More than 10 years have passed since OSFI1 first issued Guideline E-13 entitled Legislative Compliance Management (LCM) (the "LCM Guideline"). After implementing its revised and updated Corporate Governance guideline in 2013, OSFI has now turned its attention to the LCM Guideline. In April 2014, OSFI published a draft revised Guideline E-13 entitled Regulatory Compliance Management (RCM) (the "RCM Guideline"). The purpose of the update is to better align OSFI's guidance on regulatory compliance management with the revised Corporate Governance guideline as well as with OSFI's Supervisory Framework and Assessment Criteria.2 OSFI has invited interested parties to provide comments on the draft RCM Guideline by June 20, 2014.
The LCM Guideline
In the early 2000's, invigorated concepts of compliance and corporate governance burst upon the scene, partly in reaction to a number of major corporate and accounting scandals affecting the United States that culminated in the enactment of the Sarbanes-Oxley Act of 2002. In addition to measures relating to financial reporting, enhanced disclosure and the role of the auditors, Sarbanes-Oxley brought with it a heightened awareness of corporate governance, including the Board's paramount role in independent oversight. In Canada, the same issues were on OSFI's radar and OSFI instituted, among other things, supplements to its Supervisory Framework in the form of a Ratings Assessment Criteria, the LCM Guideline and the Corporate Governance guideline.
The LCM Guideline first came into effect in March of 2003 requiring OSFI-regulated financial institutions,3 including insurers ("financial institutions"), to implement a set of controls for managing regulatory compliance risk. This system of risk controls was referred to as "legislative compliance management". At the time, the concept of an enterprise-wide framework of legislative risk management controls was relatively new. Also in 2003, OSFI issued the first version of its Corporate Governance guideline.
Ever since the LCM Guideline was implemented in 2003, financial institutions have been required to manage compliance risk by providing a control framework that includes a process for identifying and assessing regulatory compliance risks, and implementing key controls through which such risks are to be managed and mitigated. Financial institutions implemented the requirements of the current LCM Guideline in various ways, largely depending on their size, complexity of operations, nature of business, structure and ownership. Banks already had compliance systems in place, going back to the time they were first permitted to acquire securities dealers. The compliance efforts of Canadian life insurers were assisted by their trade association through a checklist approach. Some foreign-owned insurers borrowed from or adapted their corporate group's international compliance systems. Many institutions purchased software solutions from third party vendors in the form of computer automated compliance systems.
The RCM Guideline
Much has transpired in the past 10 years, including the global financial crisis of 2008 that affected not only corporate America, but also financial institutions all over the world. OSFI has worked closely with and/or listened to kindred regulatory bodies, global organizations and think tanks4 both since the crisis and for years before, with a view to introducing new and improved regulatory standards in Canada that are in step with emerging international best practices. As stated above, in 2013, OSFI implemented the revised Corporate Governance guideline noting that the 2003 version was no longer consistent with current industry best practices and international standards. This year, the RCM Guideline has been issued.
Although updated, there is nothing brand new in RCM Guideline. Except for some additional wording and expansion on a few concepts, the RCM Guideline does not materially diverge from its original counterpart. Essentially, it refines and restates OSFI's goals and expectations as originally articulated in the LCM Guideline.
The following are highlights of some of the refinements and restatements found in the RCM Guideline:
The RCM Guideline specifies that a financial institution's compliance management framework is to address regulatory compliance risk. The compliance objectives of the current LCM Guideline apply to "legislation, regulations and regulatory directives". The same wording is used in the RCM Guideline, except that the term regulatory directives has been defined as "rules, guidelines, expectations, and guidance issued by applicable regulators". Arguably the application of the current LCM Guideline has always been equally broad, since regulatory directives are rooted in legislation. But it could be said that the RCM Guideline ends all argument by defining regulatory directives.
Emphasis on Independent Monitoring Procedures
Even though the importance of monitoring a financial institution's adherence to the LCM framework figures prominently in the LCM Guideline, the RCM Guideline takes monitoring to a new level. In the RCM Guideline, the adequacy and effectiveness of, and adherence to, compliance procedures, including monitoring and testing procedures should be independently monitored and tested on an ongoing basis by the compliance and other oversight functions, employing a risk-based approach. Verification of information used in key reports should be included as part of the monitoring and testing program. In addition, OSFI expects internal audit or other independent review function to validate the effectiveness of, and adherence to, the RCM Framework by regular risk-based testing. Generally, the review function is to be independent of the activities it reviews (although OSFI acknowledges that in smaller and less complex financial institutions one person may have more than one oversight responsibility).
Role of the Chief Compliance Officer (CCO)
The CCO's status and the formality of the CCO's role have been enhanced in a fashion similar to the new Corporate Governance guideline's treatment of the Chief Risk Officer. For example, the RCM Guideline states that the CCO should:
- have a clearly defined and documented mandate, sufficient resources, unfettered access and a direct reporting line to the Board (or a Board Committee) for functional purposes;
meet with the Board on a regular basis, including, as
appropriate, in camera meetings;
- provide an "opinion" to the Board on the adequacy and effectiveness of the RCM framework and the status of the financial institution's compliance;
- establish general areas of content and frequency of RCM reports made to the CCO by operational management;
- not be directly involved in a revenue-generating function or in the management of any business line or product; and
- be "independent from operational management".
Role of Internal Audit/Other Independent Review Function
The RCM Guideline expands the scope of work of the independent oversight of the RCM framework (e.g. internal audit) and articulates required elements of this function's mind-set. The RCM Guideline provides that:
- the scope of the independent review function's work should include consideration of the reliability of the RCM framework and accuracy of the reporting to Senior Management and the Board as well as an assessment of how the compliance oversight function fulfills its responsibilities;
- reports should include results of audits assessing the work of the CCO as well as recommendations for correcting deficiencies, management's response and remedial action plans;
- reports are to assist the Board in assessing the reliability of assurances provided to the Board by the compliance oversight function and Senior Management; and
- internal audit methodologies need to be supplemented by effective challenge and an attitude of "professional skepticism" by internal auditors.
Role of Senior Management
The RCM Guideline similarly expands the description of Senior Management's role with respect to the RCM framework. For example, Senior Management should:
- ensure that those who "need to know" are provided with reports on the financial institution's status of compliance, remedial action taken and regulatory compliance risk management;
- ensure that policies, procedures and practices are regularly updated so that they remain applicable in light of changing circumstances and regulatory compliance risks;
- proactively consider whether RCM deficiencies identified in one area of the institution's operations may also be present in other areas; and
- ensure that the compliance oversight function has the appropriate resources and support to fulfill its duties, is sufficiently independent of operational management, and has the capacity to offer objective opinions and advice to Senior Management and the Board.
Role of the Board
One interesting difference between the RCM Guideline and the current LCM Guideline is that the RCM Guideline does not specifically contemplate Board "approval" of the RCM framework. Rather, the RCM framework is to be "reviewed and discussed" with the Board. By contrast, OSFI's updated Corporate Governance guideline requires the Board to approve the institution's overall internal control framework as well as the enterprise-wide risk appetite framework that guides the risk-taking activities of the institution.
Enhanced responsibilities of the Board in the RCM Guideline include:
- an overt statement that the Board is ultimately responsible for effective enterprise-wide regulatory compliance management;
requirements that the Board review and understand:
- remedial actions for instances of material non-compliance or control weakness;
- the financial institution's exposure to material regulatory compliance risk;
- significant RCM policies; and
- the RCM framework and its overall effectiveness;
requirements that the Board approve:
- the mandate, resources and budget for the compliance oversight function; and
- "where appropriate", the appointment, performance review and compensation of the CCO.
The RCM Guideline also states that:
"OSFI expects the Board to think critically about and challenge CCO reports and Internal Audit or other independent review function reports...and satisfy itself that the Board receives the information required to perform its RCM oversight responsibilities, including seeking assurances from Senior Management that the RCM controls have been implemented and are effective."5
In a nutshell, OSFI's updated RCM Guideline emphasizes the importance of the CCO's independence from operational management and independent review of the regulatory compliance management function by the internal auditor or other independent review function. It also articulates ultimate responsibility of the Board for effective management of enterprise-wise regulatory compliance. Somewhat similar emphasis was placed on risk governance in the updated Corporate Governance guideline. Yet, unlike the Corporate Governance guideline, the RCM Guideline appears to stop short of specifically suggesting external third party reviews of the RCM framework and its effectiveness.
There may be room for academic debate on the ultimate efficacy and appropriateness of some aspects of OSFI's approach. Nevertheless, OSFI is clearly striving to keep in step with emerging best practices. On March 25, 2014, Deputy Superintendent Andrew Kriegler defended OSFI's emphasis on the "three lines of defense"(namely, business, oversight and internal audit) as being in line with a truly global regulatory agenda.6 He maintained that the three lines of defense are not about duplication of controls and oversight functions and an "ever increasing regulatory burden", but rather about ensuring that financial institutions have complementary responsibilities that work together to support "safety, soundness and profitable risk-taking". He also mentioned that OSFI will begin to review the capabilities of internal audit later in 2014 (stay tuned).
In the context of the RCM Guideline, regardless of whether Mr. Kriegler's remarks mean that OSFI may be concentrating more on the internal auditor's – as opposed to a third party's – function as the independent reviewer of the CCO (who in turn is the independent reviewer of the operational business line), third parties may play a meaningful role in regulatory compliance management. As the prudential regulator, OSFI has the benefit of inside knowledge of all of the various compliance systems used and requires a robust system, as opposed to a checklist approach. Having a truly effective system in place overseen by a knowledgeable CCO is even more important now that the updated RCM Guideline has been issued.
1 Office of the Superintendent of Financial Institutions Canada (OSFI).
2 These documents are available on OSFI's website and outline, among other things, OSFI's risk-based approach to assessing an institution's safety and soundness.
3 The financial institutions that OSFI regulates include banks, insurers and trust and loan companies.
4 For example, Basel Committee on Banking Supervision, International Association of Insurance Supervisors, Financial Stability Board, International Monetary Fund, and Group of Thirty.
5 OSFI Draft Guideline E-13 at p. 10.
6 Speech to the National Bank Financial 12th Annual Canadian Financial Services Conference
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2014