Canada: Final Complaints Regulations Published Plus New FCAC Guidance

Further to our July 2012 Blakes Bulletin: New Oversight for Banking Complaints, the final Complaints (Banks, Authorized Foreign Banks and External Complaints Bodies) Regulations (the final Regulations) were published in the Canada Gazette on April 10, 2013. The Financial Consumer Agency of Canada (FCAC) has also published Commissioner's Guidance CG-12 Internal Dispute Resolution (IDR Guidance) and CG-13 Application Guide for External Complaint Bodies (ECB Application Guide). The final Regulations and related amendments to the Bank Act come into force on September 2, 2013. The IDR Guidance and the ECB Application Guide take effect on the same date.

Although the final Regulations apply only to banks and authorized foreign banks, the IDR Guidance sets out the FCAC's expectations for the internal dispute resolution (IDR) policies and procedures for all federally regulated financial institutions (FRFIs), not just banks and authorized foreign banks. Further, as discussed below, these requirements apply to all customer complaints, not just consumer complaints.

The principal purpose of the final Regulations (and related Bank Act amendments), as stated by the Minister of Finance, is to enhance the consumer complaint system and the standards that banks and authorized foreign banks must meet. The new measures establish a process for the approval of external complaints bodies (ECBs) by the Minister on the recommendation of the Commissioner of the FCAC. The final Regulations set out the eligibility requirements for ECBs as well as ongoing operational and administrative obligations with which ECBs must comply in order to maintain their approval. The ECB Application Guide sets out the approval criteria for an ECB as well as the application process and information requirements.

The provisions applicable to ECBs in the final Regulations are similar to those that were set out in the draft regulations, as summarized in our July 2012 bulletin. There are some changes, including some additional obligations imposed on ECBs. Notably, in respect of the annual report that an ECB must submit to the FCAC Commissioner, the draft regulations provided that the report must include a summary of the results of consultations with the ECB's members and persons who have made complaints. The final Regulations do not define the scope of this consultation, as it was thought they might, but they add that the ECB must also include in the annual report:

  • in respect of each of its members, the number of complaints the ECB received, the number of complaints that were within its terms of reference, the number of final recommendations that it made and the number of complaints that, in its opinion, were resolved to the satisfaction of the persons who made them; and
  • the average length of time taken to deal with complaints.

The draft regulations provided that an ECB must make a final recommendation to the parties involved in a complaint no later than 120 days after the day on which the complaint was received. The final Regulations provide that the final written recommendation of the ECB must be made no later than 120 days after the day on which the information that the ECB requires to deal with the complaint, as set out in its terms of reference, is complete.

Impact on Financial Institutions
The final Regulations impose some new requirements on banks and authorized foreign banks (collectively, banks) and the IDR Guidance sets out the FCAC's expectations for the IDR policies and procedures for all FRFIs, not just banks.

Final Regulations. The final Regulations and Bank Act amendments impose the following new requirements on banks:

  • If a person makes a complaint to a bank, the bank must inform the person about the bank's internal complaints procedures that it has adopted in accordance with the Bank Act, and the bank must provide the person with any information that is necessary to enable him or her to meet the requirements of those procedures.
  • A bank must make the following information available to the public on an annual basis:
    • the number of complaints that were dealt with by the officer or employee designated by the bank to deal with complaints who holds the most senior position identified for that purpose in the bank's internal complaints procedures;
    • the average length of time taken by that officer or employee to deal with the complaints; and
    • the number of complaints that, in the opinion of the bank, were resolved by that officer or employee in accordance with those procedures to the satisfaction of the persons who made the complaints.

    The means by which a bank must publicize this information is not prescribed. The IDR Guidance suggests that such information could be included in a bank's annual report or public accountability statement. We note that not all banks are required to publish an annual report or public accountability statement. There is no guidance as to how banks should meet this requirement. One approach would be to follow the requirement set out elsewhere in the final Regulations for disclosing the name of the bank's ECB, that is, to make the required information available at all of its branches and points of service where products or services are offered in Canada, and on every website through which products or services are offered in Canada.

  • A bank must be a member of one ECB approved by the Minister under the Bank Act.
  • A bank must display and make available to the public at all of its branches and points of service where products or services are offered in Canada, and on every website through which products or services are offered in Canada, copies of a written statement disclosing the name of the ECB of which it is a member and with which it must co-operate and the contact information for that ECB.
  • A bank must provide the ECB of which it is a member with all information in its possession or control that relates to a complaint without delay after the ECB notifies the bank that the complaint has been received in respect of it. Banks will have to ensure that their privacy policies allow for the disclosure of personal information in this context.
  • A bank must give the FCAC Commissioner and the ECB of which it is a member written notice of a request, or an intention to make a request, to become a member of another ECB at least 90 days before the day on which the bank becomes a member of that other ECB.

In order to consolidate the regulatory framework governing complaints in respect of banks, the final Regulations repeal and replace the Complaint Information (Banks) Regulations and the Complaint Information (Authorized Foreign Banks) Regulations. The prescribed information regarding the FCAC's contact information is now set out in the final Regulations.

IDR Guidance. The IDR Guidance provides that the key principles to be implemented by FRFIs in establishing their IDR policies and procedures are effectiveness, efficiency and accountability. All FRFIs are already required to have complaints procedures, and existing procedures will likely address many of the FCAC's guidelines. However, the FCAC has set out some specific standards that it expects FRFIs to implement. With respect to effectiveness, the FCAC expects FRFIs to demonstrate that:

  • there is an organizational commitment – from the working level to the board of directors – to the establishment and maintenance of effective IDR policies;
  • adequate resources have been dedicated to the IDR procedure. In particular, that the officer(s) or employee(s) designated to implement complaint handling procedures and to receive and deal with complaints are adequately trained and have the necessary authority to resolve or recommend resolutions to complaints;
  • a training program has been implemented to train and familiarize all relevant staff with IDR policies and procedures;
  • complaint information is retained in such a way to facilitate analysis of historical information, in order to track compliance issues and/or identify potential compliance risks; and
  • procedures are in place to ensure that banks can meet the new annual reporting requirement in the final Regulations, set out above; in particular, the procedures must specify the role which holds the most senior position designated by the bank to deal with complaints (e.g., Bank Ombudsman), and banks must establish clear time-frames and mechanisms for meeting their public reporting requirements.

With respect to efficiency, the FCAC expects FRFIs to deal with and resolve complaints in a timely manner and that consumer complaints will be resolved as soon as possible. Policies and procedures should outline relevant actions and time-frames. FRFIs should provide a consumer with an acknowledgement of receipt of his or her complaint without delay once the complaint reaches the first level in the FRFI's complaint escalation process. Within 90 days or less when possible, FRFIs should provide the consumer with a substantive written response to his or her complaint that includes, at a minimum:

  • the FRFI's final decision/offer in response to the complaint, including appropriate details and explanations regarding how the final decision was reached; and
  • the consumer's right to escalate the complaint to the ECB of which the FRFI is a member upon receipt of the FRFI's final decision, if the complaint has not been resolved to the consumer's satisfaction through the IDR process, or if the complaint has not been resolved within 90 days following receipt of the complaint at the second level of complaint handling.

FRFIs are expected to inform consumers about their IDR procedures, to keep consumers current about the status of their complaints at specific points during the complaint-handling process and to identify and highlight circumstances in which an extension to the timeline may be warranted. If the FRFI takes longer than 90 days to investigate and respond to a complaint, the FRFI should advise the consumer about his or her rights to escalate the complaint to an ECB.

IDR procedures must be written in language that is clear, simple and not misleading and FRFIs must be able to demonstrate that their IDR procedures are accessible to consumers.

Not limited to "consumer" complaints. Despite numerous references to consumers in the Department of Finance press releases regarding the draft and final Regulations and in the IDR Guidance, the complaints procedures requirements of the Bank Act and other financial institutions statutes are not limited to consumer complaints or complaints relating to non-compliance with consumer provisions.

Like the draft regulations, the final Regulations define a complaint as a complaint made to a bank or ECB by a "person" about a "product or service" that was requested or received by the person from a bank. The term "person" is defined in the Bank Act to include an "entity". Accordingly, the final Regulations apply to complaints made by businesses in respect of commercial products and services, in addition to complaints made by consumers.

The scope of the IDR Guidance states that the guidance:

  • is intended to assist FRFIs in developing their IDR policies and procedures to comply with the requirements of the legislation to deal with complaints made by persons having requested or received financial products and services;
  • outlines the principles that the FCAC considers essential for the establishment of an effective IDR process to help ensure that consumer disputes are handled in a competent manner by FRFIs.

Regardless of this inconsistency, the requirements in the financial institutions statutes are not limited to consumer complaints. Therefore all FRFIs should take note of the minimum standards outlined in the IDR Guidance, including FRFIs that do not provide products or services to "consumers".

Action Required
The final Regulations come into force, and the IDR Guidance takes effect, on September 2, 2013. All FRFIs will have to review their complaints policies and procedures ahead of that to ensure that they meet the minimum standards outlined in the IDR Guidance. Banks will also have to ensure that their complaints policies comply with the final Regulations, and that they have mechanisms in place to comply with the new annual reporting requirement – both a system to track and analyze complaints data as required, and a means to publicize the required information.

Each bank will have to become a member of an approved ECB, include references to its ECB in the bank's internal complaints policies and procedures, and cooperate with its ECB throughout the complaints resolution process. A bank will be required to provide information to its ECB relating to any complaint the ECB receives in respect of the bank. Accordingly, each bank will also have to ensure that its privacy policy allows for the disclosure of personal information to an ECB in this context.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
16 Oct 2018, Seminar, Toronto, Canada

Join Blakes lawyers for our 10th annual overview of recent legal and regulatory developments and practical strategies to navigate the changing regulation of Canada’s payments industry.

26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
Blake, Cassels & Graydon LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
Blake, Cassels & Graydon LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions