The range of documents that banks and other federally regulated
financial institutions (FIs) can provide to their customers
exclusively by electronic means will get much broader when the new
federal Electronic Documents Regulations come into force
on June 1, 2011. However, FIs must first obtain the customer's
consent. The principal purpose of the Regulations is to
set out the requirements that must be met for that consent to be
While provincial electronic commerce laws and the Personal
Information Protection and Electronic Documents Act
(PIPEDA) have been in force for about ten years, the
electronic document provisions of PIPEDA have never
applied to banks and other federally regulated FIs. As a result,
provincial law has continued to govern, subject to specific federal
In 2005, the Bank Act and other federal statutes
dealing with FIs were amended to specify the conditions under which
documents and other information could be provided electronically,
but the implementation of the new provisions was delayed until the
necessary regulations were settled. After almost five years of
discussion, the Electronic Documents Regulations were
published in final form in November 2010 and will come into force
on June 1, 2011. At that time, the statutory amendments will also
Specifically, the new Regulations provide that:
Before consent is given, the FI must notify the recipient: (i)
that the consent may be withdrawn; (ii) that the recipient is
responsible for informing the FI of any change in their e-mail or
fax address; (iii) that any document will be retained only for a
specified period of time and that the recipient is responsible for
keeping a copy; and (iv) when the consent will take effect.
The consent must list all of the "notices, documents and
other information" that may be sent electronically and must
and designate an "information system" which the FI is
willing to use.
If the recipient consents to receiving documents over the
Internet, it will be sufficient to post the document on a website
and notify the recipient by e-mail that the document is available
on that site. This may be the preferred method of delivery because
of its secure nature.
Both the notice to the recipient and the consent must be
accessible to the recipient and capable of being retained by
If the recipient gives consent orally, the required information
that would have been contained in the notice and consent must be
sent to them promptly, in paper or electronic form.
None of the foregoing requirements applies to the provision of
an electronic document on a "one-time basis." This is an
important exemption for an FI that carries on a mortgage or wealth
If the FI, or a service provider for the FI, has reason to
believe that the intended recipient has not received a document
electronically, a paper copy must be mailed. However, the
electronic document is still considered to have been
"provided" to the intended recipient when it leaves the
"information system" within the control of the FI or the
person who has sent the document on behalf of the FI, or when it is
posted or made available through the secure website of the FI.
Since a consent may cover any number of specified documents, FIs
will probably take the opportunity to list in the consent as many
documents as possible to streamline operations and reduce costs.
Because a notice or consent given under the Regulations
"must be made in a language and presented in a manner that is
clear, simple and not misleading," care must be taken in
drafting the notice and consent so that they may be relied
The Financial Consumer Agency of Canada will, no doubt, be
closely monitoring compliance with these requirements.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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