Office of the Superintendent of Financial Institutions
The Office of the Superintendent of Financial Institutions (OSFI) is responsible for administering a number of federal statutes, including the statute applicable to the regulation of federal credit unions (the Bank Act (BA)). A local cooperative credit society may continue as a federal credit union (an FCU) under the BA. As part of the regulatory process, OSFI assesses applications for continuance and makes recommendations to the Minister of Finance (the Minister), who has the ultimate responsibility for approving the continuance.
This Guide sets out the two phases of the process to continue as an FCU under the BA along with the information that an applicant Footnote 1 is generally expected to submit in support of the requisite application to the Minister seeking the issuance of letters patent of continuance (Letters Patent) continuing the local cooperative credit society as an FCU. Footnote 2
This Guide also sets out the various prudential, regulatory and legislative criteria and information requirements relative to the application for continuance as an FCU. Footnote 3
One of the primary objectives of this Guide is to promote awareness and enhance the transparency of the assessment criteria and processes for continuance as an FCU.
OSFI will generally evaluate a proposed continuance against the criteria in this Guide; however, as the particular circumstances and facts of each application are different, this Guide should not be viewed as an exhaustive set of criteria and information requirements. Footnote 4 OSFI officers from the Regulatory Affairs Division and Deposit-Taking Supervision Sector jointly review and assess each application for continuance as an FCU.
A local cooperative credit society may also apply for continuance in order to immediately amalgamate with one or more local cooperative credit societies also applying for continuance or with an existing FCU. Footnote 5 The applications for continuance and amalgamation will be considered together.
This Guide does not apply to:
Prospective applicants are encouraged to contact OSFI for further information regarding the incorporation, continuance or establishment of these entities.
There are two primary approvals related to an application to continue a local cooperative credit society as an FCU in Canada: (i) the issuance of Letters Patent by the Minister Footnote 8 ; and (ii) the making of an order to commence and carry on business (Order) by the Superintendent of Financial Institutions (the Superintendent). Footnote 9
The application process to continue a local cooperative credit society as an FCU in Canada is comprised of two phases related to the approvals noted above, the key elements of which are outlined below. The phased approach is intended to provide applicants with guidance and feedback both at the initial stages of the proposed application and throughout the application process.
While there is no specific time limit on the assessment of applications, OSFI endeavours to complete all application assessments as quickly as possible. The assessment of each application will depend on the specific facts and circumstances, and OSFI will communicate regularly with the applicant throughout this process.
In OSFI’s experience, delays in receiving Letters Patent often result from the complexities presented in the application, the provision of incomplete information by the applicant in support of the application, and/or a failure on the part of the applicant to sufficiently address additional information requests from OSFI in a timely manner.
Applicants should also note that the timing in the latter stages of the application process will largely depend on the readiness of the applicant to begin business as an FCU, as verified during the pre-commencement on-site review(s).
OSFI may terminate its review of an application where, in OSFI’s view, based on the quality of the applicant’s submissions, and despite significant feedback from OSFI, the applicant is unable to satisfy the information requirements in support of the application. In this regard, applicants should note that they bear the onus of satisfying OSFI’s information requirements in a timely, clear and complete manner.
Prior to submitting the formal application, a prospective applicant is requested to contact the Regulatory Affairs Division to schedule an initial in-person meeting with OSFI to discuss the proposed continuance and the application process. Footnote 11 This discussion provides an opportunity for OSFI to provide preliminary feedback regarding any apparent or potential regulatory, prudential or public policy issues.
The initial discussion also provides an opportunity for OSFI to clarify its processes and expectations regarding applications to continue as an FCU generally, along with any unique considerations that may be applicable to that particular prospective applicant.
To facilitate the initial discussion, a prospective applicant will generally be expected to provide the following written submissions prior to the meeting:
OSFI will request the following information from a prospective applicant who, after the initial discussion, wishes to proceed with the application. OSFI’s primary purpose in reviewing this information is to identify any fundamental issues that should be considered by the prospective applicant before or at the time of its Phase-2 application, including any significant prudential or policy concerns that may prevent OSFI from making a positive recommendation to the Minister for the issuance of Letters Patent.
The prospective applicant is generally expected to provide:
The prospective applicant is generally expected to provide a five-year business plan, including:
The prospective applicant is generally expected to provide details regarding its current and proposed, as applicable:
A second in-person meeting with the prospective applicant will be scheduled once OSFI has had an opportunity to consider the information submitted under sections 1.1 to 1.3 above. The purpose of this meeting is for the prospective applicant to demonstrate an understanding of the material risks associated with its business plan and the methods by which it intends to mitigate those risks. Prior to the meeting, OSFI will provide the prospective applicant with an agenda and specific issues that the prospective applicant will be expected to address at the meeting.
Following the business plan discussion with OSFI, the prospective applicant will receive a letter setting out OSFI’s views and expectations regarding:
Amongst other considerations, the BA provides that the Minister may only issue Letters Patent if the Minister is of the opinion that the applicant has complied with the Disclosure on Continuance Regulations (Federal Credit Unions) (the Regulations). Footnote 25 In this regard, the Regulations specify that, at least four weeks before its members vote on a special resolution authorizing an application for Letters Patent, the prospective applicant must send a notice (the Disclosure Notice) to every member. Footnote 26 The primary purpose of the Disclosure Notice is to inform members of the following:
The Disclosure Notice must be approved by the Superintendent in consultation with CDIC. As such, a draft copy of the Disclosure Notice must be provided to OSFI for approval prior to the prospective applicant sending it to members.
As provided for in the Regulations, the approved Disclosure Notice must be made available on the prospective applicant’s website and in the prospective applicant’s branches. The prospective applicant must also publish the information contained in the approved Disclosure Notice in the Canada Gazette, and in a newspaper with general circulation in the province or territory in which the prospective applicant transacts business, once a week for the four weeks before its members vote on the special resolution.
Subsequent to a member vote authorizing the application for Letters Patent, OSFI will request that the prospective applicant provide an expected date for its submission of a formal application.
Prior to submitting the formal application, the prospective applicant must give notice of its intention to apply for Letters Patent (the Notice of Intent). The primary purpose of the Notice of Intent is to inform the public of the identity of the local cooperative credit society making the application and to allow for public comment. The BA states that the Notice of Intent must be published once a week for four consecutive weeks in the Canada Gazette and in a newspaper in general circulation at or near the place where the head office of the FCU is to be situated. The BA also specifies that the Notice of Intent must be in a form satisfactory to the Superintendent. As such, a draft copy of the Notice of Intent should be provided to OSFI for review prior to publication to avoid the possibility of having to republish the Notice of Intent. Footnote 28 In this regard, OSFI’s expectation is that the Notice of Intent will set out:
The BA provides that a person may formally object to the proposed continuance by submitting the objection, in writing, to the Superintendent within 30-days of the last publication of the Notice of Intent. Where an objection is submitted, the Superintendent will assess its merits and determine whether a public inquiry into the objection is warranted. The Superintendent must also inform the Minister of the objection and the findings of any such inquiry.
Following the publication of the Notice of Intent, the applicant may submit its formal application to OSFI for the issuance of Letters Patent. The information that OSFI generally expects to be submitted in respect of an application for Letters Patent is set out below.
OSFI will review the application and will contact the applicant to discuss its completeness, status, and outstanding issues. This will typically be done through one or more written communications, discussions and/or meetings. Where necessary, OSFI may also request additional information to complete the assessment of the application, which may include additional corroborating information or analysis from third parties. OSFI’s assessment will also be informed by its experience of the actual performance of existing federally regulated financial institutions in similar business lines.
OSFI expects applications to contain all the information requirements set out in sections 2.1 to 2.9 of this Guide. Additionally, if any of the details have changed in respect of the information requirements submitted under sections 1.1 to 1.3 above, the applicant should update and re-submit that information.
In certain circumstances, it may not be feasible for an applicant to provide all the information set out below at the time of the application. Where this is the case, applicants should explain to OSFI which information items will be provided at a later date.
The applicant is generally expected to provide, as applicable:
With respect to the five-year business plan submitted in Phase-1, the applicant is generally expected to provide:
The applicant is generally expected to provide:
The applicant is generally expected to provide:
The applicant is generally expected to provide a detailed description of the internal controls, policies and procedures that it would follow as an FCU to ensure compliance with:
The applicant is also generally expected to provide:
One or more on-site reviews will be arranged Footnote 56 prior to OSFI making a recommendation to the Minister in respect of the issuance of Letters Patent and the anticipated areas for review and discussion will be provided by OSFI at that time. The purpose of an on-site review is to determine whether the applicant is sufficiently prepared to commence business operations as an FCU. It will assess, among other things, the operational readiness and control processes and management systems referred to in sections 2.4, 2.7 and 2.8 of this Guide. An on-site review will also assess whether the applicant is capable of producing the required statutory and supervisory information in an accurate and timely manner at the commencement of operations as an FCU.
OSFI will provide the applicant with a pre-commencement letter prior to a scheduled on-site review. The letter will request additional information that the applicant is expected to provide sufficiently in advance of the on-site review so that OSFI can consider the submissions prior to the on-site review.
Following an on-site review, OSFI will provide the applicant with a letter setting out any outstanding concerns and OSFI’s expectations regarding their resolution.
Before making a recommendation to the Minister in respect of the issuance of Letters Patent, OSFI must be satisfied that the applicant has the necessary systems, management structure, control processes and regulatory compliance management systems in place. All policies and procedures should be finalised and approved prior to the making of the recommendation.
The applicant continues as an FCU on the date provided in the Letters Patent Footnote 57 . The Minister may set out in the Letters Patent any terms and conditions that the Minister considers necessary or appropriate relative to the continuance as an FCU.
The Superintendent may set out in the Order conditions or limitations on the FCU’s business to address supervisory and regulatory concerns. Footnote 58 At the same time, the FCU will also be assigned its authorized leverage ratio.
The FCU will be required to publish notice of the making of the Order in a newspaper in general circulation in the city where the FCU’s head office is located. OSFI is required to publish a notice of the issuance of the Letters Patent and the making of the Order in the Canada Gazette.Footnote 59 OSFI is also required to send a copy of the Letters Patent to the appropriate official or public body in the jurisdiction in which the applicant was authorized to apply for Letters Patent. Footnote 60
This portion of the Guide provides additional guidance to applicants in respect of continuance for the purpose of amalgamation, the matters for consideration relative to the issuance of Letters Patent and the making of the Order, transitional relief, and other stakeholders to be considered by the applicant in the context of continuance.
The BA provides for circumstances where a local cooperative credit society applies for continuance in order to continue and immediately amalgamate with one or more local cooperative credit societies also applying for continuance or with an existing FCU. Footnote 61 In any of these circumstances, the formal application for Letters Patent must be made at the same time as the formal application for letters patent of amalgamation. Footnote 62 The applications for continuance and amalgamation will be considered together.
In addition, an approved amalgamation agreement Footnote 63 is a key requirement in an application for amalgamation. The Superintendent must approve the amalgamation agreement prior to the Minister issuing letters patent of amalgamation. As it relates to the application process for continuance and amalgamation, an amalgamation agreement may be submitted to the Superintendent for approval during Phase I. Please note that the Superintendent must approve the amalgamation agreement prior to approval, by special resolution, by members and any shareholders, Footnote 64 and this vote must be held at the same time as the vote on the special resolution authorizing the application for continuance. Footnote 65
The formal application in respect of the amalgamation must also be preceded by a notice of intention to apply. Footnote 66 The prospective applicant(s) may publish this notice jointly with the Notice of Intent in respect of the application for continuance Footnote 67 at the beginning of Phase II of the application process.
Prospective applicants are encouraged to contact OSFI for further information regarding any additional information requirements in respect of a proposed amalgamation.
OSFI will review the whole application with a view to ascertaining whether the criteria related to the Ministerial approval for the issuance of the Letters Patent have been met. Footnote 68 As the Superintendent makes the Order upon the issuance of Letters Patent, Footnote 69 OSFI must also be satisfied that the applicant is sufficiently prepared to commence business operations as an FCU prior to recommending that the Minister issue Letters Patent.
OSFI’s review will focus on determining whether the following broad considerations have been satisfied:
Where certain activities of an FCU in respect of which Letters Patent were issued will not comply with the BA, the Minister may, on the recommendation of the Superintendent, by order grant a temporary permission in respect of these activities. The permission granted may be to:
The Minister may also, by order, exempt the FCU from certain requirements relating to voting for up to 3 years after the effective date of the Letters Patent, if the Minister is of the opinion that the FCU will act in a manner that substantially complies with the requirement. Footnote 72
The applicant should request such temporary permission or exemption in its application to continue as an FCU. The applicant is expected to provide a rationale for the requested order including details regarding the activity for which relief is requested and a plan to come into compliance.
For the purpose of supporting an FCU during the 3 year period from the effective date of the Letters Patent, the Minister may, subject to any terms and conditions that the Minister considers appropriate and for the period that the Minister considers appropriate, guarantee the repayment of a loan that a federal financial institution makes to the FCU. Footnote 73 Where such a guarantee is requested, OSFI will provide the applicant with contact details for the Department of Finance.
Applicants are not required to make a separate application to CDIC for retail deposit insurance. OSFI will contact CDIC regarding any application for Letters Patent that includes a retail deposit-taking activity. Pursuant to the Canada Deposit Insurance Corporation Act, upon the making of an Order, CDIC will insure the eligible deposits held by an FCU.
Applicants should note that the consumer provisions in the BA are administered by the Financial Consumer Agency of Canada (FCAC). OSFI will inform FCAC of any application for Letters Patent.
FCUs are automatically members of Payments Canada. Once continued, FCUs must register with Payments Canada.
OSFI will, on request, provide an applicant with an appropriate contact at CDIC, FCAC or Payments Canada.
All enquiries regarding continuance as an FCU should be directed to:
Office of the Superintendent of Financial Institutions
Regulatory Affairs Division
15th Floor, 255 Albert Street
Ottawa, Ontario, Canada, K1A 0H2
For the purpose of this Guide, any reference to applicant is to the local cooperative credit society seeking to continue as an FCU.
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Letters Patent will not be issued if the application is made by or on behalf of a local cooperative credit society controlled by Her Majesty or an agency of Her Majesty.
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For the purpose of facilitating the continuance, the Minister may, on application and by order, exempt the local cooperative credit society from certain legislative requirements if the Minister is of the opinion that the local cooperative credit society has acted in a manner that substantially complies with the requirement (please see subsection 35.1(4) of the BA).
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The BA provides broad authority to the Minister and the Superintendent of Financial Institutions to take into account all matters that they consider relevant in the circumstances related to the granting of any approval (please see section 973.01 of the BA).
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Please see subsections 33(3) and (4) of the BA and paragraph I of Administrative Guidance below.
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Please refer to the OSFI Guide for Incorporating Banks and Federally Regulated Trust and Loan Companies and the OSFI Guide for Continuing a Body Corporate as a Bank or a Federally Regulated Trust or Loan Company.
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Please refer to the OSFI Guide to Foreign Bank Branching.
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Letters Patent are issued by the Minister upon recommendation of the Superintendent.
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Please see section 27 of the BA and paragraph II of Administrative Guidance below.
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No application is required in respect of an Order as the Superintendent is required to make the Order upon the issuance of Letters Patent (please see subsection 48(3) of the BA).
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The contact information for OSFI’s Legislation and Approvals Division is located on the final page of this Guide.
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Please see section 10 of the BA.
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Please see section 39 of the BA and paragraph III of Administrative Guidance below.
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An entity is a “regulated entity” if it is listed in subsection 468(1) of the BA.
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Business activities that are authorized are listed in subsection 468(2) of the BA.
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Business activities that are restricted are generally listed in subsection 468(3) of the BA.
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Section 8 of the BA defines significant interest. For the purpose of the ownership provisions of the BA, sections 9 through 9.2 of the BA provide that, where two or more persons are acting in concert, they will be deemed to be a single person.
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Please note that “branch” is defined in section 2 of the BA.
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Please also see OSFI’s Leverage Requirements Guideline. In preparing the pro forma financial statements, note that the initial authorized leverage ratio assigned by OSFI will depend on several factors but will typically fall within the 8 to 12 per cent range. Factors include the nature of the proposed business, the anticipated peer group risk profile, the overall strength of the business plan, the effectiveness of the controls in place, the recent financial performance of the applicant, the level of initial capitalization and any sources of on-going financial support. Prospective applicants should discuss with OSFI the initial leverage ratio they intend to use to develop the business plan.
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Where a prospective applicant intends to seek transitional relief (please see paragraph III of Administrative Guidance below), the prospective applicant is generally expected to provide a base case that factors in the requested transitional relief and a base case that does not factor in transitional relief. If this is the case, the information set out in 1.2(i) above should be provided for both base cases.
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Prospective applicants should discuss with OSFI the stress scenario they intend to use. The financial statements are generally expected to address two cases under the stress scenario, one case where the FCU takes no action and a second case where the FCU acts to respond to the stress.
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Please see OSFI Guideline B-10 - Outsourcing of Business Activities, Functions and Processes.
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The contingency plan should include options that the prospective applicant would propose to pursue in the event it is unable to execute its business plan as well as the criteria that would be considered in implementing a particular option under the plan.
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Please see section 35.1 of the BA.
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Please see section 1 of the Regulations.
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Section 12.1 of the Canada Deposit Insurance Corporation Act provides that CDIC shall insure pre-existing deposits up to the amount that would have been guaranteed or insured under provincial law until the end of the term for pre-existing term deposits and for 180 days after continuance for pre-existing demand deposits.
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Review by OSFI of the draft Notice of Intent will ensure that the form and information contained in the Notice of Intent provides the necessary information to the public.
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The applicant should confirm that it has performed the requisite name use analysis. Please see section 2.9(b) of this Guide.
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Confirmation of authorization to apply for Letters Patent may take the form of an approval by the applicant’s regulator or a Minister in the jurisdiction where the applicant is incorporated, or any other form prescribed by the jurisdiction.
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The capital must meet OSFI’s Capital Adequacy Requirements (CAR) and Leverage Requirements. OSFI generally expects that the initial amount of capital will be sufficient, at all times, for the FCU to remain above its internal target risk-based capital ratios and remain above its authorized leverage ratio for the first two years of the FCU’s operations under the base case scenario. However, this expectation may extend out to three years in certain circumstances, including where an applicant proposes to add new line(s) of business other than deposit-taking.
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The financial year-end of an FCU may be either October 31st or December 31st (please see section 307 of the BA).
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Please see OSFI’s Corporate Governance Guideline.
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The OSFI Security Information Form(s) must be provided to OSFI in the following two formats: (a) a signed and dated original hard-copy, and (b) an electronic version in Excel format. Once OSFI receives the completed forms, they are then forwarded to the relevant Canadian law enforcement and intelligence agencies to carry out the requisite background and security assessments. Please note that the time required by law enforcement and intelligence agencies to complete these assessments is not within OSFI’s control, and the Superintendent will generally not seek the Minister’s approval in respect of the Letters Patent until these assessments are completed without issue. As such, applicants are strongly encouraged to remit the completed OSFI Security Information Form(s) at the earliest possible stage in the application.
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Please see section 315 of the BA.
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Please see OSFI Guideline B-6 - Liquidity Principles.
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The capital management policy should detail the internal targeted levels of capital and describe on-going monitoring procedures to ensure that the FCU will meet OSFI’s minimum capital requirements.
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The compensation policy is expected to be consistent with Financial Stability Board Principles for Sound Compensation.
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Please see OSFI Guideline E-21 – Operational Risk Management. OSFI generally expects operational risk management policies to include policies related to the following: outsourcing risk, business continuity and disaster recovery, privacy risk, information technology, information management and security, physical security, fraud risk and records retention. Please also see OSFI’s Supervisory Framework.
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In particular, an FCU’s business continuity plan should ensure that the FCU has in its possession or can readily access all records necessary to allow it to sustain business operations, meet its regulatory obligations, and provide all information as may be required by OSFI to meet its legislated mandate.
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Relevant financial institution and risk management expertise are key competencies for the Board. There should be reasonable representation of these skills at the Board and Board committee levels.
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The BA requires that the directors of the FCU establish audit and conduct review committees (please see subsection 157(2) of the BA).
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Please see OSFI’s Corporate Governance Guideline.
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The corporate governance practices adopted by an FCU will likely depend on the nature, scope, complexity, and risk profile of that institution.
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Please see OSFI Guideline E-13 - Regulatory Compliance Management (RCM).
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Please see OSFI Cyber-Security Self-Assessment Guidance.
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The proposed name can be reserved under the BA. Please see Index A No. 20 – Name Reservation for information requirements and administrative guidance in relation to name reservation applications.
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OSFI will accept a NUANS corporate name search report, which includes a list of business names and trademarks that sound similar to the name being proposed. If the FCU would conduct business in the Province of Québec, a search of the Québec Corporations Database at “Registraire des entreprises” is also required.
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If the FCU will use both an English and French form of the proposed name, a name search report and corresponding analysis must be provided in respect of both forms of that proposed name. Reference should also be made to OSFI Advisory 2002-01-R1 - Corporate Names, Registered Names and Trade Names.
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Please see section 25 of the BA.
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Please see footnote 31.
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The letter of commitment that the applicant is expected to sign will be provided by OSFI.
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Material changes to the business plan may include new product offerings, changes in management structure or growth of the business beyond what was contemplated in the initial business plan submitted in support of the application for Letters Patent.
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A wire transfer, cheque or draft should be made payable to the “Receiver General for Canada”.
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OSFI would normally schedule an on-site review of the applicant upon receipt of confirmation that the on-site review has been authorized by the jurisdiction of its incorporation or confirmation that no authorization is required by that jurisdiction.
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Please see section 38 of the BA for the effects of continuance on the FCU.
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Please note that subsection 53(2) of the BA provides that the Order is deemed to contain a condition that the FCU must, on an ongoing basis, be organized and carry on business on a cooperative basis in accordance with section 12.1 of the BA.
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Please see sections 37 and 56 of the BA.
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Please see section 37 of the BA.
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Please see subsections 33(3) and (4) of the BA.
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Please see subsection 33(5) of the BA.
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Please see section 224 of the BA.
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Please see section 225 of the BA.
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Please see subsection 34(4) of the BA.
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Please see subsection 228(2) of the BA.
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Please see subsection 34(1.1) of the BA.
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Please see section 27 of the BA.
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Please see subsection 48(3) of the BA.
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Please see section 12.1 of the BA.
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Please see section 39 of the BA.
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Please see section 39.01 of the BA.
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Please see section 39.02 of the BA.
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