Retail Payment Activities Act

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Sections456

• 1Short title

  This Act may be cited as the Retail Payment Activities Act.

• 2Definitions

  The following definitions apply in this Act.

• 2[p2]

  Bank means the Bank of Canada. (Banque)

• 2[p3]

  Centre means the Financial Transactions and Reports Analysis Centre of Canada. (Centre)

• 2[p4]

  electronic funds transfer means a placement, transfer or withdrawal of funds by electronic means that is initiated by or on behalf of an individual or entity. (transfert électronique de fonds)

• 2[p5]

  end user means an individual or entity that uses a payment service as a payer or payee. (utilisateur final)

• 2[p6]

  entity means a corporation, trust, partnership, fund, an unincorporated association or organization, the government of a foreign country or of a political subdivision of a foreign country, or an agency of a foreign country or of a subdivision of a foreign country. (entité)

• 2[p7]

  government authority includes the Royal Canadian Mounted Police, the Communications Security Establishment and the Canadian Security Intelligence Service. (autorité administrative)

• 2[p8]

  Governor has the same meaning as in section 2 of the Bank of Canada Act. (gouverneur)

• 2[p9]

  incident means an event or series of related events that is unplanned by a payment service provider and that results in or could reasonably be expected to result in the reduction, deterioration or breakdown of any retail payment activity that is performed by the payment service provider. (incident)

• 2[p10]

  Minister means the Minister of Finance. (ministre)

• 2[p11]

  operational risk means a risk that any of the following will result in the reduction, deterioration or breakdown of retail payment activities that are performed by a payment service provider:

• 2[p11](a)

  a deficiency in the payment service provider’s information system or internal process;

• 2[p11](b)

  a human error;

• 2[p11](c)

  a management failure; or

• 2[p11](d)

  a disruption caused by an external event. (risque opérationnel)

• 2[p16]

  payment function means

• 2[p16](a)

  the provision or maintenance of an account that, in relation to an electronic funds transfer, is held on behalf of one or more end users;

• 2[p16](b)

  the holding of funds on behalf of an end user until they are withdrawn by the end user or transferred to another individual or entity;

• 2[p16](c)

  the initiation of an electronic funds transfer at the request of an end user;

• 2[p16](d)

  the authorization of an electronic funds transfer or the transmission, reception or facilitation of an instruction in relation to an electronic funds transfer; or

• 2[p16](e)

  the provision of clearing or settlement services. (fonction de paiement)

• 2[p22]

  payment service provider means an individual or entity that performs payment functions as a service or business activity that is not incidental to another service or business activity. (fournisseur de services de paiement)

• 2[p23]

  prescribed means prescribed by regulation. (Version anglaise seulement)

• 2[p24]

  registered means registered under section 25. (enregistré)

• 2[p25]

  retail payment activity means a payment function that is performed in relation to an electronic funds transfer that is made in the currency of Canada or another country or using a unit that meets prescribed criteria. (activité associée aux paiements de détail)

• 2[p26]

  third-party service provider means an individual or entity that, under a contract, provides a payment service provider with a service related to a payment function and that is not an employee or agent or mandatary of the payment service provider. (tiers fournisseur de services)

• 3Affiliation
• 3(1)

  For the purposes of section 8 and paragraph 29(1)(d),

• 3(1)(a)

  one entity is affiliated with another entity if one of them is the subsidiary of the other or both are subsidiaries of the same entity or each of them is controlled by the same individual or entity;

• 3(1)(b)

  two entities are deemed to be affiliated with each other if they are affiliated with the same entity at the same time; and

• 3(1)(c)

  an individual is affiliated with an entity if the individual controls the entity.

• 3(2)Subsidiary entity

  For the purposes of subsection (1), an entity is a subsidiary of another entity if it is controlled by that other entity.

• 3(3)Control

  For the purposes of this section,

• 3(3)(a)

  a corporation is controlled by an individual or entity if

• 3(3)(a)(i)

  securities 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, whether through one or more subsidiaries or otherwise, otherwise than by way of security only, by or for the benefit of that individual or entity, and

• 3(3)(a)(ii)

  the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation;

• 3(3)(b)

  a limited partnership is controlled by its general partner; and

• 3(3)(c)

  an entity other than a corporation or a limited partnership is controlled by an individual or entity if the individual or entity, directly or indirectly, whether through one or more subsidiaries or otherwise, holds an interest in the entity that is not a corporation that entitles them to receive more than 50% of the profits of that entity or more than 50% of its assets on dissolution.

• 4Payment service providers in Canada

  Subject to sections 6 to 10, this Act applies in respect of any retail payment activity that is performed by a payment service provider that has a place of business in Canada.

• 5Payment service providers outside of Canada

  Subject to sections 6 to 10, this Act also applies in respect of any retail payment activity that is performed for an end user in Canada by a payment service provider that does not have a place of business in Canada but directs retail payment activities at individuals or entities that are in Canada.

• 6Retail payment activities

  This Act does not apply in respect of the following retail payment activities:

• 6(a)

  a payment function that is performed in relation to an electronic funds transfer that is made with an instrument that is issued by a merchant — or by an issuer that is not a payment service provider and has an agreement with a group of merchants — and that allows the holder of the instrument to purchase goods or services only from the issuing merchant or any merchant in the group;

• 6(b)

  a payment function that is performed in relation to an electronic funds transfer that is made for the purpose of giving effect to an eligible financial contract as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act or for the purpose of giving effect to a prescribed transaction in relation to securities;

• 6(c)

  a payment function that is performed in relation to an electronic funds transfer that is made for the purpose of a cash withdrawal at an automatic teller machine; and

• 6(d)

  a prescribed retail payment activity.

• 7Designated systems

  This Act does not apply in respect of a payment function that is performed in relation to an electronic funds transfer if the payment function is performed using a system that is designated under section 4 of the Payment Clearing and Settlement Act.

• 8Internal transactions

  This Act does not apply in respect of a retail payment activity that is performed by a payment service provider if

• 8(a)

  the payment function in question is performed in relation to an electronic funds transfer that is made between affiliated entities;

• 8(b)

  the payment service provider is one of the affiliated entities; and

• 8(c)

  no other payment service provider performs payment functions in relation to that electronic funds transfer.

• 9Payment service providers

  This Act does not apply to a payment service provider that performs retail payment activities if the payment service provider is one of the following:

• 9(a)

  a bank;

• 9(b)

  an authorized foreign bank as defined in section 2 of the Bank Act in respect of its business in Canada;

• 9(c)

  a cooperative credit society, savings and credit union, caisse populaire or central cooperative credit society that is regulated by a provincial Act or an association regulated by the Cooperative Credit Associations Act;

• 9(d)

  Her Majesty in right of a province or an agent or mandatary of Her Majesty in right of a province, if Her Majesty in right of a province or the agent or mandatary accepts deposits transferable by order;

• 9(e)

  a company to which the Insurance Companies Act applies or an insurance company regulated by a provincial Act;

• 9(f)

  a company to which the Trust and Loan Companies Act applies;

• 9(g)

  a trust company that is regulated by a provincial Act;

• 9(h)

  a loan company that accepts deposits transferable by order and is regulated by a provincial Act;

• 9(i)

  the Canadian Payments Association;

• 9(j)

  the Bank; or

• 9(k)

  a prescribed individual or entity or an individual or entity of a prescribed class.

• 10Agents and mandataries

  This Act does not apply to an agent or mandatary of a registered payment service provider if the agent or mandatary is performing retail payment activities in the scope of their authority as agent or mandatary and is included on the list of agents or mandataries that was provided by the payment service provider under paragraph 29(1)(e) and is updated in accordance with subsection 59(1).

• 11Governor’s orders
• 11(1)

  If a provision of a federal or provincial Act or regulation applies to or in respect of a payment service provider that performs retail payment activities or a class of payment service providers that perform retail payment activities and the Governor is of the opinion that the provision is substantially similar to any of the following provisions of this Act or its regulations, then the Governor may, by order, specify the provision of this Act or its regulations and the payment service provider or class of payment service provider:

• 11(1)(a)

  sections 17 to 22;

• 11(1)(b)

  subsection 29(2);

• 11(1)(c)

  paragraphs 48(1)(a) to (e) and (g) and 52(a) to (d) and (g);

• 11(1)(d)

  sections 59, 94, 95 and 99; and

• 11(1)(e)

  a provision of the regulations that is made for the purposes of any of the provisions referred to in paragraphs (a) to (d).

• 11(2)Effect of order

  A provision that is specified in an order made under subsection (1) does not apply to or in respect of the payment service provider or class of payment service provider specified in the order.

• 12Objects
• 12(1)

  The Bank’s objects under this Act are to

• 12(1)(a)

  supervise payment service providers that perform retail payment activities in order to determine whether those payment service providers are in compliance with this Act;

• 12(1)(b)

  promote the adoption by those payment service providers of policies and procedures that are designed to implement their obligations under this Act; and

• 12(1)(c)

  monitor and evaluate trends and issues related to retail payment activities.

• 12(2)Duty of Bank

  In pursuing these objects, the Bank must consider the efficiency of payment services and the interests of end users.

• 13Agreements and arrangements

  The Bank may, for the purpose of exercising its powers or performing its duties and functions under this Act, enter into an agreement or arrangement with any government authority or regulatory body.

• 14Guidelines — Bank
• 14(1)

  The Bank may issue guidelines respecting the manner in which this Act, with the exception of the provisions referred to in subsection (2), is to be applied.

• 14(2)Guidelines — Minister

  The Minister may issue guidelines respecting the manner in which sections 32 to 47, 72 to 75, 96 and 98 are to be applied.

• 15Delegation of Governor’s powers, duties and functions
• 15(1)

  The Governor may delegate to an officer of the Bank any of the Governor’s powers, duties or functions under this Act.

• 15(2)Notice of delegation

  If a power, duty or function is delegated, the Bank must cause to be published in the Canada Gazette a notice that includes

• 15(2)(a)

  the title of the officer to whom the power, duty or function is delegated;

• 15(2)(b)

  the power, duty or function that is delegated; and

• 15(2)(c)

  the day on which the delegation takes effect.

• 15(3)Notice of revocation of delegation

  If the Governor revokes a delegation, the Bank must cause to be published in the Canada Gazette a notice that includes the day on which the delegation ceases to have effect.

• 15(4)Timing

  The notice referred to in subsection (2) or (3) must be published before the day on which the delegation takes effect or ceases to have effect, as the case may be.

• 16No liability if in good faith — Bank
• 16(1)

  No action lies against Her Majesty in right of Canada, any officer, employee or director of the Bank or any person acting under the direction of the Governor for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.

• 16(2)No liability if in good faith — Minister

  No action lies against Her Majesty in right of Canada, the Minister or any person or government authority acting under the direction of the Minister for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.

• 17Framework
• 17(1)

  For the purposes of identifying and mitigating operational risks and responding to incidents, a payment service provider that performs retail payment activities must, in accordance with the regulations, establish, implement and maintain a risk management and incident response framework that meets prescribed requirements.

• 17(2)Assessment by Bank

  The Bank or a person designated by the Bank may assess the payment service provider’s risk management and incident response framework or any portion of it and the Bank may provide the payment service provider with a list of corrective measures that the Bank considers appropriate.

• 17(3)Duty to assist

  The payment service provider must give all assistance that is reasonably required to enable the Bank or the designated person to carry out an assessment referred to in subsection (2) and must provide any documents or information and access to any data that are specified by the Bank or the designated person.

• 18Requirement to notify
• 18(1)

  If a payment service provider that performs retail payment activities becomes aware of an incident that has a material impact on any of the following individuals or entities, the payment service provider must, without delay, notify that individual or entity and the Bank of the incident:

• 18(1)(a)

  an end user;

• 18(1)(b)

  a payment service provider that performs retail payment activities, whether or not this Act applies to the payment service provider; and

• 18(1)(c)

  a clearing house of a clearing and settlement system, as those expressions are defined in section 2 of the Payment Clearing and Settlement Act, that is designated under subsection 4(1) of that Act.

• 18(2)Form, manner and content of notice

  The notice must be given in the prescribed form and manner and contain the prescribed information.

• 19Follow-up notices
• 19(1)

  The Bank may, by order, direct a payment service provider that has given a notice in accordance with section 18 to provide any follow-up notice that the Bank considers relevant.

• 19(2)Content of order

  The order must specify

• 19(2)(a)

  the individuals or entities to be notified;

• 19(2)(b)

  when the follow-up notice is to be given and its form and manner; and

• 19(2)(c)

  the information to be contained in the notice.

• 19(3)Compliance with order

  The payment service provider must comply with the order.

• 20Accounts
• 20(1)

  If a payment service provider performs a retail payment activity that is the holding of end-user funds until they are withdrawn by the end user or transferred to another individual or entity, the payment service provider must

• 20(1)(a)

  hold the end-user funds in trust in a trust account that is not used for any other purpose;

• 20(1)(b)

  hold the end-user funds in a prescribed account or in a prescribed manner and take any prescribed measures in relation to the funds, the account or the manner; or

• 20(1)(c)

  hold the end-user funds in an account that is not used for any other purpose and hold insurance or a guarantee in respect of the funds that is in an amount equal to or greater than the amount held in the account.

• 20(2)Exception — provincial insurance or guarantee

  Subsection (1) does not apply to a payment service provider in respect of end-user funds it holds in a province if the payment service provider accepts deposits that are insured or guaranteed under an Act of that province and those end-user funds are deposits that are guaranteed or insured under that Act.

• 20(3)No set-off or compensation

  No right of set-off or compensation may be asserted by an individual or entity that maintains an account that is referred to in paragraph (1)(a), (b) or (c) in respect of the funds held in that account.

• 21Annual report

  A payment service provider that performs retail payment activities must, at the prescribed time and in the prescribed form and manner, submit an annual report to the Bank that includes

• 21(a)

  the prescribed information respecting the payment service provider’s risk management and incident response framework;

• 21(b)

  the prescribed information in relation to any account referred to in subsection 20(1) and the insurance or guarantee referred to in paragraph 20(1)(c);

• 21(c)

  any other prescribed information in relation to the holding of end-user funds for the purposes of subsection 20(1) and any regulations made for the purposes of that subsection; and

• 21(d)

  any other prescribed information.

• 22Notice — significant change or new activity
• 22(1)

  A payment service provider must notify the Bank before the payment service provider makes a significant change in the way it performs a retail payment activity or before it performs a new retail payment activity. The notice must

• 22(1)(a)

  be given within the prescribed period;

• 22(1)(b)

  be in the prescribed form and manner; and

• 22(1)(c)

  include the prescribed information.

• 22(2)Significant change

  For the purposes of subsection (1), a change is significant if it could reasonably be expected to have a material impact on operational risks or the manner in which end-user funds are safeguarded.

• 23Registration required

  A payment service provider must be registered with the Bank before it performs any retail payment activities.

• 24New application — acquisition of control
• 24(1)

  If an individual or entity plans to acquire control of a registered payment service provider, the registered payment service provider must, before the acquisition, submit a new application for registration that takes the planned acquisition into account and be so registered.

• 24(2)New application — other change

  If a registered payment service provider plans to make a prescribed change, the registered payment service provider must, before the change takes effect, submit a new application for registration that takes the planned change into account and be so registered.

• 24(3)Non-application

  Subsection (1) does not apply in the case of a planned acquisition that would, on the day on which it is planned to take effect, result in this Act no longer applying to the registered payment service provider by virtue of section 9 or 10.

• 25Duty to register
• 25(1)

  Subject to sections 35, 37, 48 and 49, the Bank must register any individual or entity that applies for registration.

• 25(2)Notice of registration

  The Bank must, as soon as feasible, notify the applicant in writing that the applicant has been registered.

• 26Registry

  The Bank must maintain a registry of registered payment service providers and must make public the name of each registered payment service provider, its address and any prescribed information in relation to the payment service provider, the activities it performs or its registration.

• 27List of refusals and revocations
• 27(1)

  The Bank must maintain and publish a list of the individuals or entities that the Bank has refused to register and the payment service providers that have had their registrations revoked. The list must set out the reasons for a refusal or revocation.

• 27(2)Reviews

  The Bank must not add an individual, entity or payment service provider to the list unless the prescribed period for requesting the applicable review under section 41, 46, 50 or 53 has expired or the refusal or revocation has been confirmed under the section in question.

• 28Execution of documents

  Any document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of similar form, each of which is executed or signed by one or more of the individuals. The documents, when executed or signed by all individuals required or permitted, as the case may be, to do so, are deemed to constitute one document for the purposes of this Act.

• 29Form, manner and information
• 29(1)

  An applicant for registration must submit an application in the prescribed form and manner that includes

• 29(1)(a)

  the applicant’s name and any name under which the applicant performs or plans to perform payment functions as a service or business activity;

• 29(1)(b)

  the applicant’s address and any prescribed contact information;

• 29(1)(c)

  a declaration that states whether the applicant operates or plans to operate out of a dwelling-house;

• 29(1)(d)

  a description of how the applicant is organized or structured and, as applicable, any prescribed information in relation to the applicant’s incorporation, affiliated entities, directors and managers or owners;

• 29(1)(e)

  a list of the applicant’s agents and mandataries that perform retail payment activities in the scope of their authority as an agent or mandatary and any prescribed information in relation to those agents and mandataries;

• 29(1)(f)

  a description of the retail payment activities the applicant performs or plans to perform, including any prescribed information in relation to the volume and value or estimated volume and value of those retail payment activities;

• 29(1)(g)

  the number of end users or estimated number of end users for whom the applicant performs or plans to perform retail payment activities;

• 29(1)(h)

  any prescribed information in relation to end-user funds that the applicant holds or plans to hold;

• 29(1)(i)

  a description of the applicant’s risk management and incident response framework or the framework that the applicant plans to establish and implement;

• 29(1)(j)

  any prescribed information in relation to the manner in which the applicant safeguards or plans to safeguard end-user funds;

• 29(1)(k)

  any prescribed information in relation to any of the applicant’s third-party service providers that have or will have a material impact on the applicant’s operational risks or the manner in which the applicant safeguards or plans to safeguard end-user funds;

• 29(1)(l)

  a declaration that states whether the applicant is registered with the Centre;

• 29(1)(m)

  a declaration that states whether the applicant has a place of business in Canada;

• 29(1)(n)

  a declaration that states whether the applicant has applied for registration or is registered under a provincial Act respecting retail payment activities;

• 29(1)(o)

  in the case of an applicant that does not have a place of business in Canada, the name and address of an agent or mandatary in Canada that is authorized, on behalf of the applicant, to accept notices given or served under this Act as well as orders made under this Act; and

• 29(1)(p)

  any information in relation to the applicant or the retail payment activities the applicant performs or plans to perform that is prescribed for the purposes of sections 34 to 45.

• 29(2)Registration fee

  The applicant must include the prescribed registration fee with the application.

• 29(3)Additional information

  The applicant must provide the Bank with any additional information that the Bank requests in relation to the information referred to in subsection (1) within 30 days after the day on which the request is made.

• 30Notice of change in information

  An applicant that becomes aware that information provided as part of the application has changed or is about to change must notify the Bank of the change or anticipated change as soon as possible after becoming aware of it and the Bank must then, as soon as possible, notify the Minister and any person or government authority designated under section 32.

• 31Duty to notify and provide information

  The Bank must, as soon as feasible after it is of the opinion that an application for registration is complete, notify the applicant that the application is complete and provide the Centre with the information referred to in paragraphs 29(1)(a) to (f) and any information respecting the applicant that is under the Bank’s control and is prescribed for the purposes of this section.

• 32Designation

  The Minister may designate a person or government authority for the purposes of sections 33, 39 and 60.

• 33Copy of application

  The Bank must, as soon as feasible after it is of the opinion that an application for registration is complete, provide the Minister and any designated person or government authority with a copy of the application.

• 34Review of application
• 34(1)

  The Minister may, within the prescribed period, decide to review an application for registration if the Minister is of the opinion that it is necessary to do so for reasons related to national security. In that case, the Minister must notify the Bank of the decision and the Bank must then notify the applicant.

• 34(2)Extension of decision period

  The Minister may extend the prescribed period for one or more prescribed periods if the Minister considers it necessary to do so and notifies the Bank. In that case, the Bank must notify the applicant of the extension.

• 35Prohibition on registration

  The Bank must not register an applicant during a period referred to in subsection 34(1) or (2) unless the Minister informs the Bank that the Minister has decided not to review the application for registration.

• 36Timeline for review of application

  If the Minister decides to review an application for registration, the Minister must conduct the review within the prescribed period but the Minister may extend the period for conducting the review for one or more periods equal to the prescribed period if the Minister considers it necessary to do so and notifies the Bank. In that case, the Bank must notify the applicant of the extension.

• 37Prohibition on registration

  If the Minister notifies the Bank of a decision to review an application for registration, the Bank must not register the applicant unless the Minister notifies the Bank under section 38 of a decision not to issue a directive.

• 38Notice to Bank

  The Minister must notify the Bank if, after completing a review of an application, the Minister decides not to issue a directive under section 40.

• 39Additional information

  An applicant or registered payment service provider must provide the Minister and any designated person or government authority with any additional information that the Minister, person or government authority requests in relation to the applicant or registered payment service provider or the retail payment activities the applicant performs or plans to perform.

• 40Directive to refuse registration

  The Minister may, for any of the following reasons, issue a directive to the Bank to refuse to register an applicant:

• 40(a)

  there are reasons related to national security;

• 40(b)

  the applicant has failed to provide additional information in accordance with section 39;

• 40(c)

  an order made under section 42 or an undertaking provided in accordance with that section that is in relation to the application in question has not been complied with;

• 40(d)

  a condition imposed under section 43 in relation to the application in question has not been complied with; and

• 40(e)

  the applicant has provided false or misleading information.

• 41Review of directive
• 41(1)

  An applicant that has been notified under section 49 may, within the prescribed period, make a request to the Minister for a review of the directive to refuse registration.

• 41(2)Decision

  On completion of the review, the Minister must, after giving the applicant an opportunity to make representations, confirm or revoke the directive. The Minister must notify the Bank of the decision and the Bank must then, as soon as feasible, notify the applicant.

• 42Undertakings

  The Minister may, by order, require any individual or entity to provide an undertaking in relation to an application for registration or in relation to any registered payment service provider if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

• 43Conditions

  The Minister may, by order, impose conditions on any individual or entity in relation to an application for registration or in relation to any registered payment service provider if the Minister is of the opinion that it is necessary to do so for reasons related to national security.

• 44Copy to Bank

  The Minister must provide the Bank with a copy of each order the Minister makes under section 42 or 43 and the Bank must, as soon as feasible, provide a copy to the individual or entity in question.

• 45Notice of intent to issue directive to revoke registration
• 45(1)

  The Minister may, for any of the following reasons, issue to the Bank a notice of intent to issue a directive to the Bank to revoke a payment service provider’s registration:

• 45(1)(a)

  there are reasons related to national security

• 45(1)(b)

  the payment service provider has failed to provide additional information in accordance with section 39;

• 45(1)(c)

  an order made under section 42 or an undertaking provided in accordance with that section that is in relation to the payment service provider has not been complied with;

• 45(1)(d)

  a condition imposed under section 43 in relation to the payment service provider has not been complied with;

• 45(1)(e)

  the payment service provider has provided false or misleading information; and

• 45(1)(f)

  the payment service provider has not complied with an order under section 96.

• 45(2)Notice to payment service provider

  The Bank must, as soon as feasible, notify the payment service provider in writing of the issuance of the Minister’s notice of intent.

• 46Review of notice of intent
• 46(1)

  A registered payment service provider that has been notified under subsection 45(2) may, within the prescribed period, make a request to the Minister for a review of the notice of intent.

• 46(2)Decision

  On completion of the review, the Minister must, after giving the payment service provider an opportunity to make representations, either withdraw the notice of intent or issue a directive to the Bank to revoke the registration.

• 46(3)Notices to Bank and payment service provider

  The Minister must notify the Bank of a decision to withdraw the notice of intent and the Bank must, as soon as feasible, notify the payment service provider of the withdrawal.

• 47Review not requested

  If a registered payment service provider that has been notified under subsection 45(2) does not make a request to the Minister for a review of the notice of intent within the prescribed period, the Minister may issue a directive to the Bank to revoke the payment service provider’s registration.

• 48Refusal to register