Retail Payment Activities Act (S.C. 2021, c. 23, s. 177)

PART 5Administration and Enforcement

Bank’s Powers

Marginal note:Information request — payment service provider

• 65 (1) The Bank may request, in writing, a payment service provider that performs retail payment activities to provide, within the prescribed period, the Bank with any information that the Bank considers necessary for a purpose related to verifying compliance with this Act or carrying out the Bank’s objects under this Act.

• Marginal note:Compliance with request

  (2) The payment service provider must comply with the request.

Marginal note:Information request — individual or entity

• 66 (1) For the purpose of verifying compliance with this Act, the Bank may, if it has reasonable grounds to believe that an individual or entity is a payment service provider that performs retail payment activities, request in writing, the individual or entity to provide the Bank with any information that the Bank requires to determine whether the individual or entity is a payment service provider that performs retail payment activities.

• Marginal note:Compliance with request

  (2) The individual or entity must comply with the request within the prescribed period.

Marginal note:Special audit

• 67 (1) The Bank may direct that a special audit of a payment service provider that performs retail payment activities be conducted in accordance with any conditions that the Bank considers appropriate if, in the Bank’s opinion, the special audit is required for the purpose of verifying compliance with this Act and the Bank may appoint an individual or entity to conduct the special audit.

• Marginal note:Duty to assist

  (2) The payment service provider must give all assistance that is reasonably required to enable the appointed individual or entity to conduct the special audit and must provide any documents or information and access to any data that are specified by the individual or entity.

• Marginal note:Report to Bank

  (3) The payment service provider must provide the Bank with the results of the special audit.

• Marginal note:Expenses

  (4) The expenses incurred in respect of the special audit are payable by the payment service provider.

Marginal note:Designation

68 The Governor may designate persons or classes of persons as authorized persons for the purposes of sections 69 and 70.

Marginal note:Powers — authorized person

• 69 (1) An authorized person may, from time to time, examine the records and inquire into the business and affairs of a payment service provider that performs retail payment activities for the purpose of verifying compliance with this Act and for that purpose may

  • (a) enter any place, other than a dwelling-house, in which the authorized person has reasonable grounds to believe that there are records relevant to verifying compliance with this Act;

  • (b) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

  • (c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; or

  • (d) use any copying equipment in the place or cause it to be used.

• Marginal note:Duty to assist

  (2) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the authorized person to perform their functions under this section and must provide any documents or information and access to any data that are specified by the authorized person.

Marginal note:Warrant to enter dwelling-house

• 70 (1) If the place is a dwelling-house, an authorized person may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in paragraph 69(1)(a);

  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

Marginal note:Compliance agreement

71 The Bank may enter into a compliance agreement with a payment service provider that performs retail payment activities for the purpose of implementing any measure that is designed to further compliance with this Act by the payment service provider.

Minister’s Powers

Marginal note:Designation

72 The Minister may designate persons or classes of persons as authorized persons for the purposes of sections 73 to 75.

Marginal note:Information request — individual or entity

• 73 (1) An authorized person may request, in writing, an individual or entity to provide, within the prescribed period, the authorized person with any information that the authorized person considers necessary for a purpose related to verifying compliance with an undertaking provided in accordance with section 42 or a condition imposed under section 43.

• Marginal note:Compliance with request

  (2) The individual or entity must comply with the request.

Marginal note:Powers — authorized person

• 74 (1) An authorized person may, from time to time, examine the records and inquire into the business and affairs of an individual or entity for the purpose of verifying compliance with an undertaking provided in accordance with section 42 or a condition imposed under section 43 and for that purpose may

  • (a) enter any place, other than a dwelling-house, in which the authorized person has reasonable grounds to believe that there are records relevant to verifying compliance with the undertaking or condition;

  • (b) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

  • (c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; or

  • (d) use any copying equipment in the place or cause it to be used.

• Marginal note:Duty to assist

  (2) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the authorized person to perform their functions under this section and must provide any documents or information and access to any data that are specified by the authorized person.

Marginal note:Warrant to enter dwelling-house

• 75 (1) If the place is a dwelling-house, an authorized person may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in paragraph 74(1)(a);

  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with the undertaking or condition; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

Administrative Monetary Penalties

Notices of Violation and Compliance Agreements

Marginal note:Commission of violation

• 76 (1) Every contravention that is designated under paragraph 101(1)(h) or (j) constitutes a violation and the individual or entity that commits the violation is liable to a penalty established in accordance with paragraph 101(1)(k) or (l).

• Marginal note:Payment service provider

  (2) If the Bank believes on reasonable grounds that a payment service provider has committed a violation, the Bank may

  • (a) issue and cause to be served on the payment service provider a notice of violation; or

  • (b) issue and cause to be served on the payment service provider a notice of violation with an offer to reduce by half the penalty set out in the notice if the payment service provider enters into a compliance agreement with the Bank in respect of the provision to which the violation relates.

• Marginal note:Other individual or entity

  (3) If the Bank believes on reasonable grounds that an individual or entity other than a payment service provider has committed a violation, the Bank may issue and cause to be served on the individual or entity a notice of violation.

• Marginal note:Purpose of penalty

  (4) The purpose of the penalty is to promote compliance with this Act and not to punish.

Marginal note:Contents of notice

• 77 (1) A notice of violation must name the individual or entity believed to have committed a violation, identify the violation and set out

  • (a) the penalty to be paid;

  • (b) the right of the individual or entity, within 30 days after the day on which the notice is served or within any longer period that the Bank specifies, to pay the penalty or to make representations to the Governor with respect to the violation and the penalty, and the manner for doing so; and

  • (c) the fact that, if the individual or entity does not pay the penalty or make representations in accordance with the notice, the individual or entity will be deemed to have committed the violation and is liable to pay the penalty.

• Marginal note:Short-form descriptions

  (2) The Bank may establish, in respect of each violation, a short-form description to be used in notices of violation.

• Marginal note:Administrative corrections

  (3) If a notice of violation contains any error or omission, the Bank may issue and cause to be served a corrected notice of violation on the individual or entity at any time during the period referred to in paragraph (1)(b).

Marginal note:Payment of penalty

• 78 (1) If the individual or entity pays the penalty set out in the notice of violation, the individual or entity is deemed to have committed the violation and proceedings in respect of it are ended.

• Marginal note:Representations to Governor

  (2) If the individual or entity makes representations in accordance with the notice, the Governor must decide, on a balance of probabilities, whether the individual or entity committed the violation and, if so, may, subject to any regulations made under paragraph 101(1)(k) or (l), impose the penalty set out in the notice, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) An individual or entity that neither pays the penalty set out in the notice nor makes representations in accordance with the notice is deemed to have committed the violation and is liable to pay the penalty set out in the notice.

• Marginal note:Notice of decision and right of appeal

  (4) The Bank must cause notice of any decision made under subsection (2) or the penalty that the individual or entity is liable to pay under subsection (3) to be issued and served on the individual or entity together with notice of the right of appeal under subsection 84(1).

Marginal note:Contents of compliance agreement

• 79 (1) If the Bank offers to enter into a compliance agreement with a payment service provider under paragraph 76(2)(b), the agreement must

  • (a) identify the provision that was contravened and provide that the payment service provider will comply with that provision within the period and be subject to the terms and conditions specified in the agreement; and

  • (b) set out the amount that the payment service provider will have to pay as the reduced penalty for the violation if the compliance agreement is entered into.

• Marginal note:Refusal to enter into agreement

  (2) If the payment service provider does not enter into the compliance agreement and does not pay the reduced penalty within 30 days after the day on which the payment service provider received the notice of violation, the payment service provider is deemed to have refused to enter into the agreement and is liable to pay the full penalty set out in the notice of violation.

• Marginal note:Extension of period

  (3) The Bank may extend the period referred to in paragraph (1)(a) if it is satisfied that the payment service provider is unable to comply with it within that period for reasons beyond their control.

Marginal note:Deemed violation

80 A payment service provider that enters into a compliance agreement referred to in a notice of violation issued under paragraph 76(2)(b) is deemed to have committed the violation in respect of which the agreement was entered into.

Marginal note:Compliance agreement complied with

81 If the Bank considers that a compliance agreement with a payment service provider has been complied with, the Bank must serve a notice to that effect on the payment service provider and, on the service of the notice, no further proceedings may be taken against the payment service provider with respect to the violation.

Marginal note:Compliance agreement not complied with

• 82 (1) If the Bank considers that a compliance agreement with a payment service provider has not been complied with, the Bank may issue and cause to be served a notice of default on the payment service provider to the effect that the payment service provider is liable to pay

  • (a) the difference between the penalty set out in the notice of violation and any portion of the reduced penalty under the compliance agreement that was paid; and

  • (b) an additional penalty specified in the regulations.

• Marginal note:Contents of notice

  (2) The notice of default must specify the date, which must be 30 days after the day on which the notice is served, on or before which an application for review may be filed and particulars of how the application may be filed.

• Marginal note:No set-off or compensation

  (3) On the service of a notice of default, the payment service provider served has no right of set-off or compensation against any amount that it spent under the compliance agreement.

Marginal note:Application for review

• 83 (1) A payment service provider served with a notice of default may, on or before the date specified in the notice or within any time that the Bank allows, file an application for review of the Bank’s decision made under that subsection with the Governor.

• Marginal note:Decision

  (2) The Governor may confirm the Bank’s decision or decide that the payment service provider has complied with the compliance agreement.

• Marginal note:Failure to pay or apply for review

  (3) A payment service provider that neither pays the amounts set out in the notice of default nor files an application for review in accordance with the notice is deemed to have not complied with the compliance agreement and must pay the amounts set out in the notice of default without delay.

• Marginal note:Notice of decision

  (4) The Bank must cause notice of the Governor’s decision to be issued and served on the payment service provider together with notice of the right of appeal under subsection 84(1).