Annual Review of Insolvency Law
bank resolution, financial institutions, insolvency, systemically important, financial services, banking
Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking and insolvency legislation to address its financial distress in a manner that safeguards the public interest, including continuity of the bank’s critical functions. Resolution can provide for an orderly winding-up of the bank or restructuring to restore the viability of all or part of the institution to allow it to continue operating, called open bank resolution. The Canadian regime uses “bridge banks” as a resolution tool, where part or all of the assets, liabilities and/or shares are transferred to a temporary entity until they can be sold to a private-sector third party. It also implements “bail-in”, which allows preferred shares and debt to be converted into equity, placing part of the burden of bank failure on shareholders and creditors of the bank, minimizing costs to taxpayers. Given that banks have a critical intermediary role in the economy, financial difficulties need to be resolved in an orderly and efficient manner, avoiding undue disruption to the bank’s activities and instability of the financial system. However, there remain important issues in the Canadian resolution system in respect of financial conglomerate insolvency, in terms of oversight and coordination.
Janis P Sarra, “A Bridge Over Troubled Waters - Resolving Bank Financial Distress in Canada” in Janis P Sarra & Barbara Romaine, eds, Annual Review of Insolvency Law 2017 (Toronto: Carswell, 2018) 255.