Publication of Regulatory Actions

This BCFSA Administrative Process is effective January 2023. BCFSA may amend its processes from time to time and will post amended versions on its website (www.bcfsa.ca). Readers should check the website to ensure they have the most recent version.

1. Introduction

As the regulator for B.C.’s financial service sector, BCFSA takes Regulatory Actions including issuing Notices of Hearing and Decisions from time to time.

The publication of Regulatory Actions supports compliance in the financial services sector and the effectiveness of related disciplinary processes. However, any such publication must be in accordance with the provisions of applicable legislation, regulations, and rules.

2. Purpose

The purpose of this Administrative Process is to describe when and how BCFSA publishes information about Regulatory Actions, including Notices of Hearing and Decisions.

3. Definitions

“BCFSA” means the BC Financial Services Authority, established under the Financial Services Authority Act.

“BCFSA Legislation” means the following legislation administered and enforced by BCFSA:

• Credit Union Incorporation Act (“CUIA”)
• Financial Institutions Act (“FIA”)
• Financial Services Authority Act (“FSAA”)

• Insurance Act (“IA”)
• Insurance (Captive Company) Act (“ICCA”)
• Mortgage Brokers Act (“MBA”)
• Pension Benefits Standards Act (“PBSA”)
• Real Estate Services Act (“RESA”)

• Real Estate Development Marketing Act (“REDMA”)
• Strata Property Act (“SPA”)

“Decision” means a decision, direction, order or ruling (or reconsideration of a decision, direction, order or ruling), or a summary thereof, including reasons where available, made by the Registrar or Superintendent that determines, assesses, imposes, or revises, as applicable:

1. liability for non-compliance with regulatory requirements,
2. penalties for non-compliance with regulatory requirements,
3. suitability for licensing or registration,
4. orders in urgent circumstances respecting licence conditions, suspensions, and/or property freeze orders,
5. a claim for compensation from the special compensation fund under RESA,
6. costs, and/or
7. conditions and restrictions on licensing or registration.

“FST” means the Financial Services Tribunal under the Financial Institutions Act.

“Notice of Hearing” means a notice, issued by the Registrar or Superintendent, of a hearing to be conducted under BCFSA Legislation.

“Registrar” means the Registrar of Mortgage Brokers, or their delegate.

“Regulatory Action” means action taken by the Registrar or Superintendent under BCFSA Legislation:

1. with respect to non-compliance with regulatory requirements,
2. in response to a request for a hearing by an applicant for licensing or registration to determine suitability for licensing or registration, or to vary or rescind an order in urgent circumstances or property freeze order,
3. in response to a claim for compensation from the special compensation fund under RESA,
   
   and includes, among other things,
4. the issuance of a Notice of Hearing,
5. a Decision, or
6. an alternative complaint disposition (for example, a letter of advisement).

“Superintendent” means the Superintendent of Financial Institutions, the Superintendent of Real Estate, and/or the Superintendent of Pensions, as applicable, or their respective delegates.

“Third Party” means a person that is not the subject of the relevant Regulatory Action but does not include a BCFSA-regulated entity that employed or engaged a person that is the subject of the relevant Regulatory Action at the time of the conduct in question.

4. General

All individuals who engage in program and service delivery for BCFSA should ensure they are familiar with this Administrative Process and that the guiding principles are followed when determining how information about Regulatory Actions, including Notices of Hearing and Decisions, are published.

Legislative Authority

This Administrative Process is intended to align with authorities set out in BCFSA Legislation.

BCFSA Legislation differs in its specificity across the segments included in the B.C. Financial Services sector. Segment-specific information and requirements are set out in section 7.

Freedom of Information and Protection of Privacy Act (“FOIPPA”)

Some of the information BCFSA publishes about Regulatory Actions will include personal information, as defined in FOIPPA. FOIPPA permits the disclosure of personal information only in certain circumstances, including:

• Where the disclosure, in respect of a licence, a permit, or any other similar discretionary benefit reveals the beneficiary’s name, discretionary benefit granted, duration, and any applicable conditions or restrictions;
• For the purpose for which the information was obtained or compiled, or for a use consistent with that purpose within the meaning of consistent purpose;
• Where the Third Party has consented, in writing, to the disclosure of their personal information;
• Where an enactment of British Columbia or Canada authorizes the disclosure; or
• For the purposes of licensing, registration, insurance, investigation, or discipline of persons regulated by governing bodies of professions or occupations.

However, a “personal note, communication or draft decision of a person who is acting in a judicial or quasi-judicial capacity” is excluded from the scope of FOIPPA.

Investigation Information

BCFSA does not ordinarily disclose to the public or confirm the existence of an investigation while it is ongoing or closed with no resulting Regulatory Action, unless there is imminent risk of harm to the public (e.g., order in urgent circumstances, freeze order). This is because:

• Investigations may be compromised if disclosure is made before an investigation is complete. Confidentiality minimizes this risk; and
• Confidentiality also minimizes potential harm to the reputations of those to whom the investigation relates if no enforcement action is taken.

Publication in Reports, Databases, or Media Release

In accordance with this Administrative Process, BCFSA may publish Regulatory Actions including Notices of Hearing and Decisions on its website, or in reports or publications distributed publicly.

Many Decisions published on BCFSA’s website are concurrently published on the Canadian Legal Information Institute (“CanLII”) database. The CanLII database is publicly available and searchable for free, contributing to open and transparent access to jurisprudence in Canada. All Decisions published on CanLII are subject to CanLII policies and procedures.

Where Regulatory Actions are published on BCFSA’s website, third parties, such as internet search engines, media outlets and private individuals, often index and/or copy that content for the purposes of reposting on other websites or making the information available through internet searches. BCFSA does not control the availability of content published on other websites, or the duration of any search engine’s reporting of that content.

BCFSA may issue a media release, place a paid advertisement, and use other methods of publication and notification when it determines that such actions would be in the public interest, including but not limited to a lengthy suspension, large fine, licence cancellation, order in urgent circumstances, or order to freeze property. The Communications Team is accountable for overseeing any enhanced publication measures that BCFSA may take in relation to a Regulatory Action.

5. Guiding Principles

BCFSA will consider the following guiding principles when determining how information regarding Regulatory Actions should be published.

I. A consistent and clear approach enhances fairness.

A clear, consistent, and public approach to the publication of information about Regulatory Actions ensures that regulated segments know in advance when and how enforcement information will be made public and ensures that regulated entities and individuals are treated consistently and fairly.

II. Publication promotes transparency and accountability within regulated segments.

Regulated segments will have a greater understanding of legal and compliance obligations, as well as potential consequences for failing to meet them. Transparency promotes accountability by ensuring the public and the regulated segment are aware of potential Regulatory Action, which can also act as a general deterrent to misconduct.

III. Publication promotes public confidence in the financial services sector and in BCFSA as a modern, effective, and efficient regulator.

Public confidence is enhanced when there is knowledge and understanding that legal requirements for the financial services sector are enforced and appropriate penalties are assessed for contraventions.

IV. Transparency and accountability must be balanced with the privacy of individuals and the protection of personal information.

While the publication of information about Regulatory Actions serves a strong purpose in ensuring that the public and regulated segments are aware of obligations and potential penalties, there are also privacy considerations for protecting the personal information of individuals. At all times, privacy legislation and guidance must be considered when making information about Regulatory Actions public.

6. Publication of Regulatory Actions

The Publication of Regulatory Actions, including Notices of Hearing and Decisions, is subject to the following:

• Any segment-specific practices (see section 7); and
• Any redaction/anonymization requirements that are applicable to all publications, regardless of segment (see Appendix A: Publishing and Redaction Guidelines).

As a general practice across the financial services sector, BCFSA will make the following information publicly available and searchable on the BCFSA website:

• Notices of Hearing

• Unless the Superintendent or Registrar orders otherwise, BCFSA hearings are open to the public and Notices of Hearing are published on the BCFSA website.
• Members of the public, including the media, who wish to attend a hearing should contact [email protected] or the Hearing Coordinator in advance of the hearing date to confirm that the hearing is proceeding and is open to the public, as well as to ensure there are sufficient resources to accommodate all those who wish to attend. Conditions of attendance are normally imposed (e.g., proceedings may not be recorded). Attendance of media is determined at BCFSA’s sole discretion.
• A Notice of Hearing will be removed from the BCFSA website once the matter has been disposed of through withdrawal/discontinuance, by a hearing, or by consent.

• Decisions, whether resulting from a hearing or made by consent, including but not limited to:

• Discipline orders;
• Registration and compliance orders;
• Orders in urgent circumstances; and
• Administrative penalties.

The above Decisions will generally be published in perpetuity. However, BCFSA retains discretion to individually assess publication according to the criteria below.

Subject to the discretionary approach, BCFSA will generally not publish Regulatory Actions relating to the following:

• Undertakings (FIA, RESA, REDMA);
• Voluntary compliance agreements (FIA); and
• Alternative complaint dispositions (for example, letters of advisement).

Where necessary, published documents are redacted to remove certain information before posting online (see Appendix A for Publishing and Redaction Guidelines). Commonly redacted information includes:

• Names and contact details of Third Parties (e.g. witnesses);
• Bank account details of both individuals and businesses; and
• Property addresses or other property identifiers.

There may be exceptional circumstances where BCFSA, licensees, or Third Parties have identified a concern with the publication or non-publication of a Regulatory Action or information in a Regulatory Action. In these circumstances, BCFSA will take an approach that promotes public transparency but weighs the benefits of transparency with any potential harms. This discretionary approach will consider the following:

• To what extent is there a public interest benefit to transparency (e.g., accountability, specific or general deterrence)?
• Are there any potential harms in publication (e.g., harm to personal privacy or to a Third Party’s interests, or undue prejudice to a party or a witness) that could not be mitigated through redaction or anonymization?
• Would publication reduce or enhance the efficacy of a particular Regulatory Action?

• Would publication impact procedural fairness?
• Has the matter been resolved with a reasonable expectation that the resolution will not be made public?

Subject to requirements under legislation, as part of exercising its discretion, BCFSA may decide:

• To publish information to either the general public or to specific segment participants;
• To release full or redacted information, including information about Third Parties;

• To delay publication of information if publication may impact procedural fairness in a separate matter; or
• Not to publish any information.

Discretionary decisions about publication (e.g., redaction or anonymization) will be made by the Superintendent or Registrar or their delegates. With respect to Decisions associated with a hearing, or reconsiderations of administrative penalties, the Hearing Officer who presided over the matter is the delegate who will make decisions about publication where possible, subject to direction by the Superintendent or Registrar and advice from the Legal Department as appropriate.

7. Segment-Specific Policies and Practices

The following section sets out the segment-specific policies and practices. A chart setting out timelines for segment-specific publication can be found at the end of Appendix A.

For clarity, the discretionary approach set out in section 6, above, can be applied to anonymize or otherwise redact certain information before publication where circumstances warrant.

Financial Institutions

In the credit union, insurance, and trust company segments, BCFSA publishes Decisions when the Superintendent takes any of the following actions:

• Penalties for offences (FIA, s. 253);
• Administrative penalties (FIA, s. 253.1);
• Cease Orders (FIA, s. 244);
• Orders to Freeze Property (FIA, s. 245);
• Compliance Orders (FIA, s. 246);

• Valuation Orders (FIA, s. 247);
• Revocation of Business Authorization (FIA, ss. 249, 250 – published in Gazette); and
• Notice of conditions, suspension, revocation, refusal to renew, or cancelation (ICCA, s. 11 – published in Gazette).

Per section 6 of this Administrative Process, the foregoing Decisions will be published in perpetuity on the BCFSA website and on the CanLII website.

Subject to the discretionary approach, BCFSA will generally not publish undertakings (FIA, ss. 208 and 244(2)(g)), voluntary compliance agreements (FIA, s. 244), or decisions relating to charges and expenses of adjusting a loss under an insurance policy (IA, s. 147).

Mortgage Brokers

Section 8 of the Mortgage Brokers Regulation states that every direction, decision, order or ruling of the Registrar refusing registration, refusing to renew registration, suspending registration or cancelling registration shall be made in writing and shall be open to public inspection.

Per section 6 of this Administrative Process, the following Decisions will be published in perpetuity on the BCFSA website and on the CanLII website:

• Directions on freezing of trust funds (MBA, s. 7);
• Orders relating to compliance (MBA, s. 8);

• Orders relating to false, misleading or deceptive statements (MBA, s. 14); and
• Decisions relating to registration (MBA Regulation, s. 8).

After appropriate redactions, which will generally include anonymization, BCFSA will generally publish the following Decisions due to the public interest benefit of transparency:

• Decisions relating to registration (MBA Regulation, s. 8)

Link to Registrant Search

BCFSA will link all orders relating to compliance made under s. 8 of the MBA to the registrant search function on BCFSA’s website for the following duration:

• 10 years for orders involving a suspension of registration; and
• 5 years for all other orders.

Where an order has been appealed to the FST, a notation of the appeal will be added to the registrant search along with a link to the FST webpage that tracks active appeals and decisions.

At the end of the above time periods, the orders will be removed from the registrant search function but will otherwise remain on BCFSA’s website in accordance with this Administrative Process.

Pensions

In the pensions segment, BCFSA publishes Decisions when the Superintendent takes any of the following actions:

• Specifies by order a date as the effective date of the termination of a pension plan (PBSA, s. 97(4));
• Issues a direction for compliance (PBSA, s. 113(1)(d) or (2));
• Administrative penalties (PBSA, s. 116);
• Orders the payment of expenses (PBSA, s. 118(2));
• Withdraws a consent to continuation of pension plan despite cessation of benefit accrual and directs termination of a pension plan (PBSA, s. 95(4));
• Directs the termination of a pension plan (PBSA, s. 98);
• Makes an order splitting liabilities and assets of a pension plan (PBSA, s. 129(9)); and
• Issues a notice of reconsideration (PBSA, s. 126).

Per section 6 of this Administrative Process, the foregoing matters will be published on the CanLII website and in perpetuity on the BCFSA website.

Real Estate Development Marketing

Section 33 of REDMA requires the following Decisions to be published on the BCFSA website:

• Orders (REDMA, s. 30); and
• Orders in urgent circumstances (REDMA, s. 32).

Per section 6 of this Administrative Process, the foregoing Decisions will be published on the CanLII website and in perpetuity on the BCFSA website.

Subject to the discretionary approach, BCFSA will generally not publish undertakings made under s. 36 of REDMA.

Real Estate Services

Sections 47 and 53 of RESA and section 4.5 of the Real Estate Services Regulations require the following Decisions to be published on BCFSA’s website and in any other method the Superintendent considers appropriate:

• Consent orders (RESA, s. 41);
• Discipline orders (RESA, s. 43);
• Orders in urgent circumstances related to licensees (RESA, s. 45);
• Orders to freeze property (RESA, s. 46);
• Orders respecting unlicensed activity (RESA, s. 49); and
• Orders in urgent circumstances relating to unlicensed persons (RESA, s. 51).

Per section 6 of this Administrative Process, the foregoing Decisions will be published on the CanLII website and in perpetuity on the BCFSA website.

Section 57.1 of RESA enables, but does not require, the Superintendent to publish a copy of a notice of administrative penalty and the reconsideration decision confirming or cancelling the administrative penalty. The Superintendent will generally publish all notices of administrative penalties over $2,500 and all related reconsideration decisions on BCFSA’s website in perpetuity. Administrative penalties for $2,500 or less will generally be aggregated instead of being published individually. Administrative penalties greater than $2,500 will be published on the CanLII website.

After appropriate redactions, which will generally include anonymization, BCFSA will generally publish the following Decisions due to the public interest benefit of transparency:

• Qualification hearings decisions (RESA, s. 13); and
• Special compensation hearings decisions (RESA, s. 63).

Subject to the discretionary approach, BCFSA will generally not publish undertakings made under s. 53.1 of RESA.

Link to Licensee Search

BCFSA will link all consent orders, discipline orders, and administrative penalties over $2,500 to the licensee search function on BCFSA’s website for the following duration:

• 10 years for orders involving a suspension of licence; and

• 5 years for all other orders and administrative penalties over $2,500.

Where a discipline order has been appealed to the FST, a notation of the appeal will be added to the licensee search along with a link to the FST webpage that tracks active appeals and decisions.

At the end of the above time periods, the orders and administrative penalties will be removed from the licensee search function but will otherwise remain on BCFSA’s website in accordance with this Administrative Process.

Appendix A: Publishing and Redaction Guidelines

Prior to publication, each Regulatory Action should be reviewed for information that may need to be redacted. The review process involves the following steps:

1. I. Review for sensitive personal information.

In general, sensitive personal information of all individuals (including the licensee/registrant/applicant) should be redacted, unless this information is material to the Decision rendered.

Sensitive personal information includes, but is not limited to:

• Race, ethnic origin, sexual orientation, and religion;
• Marital or family status;
• Medical information and health care history (including physical or mental disability);
• Financial information, such as social insurance number, credit card information, income, or bank account details;
• Criminal history; and

• A person’s signature.

2. II. Consider if names and identifiers should be redacted.

Subject to the discretionary approach outlined in section 6, the names and identifiers of Third Parties should generally be redacted from each Regulatory Action prior to publication. Depending on the type of Regulatory Action (for example Notice of Hearing or Decision), it may also be appropriate to redact the name and identifiers of the person that is subject to the relevant Regulatory Action (i.e., complete anonymization). See “Publication and Redaction” table below for guidelines as to when complete anonymization may be appropriate.

Identifiers refer to information that can readily be used to identify an individual through inference. Identifiers may include, but are not limited to:

• A person’s business address or place of employment (the city and/or province/territory can be left unredacted);
• Email addresses; and
• Social media account names or login information.

3. III. Redact the information.

Redactions should generally be made using square brackets:

• Redactions of names: use, for example, [Applicant 1], [Corporation 1]; and
• Redactions of information: replace the text you wish to redact with [redacted].

All signatures should also be redacted from published materials and replaced by the person’s name in quotation marks (e.g., “Jane Doe”).

Publication and Redaction

Type of Regulatory Action	Published on Website	Published on CanLII	Redaction Notes	Publication Notes
Notices of Hearing	Yes	No	Generally, Third Party names and identifiers only unless the issues are listed then possibly complete anonymization.	A Notice of Hearing will be removed from the BCFSA website once the matter has been disposed of through withdrawal/discontinuance, by hearing, or by consent.
Administrative Monetary Penalties (AMP) Appeals/ Reconsiderations	Yes (will generally aggregate penalties of $2,500 or less).	Yes, as per Website publication.	Third Party names and identifiers only. Complete anonymization when penalty is $2,500 or less.
Interim Decisions (e.g., regarding procedure, etc.)	Yes	Yes	Third Party names and identifiers only.	These should be published at the same time as the Reasons and should be attached to the Reasons as an appendix.
Qualification/ Suitability Hearing	Yes	Yes	Generally, complete anonymization.
Liability Hearing	Yes	Yes	Third Party names and identifiers only. Discretionary redaction of highly sensitive personal information of registrant/ licensee.
Penalty Hearing	Yes	Yes	Third Party names and identifiers only. Discretionary redaction of highly sensitive personal information of registrant/ licensee.
Consent Orders	Yes	Yes	Third Party names and identifiers only. Discretionary redaction of highly sensitive personal information of registrant/ licensee.
Special Compensation Fund (RESA, s. 63)	Yes	Yes	Generally, complete anonymization. *Parties receive redacted copy. *Compensation Fund receives unredacted copy. Redacted copy published.	These should be published at the same time as the Reasons and should be attached to the Reasons as an appendix.
Special Compensation Fund Reasons	Yes	Yes	Generally, complete anonymization. *Parties receive redacted copy. *Compensation Fund receives unredacted copy. Redacted copy published.

Website Posting Timeline

Segment	Notice of Hearing	Notice of Administrative Penalty	Consent Orders	Order in Urgent Circumstances	Hearing Decisions
Real Estate	After service/ delivery	After Notice of Dispute period (30 days) has lapsed without request for Reconsideration. Otherwise only after penalty upheld, in whole or part, on Reconsideration.	Immediately	Immediately	Immediately
Mortgage Brokers	After service/ delivery	After Service/Delivery	Immediately	Immediately	Immediately
Financial Institutions (Credit Unions, Insurance and Trust Companies)	After service/ delivery	After 14 Days when Notice of Dispute has lapsed	N/A	N/A	N/A
Pensions	After service/ delivery	After 30 Days when Notice of Objection has lapsed	N/A	N/A	N/A

The BCFSA Legal or Compliance and Enforcement Departments send Notices of Hearing and relevant Decisions to the BCFSA Communication Team, which posts those documents to BCFSA’s website on Wednesday of each week. Where urgency is noted by the Legal or Compliance and Enforcement teams (e.g., urgent orders), the Notices of Hearing or relevant Decisions, as applicable, may be posted earlier.