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Canada’s financial consumer watchdog facing leadership limbo

The Financial Time with Laura Tamblyn Watts 11 June 2019

The Financial Consumer Agency of Canada appears to be without a leader despite a year-long search by the federal government for a replacement for the regulator’s outgoing commissioner.

Lucie Tedesco’s term at the helm of the FCAC — already extended twice past its original September 2018 expiry date — ended June 3.

Ottawa began seeking applications for the commissioner’s job last June as Tedesco’s initial five-year term drew nearer to its close. A link on the FCAC’s webpage to the posting for the now-vacant position was still up Tuesday, offering applicants a salary of $242,700 to $285,500 a year.

The position of deputy commissioner, which the commissioner generally fills, is also vacant.

An FCAC spokesperson said that, during the “period of vacancy in the Commissioner’s office,” an assistant commissioner is authorized to carry out their duties.

“The Government will announce when the next Commissioner is appointed,” the federal finance department said in a statement to the Financial Post on Tuesday.

No such announcement has been made. And the vacuum atop the agency — which is supposed to ensure that federally regulated financial institutions follow consumer-protection rules — comes as the FCAC is being granted new powers in the wake of its report on sales practices at Canada’s six biggest banks.

The March 2018 report found an aggressive retail culture at the banks, increasing the risk that customers would be sold unsuitable or unnecessary products. It did not find, however, “widespread mis-selling,” a finding welcomed by banks but irking some consumer advocates.

More than a year after the sales report, “the progress is virtually zero,” said Ken Kivenko, president of Kenmar Associates.

Kivenko also criticized the salary offered for the commissioner’s job, which he suggested would make it tough to attract “cracker-jack” candidates. There are, for instance, at least a handful of Ontario Securities Commission officials earning more than the FCAC commissioner’s maximum possible salary.

This year, though, promises to be an “important” one for the FCAC, the agency says.

According to its 2019-2020 business plan, the FCAC expects to add employees and office space. It is getting new powers as well, including the ability to order banks to refund wrongful charges. Publishing names of banks that break the rules will also become mandatory.

“The organization took seriously the issues of seniors, as well as other key groups, but on the whole has been quite muted in what they have been able to do,” said Laura Tamblyn Watts, chief public policy officer for CARP, the Canadian Association for Retired Persons.

Meantime, an FCAC spokesperson said the agency is bound to enforce the current laws, and to “use the tools at our disposal to enforce non-compliance by financial institutions.”

Its latest decision, dated January 2019 but published last week, found a bank “erroneously charged interest” to credit card holders from September 2010 to January 2017. In addition to refunding or planning to refund cardholders around $37,000, the bank was fined $75,000 by the FCAC and allowed by the commissioner to remain anonymous.

Legislation passed last year will increase the maximum fine the agency can levy against banks to $10 million from $500,000. The measure, however, is not in force yet.

A finance department spokesperson said implementation of new protection measures for bank customers require supporting regulations (on which it was consulting with consumer groups and industry) and “revisions” to the FCAC’s supervision framework.

Not everyone is satisfied with the changes. Kivenko said they recommended the fine limit be raised to $150 million, although, he added, $500,000 “was a joke.”

Tamblyn Watts said they’d like to see an even stronger FCAC mandate.

“I think that there’s now a new opportunity for a new commissioner to settle in with comfort and really look at how they can play an important role in consumer protection,” she added.

The FCAC also has a June 30 deadline for two key tasks: a review of how banks and external ombudsmen handle customer complaints, and creating a code of conduct for how financial institutions deal with seniors.

Both issues are likely to be watched closely by consumer advocates, particularly those unimpressed by the FCAC’s body of work — as will the future direction of the agency.

“Until they have a fundamental change in philosophy, the situation will not change,” said Stan Buell, president of the Small Investor Protection Association.

The situation was complicated recently by a Canadian Broadcasting Corp. story, based on documents provided to the network by public policy researcher Ken Rubin, which said the final sales practices report was “weakened” after early drafts were sent to government and banks. The FCAC told CBC it had sent banks a draft report for fact checking, and said the published version accurately reflected findings from the review.

“They need to have a national public inquiry, and hear from the people who are suffering from the way they’re operating now,” Buell said. “It’s not good enough to do like they did.”