Guidelines for Adjudicative Process (2020-08-21 to 2023-09-28)

I. Introduction

1. This document sets out procedural guidelines that are applicable in relation to proceedings commenced following the service of a notice of violation under subsection 22(2) of the Financial Consumer Agency of Canada Act (the “Act”) (“proceedings”).

2. The purpose of these guidelines is to supplement the requirements set out in the Act and provide information and transparency regarding the administrative procedures to be followed during a proceeding.  

II. Procedural fairness

3. The Financial Consumer Agency of Canada’s (“FCAC”) Commissioner (“the Commissioner”) is responsible for compliance and enforcement under the Act. FCAC staff, comprised of members of the Supervision and Enforcement Branch, have been authorized by the Commissioner to carry out certain compliance and enforcement activities.

4. The Commissioner retains the adjudicative responsibilities as the sole decision maker in regard to proceedings. The Commissioner provides an impartial and independent examination of alleged violations that come before him/her. Therefore, the FCAC is structured with a separation between the adjudicative function and the compliance and enforcement function. Accordingly, the Commissioner and FCAC staff will not engage in discussions about the specific details of any file during investigations.

5. As an overarching principle, the Commissioner will carry out his/her responsibilities with a view to maintaining the fairness of the proceeding.

III. Investigations and notices of violation

6. FCAC staff are responsible for

1. investigating alleged contraventions of, or non-compliance with, consumer provisions and compliance agreements, as set out under the Act;
2. drafting compliance reports based on the investigations;
3. determining whether there are reasonable grounds to believe a violation has been committed; and
4. serving notices of violation, where there are such grounds.

7. A notice of violation identifies an alleged violation and the party—be it a natural person or a body corporate (“regulated entity”)—who is believed to have committed it, and proposes a penalty therefor. It also describes the regulated entity’s right to make representations in respect of this matter. It is accompanied by a compliance report which includes

1. the facts that the FCAC staff rely on;
2. FCAC staff arguments supporting the allegations of violation; and
3. any supporting document that FCAC staff relies on in support of its position.

IV. Proceedings following the service of a notice of violation

8. The Commissioner has established the FCAC Secretariat (the “Secretariat”) to administer the proceedings.

9. Proceedings are conducted through written submissions that are not published.

10. The regulated entity may, within 30 days of being served with a notice of violation,

1. pay the proposed penalty; or
2. make representations in respect of this matter as described in the notice of violation.

11. If the regulated entity elects to make representations they should include

1. the facts that the regulated entity relies on;
2. the regulated entity’s arguments in support of its position; and
3. any supporting document that the regulated entity relies on in support of its position.

12. An extension of the 30-day 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. A request for extension should be made to the Commissioner within 15 days of the date that the notice of violation is served.

13. A request for extension should indicate how much additional time the regulated entity requires and include

1. the reasons for the request of the extension; and
2. any supporting document that the regulated entity relies on in support of the request.

14. The FCAC staff and the regulated entity will be informed of any extension granted.

15. The regulated entity will be deemed to have committed the violation if, within the 30-day period or any extension granted by the Commissioner, it

1. pays the penalty; or
2. does nothing (i.e. does not pay the penalty or make representations on the merits of the alleged violation).

V. Deliberations and Decision

16. The Commissioner may, during deliberations, request information in the form of written submissions from FCAC staff and/or the regulated entity.

17. The Commissioner decides whether

1. on a balance of probabilities, a violation has been committed;
2. to impose the penalty proposed in the notice of violation, a lesser penalty or no penalty; and
3. to make public the nature of the violation, the name of the regulated entity that committed the violation and the amount of the penalty, if section 31 of the Act as it read immediately before April 30, 2020, applies to the violation^{Footnote 1}.

18. The Commissioner makes a decision based on the record of the proceeding which includes the notice of violation, the compliance report, representations, and any written submissions.

19. The Commissioner:

1. serves the decision on the regulated entity together with information on its right of appeal or judicial review, as the case may be, and, where applicable, a copy of a redacted decision for publication;
2. provides the regulated entity with an opportunity to provide comments regarding any redactions for publication within 10 days following the service of the decision;
3. informs the regulated entity of the anticipated date of publication of the decision, which is expected to be 30 days following the service of the decision.

20. Redactions may be made by the Commissioner by omitting or replacing text to protect identifying information, confidential business information or personal information.

VI. Publication

21. Decisions made by the Commissioner under the Act are published in both official languages on the FCAC webpage.

22. Where a regulated entity is deemed to have committed a violation and no decision is made by the Commissioner under the Act, a summary of the proceeding is published on the FCAC webpage in both official languages that includes the nature of the violation, the name of the regulated entity that committed the violation and the amount of the penalty. Sections 19 and 20 of these guidelines apply to a summary, with necessary modifications, prior to publication.

VII. Communications

23. Any communication to the Commissioner regarding a proceeding should be made through the Secretariat.

24. The Commissioner, FCAC staff or a regulated entity shall ensure that any communication addressed to one of the parties is copied to the other party.

25. Any communication to the Commissioner should be in writing, identify the file number assigned to the matter by FCAC staff (“file number”) 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; and
4. in the case of an email, any attachment in PDF format (Portable Document Format).

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

27. Any communication addressed to the Commissioner should be sent to the Secretariat

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

28. Any communication to be provided to a regulated entity will be sent

1. by email to the address provided in the regulated entity’s representations; or
2. by mail to the mailing address provided in the regulated entity’s representations.

29. Any communication to be provided to FCAC staff should be sent

1. by email addressed to compliance@fcac-acfc.gc.ca;^{Footnote 3}  or
2. by mail addressed to
   Financial Consumer Agency of Canada
   Attention: Deputy Commissioner, Supervision and Enforcement Branch
   427 Laurier Ave West
   6^th Floor
   Ottawa, ON K1R 5C7

30. A communication is considered to be received:

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

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

VIII. Payment of penalty

32. Payment of the penalty must be made either:

1. by cheque payable to The Receiver General for Canada, including the file number, and mailed to:
   Financial Consumer Agency of Canada
   Attention: Finance
   427 Laurier Ave West
   6^th Floor
   Ottawa, ON K1R 5C7
2. by wire transfer^{Footnote 4} 
3. through the regulated entity’s Canadian online banking services, including the file number.

33. A regulated entity that pays the penalty informs the Commissioner and FCAC staff of such payment.