection 11.26(1) of the Act:any person or entity that was a creditor of a clearing house immediately before a declaration of non-viability was made in respect of the clearing house or its clearing and settlement system;any participant that is subject to an order made under subsection 11.11(1) of the Act and was a participant in a clearing and settlement system immediately before a declaration of non-viability was made in respect of the system or its clearing house;any shareholder of a clearing house that is subject to an order made under paragraph 11.09(1)(b) of the Act and that was a shareholder of the clearing house immediately before a declaration of non-viability was made in respect of the clearing house or its clearing and settlement system;any holder of an ownership interest in a clearing house that is subject to an order made under paragraph 11.09(1)(b) of the Act and that was a holder of an ownership interest in the clearing house immediately before a declaration of non-viability was made in respect of the clearing house or its clearing and settlement system.Exclusion — creditorsDespite paragraph (1)(a), the following persons or entities are not prescribed:a person or entity that continues to receive, during the period beginning at the time the declaration of non-viability is made and ending on the day specified in the notice published under section 11.24 of the Act, payment in respect of the debt in accordance with the terms of the debt; ora person or entity to which the clearing house is indebted as a result of the clearing houseacting as a central counter-party, orproviding clearing or settlement services for a clearing or settlement system.Successors, assignees and transfereesA prescribed person or entity referred to in subsection (1) includes the successor of the person or entity but does not include an assignee or transferee.Compensation — creditorsThe amount of compensation to which a prescribed person or entity referred to in paragraph 6(1)(a) is entitled is the total of any amounts owing that were not paid by or on behalf of the clearing house to the person or entity in accordance with the terms of their contract during the period beginning at the time the declaration of non-viability was made in respect of the clearing house or its clearing and settlement system and ending on the day the day specified in the notice published under section 11.24 of the Act.Compensation — participantsThe amount of compensation to which a participant referred to in paragraph 6(1)(b) is entitled is the amount equal to the estimated value of the net losses incurred by the participant as a result of the making of an order under subsection 11.11(1) of the Act.AssumptionThe value of the net losses referred to in subsection (1) must be estimatedas if the measures to address financial loss, or shortfalls in liquidity or capital adequacy, that were specified in the by-laws or rules of the clearing house, or in an arrangement that relates to its clearing and settlement system, were exhausted; andwithout taking into consideration any assistance, financial or other, that is or may be provided to the participant, directly or indirectly, by the Bank or by Her Majesty in right of Canada or a province after the declaration of non-viability was made.Resolution and liquidation valuesFor the purposes of determining the amount of compensation to which a prescribed person or entity referred to in paragraph 6(1)(c) or (d) is entitled, the Bank must estimate the applicable resolution and liquidation values referred to in this section.Resolution value in respect of a shareThe resolution value in respect of a share is the total of the estimated value ofthe share on the day specified in the notice published under section 11.24 of the Act,any dividend paid after the declaration of non-viability was made with respect to the share, andany other cash, securities or other rights or interests that are received or are to be received with respect to the share as a direct or indirect result of the making of an order under paragraph 11.09(1)(b) of the Act and any actions taken in furtherance of the order.Resolution value in respect of an ownership interestThe resolution value in respect of an ownership interest in a clearing house is the total of the estimated value ofthe ownership interest on the day specified in the notice published under section 11.24 of the Act,any amount received after the declaration of non-viability was made with respect to the ownership interest, andany cash, securities or other rights or interests that are received or are to be received with respect to the ownership interest as a direct or indirect result of the making of an order under paragraph 11.09(1)(b) of the Act and any actions taken in furtherance of the order.Liquidation value in respect of a share or ownership interestThe liquidation value in respect of a share or ownership interest in a clearing house is the estimated value that the shareholder or holder of the ownership interest would have received in respect of the share or ownership interest ifthe clearing house had become bankrupt and been liquidated at the time a declaration of non-viability was made; andthe measures to address financial losses, or shortfalls in liquidity or capital adequacy, that were specified in its by-laws or rules, or in an arrangement that relates to the clearing and settlement system, were exhausted.AssumptionsThe liquidation value referred to in subsection (4) must be estimatedas if no declaration of non-viability was made; andwithout taking into consideration any assistance, financial or other, that is or may be provided to the clearing house, directly or indirectly, by the Bank or by Her Majesty in right of Canada or a province after the declaration of non-viability was made.Compensation — shareholdersThe amount of compensation to which a shareholder referred to in paragraph 6(1)(c) is entitled is determined by the formulaA – BwhereAis the estimated liquidation value in respect of their shares; andBis the estimated resolution value in respect of their shares.Compensation — holders of ownership interestsThe amount of compensation to which a holder of an ownership interest referred to in paragraph 6(1)(d) is entitled is determined by the formulaA – BwhereAis the estimated liquidation value in respect of the ownership interest; andBis the estimated resolution value in respect of the ownership interest.Negative valueFor greater certainty, if the amount of compensation determined under this section is a negative value, the amount of compensation is zero.Notice — offer of compensationWithin a reasonable period of time after the day specified in the notice published under section 11.24 of the Act, the Bank must give each person or entity that was prescribed in respect of the clearing and settlement system or clearing house a notice containing an offer of compensation in an amount equal to, or of a value estimated by the Bank to be equal to, the compensation to which that person or entity is entitled.Contents of noticeThe notice muststate that an order has been made under paragraph 11.09(1)(b) or subsection 11.11(1) of the Act;describe the order’s effects;state that the prescribed person or entity has 45 days beginning on the day on which a summary of the notice is published in the Canada Gazette to notify the Bank of their decision to accept or object to the offer, or to object to the absence of an offer;state that if the offer or the absence of an offer is objected to by the prescribed person or entity, the compensation to be paid will be determined by an assessor; andstate that if the prescribed person or entity does not notify the Bank of their objection within the period set out in paragraph (c), the person or entity will receive the compensation offered or no compensation, as the case may be, and will not be permitted to contest its amount or value or the fact that no compensation is offered.PublicationA summary of the notice given under subsection 11(1) must be published in the Canada Gazette and on the website of the clearing house.Payment of compensationThe Bank must pay a prescribed person or entity referred to in section 6 any compensation offered under subsection 11(1) ifthe person or entity notifies the Bank of its acceptance of the offer within the period set out in paragraph 11(2)(c); orthe person or entity does not notify the Bank of its acceptance of, or objection to, the offer within that period.Appointment of assessorAn assessor must be appointed under section 11.28 of the Act if the person or entity notifies the Bank that it objects to the offer, or the absence of an offer, within the period set out in paragraph 11(2)(c).Notice of appointmentWithin 45 days after the day on which an assessor is appointed, the Bank must provide, to each person and entity whose compensation is to be determined by the assessor, a notice of the appointment that states that the person or entity is bound by the assessor’s determination of the amount of compensation to be paid which may be lower or higher than that contained in the offer.Assessor’s determinationThe assessor must determine the amount of compensation to be paid in accordance with sections 7 to 10.Assessor’s noticeThe assessor must provide, to every prescribed person or entity whose compensation is determined by the assessor, a noticesetting out the assessor’s determination of the amount of compensation to which the person or entity is entitled;stating that the person or entity is bound by the assessor’s determination as to the amount of compensation to be paid; andstating that the Bank must pay the compensation within 90 days after the date of the notice.Copy to BankThe assessor must provide a copy of each notice to the Bank.Payment of compensationThe Bank must pay a prescribed person or entity the compensation that it is entitled to receive withinif a notice referred to in subsection 17(1) is provided to the person or entity, 90 days after the date of that notice; orin any other case, 135 days after the day on which a summary of the notice given under subsection 11(1) is published in the Canada Gazette.Oversight informationFor the purposes of section 2 of the Act, oversight information means any information contained in the following documents:directives issued by the Governor of the Bank under subsection 6(1) or (2) of the Act to a clearing house or a participant and any correspondence to or from the directors or officers of the clearing house or the participant that is related to the directive;reports prepared by or at the request of the Bank, including any written recommendations prepared by the Bank, as a result of an audit, inspection or other oversight review of a clearing and settlement system;any correspondence to or from the directors or officers of a clearing house that is related to a report or recommendation referred to in paragraph (b);resolution plans referred to in subsection 11.05(1) of the Act;documents that are prepared by or at the request of the Bank for the purpose of advising the Governor of the Bank on whether to make a declaration of non-viability under section 11.06 of the Act.Disclosure to affiliatesA clearing house may disclose oversight information in respect of its clearing and settlement system to its affiliates, its directors, officers, employees, auditors, securities underwriters and legal advisors and those of its affiliates, if the clearing house ensures that the information remains confidential.Disclosure to government or regulatory bodyA clearing house may disclose oversight information in respect of its clearing and settlement system to any government authority or regulatory body thatregulates the system; andhas entered into an agreement or arrangement with the Bank under section 13.3 of the Act in respect of the system and oversight information.Coming into forceThese Regulations come into force on the first day on which both sections 237 and 242 of the Budget Implementation Act, 2018, No. 1, chapter 12 of the Statutes of Canada, 2018, come into force, but if they are registered after that day, they come into force on the day on which they are registered.[Note: Regulations in force June 25, 2019.]