Bank Act (S.C. 1991, c. 46)

Marginal note:Final order

• 358 (1) If the court approves the final accounts rendered by a liquidator, the court shall make an order

  • (a) directing the bank to apply to the Minister for letters patent dissolving the bank;

  • (b) directing the custody or disposal of the documents, records and registers of the bank; and

  • (c) discharging the liquidator except in respect of the duty of a liquidator under subsection (2).

• Marginal note:Delivery of order

  (2) The liquidator shall forthwith send a certified copy of the order referred to in subsection (1) to the Superintendent.

Marginal note:Right to distribution of money

• 359 (1) If in the course of the liquidation of a bank that is not a federal credit union the shareholders resolve, or the liquidator proposes, to exchange all or substantially all of the remaining property of the bank for securities of another entity that are to be distributed to the shareholders or to the incorporators — or to distribute all or part of the remaining property of the bank to the shareholders or to the incorporators in kind — a shareholder or incorporator may apply to the court for an order requiring the distribution of the remaining property of the bank to be in money.

• Marginal note:Right to distribution of money — federal credit union

  (2) If in the course of the liquidation of a federal credit union the members resolve, or the liquidator proposes, to exchange all or substantially all of the remaining property of the federal credit union for securities of another entity that are to be distributed to the members or to members and shareholders — or to distribute all or part of the remaining property of the federal credit union to the members or to members and shareholders in kind — a member or shareholder may apply to the court for an order requiring the distribution of the remaining property of the federal credit union to be in money.

• Marginal note:Powers of court

  (3) On an application under subsection (1) or (2) , the court may order

  • (a) all of the remaining property of the bank to be converted into and distributed in money; or

  • (b) the claim of any person applying under this section to be satisfied by a distribution in money.

• Marginal note:Order by court

  (4) If an order is made by a court under paragraph (3)(b), the court

  • (a) must fix a fair value on the share of the property of the bank attributable to the person;

  • (b) may in its discretion appoint one or more appraisers to assist the court in fixing a fair value in accordance with paragraph (a); and

  • (c) must render a final order against the bank in favour of the person for the amount of the share of the bank’s property attributable to the person.

Marginal note:Dissolution by letters patent

• 360 (1) On an application made pursuant to an order under paragraph 358(1)(a), the Minister may issue letters patent dissolving the bank.

• Marginal note:Bank dissolved

  (2) A bank in respect of which letters patent are issued under subsection (1) is dissolved and ceases to exist on the date of the issuance of the letters patent.

General

Definition of shareholder, member and incorporator

361 In sections 363 and 364, shareholder, member and incorporator include the heirs and personal representatives of a shareholder, member or incorporator, respectively.

Marginal note:Continuation of actions

• 362 (1) Notwithstanding the dissolution of a bank under this Part,

  • (a) a civil, criminal or administrative action or proceeding commenced by or against the bank before its dissolution may be continued as if the bank had not been dissolved;

  • (b) a civil, criminal or administrative action or proceeding may be brought against the bank within two years after its dissolution as if the bank had not been dissolved; and

  • (c) any property that would have been available to satisfy any judgment or order if the bank had not been dissolved remains available for that purpose.

• Marginal note:Service on bank

  (2) Service of a document on a bank after its dissolution may be effected by serving the document on a person shown as a director in the incorporating instrument of the bank or, if applicable, in the latest return sent to the Superintendent under section 632.

Marginal note:Limitations on liability

• 363 (1) Despite the dissolution of a bank, a shareholder, member or incorporator to whom any of its property has been distributed is liable to any person claiming under subsection 362(1) to the extent of the amount received by that shareholder, member or incorporator on the distribution.

• Marginal note:Limitation

  (2) An action to enforce liability under subsection (1) may not be commenced except within two years after the date of the dissolution of the bank.

• Marginal note:Action against class

  (3) A court may order an action referred to in subsections (1) and (2) to be brought against the persons who were shareholders, members or incorporators as a class, subject to any conditions that the court thinks fit.

• Marginal note:Reference

  (4) If the plaintiff establishes a claim in an action under subsection (3), the court may refer the proceedings to a referee or other officer of the court who may

  • (a) add as a party to the proceedings each person found by the plaintiff to have been a shareholder, member or incorporator;

  • (b) determine, subject to subsection (1), the amount that each person who was a shareholder, member or incorporator must contribute towards satisfaction of the plaintiff’s claim; and

  • (c) direct payment of the amounts so determined.

Marginal note:Persons who cannot be found

364 If a creditor, shareholder, member or incorporator to whom property is to be distributed on the dissolution of a bank cannot be found, the portion of the property to be distributed to that creditor, shareholder, member or incorporator is to be converted into money and paid in accordance with section 366.

Marginal note:Vesting in Crown

365 Subject to subsection 362(1) and sections 366 and 367, property of a bank that has not been disposed of at the date of the dissolution of the bank vests in Her Majesty in right of Canada.

Marginal note:Unclaimed money on winding-up

• 366 (1) Despite the Winding-up and Restructuring Act, if the business of a bank is being wound up, the liquidator or the bank must pay to the Minister on demand and in any event before the final winding-up of that business any amount that is payable by the liquidator or the bank to a creditor, shareholder, member or incorporator of the bank to whom payment of that amount has not, for any reason, been made.

• Marginal note:Records

  (2) If a liquidator or a bank makes a payment to the Minister under subsection (1) with respect to a creditor, shareholder, member or incorporator, the liquidator or bank must concurrently forward to the Minister all documents, records and registers in the possession of the liquidator or bank that relate to the entitlement of the creditor, shareholder, member or incorporator.

• Marginal note:Payment to Bank of Canada

  (3) The Minister shall pay to the Bank of Canada all amounts paid to the Minister under subsection (1) and shall provide the Bank of Canada with any document, record or register received by the Minister under subsection (2).

• Marginal note:Liquidator and bank discharged

  (4) Payment by a liquidator or a bank to the Minister under subsection (1) discharges the liquidator and the bank in respect of which the payment is made from all liability for the amount so paid, and payment by the Minister to the Bank of Canada under subsection (3) discharges the Minister from all liability for the amount so paid.

Marginal note:Liability of Bank of Canada

• 367 (1) Subject to section 22 of the Bank of Canada Act, where payment has been made to the Bank of Canada of an amount under subsection 366(3), the Bank of Canada, if payment is demanded by a person who, but for subsection 366(4), would be entitled to receive payment of that amount from the liquidator, the bank or the Minister, is liable to pay to that person at its head office an amount equal to the amount so paid to it, with interest thereon for the period, not exceeding ten years, from the day on which the payment was received by the Bank of Canada until the date of payment to the person, at such rate and computed in such manner as the Minister determines.

• Marginal note:Enforcing liability

  (2) The liability of the Bank of Canada under subsection (1) may be enforced by action against the Bank of Canada in the court in the province in which the debt or instrument was payable.

Marginal note:Custody of records after dissolution

368 A person who has been granted custody of the documents, records and registers of a dissolved bank shall keep them available for production for six years following the date of the dissolution of the bank or until the expiration of such shorter period as may be ordered by the court when it orders the dissolution.

Marginal note:Insolvency

• 369 (1) In the case of the insolvency of a bank,

  • (a) the payment of any amount due to Her Majesty in right of Canada, in trust or otherwise, except indebtedness evidenced by subordinated indebtedness, shall be a first charge on the assets of the bank;

  • (b) the payment of any amount due to Her Majesty in right of a province, in trust or otherwise, except indebtedness evidenced by subordinated indebtedness, shall be a second charge on the assets of the bank;

  • (c) the payment of the deposit liabilities of the bank and all other liabilities of the bank, except the liabilities referred to in paragraphs (d) and (e), shall be a third charge on the assets of the bank;

  • (d) subordinated indebtedness of the bank and all other liabilities that by their terms rank equally with or subordinate to such subordinated indebtedness shall be a fourth charge on the assets of the bank; and

  • (e) the payment of any fines and penalties for which the bank is liable shall be a last charge on the assets of the bank.

• Marginal note:Priority not affected

  (2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of a bank.

• Marginal note:Priorities

  (3) Priorities within each of paragraphs (1)(a) to (e) shall be determined in accordance with the laws governing priorities and, where applicable, by the terms of the indebtedness and liabilities referred to therein.

PART VIIOwnership

DIVISION IDefinitions and Interpretation

Marginal note:Definitions

• 370 (1) In this Part,

  agent

  agent means

  • (a) in relation to Her Majesty in right of Canada or of a province, any agent of Her Majesty in either of those rights and includes a municipal or public body empowered to perform a function of government in Canada or any entity empowered to perform a function or duty on behalf of Her Majesty in either of those rights, but does not include

    • (i) an official or entity performing a function or duty in connection with the administration or management of the estate or property of a natural person,

    • (ii) an official or entity performing a function or duty in connection with the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons, or moneys derived from such a fund, or

    • (iii) the trustee of any trust for the administration of a fund to which Her Majesty in either of those rights contributes and of which an official or entity that is an agent of Her Majesty in either of those rights is a trustee, and

  • (b) in relation to the government of a foreign country or any political subdivision thereof, a person empowered to perform a function or duty on behalf of the government of the foreign country or political subdivision, other than a function or duty in connection with the administration or management of the estate or property of a natural person; (mandataire)

  eligible agent

  eligible agent means an agent or agency of Her Majesty in right of Canada or of a province or an agent or agency of a government of a foreign country or any political subdivision of a foreign country

  • (a) whose mandate is publicly available;

  • (b) that controls the assets of an investment fund in a manner intended to maximize long-term risk-adjusted returns and that fund is

    • (i) one to which, as the case may be, Her Majesty in right of Canada or of a province or the government of a foreign country or political subdivision contributes, or

    • (ii) established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons; and

  • (c) whose decisions with respect to the assets of the fund referred to in paragraph (b) are not influenced in any significant way by, as the case may be, Her Majesty in right of Canada or of the province or the government of the foreign country or the political subdivision; (mandataire admissible)

  eligible Canadian financial institution

  eligible Canadian financial institution means a Canadian financial institution that is a body corporate and that is widely held; (institution financière canadienne admissible)

  eligible financial institution

  eligible financial institution means an eligible Canadian financial institution or an eligible foreign institution; (institution financière admissible)

  eligible foreign institution

  eligible foreign institution means

  • (a) a foreign bank that, in the opinion of the Minister, after consultation with the Superintendent, is regulated as or like a bank, according to the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business, or

  • (b) a foreign institution that, in the opinion of the Minister,

    • (i) is, with respect to its provision of financial services, regulated in the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business, and

    • (ii) is widely held; (institution étrangère admissible)

  foreign institution

  foreign institution means an entity that is

  • (a) engaged in the trust, loan or insurance business, the business of a cooperative credit society or the business of dealing in securities, and

  • (b) incorporated or formed otherwise than by or under an Act of Parliament or the legislature of a province. (institution étrangère)

• (2) to (4) [Repealed, 2001, c. 9, s. 96]