Payment Clearing and Settlement Act — P-4.4 11.09
Order 11.09 (1) The Governor of the Bank may, after having made a declaration of non-viability for a clearing and settlement system or a clearing house, by order, (a) if the declaration is for the Canadian Payments Association or a clearing and settlement system that it operates, appoint the Bank as receiver in respect of the Association; or (b) in any other case, (i) appoint the Bank as receiver in respect of the clearing house, or (ii) vest in the Bank the shares of the clearing house that are specified in the order. Effect of receivership order (2) An order made under paragraph (1)(a) or subparagraph (1)(b)(i) constitutes the Bank as the exclusive receiver of the assets and undertaking of the clearing house and gives the Bank the power to (a) take possession and control of the assets and undertaking and require any person or entity to account for and deliver up to the Bank possession and control of the assets; (b) subject to paragraph (c), sell or otherwise alienate the assets in the manner and on the terms and conditions that the Bank considers appropriate; (c) sell or otherwise alienate any asset that is subject to an agreement creating a security to any person or entity who agrees to assume the obligation secured by the security; (d) arrange for the assumption by any person or entity of all or any part of the clearing house’s liabilities; (e) carry on the business of the clearing house; (f) sue for, defend, compromise and settle, in the name of the clearing house, any claim made by or against it; (g) do all acts and execute or, in Quebec, sign any documents in the name of the clearing house; and (h) do all other things necessary or incidental to the exercise of the Bank’s rights, powers, privileges and immunities as receiver. Effect of vesting order (3) An order made under subparagraph (1)(b)(ii) (a) vests in the Bank the shares that are subject to the order, free from any adverse claim, including any claim that a transfer was wrongful or that a particular adverse person or entity was the owner of or had an interest or right in the shares, even though the clearing house knows of the adverse claim; (b) extinguishes any such adverse claim to the extent that the claim is a claim that a person or entity other than the Bank is the owner of or has an interest or right in the shares; and (c) does not extinguish any such adverse claim to the extent that the claim is a personal claim against a person or entity other than the Bank or an assignee or successor of the Bank. For greater certainty — bankruptcy (4) For greater certainty, shares that are subject to an order made under subparagraph (1)(b)(ii) and that, immediately before the making of the order, are vested in a trustee in bankruptcy under the Bankruptcy and Insolvency Act are vested in the Bank. For greater certainty — not a Crown corporation (5) For greater certainty, the vesting in the Bank of the clearing house’s shares does not cause the clearing house to be a Crown corporation , as defined in subsection 83(1) of the Financial Administration Act . For greater certainty — exercising rights (6) For greater certainty, an order made under subsection (1) prevents any person or entity, other than the Bank, who is the holder of shares, debts or other liabilities of the clearing house or who is a party to or a beneficiary of a contract with the clearing house, and any secured creditor or assignee or successor of such a person or entity, from exercising any voting or other rights arising from the person’s or entity’s status in any manner that could defeat or interfere with the rights, powers, privileges and immunities of the Bank as holder of shares or as receiver, as the case may be. Receiver’s powers (7) If an order is made under paragraph (1)(a) or subparagraph (1)(b)(i), (a) the Bank, as receiver, may exercise its powers, rights, privileges and immunities without leave of a court, but may seek the assistance of a superior court in exercising those powers, rights, privilege